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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight an analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud

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Speaker 1: and on Bloomberg dot com slash podcast. Jeffrey Epstein will

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Speaker 1: remain behind bars while he awaits trial on sex trafficking charges.

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Speaker 1: Manhattan Federal Judge Richard Berman said this morning that prosecutors

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Speaker 1: had established that Epstein posed a flight risk, and that

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Speaker 1: was at the heart of his decision not to grant

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Speaker 1: him bail. Joining me as former federal prosecutor Robert Mints,

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Speaker 1: a partner McCarter and English Bob, Epstein asked to be

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Speaker 1: allowed to await trial at his Manhattan mansion, with electronic

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Speaker 1: monitoring and a private security team, and pledging his fortune

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Speaker 1: of at least five hundred million dollars as collateral. It

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Speaker 1: was expected that he wouldn't get home detention. But explain

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Speaker 1: why his case is different from say Bernie made Off

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Speaker 1: or Dominique strauss Khan, who got to stay in what

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Speaker 1: prosecutors referred to as a gilded cage. Well, it really

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Speaker 1: is a decision that is up to the discretion of

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Speaker 1: the judge. Tune. So different judges may view the same

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Speaker 1: facts and circumstances differently, and some may allow a defendant

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Speaker 1: to remain in home confinement leading up to trial. But

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Speaker 1: in this case, the facts here really checked off so

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Speaker 1: many of the boxes that would give a judge concern

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Speaker 1: about risk of flight and danger to the community that

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Speaker 1: it was not a surprise that Judge Berman did not

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Speaker 1: allow him out. The fact that he had so many

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Speaker 1: assets at his disposal, cash and diamonds, he had houses

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Speaker 1: all over the country but also internationally. Uh, and I

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Speaker 1: think the judge was concerned about the fact that there

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Speaker 1: was a false passport in his possession in the safe

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Speaker 1: when agents went in and rated his house. Those are

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Speaker 1: the kinds of things that will give any judge pause

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Speaker 1: before he would allow a defendant in a high profile

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Speaker 1: case like this to remain out on bail and under

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Speaker 1: those string in terms for home confinement. Also the danger

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Speaker 1: to alleged and potential victims. Two alleged victims testified during

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Speaker 1: Monday's bail hearing pleading with the judge not to grant

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Speaker 1: Epstein bail. That almost made it impossible, didn't it. For

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Speaker 1: the judge to grant bail here. That absolutely was a

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Speaker 1: major factor. While while prosecutors made the argument that Epstein

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Speaker 1: was an extreme flight risk, and they said he posed

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Speaker 1: an overwhelming risk of flight, it really seemed to be

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Speaker 1: the danger to the community pronged that the judge looked

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Speaker 1: at that really swayed his decision. In fact, he testified

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Speaker 1: the judge said today that it was at the heart

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Speaker 1: of his decision and he heard, as you said, from

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Speaker 1: those two alleged victims about the conduct that they alleged

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Speaker 1: Mr Epstein was engaged in. And the judge also knew about,

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Speaker 1: uh some evidence that Mr Epstein had wired threety dollars

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Speaker 1: to two potential witnesses, which also raised the question of

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Speaker 1: potential witness tampering. So all of that I think weighed

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Speaker 1: heavily on the judge on the danger to the community

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Speaker 1: prong here and also played a significant role in his

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Speaker 1: ultimate decision. So Epstein's lawyers can seek a review before

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Speaker 1: the Federal Appeals Court in Manhattan. But is that really

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Speaker 1: a waste of time and money? Not that Epstein cares

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Speaker 1: about the money aspect of it. Well, it's an important

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Speaker 1: issue because obviously the defendant does not want to remain

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Speaker 1: in jail leading up to his trial, and from the

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Speaker 1: standpoint of the defense lawyers, it is much more difficult

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Speaker 1: to prepare a client for trial when you have to

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Speaker 1: go to jail every time to meet with him rather

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Speaker 1: than to meet with him in his house or in

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Speaker 1: your office. So it's likely they will take that shot.

