The Eleventh Circuit Concludes That Jeffrey Epstein's Florida Victims Had No Rights Under the Crime Victims' Rights Act.

While calling the secret non-prosecution agreement of Epstein a "national disgrace," the Eleventh Circuit holds that the CVRA only extends victims' rights after an indictment. We will ask for rehearing en banc.

|The Volokh Conspiracy |

Today in a divided 2-1 decision, the 11th Circuit rejected a petition for crime victims in the Jeffrey Epstein case, filed by Florida crime victims' attorney Brad Edwards and me.  In a 120-page ruling (containing three separate opinions), the Circuit held that the Crime Victims' Rights Act (CVRA) does not apply until federal criminal charges are formally filed, and therefore Epstein's victims were not entitled to challenge a non-prosecution agreement reached between federal prosecutors and Epstein.

As I have blogged about before, the case involves more than eleven years of litigation by Epstein's victims, seeking to overturn a non-prosecution agreement entered into by the U.S. Attorney's Office for the Southern District of Florida with Epstein, blocking his prosecution (and that of his co-conspirators) for federal child sex abuse crimes in Florida.

In today's decision (written by Judge Newsom), the majority said that the facts tell "a tale of national disgrace," including "active misrepresentation" by federal prosecutors of Epstein's victims to conceal what they were doing to keep Epstein from being federally prosecuted. But today's ruling also says that, because no federal criminal charges were ever filed in Florida, Epstein's victims (girls whom he sexually abused) did not have any right to confer about the plea arrangements because the CVRA was never in effect. The majority lamented this conclusion, but said that the Congress had not written the Act broadly enough to protect Epstein's victims:

It isn't lost on us that our decision leaves petitioner and others like her largely empty handed, and we sincerely regret that. Under our reading, the CVRA will not prevent federal prosecutors from negotiating "secret" plea and nonprosecution agreements, without ever notifying or conferring with victims, provided that they do so before instituting criminal proceedings. We can only hope that in light of the protections provided by other statutes—and even more so in the wake of the public outcry over federal prosecutors' handling of the Epstein case—they will not do so.

The question before us, though, isn't whether prosecutors should have consulted with petitioner (and other victims) before negotiating and executing Epstein's NPA. It seems obvious to us—and, indeed, the government has expressly conceded—that they should have. Our sole charge is to determine, on the facts before us, whether the CVRA obligated prosecutors to do so. We simply cannot say that it did.

In reaching this conclusion, the majority noted that I had written a law review article (along with Brad Edwards and Nate Mitchell), in which I had explained why the CVRA can apply even before federal criminal charges are filed.  But the majority found this article ultimately unpersuasive–even though my article took exactly the same position that as one of the CVRA's two co-sponsors, Senator Jon Kyl.  As he explained in a letter to the Justice Department in 2011:

When Congress enacted the CVRA, it in­tended to protect crime victims throughout the criminal justice process–from the inves­tigative phases to the final conclusion of a case.  Congress could not have been clearer in its direction that using "best efforts" to en­force the CVRA was an obligation of "… [o]fficers and employees of the Department of Justice and other departments and agen­cies of the United States engaged in the detection, investigation, or prosecution of crime …."18 U.S.C. §3771(c)(l) (emphasis added). Congress also permitted crime victims to as­sert their rights either in the court in which formal charges had already been filed "or, if no prosecution is underway, in the district court in the district in which the crime oc­curred." 18 U.S.C. §3771(d)(3) (emphases added).

In a sixty-page dissent, Judge Hull agreed with Senator Kyl and noted the importance of the ruling:  "The Majority confesses that '[i]t isn't lost on us that our decision leaves petitioner and others like her largely emptyhanded' and 'we sincerely regret that.'  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."

My client—the courageous Courtney Wild—had this to say about today's decision:

This is impossible to understand – the government intentionally misled the victims but found a way to get away with it by working with a child molester to get around the law.  And the Judges ruled in their favor.  How?

That's a great question.  And Mr. Edwards and I plan to file a petition for rehearing en banc with the full Eleventh Circuit.  This holding that victims can be intentionally deceived by federal prosecutors until the prosecutors choose to file an indictment conflicts with an earlier ruling by the Fifth Circuit—and cries out for further review.

NEXT: New York Times Editor Excuses Paper's Slow Tara Reade Coverage: 'Kavanaugh Was a Running, Hot Story'

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. If the perp is dead, why is this case not moot?

    1. Because the victims were seeking relief from the government, some of which did not depend on Epstein’s survival.

    2. Civil cases don’t moot so easily. Anyway, as Noscitur says, the case is against the gov’t.

  2. Mr. Cassell ignores the most obvious point: until there has been a conviction, there has been no crime and therefore, there can be no victim.

    So, purely for the sake or argument, lets say that I make the same allegations against Mr. Cassell that his client has made against Epstein: Would he agree that I am the victim of his outrageous and horrific assault against me?

    1. For purposes of what how the federal government would have to treat you while investigating and resolving potential criminal liability concerning those allegations? Of course he would.

      1. If there was a victim, then by definition a crime had to occur. If there is no doubt as to the parties, then that means a court has found the accused is guilty before a trial – or even a grand jury indictment – has taken place. This completely overturns the tradition of “innocent until proven guilty.”

