The Volokh Conspiracy
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Today U.S. District Judge Kenneth Marra released an important decision in a case that Brad Edwards and I have been litigating for several victims regarding the federal Crime Victims' Rights Act. The thirty-three page decision, found here, holds that the federal prosecutors handling the Jeffrey Epstein sexual abuse case violated the rights of Epstein's victims by keeping the deal they reached with him secret. The decision explains that the prosecutors improperly made "a decision to conceal the existence of the [non-prosecution agreement] and mislead the victims to believe that federal prosecution was still a possibility." The judge has directed that the case will now proceed to the issue of what remedy, if any, should be awarded to the victims because of the prosecutors' violation of the victims' rights.
Because this case remains in active litigation, I won't speculate about future steps or otherwise comment on how the case might develop. But given that I have blogged and written about some of the legal issues previously, it does seem appropriate to say a few descriptive words about the ruling.
The factual background recounted in the opinion can be briefly summarized. Between 1999 and 2007, Jeffrey Epstein sexually abused more than 30 minor girls, including my clients, Jane Doe 1 and Jane Doe 2. The federal government (e.g., the FBI) investigated the case for violations of federal law. Ultimately prosecutors in the U.S. Attorney's Office for the Southern District of Florida reached a non-prosecution agreement ("NPA") with Epstein, blocking not only his prosecution for federal sex crimes but also that of certain co-conspirators, in exchange for Epstein's agreement to plead guilty to two low-level Florida state offenses. From the time the federal government began investigating Epstein until the time it concluded the NPA agreement, the Office never conferred with the victims about the NPA nor told them that such an agreement was under consideration.
Later, when Epstein's sexual abuse victims became concerned about what was happening in their cases, Mr. Edwards and I filed a lawsuit alleging that the Office had violated the victims' rights under the federal Crime Victims Rights Act (CVRA). After more than ten years of difficult litigation against the prosecutors, today the district court ruled in our favor that the prosecutors had violated the victims' rights under the CVRA. The court explained that prosecutors had improperly concealed the NPA and misled the victims that federal prosecution was still a possibility:
Here, it is undisputed that the Government entered into a NPA with Epstein without conferring with Petitioners during its negotiation and signing. Instead, the Government sent letters to the victims requesting their "patience" with the investigation even after the Government entered into the NPA. At a bare minimum, the CVRA required the Government to inform Petitioners that it intended to enter into an agreement not to prosecute Epstein. Although the binding effect of the NPA was contingent upon Epstein pleading guilty to the state charges, that contingency was out of the control of the Government. The Government's hands were permanently tied if Epstein fulfilled his obligations under the NPA. Thus, Petitioners and the other victims should have been notified of the Government's intention to take that course of action before it bound itself under the NPA. Had the Petitioners been informed about the Government's intention to forego federal prosecution of Epstein in deference to him pleading guilty to state charges, Petitioners could have conferred with the attorney for the Government and provided input. In re Dean, 527 F.3d 391, 394 (5th Cir. 2008) (there are rights under the CVRA including the "reasonable right to confer with the attorney for the Government"). Hence, the Government would have been able to "ascertain the victims' views on the possible details of the [non-prosecution agreement]." Id. Indeed, it is this type of communication between prosecutors and victims that was intended by the passage of the CVRA. See United States v. Heaton, 458 F. Supp. 2d 1271 (D. Utah 2006)(government motion to dismiss charge of using facility of interstate commerce to entice minors to engage in unlawful sexual activity would not be granted until government consulted with victim); United States v. Ingrassia, No. CR-04-0455ADSJO, 2005 WL 2875220, at *17 n. 11 (E.D.N.Y. Sept. 7, 2005) (Senate debate supports the view that the contemplated mechanism for victims to obtain information on which to base their input was conferral with the prosecutor concerning any critical stage or disposition of the case).
Particularly problematic was the Government's decision to conceal the existence of the NPA and mislead the victims to believe that federal prosecution was still a possibility. When the Government gives information to victims, it cannot be misleading. While the Government spent untold hours negotiating the terms and implications of the NPA with Epstein's attorneys, scant information was shared with victims. Instead, the victims were told to be "patient" while the investigation proceeded.
The court also rejected various defenses that the prosecutors had attempted to interpose. For example, the prosecutors had alleged that the CVRA only obligates prosecutors to answer inquiries from crime victims and does not impose a duty on prosecutors to give notice about case developments. The court found this position was "in direct contravention of the intent of the CVRA" and irrelevant because the victims could not make inquiries "as long as the Government chose to conceal the existence of the NPA from the victims."
Ultimately the court concluded that "[t]he expansive context of the CVRA lends itself to only one interpretation; namely, that victims should be notified of significant events resulting in resolution of their case without a trial." Here, due to deliberate decisions made by the prosecutors, that did not happen. Accordingly, the court ruled that "under the facts of this case, there was a violation of the victims' rights under the CVRA."
The court has directed that we now have 15 days to confer with the Government about how to proceed to the next issue of determining what remedy, if any, the court should apply in view of the prosecutors' violations of the victims' rights. The court has previously ruled that various remedies may be available to the victims, holding that "the CVRA authorizes the rescission or 'reopening' of a prosecutorial agreement, including a non-prosecution agreement, reached in violation of a prosecutor's conferral obligations under the statute" and also authorizes "the setting aside of pre-charge prosecutorial agreements." See page 26 of the ruling (citing Doe v. United States, 950 F. Supp. 2d 1262, 1267 (S.D. Fla. 2013)). Mr. Edwards, co-counsel Jack Scarola, and I will now consult with our victim clients to determine what remedies they may wish to ask the court to impose in light of the court's finding that the victims' rights have been violated.