DOJ Reaches a Non-Prosecution Agreement with the MCC Guards Bill Barr Used as Scapegoats for Jeffrey Epstein’s Death

Back when DOJ rolled out a draconian prosecution against two of the prison guards — Michael Thomas and Tova Noel — whose negligence created the opportunity for Jeffrey Epstein to kill himself, I noted all the ways they were being made scapegoats so Billy Barr could avoid admitting that his own system-wide failures to address staff shortages in the prison system played a far more important role in Epstein’s death.

That he calls these “screw-ups” didn’t prevent his DOJ from filing a six count indictment this week against the guards on duty the night Epstein died, Michael Thomas and Tova Noel, an overarching conspiracy charge along with false records charges for each of five prisoner checks one or both of them had claimed to have done that night, but did not.

It’s an odd indictment.

It shows that in addition to Thomas and Noel, two other guards filed false records, one — along with Noel, for a 4PM prisoner check during which Epstein wasn’t even on the floor — and another –again with Noel, for a 10PM check.

Furthermore, there’s no evidence that they failed to complete the checks because they were trying to facilitate suicide. Indeed, Thomas is described as one of the guards who had found Epstein before his earlier suicide attempt succeeded on July 23. More importantly, when Epstein was found dead (the indictment is very unclear about who first found him, though the implication is Thomas was), both defendants immediately admitted they hadn’t done their job.

NOEL told Supervisor-1 “we did not complete the 3 a.m. nor 5 a.m. rounds.” THOMAS stated, “we messed up,” and “I messed up, she’s not to blame, we didn’t do any rounds.”

Additionally, there’s no time of death in the indictment, leaving open the possibility that Epstein died before Thomas came on shift at midnight, meaning one of the other guards would be the other responsible party.

While the conspiracy charge relies, in part, on a ConFraudUs argument — effectively arguing that by making false records claiming they had done their rounds, they impaired the lawful function of the government, the indictment also alleges they intended to impair “the investigation or proper administration” of government.

Sure, they impaired their supervisor’s ability to bust them for slacking (and, for two hours, literally sleeping) on the job. Sure, they impaired an escalating bed check system that was unnecessary in any case to find Epstein.

It’s certainly possible that the government suspects there’s more to this, that Thomas, having been involved in thwarting Epstein’s first suicide, he got recruited to facilitate his second one. It’s possible the government is suspicious about the fact that Noel walked up to the door of Epstein’s unit around 10:30PM. Certainly, by larding on six charges, they’re holding an axe over the guards’ heads to make them plead out quickly. Though there’s no reason to believe either one of them was involved in the more important failure, to make sure Epstein had a cellmate who could have called guards right away.

But as presented, the evidence presented in this indictment suggests not so much a conspiracy to make it easier for Epstein to kill himself, but instead, a conspiracy — one involving other guards on the SHU that night — to cut corners to make their thankless job easier. Part of that seems driven the pay and understaffing leading guards to take taxing overtime shifts; both defendants were working an overtime shift that night, with Noel working 16 hours straight that day.

I don’t mean to apologize for the defendants for behavior that, with several other factors, created the opportunity for Epstein to kill himself.

Rather, I mean to highlight how the grunts in this story are being threatened with long prison sentences, while the guy (once again) watching videos himself rather than fixing the systemic problems gets away with calling it “a perfect storm of screw-ups.”

The government was pushing to take the two guards to trial last year.

Before COVID scotched that plan, Thomas’ lawyer, Montell Figgins, unsuccessfully tried to obtain documents that would show the guards’ misconduct was not only known to Bureau of Prisons management before Epstein’s death, but also required because of how badly prisons were understaffed.

The requested documents in this motion are essential to Mr. Thomas’ ability to prepare a defense. Mr. Thomas contends that the conduct with which he is being charged is: 1) rampant throughout the BOP; 2) made with knowledge and acquiescence by the leadership of the BOP; and 3) is the direct result ofBOP policies and mismanagement that forced the defendant to engage in conduct for which he is now being charged criminally.

Figgins also argued that there were necessarily other people — other guards and supervisors — who had to be complicit in their actions.

Additionally, Michael Thomas is charged with making false statements for signing certain count slips and round sheets. However, what the government has deliberately failed to clarifiy [sic] is that those documents have to be approved by supervisors and are signed and/or initialed by other BOP employees. If this is the case, why is Michael Thomas and Tova Noel the only two employees charged with making false statements.

The judge denied that request, accepting the government’s representation that, among other things, the prosecution had investigated this thoroughly and any IG Report showing a systemic problem at the Metropolitan Corrections Center and Bureau of Prisons more generally was far from completed and therefore anything that existed would be deliberative.

