By JAMES HILL, ABC News
(NEW YORK) -- Attorneys for an alleged victim of deceased sex offender Jeffrey Epstein contend in a new court filing that the U.S. Department of Justice failed to turn over significant documents related to Epstein's controversial 2007 deal with federal prosecutors and concealed the existence of a nearly year-long "data gap" in the email inbox of Alexander Acosta, the former U.S. Attorney in Miami who approved the deal.
"I think it calls into doubt everything that we've been told about the case from the Justice Department," said Paul Cassell, an attorney for alleged victim Courtney Wild, who sued the DOJ in 2008 over Epstein's once-secret deal. "We've been told that they have all the information, that everything was fine. But now it turns out they've never had all the information."
The new court filing comes in advance of a crucial court hearing in Wild's case and on the heels of the release last week of a 350-page report on the Epstein deal by the Justice Department's Office of Professional Responsibility (OPR), which spent more than a year reviewing the actions of Acosta and the four former prosecutors most directly involved in the negotiations.
The review, which determined that Acosta exhibited "poor judgment" in his handling of the Epstein deal, relied substantially on internal government emails as well as communications between the prosecutors and Epstein's team of high-profile lawyers to reach its conclusion. But the details concerning the missing Acosta emails were relegated to a brief section of an appendix to the report. The gap, which did not affect Acosta's sent mail, was determined by OPR to be most likely due to a "technological error," and the OPR reviewers found no evidence that there had been any intentional deletion of emails, according to the report.
The email gap coincides with a critical period from May 2007 -- when the lead prosecutor prepared a 53-page draft indictment of Epstein -- to April 2008, shortly before Epstein entered a guilty plea in state court that ended the federal investigation. It was during this time frame that Epstein's defense attorneys were mounting an aggressive lobbying effort to persuade Acosta and his deputies to shelve the indictment and close the federal case.
"The gap seems to have surgically struck on exactly the time period when most of the big decisions were being made," Cassell said. "I was stunned because you would think if there was ever a case where the Justice Department would have been very careful to make sure they had complete records and things weren't missing, this would be the one."
After the OPR report was made public, Cassell said that he and his co-counsel Brad Edwards began digging through their case files and discovered that some emails between the prosecutors and Epstein's lawyers that were cited in the report had apparently not been produced to them in Wild's case, even though a court ordered the government to turn all those communications over to them in 2013.
"In just a few minutes' time, I identified several 'external' emails that appear to have been available to OPR but inexplicably never made available to Ms. Wild," Edwards wrote in an affidavit submitted to the court on Monday.
Among the records Edwards contends the government may have improperly withheld were messages between a federal prosecutor and an Epstein attorney who was contesting a requirement that Epstein register as a sex offender, and exchanges about a government subpoena seeking to obtain computers that had been removed from Epstein's Palm Beach home prior to the execution of a search warrant by local police. Epstein's lawyers contested the subpoena, and it was eventually withdrawn as a condition of Epstein's deal.
"So far as we can determine in our records, this correspondence has not been produced to us. This correspondence is significant because, had the efforts to obtain the computer continued, it is likely that the [prosecutors] would have obtained ironclad forensic evidence to charge Epstein with child pornography crimes," Edwards wrote.
Epstein's deal with the federal government allowed him to avoid an indictment that could have charged him with substantial crimes against 19 alleged victims. He faced a potential sentence between 14 and 17 years if convicted, according to the OPR report. Instead, he pleaded guilty to two prostitution-related crimes in state court and served 13 months of an 18-month sentence in county jail, much of it on a liberal work release program, and the federal case was closed.
Wild's lawsuit against the DOJ alleges that Epstein's non-prosecution agreement, which also conferred immunity on any potential co-conspirators, was reached in violation of the Crime Victims' Rights Act, which requires the federal government to confer with victims, keep them informed and to treat them with fairness and dignity.
After many years of litigation, the Justice Department acknowledged that it did not inform Wild or any of the victims about the deal before it was done. But the government argues that the law did not require the victims to be notified because no federal charges were filed.
In February 2019, a federal judge in West Palm Beach ruled in Wild's favor, deciding that the government had violated the law by not conferring with Wild and other alleged victims before they made the deal. But before the judge could determine if Epstein's deal should be torn up, Epstein was arrested again in New York and then died in prison. The case was dismissed but she has appealed the decision.
Early next month, Wild's case is scheduled for oral argument before the 11th Circuit Court of Appeals. Her lawyers are now urging the court to consider the newly discovered information about Acosta's missing emails and to order the government to turn over the allegedly undisclosed records and all the materials the OPR considered for its report.
"Unfortunately, [the appeals court judges] don't have in front of them right now all of the information about the case. A lot of new information came out last week when the Justice Department finally released its internal emails and other information. And we want all of that information in front of the judges when they make a ruling," Cassell said.
According to Cassell's filing, the government has indicated that it opposes his requests.
Following the release of the OPR review, an attorney for Acosta, Gordon Todd, released a statement contending that the report "fully debunks allegations" that Acosta "improperly cut Epstein a 'sweetheart deal' or purposefully avoided investigating potential wrongdoing by various prominent individuals."
"OPR's investigation confirmed the evidentiary and legal challenges that would have faced any attempted federal prosecution of Epstein based on information available at the time," Todd wrote.
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By JAMES HILL, ABC News