EFTA01681858.pdf

LAW OFFICES OF ,sziehh, Sebtanas gliCine-go; ARTHUR L. AJDALA' 8118 • 13" MENUE 546 FIFTH MULE MARIANNE E BERTON/4' BROCKLN, FEW YORK 112211 HON. BARRY KAMINS (PET.) NEW YORK. IC( 10036 TEL: (718) 238.9896 HON. JOHN ht LEVENTHAL (PET.) FM: (718) 9215292 TELEPHONE: (212) 486-0011 JOHN & ESPOSITO' ISCHAEL T. JACCARINO FACSIMILE (917) 261-4832 OF COUNSEL MON N. ANSARI JOSEPH A. BARATTA WIVIN.ACALALAW.CCOA DANA FAO SAMSON" ANTE/ITEM LASTER' ANDREA M. ARRIGO' WILLIAM R. SAW0 LINO J. OE MASI PETER S. THOMAS MICHAEL F. DIBENEDETTO' LAWRENCE SPASOJEVICH TAYLOR M. FREEMAN+ SENIOR COUNSEL LOVES R. AIDALA 'ALSO/WARTED IN NEW JERSEY JOSEPH P. BARATTA "ALSO ADMIRED N CONNECTCLIT +ALSO ADMIRED IN TIXAS June 16, 2022 VIA E-MAIL: Office of the United States Attorney Southern District of New York One Saint Andrews Plaza New York, NY 10007 Ann: AUSAs Re: United States v. Maxwell Dear Counsel: We are attorneys for Alan Dershowitz ("Professor Dershowitz") in the civil matter of v. Alan Dershowitz endin before Hon. Loretta Preska in the Southern District of New York. lack of credibility, and actual conduct in recruiting young girls for Jeffrey Epstein, are critical issues in the above-mentioned litigation. We write to notify you that gave approximately nine hours of deposition testimony across the span of two days on April 13th and 14th, 2022, in Washington, D.C. Her lawyers have designated the entire transcript to date as confidential under the applicable protective order. Our efforts to have the transcripts unsealed and made public have been denied by Judge Preska. Also denied was our request to provide the transcript to your office so that you could determine, on an informed basis, whether it would be appropriate or ethical for you to allow o give a victim impact statement during the sentencing phase of the Ghislaine Maxwell trial and therein vouch in that proceeding for her credibility. Both the Court, and counsel, have made clear that they agree that we may notify you of the existence of the transcripts so that you can have the opportunity to review her testimony before she is allowed to provide a victim impact statement at the upcoming sentencing of Ghislaine Maxwell. We urge you, respectfully, to require her to produce it to you for your EFTA01681858  review and careful consideration before permitting her to make a victim impact statement. In furtherance of this request, we enclose for your consideration a letter from Professor Bruce Green regarding the ethical considerations applicable to this matter. Please let me know if ou have any questions or would like to discuss this matter further. We are copying counsel here to help facilitate your request for her transcripts. Yours, etc. Imran H. Ansari Arthur L. Aidala Barry Kamins John M. Leventhal end: Bruce Green Letter cc: Todd & Weld, LLP Attorneysfor Alan Dershowitz Howard M. Cooper Christian G. Kiely Kristine C. Oren - 2 - AIDALA, BERTUNA 8 KAMINS. P.C. • 546 FIFTH AVENUE. NEW YORK, NY, 10038 • T• 212.466-0011 • F: 917-201.4832 • WWW.A1DNALAW.COM EFTA01681859  LAW OFFICES OF cgedentas tiotagot, ARTHUR L. AIDALR 8118 • 13" AVENUE MARIANNE E EIERTUNK 646 FIFTI AVENUE BROOKLN, NEW YORK 11228 HON SAPPY KAMINS (PET.) NEW Via NY 10036 T&: (718) 7A8-9898 HON. JOHN M. LEVENTHAL (RET.) FM: (718) EQ1-3292 TELEPHONE (212) 486-0011 JOHN S. ESPOSITO' MICHAEL T. JACCARINO FACSIMILE. (917) 261-4832 OF COUNSEL I1/RAN H. MS FU JOSEPH A. BARATTA WWW PJDALALAW COM DMA FMB SAMSON" ANTOINETTE LANTER1 ANDREA M ARRIGO' VALUAM R. SANTO UNO J. OE MASI PETER S. THOMAS MICHAEL F. DIOENEDETTO• LAWRENCE SPASOJEVICH TAYLOR M. FRIECWAN. SENIOR COUNSEL LOUIS R AIDALA •MS0 ADMIRED Pi NEW /MET JOSEPH P. BARATTA "ALSO AMMO N CONNECTICUT .ALSO AMMO IN RYAS June 16,2022 VIA E-MAIL: Office of the United States Attorney Southern District of New York One Saint Andrews Plaza New York, NY 10007 Attn: AUSAs Re: United States v. Maxwell Dear Counsel: ttorneys for Alan Dershowitz ("Professor Dershowitz") in the civil matter of v. Alan Dershowitz endin before Hon. Loretta Preska in the Southern District of New York. lack of credibility, and actual conduct in recruiting young girls for Jeffrey Epstein, are critical issues in the