In a recent opinion piece, Professor Bruce Green and Rebecca Roiphe claim that Judge Richard Berman's decision to allow victims to speak at a hearing regarding dismissing charges against Jeffrey Epstein "distorts" the criminal justice process for purposes of "drama." See "The Judge in Epstein's Case Should Not Turn the Dismissal into a Drama for the Victims," Aug. 26, 2019.

The professors fail to cite even a single legal authority in their article. More important, assessed against the relevant governing legal principles, the judge's decision properly reflects the new architecture of our federal criminal justice system, in which crime victims' voices must be heard throughout the process.

Following Epstein's recent death by apparent suicide, the U.S. Attorney's Office for the Southern District of New York moved to dismiss the indictment against him. While Professors Green and Roiphe seemingly view that motion as one that a judge must automatically grant, in fact, the relevant rule of federal criminal procedure—Rule 48(a)—specifically provides that any dismissal can only be with "with leave of court."

The clear purpose of the rule's leave-of-court requirement is to allow the court to make its own, independent determination of whether dismissal is appropriate, as numerous cases have held. See, e.g., In re Richards, 213 F.3d 773, 787-89 (3d Cir. 2000). And in making that independent determination, a judge is required to consider the "public interest," United States v. Romero, 360 F.3d 1248, 1251 (10th Cir. 2004)—a sweeping standard that easily embraces consideration of crime victims' interests.

During yesterday's hearing on the motion to dismiss, Judge Berman heard from prosecutors and defense attorneys. So far as we can determine, Professors Green and Roiphe do not object to the judge receiving this information from the parties as part of his own evaluation as to how he should proceed on the pending motion to dismiss. But while hearing from the prosecutors and defense might have been the extent of input in an earlier era, our federal criminal justice procedures now demand more.

In today's federal criminal justice system, crime victims have rights throughout the process. Perhaps most broadly, under the Crime Victims' Rights Act, a crime victim has the sweeping right "to be treated with fairness and with respect for [her] dignity and privacy." 18 U.S.C. §3771(a)(8). And a victim has the right to be heard at appropriate points in the process. 18 U.S.C. §3771(a)(4). Judge Berman wisely recognized all these interests in allowing not only prosecutors and defense attorneys to be heard, but also Epstein's victims. And, presumably recognizing these facts, neither the prosecutors nor defense counsel raised any objection to Judge Berman allowing victims to speak.

During yesterday's court hearing, Judge Berman cited a previous court decision on this very point–a decision written by one of us (Cassell) more than a decade ago. In that case, federal prosecutors moved to dismiss a child sex abuse charge. In concluding that the victim's views should be considered on the dismissal issue, United States v. Heaton, 458 F.Supp.2d 1271 (D. Utah 2006) explained that "[w]hen the government files a motion to dismiss criminal charges that involve a specific victim, the only way to protect the victim's right to be treated fairly and with respect for her dignity is to consider the victim's views on the dismissal. It is hard to begin to understand how a victim would be treated with fairness if the court acted precipitously to approve dismissal of a case without even troubling to consider the victim's views."

Indeed, if a judge was ever going to hear from victims at a dismissal hearing, this case cried out to be the one. The federal government and Epstein's lawyers have previously deprived some of Epstein's victims of their right to be heard in court regarding his crimes. The prosecution in the Southern District of New York arises against the backdrop of any earlier federal investigation into Epstein's federal sex trafficking crimes by prosecutors in the Southern District of Florida.

As is widely known, in 2008 Florida federal prosecutors and Epstein's defense counsel reached a secret non-prosecution agreement (NPA), blocking the federal prosecution of Epstein and his potential co-conspirators for federal crimes committed them. Because that deal was illegally kept secret, Epstein's victims were denied their day in court then.

As federal judge Kenneth Marra ruled in February of this year, federal prosecutors in Florida—acting at the behest of Epstein's counsel—violated the Crime Victims' Rights Act in 2008 by making a deliberate "decision to conceal the existence of the NPA and mislead the victims to believe that federal prosecution was still a possibility." Jane Doe 1 et al. v. United States, 359 F.Supp.2d 1201 (S.D. Fla. 2019). Epstein's Florida victims should have been heard in court back in 2008. The current indictment filed by the New York prosecutors specifically references Florida victims. Allowing some of them to be heard in New York in 2019 is but one small restorative measure of justice.

Against all these reasons weighing in favor of allowing victims to speak, Professors Green and Roiphe struggle to articulate any countervailing concern. The article seems to be written from the standpoint that victims deserve to be seen—but not heard—in criminal proceedings, an outdated perspective that has been effectively rejected through ever-expanding crimes victims' rights enactments being adopted throughout the country. Congress and state legislatures now agree that giving crime victims effective and enforceable rights in the criminal justice process only enhances public confidence in the criminal justice system—in contrast to allowing secret deals by prosecutors and defense attorneys to dictate outcomes.

At one point, Green and Roiphe suggest that the only reason for allowing victims to speak was to somehow create a "drama for victims." But at another point, they acknowledge that giving Epstein's victims their day in court could lead to a "collective catharsis." Indeed, during yesterday's hearing, victim after victim made clear that the very act of speaking in court was empowering—potentially an initial step on the road toward healing for the crimes Epstein committed against them. The law did not demand that Judge Berman ignore this obvious fact and deprive victims of the potential therapeutic benefits of speaking to him.

Green and Roiphe also contend that the hearing was an "odd moment for transparency," noting that dismissal of the criminal charges was something of a foregone conclusion. But a better way of viewing the appropriateness of the hearing was as the last time in which there could be some small measure of transparency about Epstein's criminal prosecution.

A patent but rarely articulated point is that Epstein, through his apparent suicide, thwarted the orderly processing of the criminal charges against him. In the normal course of a criminal case, his victims would have been heard in open court, either as witnesses in the criminal trial or (if Epstein pled guilty) through victim impact statements at sentencing. Indeed, just two days before his death, Epstein took another step designed to thwart justice, moving his assets into a protective trust in an effort to prevent civil justice for his victims. Against this backdrop of Epstein's wrongdoing, allowing his victims to speak was not dramatic theater but rather a critical part of transparent and public justice.

Paul Cassell is a former federal judge for the District of Utah and the Ronald N. Boyce Presidential Professor of Criminal Law at the S.J. Quinney College of Law at the University of Utah. Bradley J. Edwards is a founder of the law firm of Edwards & Pottinger. Together they represent several victims of Jeffrey Epstein in various cases, including the Florida and New York criminal cases discussed here.