The Volokh Conspiracy
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Today, along with co-counsel Brad Edwards, I filed a petition for rehearing en banc in the Eleventh Circuit, on behalf of Courtney Wild, a sex abuse victim of multimillionaire Jeffrey Epstein. The petition asks the full Eleventh Circuit to rehear its earlier divided (2-1) ruling, rejecting Epstein's victims' appeal challenging a secret non-prosecution agreement giving immunity to Epstein and his coconspirators–a ruling I previously blogged about here.
At this point, after nearly twelve years of litigation, the case revolves around whether the federal Crime Victims' Rights Act has any application before prosecutors formally file federal criminal charges. Here are the opening few paragraphs of today's petition, which presents issues of critical importance for crime victims' rights:
The full Court should rehear this case—perhaps the most important case in our nation's history involving crime victims' rights in the criminal justice process.
This case arises against the backdrop of underlying facts that "are beyond scandalous—they tell a tale of national disgrace." Petitioner Courtney Wild and more than thirty girls "suffered unspeakable horror" at the hands of an international sex trafficking organization operated by wealthy financier Jeffrey Epstein. But after the victims reported the crimes against them, they were "left in the dark—and, so it seems, affirmatively misled—by government lawyers" about a secret non-prosecution agreement (NPA) that the Government negotiated with Epstein.
On these egregious facts, a divided panel decision (with three separate opinions spanning 120 pages) refused to find any violation of the Crime Victims' Rights Act (CVRA). The majority concluded that because the Government—working closely with Epstein's battery of high-powered lawyers—never formally filed federal criminal charges in the case, the CVRA was never "trigger[ed]." The majority admitted that its narrow reading of the CVRA leaves this important Act of Congress ineffectual in many cases. In fact, the majority acknowledged that "[u]nder our reading, the CVRA will not prevent federal prosecutors from negotiating 'secret' plea and non-prosecution agreements, without ever notifying or conferring with victims, provided that they do so before instituting criminal proceedings." Judge Hull's 60-page dissent put the matter more plainly: "the [m]ajority's contorted statutory interpretation materially revises the statute's plain text and guts victims' rights under the CVRA."
If the panel decision is left in place, it will permit "secret" justice depriving literally thousands of crime victims throughout this Circuit of any CVRA rights until the Government formally files charges. This will create perverse incentives for the Government to negotiate secret agreements within this Circuit rather than elsewhere, such as in the adjoining Fifth Circuit. The Fifth Circuit long ago held that "[i]n passing the [CVRA], Congress made the policy decision—which we are bound to enforce—that [crime] victims have a right to inform the plea negotiation process by conferring with prosecutors before a plea agreement is reached." In re Dean, 527 F.3d 391, 395 (5th Cir. 2008).
The majority's "regret[table]" interpretation of the CVRA is not required. The majority candidly concedes that "[t]he interpretation of the CVRA that [Ms. Wild] advances, and that the district court adopted, is not implausible." Indeed, as the dissent carefully explains, the majority's perverse interpretation could be avoided simply by this Court "enforce[ing] the plain and unambiguous text of the CVRA…." And equally remarkably, this issue of vital importance was one that the Government placed before this Court in its response brief, rather than following the normal—and required—appellate procedure of filing a cross-appeal.
Rather than leave standing this panel decision which "guts" victims' rights, this Court should rehear this case en banc and consider two questions of exceptional public importance that will determine how crime victims' rights are enforced throughout this Circuit:
Whether crime victims' rights can attach under the CVRA before the Government formally files criminal charges, as the Fifth Circuit and various district courts have previously held?
Whether Congress' 2015 CVRA amendment requiring that "[i]n deciding [a CVRA] … application, the court of appeals shall apply ordinary standards of appellate review," 18 U.S.C. § 3771(d)(3), permits the Government to inject new issues into a CVRA enforcement action and expand its rights beyond those conferred in the judgment below without following the ordinary appellate requirement of filing a cross-appeal?
A full copy of the petition can be found here. Along with Nathanael Mitchell and Brad Edwards, I've previously written a lengthy law review article on this subject of applying the CVRA before charges are filed.
Obviously, I hope that the Court calls for the Government to respond to the petition and then rehears this very important case. The issues go directly to the whether the CVRA can be simply circumvented by prosecutors and defense attorneys reaching secret agreements not to file charges. This is a recurring issue that needs to be carefully reviewed.