above-mentioned litigation. We write to notify you that gave approximately nine hours of deposition testimony across the span of two days on April 13th and 14th, 2022, in Washington, D.C. Her lawyers have designated the entire transcript to date as confidential under the applicable protective order. Our efforts to have the transcripts unsealed and made public have been denied by Judge Preska. Also denied was our request to provide the transcript to your office so that you could determine, on an informed basis, whether it would be appropriate or ethical for you to allow• o give a victim impact statement during the sentencing phase of the Ghislaine Maxwell trial and therein vouch in that proceeding for her credibility. Both the Court, and counsel, have made clear that they agree that we may notify you of the existence of the transcripts so that you can have the opportunity to review her testimony before she is allowed to provide a victim impact statement at the upcoming sentencing of Ghislaine Maxwell. We urge you, respectfully, to require her to produce it to you for your EFTA01681860  review and careful consideration before permitting her to make a victim impact statement. In furtherance of this request, we enclose for your consideration a letter from Professor Bruce Green regarding the ethical considerations applicable to this matter. Please let me know if ou have any questions or would like to discuss this matter further. We are copying ounsel here to help facilitate your request for her transcripts. Yours, etc. Imran H. Ansari Arthur L. Aidala Barry Kamins John M. Leventhal end: Bruce Green Letter cc: Todd & Weld, LLP Attorneys for Alan Dershowitz Howard M. Cooper Christian G. Kiely Kristine C. Oren - 2 - AIDALA. BERTUNA 8 KAMINS. P.C. • 546 FIFTH AVENUE, NEW YORK, NY, 10036 • T 212.486.0011 • F: 917-261-4832 • WWW.AIDALALAW.COM EFTA01681861  Email June 7, 2022 Office of the United States Attorney for the Southern District of New York One Saint Andrews Plaza New York, NY 10007 Attn: AUSAs Re: United States v. Maxwell Dear Counsel: I have been retained on behalf of Professor Alan Dershowitz to provide my opinions as a legal ethics expert regarding prosecutors' candor obligations relating to submissions at Ghislaine Maxwell's upcoming sentencing. The relevant facts, provided for my consideration, are, in brief, as follows. Although was not a witness at Ms. Maxwell's trial, she has been notified of her right to make a victim's impact statement in connection with Ms. Maxwell's sentencing. She may submit a written statement or testify at the hearing. The presentence report may incorporate her submission, the prosecution might refer to it, and even if not, the District Judge might rely on it in imposing Professor Dershowitz has informed the U.S. Attorney's Office ("Office") that'. recent civil de sition testimony in their pending case before District Judge Preska establishes serious lack of credibility with respect to the Epstein-Maxwell matter and would cast doubt on the reliability of her submission at the upcoming sentencing. Professor Dershowitz has further advised that although the deposition transcript is sealed, it is available for the Government's review before the sentencing. I have been asked whether, under these circumstances, the Office has a professional responsibility to review the transcript and, if it agrees that statement lacks credibility, to so advise the Court. My qualifications to render an expert opinion on questions of prosecutorial ethics such as this one are set forth more fully in my curriculum vitae, which is available here: httns://www.fordham.edu/download/downloads/id/1503/bruce zreen.cdf. I assume my qualifications would not be disputed, given that I provided advice to the Office in the 1980s when I served as Deputy Chief and Chief Appellate Attorney and have done so more recently as a consultant on legal ethics questions. Of particular significance, for the past three decades I have taught a seminar on Ethics in Criminal Advocacy using self-produced course materials that I regularly update; I have written extensively on prosecutors' ethics, including on questions of prosecutors' candor to the court (see Bruce A. Green, Candor