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Speaker 1: But on the other hand, this is a discretionary call.

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Speaker 1: It's something that is largely left to the judge at

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Speaker 1: the trial level, so it's highly unlikely that the appeals

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Speaker 1: will overturn Judge Burman's decision. Judge Berman isn't known to

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Speaker 1: be a fan of home detention for rich defendants. In

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Speaker 1: six there was a similar request for home detention for

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Speaker 1: a rich defendant, and he said it was unreasonable because

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Speaker 1: it helps to foster inequity and unequal treatment in favor

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Speaker 1: of a very small cohort of criminal defendants who are

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Speaker 1: extremely wealthy. But wealthy defendants have advantages at every stage

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Speaker 1: of a trial proceeding because they have so many resources,

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Speaker 1: so should a judge treat them differently at the bail stage. Well,

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Speaker 1: they are treated differently to the extent that one of

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Speaker 1: the issues and bail is risk of flight, and one

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Speaker 1: of the ways to rebut risk of flight is to

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Speaker 1: post significant assets that will be seized by the government

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Speaker 1: if you don't show up a trial. So almost by definition,

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Speaker 1: those with more assets to post have a better chance

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Speaker 1: of getting out of jail, but you're getting out of

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Speaker 1: jail pre trial leading up to the actual trial. But

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Speaker 1: as you pointed out, Tune, this particular judge see to

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Speaker 1: be concerned about what appears to be a two tiered

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Speaker 1: system of justice here because in that similar case you're

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Speaker 1: referring to, the judge said, that's that it's fostered inequity

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Speaker 1: and unequal treatment in favor of a very small group

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Speaker 1: of defendants, those who could not only post significant assets,

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Speaker 1: but also someone who could pay for twenty four hour security,

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Speaker 1: which really narrows that down to a very small group

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Speaker 1: of defendants. Bob Judge Berman said that his opinion would

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Speaker 1: be available fairly soon. It's going to be a thirty

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Speaker 1: to thirty four page opinion. Is that a normal length

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Speaker 1: or a usual length for a bail hearing. Well, it's

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Speaker 1: a little more involved than the usual bail hearing. But

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Speaker 1: there are a lot of issues here because there are

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Speaker 1: a lot of facts that relate to the potential flight

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Speaker 1: risk here has to do with all of his assets.

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Speaker 1: The judgment was apparently not particularly satisfied with the disclosure

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Speaker 1: made by the defendant, so I think there was some

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Speaker 1: concern that there may be other assets out there that

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Speaker 1: weren't disclosed. There were significant amounts of cash, there were diamonds.

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Speaker 1: There was the rate on his house which found uh

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Speaker 1: a lewd photographs of would appear to be underage girls,

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Speaker 1: which also concerned the judge. So there's a lot of

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Speaker 1: issues that I think the judge wants to be very

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Speaker 1: careful to make sure that his written opinion addresses each

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Speaker 1: and every one of those things, because he knows there's

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Speaker 1: a possibility that the defendants will take this up on appeal,

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Speaker 1: and he wants to create a very good record for

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Speaker 1: the appeals court to take a look at this issue.

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Speaker 1: Just about thirty seconds here. But is this a big

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Speaker 1: advantage for the prosecution. Absolutely. It would have been I

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Speaker 1: think a major setback to allow this defendant to remain

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Speaker 1: out on bail uh pending his trial only because the

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Speaker 1: expectation was so high that the judge would not release him.

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Speaker 1: So he would have given the prosecutors a shot at

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Speaker 1: the very beginning of the trial that favored the defense,

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Speaker 1: and that was not something that they wanted to start

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Speaker 1: off with and what's going to be a very contentious

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Speaker 1: and expensive trial. Thanks so much, Bob. That's Robert Mints.

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Speaker 1: He's a partner McCarter in English. Thanks for listening to

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Speaker 1: the Bloomberg Law Podcast. You can subscribe and listen to

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Speaker 1: the show on Apple Podcasts, SoundCloud, and on Bloomberg dot

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Speaker 1: com slash podcast. I am June Grosso. This is Bloomberg