Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight an analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud
Speaker 1: and on Bloomberg dot com slash podcast. Jeffrey Epstein will
Speaker 1: remain behind bars while he awaits trial on sex trafficking charges.
Speaker 1: Manhattan Federal Judge Richard Berman said this morning that prosecutors
Speaker 1: had established that Epstein posed a flight risk, and that
Speaker 1: was at the heart of his decision not to grant
Speaker 1: him bail. Joining me as former federal prosecutor Robert Mints,
Speaker 1: a partner McCarter and English Bob, Epstein asked to be
Speaker 1: allowed to await trial at his Manhattan mansion, with electronic
Speaker 1: monitoring and a private security team, and pledging his fortune
Speaker 1: of at least five hundred million dollars as collateral. It
Speaker 1: was expected that he wouldn't get home detention. But explain
Speaker 1: why his case is different from say Bernie made Off
Speaker 1: or Dominique strauss Khan, who got to stay in what
Speaker 1: prosecutors referred to as a gilded cage. Well, it really
Speaker 1: is a decision that is up to the discretion of
Speaker 1: the judge. Tune. So different judges may view the same
Speaker 1: facts and circumstances differently, and some may allow a defendant
Speaker 1: to remain in home confinement leading up to trial. But
Speaker 1: in this case, the facts here really checked off so
Speaker 1: many of the boxes that would give a judge concern
Speaker 1: about risk of flight and danger to the community that
Speaker 1: it was not a surprise that Judge Berman did not
Speaker 1: allow him out. The fact that he had so many
Speaker 1: assets at his disposal, cash and diamonds, he had houses
Speaker 1: all over the country but also internationally. Uh, and I
Speaker 1: think the judge was concerned about the fact that there
Speaker 1: was a false passport in his possession in the safe
Speaker 1: when agents went in and rated his house. Those are
Speaker 1: the kinds of things that will give any judge pause
Speaker 1: before he would allow a defendant in a high profile
Speaker 1: case like this to remain out on bail and under
Speaker 1: those string in terms for home confinement. Also the danger
Speaker 1: to alleged and potential victims. Two alleged victims testified during
Speaker 1: Monday's bail hearing pleading with the judge not to grant
Speaker 1: Epstein bail. That almost made it impossible, didn't it. For
Speaker 1: the judge to grant bail here. That absolutely was a
Speaker 1: major factor. While while prosecutors made the argument that Epstein
Speaker 1: was an extreme flight risk, and they said he posed
Speaker 1: an overwhelming risk of flight, it really seemed to be
Speaker 1: the danger to the community pronged that the judge looked
Speaker 1: at that really swayed his decision. In fact, he testified
Speaker 1: the judge said today that it was at the heart
Speaker 1: of his decision and he heard, as you said, from
Speaker 1: those two alleged victims about the conduct that they alleged
Speaker 1: Mr Epstein was engaged in. And the judge also knew about,
Speaker 1: uh some evidence that Mr Epstein had wired threety dollars
Speaker 1: to two potential witnesses, which also raised the question of
Speaker 1: potential witness tampering. So all of that I think weighed
Speaker 1: heavily on the judge on the danger to the community
Speaker 1: prong here and also played a significant role in his
Speaker 1: ultimate decision. So Epstein's lawyers can seek a review before
Speaker 1: the Federal Appeals Court in Manhattan. But is that really
Speaker 1: a waste of time and money? Not that Epstein cares
Speaker 1: about the money aspect of it. Well, it's an important
Speaker 1: issue because obviously the defendant does not want to remain
Speaker 1: in jail leading up to his trial, and from the
Speaker 1: standpoint of the defense lawyers, it is much more difficult
Speaker 1: to prepare a client for trial when you have to
Speaker 1: go to jail every time to meet with him rather
Speaker 1: than to meet with him in his house or in
Speaker 1: your office. So it's likely they will take that shot.