in Criminal Advocacy, 44 HOFSTRA L. REv. 429 (2016)); and as a member and chair of the ABA Criminal Justice Standards 1 EFTA01681862 Committee, I oversaw the drafting of the current version of the Prosecution Function Standards and participated in drafting and discussing prosecutors' candor obligations in particular. In general, as "ministers of justice," prosecutors have more demanding candor obligations than other lawyers. Prosecution Function Standards, Standard 3-1.4(a) states: "In light of the prosecutor's public responsibilities, broad authority and discretion, the prosecutor has a heightened duty of candor to the courts . ..." Prosecutors' candor obligations are not fully incorporated in the professional conduct rules or in courts' sanctions decisions. To a significant extent, courts expect candor from prosecutors regardless of whether the expectations are fully incorporated in enforceable law or whether a lack of candor is sanctionable. In rendering this opinion, I address what courts should expect of prosecutors as "ministers of justice" — expectations that are not fully codified in professional conduct rules and sanctions decisions. If the Government were to call s its witness in connection with the sentencing, then it would have the ordinary obligationfirst to satisfy itself of the truthfulness of her testimony and then to disclose impeachment material. See, e.g., NY Rules of Professional Conduct, Rule 3.8(b); ABA Prosecution Function Standards, Standard 3-1.4(b) ('The prosecutor should not make a statement of fact or law, or offer evidence, that the prosecutor does not reasonably believe to be true . . ..") it, Standard 3-5.4(c) ("a prosecutor should make timely disclosure to the defense of information [that tends to impeach the government's witnesses] that is known to the prosecutor, regardless of whether the prosecutor believes it is likely to change the result of the proceeding."). I assume that the Government does not intend to make its witness, and that insofar as anakes a presentation to the court, she will do so pursuant to her statutory right as a putative victim. Even if so, in m *udgment, equivalent candor obligations arise if the Government were to rely on statement in its submissions to the court, thereby essentially making her its witness. Before asking the court to credit information, the Government should consider available evidence bearing on to her credibility, including deposition testimony that, it has been told, raises serious uestions concerning the credibility of her relevant testimony. The prosecutors should not rely on ormation unless, in the language of Standard 3-1.4(b), they "reasonably believe it to true." Their belief in reliability would not be reasonable unless they consider readily available information that, they have been told, discredits her and, given the totality of the circumstances, reasonably find her account truthful. Finally, even assuming the Government does not intend to advance or rely on statement or testimony, its duty of candor to the court may be implicated, because prosecutors bear some responsibility to protect the sentencing court from relying on false information. As I have previously written: "Since the judge has no independent investigative authority, the sentencing judge must rely in large part on the prosecution for the relevant facts about the offense. If any lawyer must make full and frank disclosure of factual matters relevant to the sentencing court's decision-making, it is surely the prosecutor." Green, Candor in Criminal Advocacy, supra, at 446; cf. United States v. E.V., 500 F.3d 747, 754 n.12 (81° Cir. 2007) (referring to 'prosecutors' obligation to apprise the court of facts relevant to sentencing"). Consequently, the Office cannot consciously disregard deposition testimony bearing on the credibility of her submission to the court; further, if the Office concludes that asubmission is unreliable, 2 EFTA01681863 it has a candor obligation to raise this concern with the court, to protect it from relying on false information. I would be happy to discuss my opinion with the Office, if doing so might assist its consideration. Very truly yours, Bruce A. Green 3 EFTA01681864