        It is important to note that Marsy’s Law never requires a judge to inform a jury about the presumption of innocence. The most important factor is that in most states this law preclude the “victim” of a false accusation of a crime from being designated as a “victim” under the act. Interesting, isn’t it?

        1. This seems like a very silly point. The purpose of the CVRA is to give certain specific rights to people who claim to have been victimized while the government is enforcing federal criminal law. The act calls them “crime victims”, but they could just as easily be called “putative victims” or “individuals claiming to have been harmed” or “arglebargles” without any substantive impact.

          It is important to note that Marsy’s Law never requires a judge to inform a jury about the presumption of innocence.

          Why would it?

          The most important factor is that in most states this law preclude the “victim” of a false accusation of a crime from being designated as a “victim” under the act.

          I would be surprised to learn that that is true (at least when the false accusation is itself a crime and is the proximate cause of some kind of harm). It’s certainly not true under the CVRA.

    2. So my house gets burgled, or someone breaks into my car to steal the radio, or bops me on the head to steal my wallet … and no crime has been committed until someone is convicted?

      Sounds like Britain, where a bullet-riddle body is not a murder victim until someone is convicted.

      Riiiiiight.

      If you want to say there is no convicted criminal, you’d be right. But there is a crime, a criminal, and a victim, so buzz off, freak.

      1. Unless, of course you were the one who stole the radio and reported it as a crime for insurance fraud, or you were the one who bopped yourself on the head and reported your wallet stolen for fraudulent purposes.

        The Jussie Smollett case could not have happened without “Marcys Law” in Illinois. It shows the folly of these laws and policies that require law enforcement to automatically believe everything that the alleged victim claims. This is especially true since false reports of a crime to law enforcement are not prosecuted (again see the Smollett case.) They are always thrown under the proverbial rug.

        I challenge anyone who supports “victims rights” to find a single case where an individual who falsely reported a crime was prosecuted and received a non-trivial sentence (i.e., greater than 20 years incarceration.)

        1. The Jussie Smollett case could not have happened without “Marcys Law” in Illinois. It shows the folly of these laws and policies that require law enforcement to automatically believe everything that the alleged victim claims. This is especially true since false reports of a crime to law enforcement are not prosecuted (again see the Smollett case.)

          This seems like a bizarre illustration of your point, since

          1. There is no law in Illinois (or anywhere else I am familiar with) that precludes the police from disbelieving a report that they don’t find credible;

          2. The police didn’t appear to believe Smollett’s story; and

          3. Smollett is currently facing a 6 count indictment for lying to the police about the fabricated incident.

    3. Wrong twice. First as ABC points out, the existence of a crime and even of a victim necessarily occur long before the criminal is captured tried and convicted. If you were murdered in a drive-by shooting, your bullet-riddled body is all the evidence needed to prove that the crime was committed (and that you were the victim) even if no one is ever convicted of your murder.

      True, there are some cases where even the existence of the crime has to be proven in court. He said/she said claims would be a good example. And arguably, the allegations in this case meet that scenario. However, it’s still irrelevant because the plaintiffs in this case were asserting rights under a specific statute with its own definition of what counts as a “victim”.

  3. Anyone who thinks the coverup and protection of very powerful people who associated with Epstein, at least those who were not stupid enough to make that association known already, is not still ongoing should be declared legally brain dead.

  4. “great question”

    Not really. the answer is that according to the majority, the statute does not apply.

    Maybe right, maybe wrong but the answer to her question.

  5. “one of the CVRA’s two co-sponsors,”

    One senator does not speak for even another co-sponsor, let alone the entire Senate and House.

    Not very conservative to rely on this meager of a legislative history.

    1. “Not very conservative to rely on this meager of a legislative history.”

      Real conservatives can’t even spell legislative history.

      HA! I kid. But Scalia is probably turning over right now knowing that a self-professed conservative is pointing to an after-passage statement made by one of two co-sponsors of a bill.

      1. No doubt he is.

        At least Cassell is not on the bench anymore.

        1. Yeah, I tend to be less hostile to legislative history than Scalia-level purism (I think it can, on occasion, provide insight), but as a general rule it should only be used when the text itself doesn’t provide the answers, and the legislative history is something more* than a self-serving comment.

          *For example, multiple drafts of a bill showing that language had been changed or excised often provides clues as to why the final language is the way it is.

    2. Not very conservative and not very legally valid either, Bob. You are right on this one.

      VERY often a bill’s sponsor wanted the bill to be stronger, didn’t get what he or she wanted, and then makes statements trying to influence courts later interpreting the statute into broadening it.

  6. I don’t know if they interpreted the law correctly, but if so, what a Catch-22: The very basis of your complaint is they swept the case under the rug without charges, yet you can’t sue because there were no charges.

    1. It appears so. I wonder what happened to the guy who prosecuted that case down there. Does he still have a career?

  7. When I logged on I didn’t expect to find an aggressive argument that really Epstein committed no crimes because he wasn’t convicted at trial. I suppose he died innocent; who knew?

    1. Epstein was convicted via guilty plea of state crimes. Not federal, though.

Please to post comments

Comments are closed.