Paul Cassell on the Rights of Corporate Crime Victims

Paul Cassell is a former federal judge.

He’s a professor of law at the University of Utah College of Law.

Paul Cassell

And he’s an advocate for victims’ rights.

Including the rights of victims of corporate crimes.

Cassell sees powerful corporate and individual criminals getting special treatment in the federal system.

They get deferred and non prosecution agreements that regular people don’t get.

And prosecutors and defense counsel often team up to deny victims of corporate crime their rights under the Crime Victims’s Rights Act (CVRA).

How would you describe the politics of crime victims’ law?

“People nowadays want to view everything through a political lens – is this a red issue or a blue issue?” Cassell told Corporate Crime Reporter in an interview last week. “What kind of an issue is it?”

“It’s a non partisan issue. That truly is the case with crime victims’ rights. These cases generally cannot be pigeonholed into being apart of some kind of conservative agenda or liberal agenda. That’s why I’ve been so excited about being involved with it.” 

“So many of our debates these days are – which way is your knee jerking? Is that your left knee jerking or your right knee jerking?” 

“When I teach my crime victims’ rights class, I tell my students – you are probably not going to know which way your knee is supposed to jerk in here.” 

“If you are saying we want to protect domestic violence victims, is that a right wing law and order initiative? Or is that a progressive agenda to make sure battered women are appropriately protected? Or as I think it is – probably a little bit of both and probably good public policy.”

What number of your cases deal with corporate crime victims as opposed to street crime victims?

“My practice is a low volume high stakes practice. Because of my limited resources, I cannot take a large number of cases. There are crime victims’ rights clinics around the country. I’m very proud of our excellent clinic in Utah run by one of my former law students Heidi Nestel.”

“I try to identify cases that are going to be precedent setting.” 

“For example, for the last twelve years, along with my friend Brad Edwards down in Florida, I have been representing victims of the Jeffrey Epstein sex trafficking conspiracy trying to protect their rights.”

“I have also been involved in some corporate cases, including a couple of cases in the Fifth Circuit involving oil companies that had committed environmental or similar types of crimes.”

We reported a story this week about the deferred prosecution in the Boeing case. 

Michael Stumo, father of Samya Rose Stumo, 24, who was killed in the Ethiopian crash said this: 

“Families previously contacted the Department of Justice requesting input into their prosecution under the Crime Victims’ Rights Act but we were rebuffed.”

Is there any way the families could intervene in this kind of case?

“The first issue is this: in federal court, do federal crime victims’ rights apply before criminal charges have been filed? Frequently, in these corporate contexts the prosecutors and the battery of attorneys for the company sit down and negotiate things before any charges have been filed.” 

“In my view, the Crime Victims’ Rights Act does apply pre-charging. I’ve been litigating that issue now for twelve years in the Jeffrey Epstein case in the Southern District of Florida.”

“In about 2010, the district court judge in that case ruled that the Crime Victims’ Rights Act does apply pre-charging at least to the point where prosecutors have investigated the case and have narrowed things down to negotiating with defense attorneys about the resolution of specifically identified crimes.” 

“But then in 2019, the issue went to the Eleventh Circuit and they reversed the district court judge’s ruling and said in a two-to-one decision that the Crime Victims’ Rights Act does not apply until charges have been filed. Judge Hull wrote a 60-page dissent, which I found very persuasive and perhaps some of his colleagues did as well because the Eleventh Circuit, in August 2020, agreed to rehear the issue of the pre-charging application of the Crime Victim Rights’ Act. And in December of 2020, I argued that issue to the Eleventh Circuit en banc. And now for the last month or so the matter has been under advisement.”

“We should learn shortly whether the Eleventh Circuit has determined that the Crime Victim Rights’ Act applies pre-charging.”