Speaker 1: But on the other hand, this is a discretionary call.
Speaker 1: It's something that is largely left to the judge at
Speaker 1: the trial level, so it's highly unlikely that the appeals
Speaker 1: will overturn Judge Burman's decision. Judge Berman isn't known to
Speaker 1: be a fan of home detention for rich defendants. In
Speaker 1: six there was a similar request for home detention for
Speaker 1: a rich defendant, and he said it was unreasonable because
Speaker 1: it helps to foster inequity and unequal treatment in favor
Speaker 1: of a very small cohort of criminal defendants who are
Speaker 1: extremely wealthy. But wealthy defendants have advantages at every stage
Speaker 1: of a trial proceeding because they have so many resources,
Speaker 1: so should a judge treat them differently at the bail stage. Well,
Speaker 1: they are treated differently to the extent that one of
Speaker 1: the issues and bail is risk of flight, and one
Speaker 1: of the ways to rebut risk of flight is to
Speaker 1: post significant assets that will be seized by the government
Speaker 1: if you don't show up a trial. So almost by definition,
Speaker 1: those with more assets to post have a better chance
Speaker 1: of getting out of jail, but you're getting out of
Speaker 1: jail pre trial leading up to the actual trial. But
Speaker 1: as you pointed out, Tune, this particular judge see to
Speaker 1: be concerned about what appears to be a two tiered
Speaker 1: system of justice here because in that similar case you're
Speaker 1: referring to, the judge said, that's that it's fostered inequity
Speaker 1: and unequal treatment in favor of a very small group
Speaker 1: of defendants, those who could not only post significant assets,
Speaker 1: but also someone who could pay for twenty four hour security,
Speaker 1: which really narrows that down to a very small group
Speaker 1: of defendants. Bob Judge Berman said that his opinion would
Speaker 1: be available fairly soon. It's going to be a thirty
Speaker 1: to thirty four page opinion. Is that a normal length
Speaker 1: or a usual length for a bail hearing. Well, it's
Speaker 1: a little more involved than the usual bail hearing. But
Speaker 1: there are a lot of issues here because there are
Speaker 1: a lot of facts that relate to the potential flight
Speaker 1: risk here has to do with all of his assets.
Speaker 1: The judgment was apparently not particularly satisfied with the disclosure
Speaker 1: made by the defendant, so I think there was some
Speaker 1: concern that there may be other assets out there that
Speaker 1: weren't disclosed. There were significant amounts of cash, there were diamonds.
Speaker 1: There was the rate on his house which found uh
Speaker 1: a lewd photographs of would appear to be underage girls,
Speaker 1: which also concerned the judge. So there's a lot of
Speaker 1: issues that I think the judge wants to be very
Speaker 1: careful to make sure that his written opinion addresses each
Speaker 1: and every one of those things, because he knows there's
Speaker 1: a possibility that the defendants will take this up on appeal,
Speaker 1: and he wants to create a very good record for
Speaker 1: the appeals court to take a look at this issue.
Speaker 1: Just about thirty seconds here. But is this a big
Speaker 1: advantage for the prosecution. Absolutely. It would have been I
Speaker 1: think a major setback to allow this defendant to remain
Speaker 1: out on bail uh pending his trial only because the
Speaker 1: expectation was so high that the judge would not release him.
Speaker 1: So he would have given the prosecutors a shot at
Speaker 1: the very beginning of the trial that favored the defense,
Speaker 1: and that was not something that they wanted to start
Speaker 1: off with and what's going to be a very contentious
Speaker 1: and expensive trial. Thanks so much, Bob. That's Robert Mints.
Speaker 1: He's a partner McCarter in English. Thanks for listening to
Speaker 1: the Bloomberg Law Podcast. You can subscribe and listen to
Speaker 1: the show on Apple Podcasts, SoundCloud, and on Bloomberg dot
Speaker 1: com slash podcast. I am June Grosso. This is Bloomberg