Since then, the trial has been delayed over and over because of COVID, and would not have taken place until sometime in October or later.

But now it’s almost certainly not going to happen at all.

Yesterday, the government moved to enter non-prosecution agreements against the two defendants, arguing that the investigation they had already said merited prosecution now merits no prosecution.

After a thorough investigation, and based on the facts of this case and the personal circumstances of the defendants, the Government has determined that the interests of justice will best be served by deferring prosecution in this District.

In addition to 100 hours of community service, Thomas and Noel are required to cooperate with the Inspector General’s investigation the drafts of which they had been denied in discovery last year.

The defendants will cooperate with a pending Department of Justice Office of Inspector General review by providing truthful information related to their employment by the Bureau of Prisons, including about the events and circumstances described in the Indictment;

This indicates that the IG Report still is nowhere near done. It may also indicate that the IG requires their cooperation to lay out an accurate chain of authority for the circumstances behind Epstein’s suicide, cooperation they would have been legally entitled to withhold under a Fifth Amendment claim pending trial.

Their prosecution, had it succeeded, would have made a full report by the IG impossible; now their punishment is to cooperate with the IG.

All this strongly suggests that Figgins was absolutely right, a year ago, when he argued that a full investigation of the events would show that Thomas and Noel were, in the least worst case scenario, just bit players in a larger system of incompetence and neglect that allowed Epstein to take his secrets to the grave. The evidence still strongly suggests that Epstein was allowed to kill himself by that neglect.

But given the seeming confirmation that Thomas and Noel were being scapegoated to short-circuit a larger investigation and given that DOJ IG did not complete its investigation while Bill Barr retained some ability to influence the investigation, there may be more to it.

It remains unclear whether Bill Barr’s refusal to staff prisons adequately led to Epstein’s death or something more malign happened. Whichever it is, these two prison guards very nearly became sacrifices in Barr’s effort to hide his own complicity.

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32 replies
  1. jerryy says:

    Given that the BOP was/is so understaffed that this happened, it seems strange that then AG Barr would make the situation worse everywhere by using personnel from the BOP in the Lafayette Park demonstartions.

    • BobCon says:

      They were also pulling officers from ICE and CBP, which supposedly were keystones of the response to Trump’s fever dream of a border invasion.

      When nihilists are running things, even the pretense to logic goes out the window.

  2. greengenes says:

    Thanks for focusing on this development Marcy. I think it is really important to not forget to balance this research with some pretty important facts. First, with regards to “whose negligence created the opportunity for Jeffrey Epstein to kill himself”– Epstein’s brother paid NYC’s former medical examiner to observe the autopsy, and Dr. Baden, revealed that his injuries were more consistent with murder by strangulation, “Mr. Epstein, 66, experienced a number of injuries — among them a broken bone in his neck — that “are extremely unusual in suicidal hangings and could occur much more commonly in homicidal strangulation… I think that the evidence points to homicide rather than suicide,” said Dr. Baden, who observed the autopsy done by city officials”, as reported by Azi Paybarah, NYT, on Oct. 30, 2019. Given WaPo has clocked Trump and his administration lying an alleged 20,000+ times, how credible is their narrative on how Epstein died? About as credible as no collusion in the Mueller probe, fair?

    Second, per Gawker’s, Business Insider’s, and other publications of the clients of Epstein — Donald, Ivanka, Ivana, Blaine, and Robert Trump were named as clients, page 54, https://epsteinsblackbook.com/all-names, and so Epstein died under the auspices of one of his clients, whose credibility is horrible, and thus giving Trump and his orbit motive to have Epstein strangled before he could spill the beans, even in the off chance they did not.

    Third, Epstein died under the “protection” of William Barr, whose father was Donald Barr, who groomed and hired Jeff Epstein into Dalton school for children, without a degree, and without a teaching credential, and Donald Barr wrote at least one pedophile fantasy novel “Space Relations”, writing of an idealized child sex slavery colony in outer space for the global elite, which is pretty much what Epstein did, correct? And so it is not unreasonably to reach a conclusion that Donald Barr was into pedophilia, and that from a certain extent Jeff Epstein actualized that fantasy on his island, and in the air. Accordingly, not only did the Trump family have motive, but so did the family of William Barr, even in the off chance it was a suicide.

    Last, William Barr was the AG for GHW Bush, and under his son’s administration (GW Bush), most if not all of the 1000+ coconspirators associated with Epstein, namely his clients, were not prosecuted, and important this happened under the auspices of Robert Mueller, who would later be hand-picked to work with Barr to find no collusion with Trump, who wanted Barr as his AG. Barr then hand-picked Durham to investigate the origins of the Mueller investigation, but isn’t that what Barr and Mueller had investigated?