“That case arose in 2008. Along the way, in 2015, Congress amended the CVRA. Senator Dianne Feinstein with the help of her Republican colleagues amended the CVRA to give victims the right to be heard with regard to any deferred prosecution agreement. That was a signal from Congress that they certainly wanted victims to be involved in the pre-charging phase of crime victims’ rights, a signal by the way that they had clearly given back in 2004, when they first adopted the CVRA.”

Congress amended the law so that victims have rights prior to the parties agreeing to a deferred prosecution agreement?

“The CVRA had eight specific rights for crime victims. In 2015, Congress added a ninth and tenth right. The ninth right was a right for victims to receive timely information about a deferred prosecution agreement. That language was added with the Epstein kind of case in mind. Congress also added a tenth right, which gave victims a right to notice of all of their rights under the Victims’ Rights and Restitution Act.” 

“The logical inference was that with these ninth and tenth rights, Congress was clearly indicating that the law applies pre-charging. But to be absolutely clear, because I’m litigating this issue in the Eleventh Circuit, I don’t think you need to look at those new actions taken by Congress in 2015. I think it was clear that the CVRA applied pre-charging well before then.”

“And one illustration of that is that in 2005, Senator John Kyl, an architect of the CVRA, wrote a law review article stating very clearly that the CVRA was designed to apply pre-charging.”

“Back to your question – could the family members harmed by Boeing reasonably be arguing that they had a right to be involved in the negotiations and to receive information and express their views to the government even before charges are filed? I think the answer to that is clearly yes. And that is clearly what Congress intended when it passed the CVRA.”

“Let me be clear. I’m not saying the victims would have a veto over whatever negotiations were going on. I’m saying the victims would have a voice in the process.” 

“They could say – we don’t think this is a sufficiently tough punishment for Boeing, or we think there should be more restitution, or we think there should be some kind of a meeting with the Boeing officials to discuss this. There are a variety of things the victims might want included in some kind of an agreement. But often, prosecutors may not be as aware of the CVRA as would be ideal.”

“The Justice Department is taking an unduly narrow view of who qualifies as a victim under the CVRA. They say unless it is somebody who is the target of a crime – the bad guy punched somebody in the nose, that’s the person who suffered the injury is a victim. But other than that, you are out of luck. I don’t think that is at all the right way to look at the CVRA. In fact, I’m working on a law review article on this very topic as we speak.” 

“It’s important to look at the language of the CVRA. It says that the crime victim is a person ‘directly and proximately harmed by the crime.’ You are a victim under the CVRA if as a result of a crime you have suffered harm. There are going to be many situations and then it has ultimate ramifications that end up harming someone. All of those people who are harmed are going to be victims, provided that the harm is direct and proximate.” 

In the Boeing case, the Justice Department apparently decided that the CVRA does not apply to the families and rebuffed their inquiries. But then they went ahead and awarded the families $500 million in restitution as part of the deferred prosecution agreement. 

“That’s when you start to think that some of these positions that the government is taking don’t have a basis in reality. I don’t want to comment on the specifics of Boeing because I don’t know all of the details. But let’s assume the government says – these families of a crime are not victims, but by the way we are going to ask the defendant company to pay them $500 million. The basis for that is the company would have criminal exposure, otherwise it is not going to be forking over $500 million to help victims’ families.” 

“That’s why it is surprising that the government stakes out the position that there is no victim in some of these cases, so we are not going to talk to the victims about the details of the negotiations. But by the way those negotiations are going to involve quite literally hundreds of millions of dollars going to those families. Why wouldn’t you want to listen to the victims’ families?”

“One argument that is sometimes made – there are so many victims’ family members, we couldn’t possibly listen to all of them. Obviously, there are procedures under which the government could take a representative sample of family members, or ask that the family members get together and designate a representative to speak on their behalf, or that the family members could submit information in writing.”

“It’s disappointing that the government does not think more creatively and expansively about how to bring victims into the process rather than leaving them on the outside.”

[For the complete q/a format Interview with Paul Cassell, see 35 Corporate Crime Reporter 3(12), Monday January 18, 2021, print edition only.]

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