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ALLEN GUTHRIE MCHUGH & THOMAS, PLLC Mr. John Roth June 19, 2008 Page 7 considered the extent of exculpatory evidence, including a psychosexual evaluation of Mr. Epstein and a polygraph examination demonstrating that Mr. Epstein genuinely believed at the time of the alleged conduct that the State’s key witness was over the age of 18. Then, after months of negotiations, the State reached what it believed was an appropriate resolution of the case. Importantly, this resolution was consistent with that of cases involving other defendants who had engaged in similar conduct. Implementation of the State resolution of the case was held in abeyance, however, due to the unexpected commencement of the successive federal criminal investigation. While it is true, as CEOS points out, (CEOS letter at p. 3) that many criminal prosecutions turn on issues of credibility of witnesses, to which many members of the defense team can attest (having had decades of federal criminal litigation experience among us), this does not serve to divest the prosecutor of his/her duty to make a searching inquiry of the facts before using the power of prosecution, and the weight of the United States government, to level serious accusations. CEOS likewise acknowledges as much, “the prosecutors are in the best position to assess the witnesses’ credibility.” (CEOS letter at p. 3). Since the CEOS letter also singles me out as someone who should be familiar with witness issues, I feel compelled to note that, of course, I am well aware that it is not uncommon for witnesses to give conflicting statements. Iam also fully aware that the credibility ofkey government witnesses may be strongly impacted by the $50 million incentive provided via the civil lawsuits at play, and encouraged by the government here. ° I have also read many of the conflicts between witness testimony and Detective ReCarey’s own rendition of that testimony in his reports and/or search warrant affidavit. Detective ReCarey apparently formed a view early on as to the purported criminality of Mr. Epstein’s conduct regardless of the mountain of evidence to the contrary. For a prosecutor that has had an opportunity to review the full facts, and to meet with the witnesses, however, “conflicting statements” cross the line to a “lack of credibility” that simply can not sustain a prosecution. That is where an appropriate application of prosecutorial discretion must be brought to bear. Again, CEOS was not itself in the position to exercise such discretion. By its own admission, CEOS did not make a full review of the witness statements here, and CEOS certainly did not sit down across the table and speak to these witnesses. We understand that was apparently not its perceived role. But, CEOS should recognize that at least one prosecutor in this case — the Chief of the SAO Sex Crimes Division has done so. Lana Belohlavek not only met with and interviewed these witnesses during the course of the 15-month state investigation prior to any federal involvement, but she again sat across the table from many of them in connection with recent civil 3 It is important to note here that this investigation was launched not upon the complaint of any alleged victim, but, rather, upon the complaint of ther, EB, and her a (Cs More notable still is the fact that [IE has been convicted of federal bank fraud, an has a state . Yet, the USAO did not supply this information to the conviction for identify fraud. Hardly pillars of credibili defense. Even more telling is the fact that PN cic a $50million lawsuit purportedly on behalf of his daughter without her authority or knowledge. HOUSE_OVERSIGHT_012189