Court rules against Epstein victim despite ‘sympathy’

April 14, 2020

Dara Kam

TALLAHASSEE --- A divided appeals court reluctantly ruled Tuesday that federal prosecutors did not violate victims’ rights by hatching a secret non-prosecution deal with sex trafficker and child molester Jeffrey Epstein without getting the input of victims.

Epstein, a well-connected and wealthy financier who had a home in Palm Beach County, died of an apparent suicide in August while being held in jail after being arrested on sex-trafficking charges involving minors in Florida and New York.

Tuesday’s decision by a three-judge panel of the 11th U.S. Circuit Court of Appeals --- which called the facts of the case “beyond scandalous” and a “national disgrace” --- came in a challenge to a 2008 “non-prosecution agreement” struck between Epstein’s lawyers and federal prosecutors in Florida.

Under the agreement, Epstein pleaded guilty to two state prostitution charges, including procuring a minor for sex. The plea deal also provided immunity from federal prosecution for Epstein and at least four other co-conspirators.

Courtney Wild, who was one of Epstein’s numerous minor victims, filed a lawsuit against prosecutors in 2008, alleging that the agreement violated her rights under the federal Crime Victims’ Rights Act to confer with the government’s lawyers and to be treated fairly by them.

After more than a decade of litigation, U.S. District Judge Kenneth Marra ruled in February 2019 that federal prosecutors broke the law when they struck the plea deal with the multimillionaire. But after Epstein died, the federal judge refused to undo the plea agreement or grant other remedies sought by Wild, who filed the lawsuit as “Jane Doe 1,” and another victim.

On Tuesday, 11th U.S. Circuit Court of Appeals judges Kevin C. Newsom and Gerald Tjoflat found that rights guaranteed under the victims’ rights act did not apply to Wild because Epstein was never charged with a federal crime in Florida.

“Despite our sympathy for Ms. Wild and others like her, who suffered unspeakable horror at Epstein’s hands, only to be left in the dark --- and, so it seems, affirmatively misled --- by government lawyers, we find ourselves constrained to deny her petition,” Newsom wrote in the 53-page majority opinion.

Prosecutors never consulted Epstein’s numerous victims before reaching the plea deal. The government’s lawyers held off for nearly a year on notifying Epstein’s victims of the existence of the non-prosecution agreement, according to court documents.

“It isn’t lost on us that our decision leaves the petitioner and others like her largely emptyhanded,” Newsom wrote. “We sincerely regret that.”

Paul Cassell, one of Wild’s lawyers, told The News Service of Florida that she plans to seek what is known as an “en banc,” or full court, review by the Atlanta-based appeals court.

The majority decision leaves victims “without any remedy, even when they’ve been affirmatively misled by prosecutors about what’s happening,” Cassell, a University of Utah law professor, said in a telephone interview Tuesday.

In a statement provided by Cassell, Wild said Tuesday’s ruling “is impossible to understand.”

“The government intentionally misled the victims but found a way to get around it by working with some child molester to get around the law, and then the judges ruled in their favor. How is this possible?” said Wild, who lives in Florida.

Epstein died in jail last year after reporting by the Miami Herald led to heavy scrutiny of the 2008 plea deal. Epstein was arrested in July on sex-trafficking charges involving minors in Florida and New York.

Tuesday’s majority opinion and a 60-page sharply worded dissent by Judge Frank M. Hull provide a detailed account of the secrecy involving the non-prosecution agreement, or NPA.

The court majority acknowledged that federal prosecutors appeared to have “worked hand-in-hand with Epstein’s lawyers --- or at the very least acceded to their request --- to keep the NPA’s existence and terms hidden from victims.”

“We are doubtlessly omitting many of the sad details of this shameful story,” Newsom wrote.

But the ruling largely focused on the legal analysis of whether the act could apply to Epstein’s victims.

The majority “reluctantly” concluded that “rights under the act do not attach until criminal proceedings have been initiated against a defendant.”

“Because the government never filed charges or otherwise commenced criminal proceedings against Epstein, the CVRA (Crime Victims’ Rights Act) was never triggered. It’s not a result we like, but it’s the result we think the law requires,” Newsom wrote.

But Hull found the “plain and unambiguous text of the CVRA” was “repeatedly violated” by the U.S. Attorney’s office in the Southern District of Florida.

Federal prosecutors “never conferred one minute with victims about the NPA,” “worked closely with Epstein’s lawyers to keep the NPA’s existence and terms hidden from victims,” and “actively misrepresented to the victims that the criminal investigation continued when the NPA was already signed,” Hull wrote.

The victims were never informed about the agreement until Epstein pleaded guilty and the “secret sweetheart deal was done,” the dissent said.

The majority’s interpretation “materially revises the statute’s plain text and guts victims’ rights under the CVRA,” Hull wrote.

“Nothing, and I mean nothing, in the CVRA’s plain text requires the majority result,” Hull added.

Hull also accused the majority of having “dressed up its flawed statutory analysis with rhetorical flourish” while expressing “sincere empathy” for Epstein’s victims.

“In addition to ruminating in sincere regret and sympathy, we, as federal judges, should also enforce the plain text of the CVRA --- which we are bound to do --- and ensure that these crime victims have the CVRA rights that Congress has granted them,” Hull wrote.

The majority decision is at odds with a ruling by the 5th U.S. Circuit Court of Appeals in a Texas victims-rights case. Cassell said he hoped the circuit split would prompt the full Atlanta-based court to review Wild’s case.

Meanwhile, the “Courtney Wild Crime Victims’ Rights Reform Act,” which would strengthen the federal law by preventing prosecutors from reaching agreements like the Epstein deal, was filed last year in Congress.

“If we don’t get redress in the courts for Courtney, we’re going to go to Congress to ask them to address the situation,” Cassell said.

But the law professor said he does not believe congressional action is necessary.

“We think it’s clear,” he said. “Congress said in the Crime Victims’ Rights Act that victims could bring an action, even if no prosecution was underway.”