    Bmaz said he/she/they have a research project on the go for Durham, so instead of race cars or football, keep your eye on the other ball and prize Bmaz, and let’s have it! xoxox

    P.S. Welcoming any evidence to the contrary.

      • greengenes says:

        Thanks to BobCon for sharing evidence of a different perspective. This is what a healthy debate looks like, a model for others who like to contribute everywhere.

    • Raven Eye says:

      To have “any evidence to the contrary” there would need to be evidence provided in the first place.

      • greengenes says:

        To RavenEye, unless you are a medical expert, your contribution here is poor, and adds nothing to the conversation at all, feelings-based. Dr. Baden specified how his medical expert opinion and experience led him to believe it was homicide. Who is more credible, the brother who hired a medical expert to understand if his brother was murdered, or the guys who had a motive for Epstein to be murdered and who were in a position to obstruct the same, res ipsa loquitur malum in se. Insulting others who like to work on the same puzzles as you do when you don’t agree is the weakest defense possible in a debate. If you disagree, do like BobCon does and provide evidence to the contrary, instead of just making zero contribution feelings-based remarks. Advance the debate and quest for knowledge and the truth in a substantive manner.

    • Troutwaxer says:

      “…this happened under the auspices of Robert Mueller, who would later be hand-picked to work with Barr to find no collusion with Trump.”

      Not correct. Mueller was in place (2017) long before Barr came into the picture in 2019. Also Barr was GHW Bush’s attorney general, but not GW Bush’s.

      • greengenes says:

        To Troutwaxer, read and understand before you respond. I didn’t say that Barr hand-picked Mueller, only that he was hand-picked and worked with Barr, which is not false. I also specified that Barr was the AG to GHW Bush, so you are the one who is wrong in saying otherwise. Same with you Mr. Andersen, I never said “Mueller advocated to have Barr as his AG”, so you are also wrong here. Read the questions, understand them, then respond, fair?

        • John Paul Jones says:

          Something which is “not false” isn’t necessarily true. Saying some things that are “not false,” and linking such statements in a manner that implies causality is certainly using what we can call a “double discourse,” that is, true looked at in one light, but misleading when looked at from a slightly different angle. Doing so isn’t “fair” because all it does is give you the leeway to cavil at other commentators. That might be emotionally satisfying (but who am I to say?) but it doesn’t really contribute to the debate.

        • vvv says:

          No, you said, “Robert Mueller, who would later be hand-picked *to* work with Barr “.

          The statement re Barr working for the Bush presidents took me multiple readings to understand, as a sentence with 7 commas might be predicted to require.

    • Reader 21 says:

      I think it’s fair to criticize some of the decisions Mueller made (not investigating the finances, insisting on interviewing Jr and Individual-1, some of Weissman’s criticisms)—but I certainly don’t think it’s fair to lump him in with Barr, or accuse him of bad faith, as I absolutely would with Barr.

      • greengenes says:

        To Reader 21, you argued against yourself, specifying how Mueller failed in a way that protected Trump and his orbit while saying it wasn’t in bad faith. Is there obstruction of justice in good faith? Was there more than one example of Mueller or his team obstructing justice, and doesn’t this form a pattern?

        • John Paul Jones says:

          “Failed in a way that protected Trump.” This is teleological thinking, that is, you see an end point and then allege that all prior actions around it must have had that same end in mind. Alas, on this planet, sometimes, shit just happens without an overarching design being behind it. “Was there more than one example of Mueller … obstructing justice, and doesn’t this form a pattern?” Notice how the question in the first part of the sentence has been answered in only one way by the time we get past the comma, meaning, it wasn’t really a question, but a disguised assertion (and absent any evidence; and it’s another instance of invoking teleology). An assertion is not an argument; without argument, there is no real debate being conducted; and if there’s no real debate, questions of “fairness” are really on the other foot, that is, if you want fairness, first you have to exhibit it. I don’t think you’ve done that so far.

        • vvv says:

          “Failed” does not necessarily result from “obstruction of justice”.

          What actual “example of Mueller or his team obstructing justice” do you have?

          Also, decisions to proceed re certain witnesses or strategies, etc. that you disagree with are not “bad faith” because you disagree, or because you don’t like the result.

    • misteranderson says:

      Give me a break. Mueller was not handpicked to work with Barr to find no collusion. There is zero evidence Mueller advocated to have Barr as his AG.

    • bmaz says:

      Hi there “greengenes”. Lol, unless you pay my hourly rate, I do not do research for you. And, anyway, I like race cars and kind of grew up with them and cars in general. Your concerns are not mine.

      You seem to be new here, and it looks like our long time commenters have figured out your malarky already.

      This is not a place to troll in.

      • greengenes says:

        Wasn’t it John Adams that said “facts are stubborn things”? Look, we can agree to disagree, and what we all seem to have in common is that we like puzzles and like to search for the “truth”, which in itself may be at time impossible to find given the fallacies inherent in logic, reasoning, and critical thinking.

        We all seek out the truth with our different filters, experiences, and information sources, so not trolling anyone Bmaz, just like to work on the same puzzles you guys you guys like to work on is all. For sure I or others could be wrong, but then prove me or others wrong, as insults don’t prove us wrong at all.

        Stop insulting everyone you don’t agree with, but instead explain the basis of your perspective. An insult is not a defense to an argument. It is what lawyers do when they can’t defend the facts, nor the law, attacking the character as a last defense. Be better than that, because I know you have it in you.

        And if you don’t want to share research you say you are working on, fine, but then keep your research projects to yourself, instead of bragging about them, and then insulting anyone who follows up to inquire about what you found.

        If you want folks to continue to follow Empty Wheel, stop insulting them! You guys have a branding problem, where you are all about civil liberties and rights et cetera, and then you insult people for exercising free speech. Who is trolling who, right? Sure I could be wrong, but then prove me wrong. Insulting me and others doesn’t prove me and others wrong, correct?

        • Rayne says:

          Stop. Policing content produced by this site including demands for specific coverage is not acceptable.

          The contributors here do what they do as a labor of love; you’ll note there are no advertisements, no sponsorships, no financial relationships which obligate our work. Nor do we sell our community members’ data. Readers and commenters get this space without any strings attached except for a very few limitations, like not demanding content which is a form of concern trolling

          If you do not like a post or a comment, you are free to move on. Consider this a warning.

        • P J Evans says:

          You show up, and want *us* to prove *you’re* wrong. Sorry: if you make assertions, you get to produce evidence to back them up.

          • diggo says:

            Also good for greengenes to remember: “Extraordinary claims require extraordinary proof”.
            If you wanna theorize via your own truthiness extrapolations which twist the facts, you better come armed with actual evidence.

            • timbo says:

              Thank heavens I was out biking. Almost condescension proof? (Okay, okay, I admit that maybe I was dressed like a repressed bicycle hippy… but honestly I do feel better in cotton and wool than lycra! :D )

  3. pete wegener says:

    “The evidence still strongly suggests that Epstein was allowed to kill himself by that neglect.” “It remains unclear whether Bill Barr’s refusal to staff prisons adequately led to Epstein’s death or something more malign happened.”

    I’m sort of surprised how vague this is considering how good your writing is and how heavily laden the issue is. Allowed to, in terms of neglect being allowed to go on, or allowed to in terms of that was the point, the motive?

    Something that nagging on this is that the DC Madam, Deborah Palfrey, and the escort at the nexus of the Canal Street Brothel, Michelle Mosgrove, both also committed suicide. It’s not the claim that that they were murdered that matters, it’s that others had motives to murder them or that they might have motives to commit suicide (for Palfrey it seems to have been a very real fear of jail), and the potential effect that those in charge knew a death would have on a such a sensitive investigation. How does it make sense that someone who is so crucial to such an important corruption investigation could be shifted to such a place as MCC and then left unattended? I really do not think the IG will attempt to get to this. The issue will most likely be about the general, ongoing neglect at the BOP and the endemic technical and administrative failures at play.

    • emptywheel says:

      I can’t speak to what the IG will do. Horowitz has a real incentive, after some really politicized reports that Barr micromanaged, to prove his independence (and the delay may have been intentional).

      I think it possible we’ll learn of nefarious evidence that Epstein was killed. We’re more likely to get a robust understanding with these guards cooperating with Horowitz than not. But, for example, I think we will get some accountability for how Epstein was put in a cell by himself, and that may go a long way to explaining how this happened.

      But until then, I’m not sure we have evidence to say what happened.

      • timbo says:

        “There’s certainly more evidence of what happened as a result of what didn’t happen.” —Nemo Didit

  4. Rollo T says:

    Based on experience, the BOP often operates with a toxic mixture of malevolence and incompetence. Cruelty is the point. There is little incentive for reform, either from within or without.

  5. yogarhythms says:

    Ew,
    [email protected]:04pm
    Im a nurse in AZ. With decades of nursing experience i took a job at a state prison. lasted three and a half weeks. Federal Ct ordered, medical treatment changes were ignored. Licensed health care workers are jeopardizing their license every shift. Can’t speak to NY MCC. DOJ IG mighty tall order.

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