The Eleventh Circuit Grants Rehearing En Banc on the Victims' Challenge to Epstein's Non-Prosecution Agreement

The full Court will consider whether Jeffrey Epstein's victims can argue for invalidating the immunity provisions in the Epstein deal.

Earlier this morning, the Eleventh Circuit granted rehearing en banc in In re Wild, the challenge by Courtney Wild (and, effectively, other Epstein victims) to Epstein's secret non-prosecution agreement (NPA). As I have blogged about previously, the key issue at this point in this long-running litigation is whether the Crime Victims' Rights Act (CVRA) extends any  protections to crime victims before the formal filing of federal criminal charges. Ms. Wild has argued that, for example, the CVRA's right to confer with prosecutors can apply before the filing of an indictment–a position supported by (among others) the Fifth Circuit and the district court in this case. And because (as the district court has previously ruled) federal prosecutors violated the CVRA by deliberately concealing the Epstein NPA from his child sex abuse victims, the remedy for that violation should be invalidating the NPA's immunity provisions for Epstein's co-conspirators--thereby allowing the Epstein victims to confer with federal prosecutors in Florida about obtaining a prosecution for the federal sex crimes committed by those co-conspirators.

While briefing and argument schedules have yet to be set, this ruling is a significant victory for crime victims. Today, the full Court vacated the earlier (2-1) panel decision holding that  victims have no rights under the CVRA until prosecutors formally file charges. Even the authors of that panel decision called it a "regrettable" and "unfortunate" ruling, which left Epstein's victims "empty handed."

Brad Edwards, Jay Howell, and I look forward to continuing the fight for our client, Courtney Wild. She said this morning, "I had confidence this day would come. We have fought for twelve years, and as I've said before, no matter how many obstacles pile up, we will never give up fighting for what is right."

Ms. Wild also wants to extend her thanks to Senator Dianne Feinstein and former Senators Jon Kyl and Orrin Hatch.  Represented by Allyson Ho and other outstanding lawyers at Gibson, Dunn, the Senators filed a powerful amicus brief supporting rehearing.  The brief explained that, as original co-sponsors of the CVRA, they had always intended the Act to cover victims like Ms. Wild.  And Ms. Wild also wants to thank the National Crime Victims' Law Institute (NCVLI), who also filed a strong amicus brief in support of rehearing en banc.

Crime victims deserve rights even before prosecutors formally file criminal charges. I look forward to making that case before the full Eleventh Circuit.

Comments

[Dr. Ed 2]

How is this not rendered moot by Epstein's death?
Even if the NPA is revoked, you can't prosecute a corpse....

[Jerry Vandesic]

The NPA included Epstein's co-consipirators, some of whom are not dead. Namely Maxwell.

[Dr. Ed 2]

VERY interesting -- I did not know that.

[Noscitur a sociis]

The crime victims were seeking other forms of relief that are not all mooted by Epstein's death.

[JoeM64]

Maxwell is indicted and in prison. Clearly the NPA does not apply.

[pdgpa]

That is not "clear" until a judge rules on her motion to enforce the NDA and dismiss some or all of the charges, and perhaps not until an appellate court rules on an appeal of the trial court's ruling on that pretrial motion, whichever way it goes.

[PublicNameNotInUse]

"Crime victims deserve rights even before prosecutors formally file criminal charges. "

Doesn't this necessarily mean passing judgement before charges have even been filed? How can you be a crime victim with Crime Victim superpowers if there is no determination that a crime has even been committed, much less by whom?

[Jerry Vandesic]

You can probably be a victim of a crime before anyone is convicted of the crime. But you aren't necessarily a victim of a specific person until that person is convicted.

[Noscitur a sociis]

This seems like a fairly silly point. Before prosecutors can file charges, they have to make their own determination that a crime has been committed by the proposed defendant, which will generally entail identifying the specific people adversely affected by the crime, if they exist. I don't see anything contradictory about the government deciding to afford those so identified certain courtesies during the investigation.

[pdgpa]

It's not a "silly point" at all. While a person identified by the prosecutor as a victim may be entitled to "certain courtesies," it does not follow that any judge can properly enforce "rights" granted to such persons (rights being, after all, guarantees against the exercise of state power or entitlements to the benefit of state power) simply because they self-identify as "victims" of a crime they believe was committed by the suspect or accused person. To come to such persons' aid, the court may have to pre-judge questions that due process forbids to be pre-judged, including whether any crime at all was committed, and if so, by whom.

[MikeFr]

Epstein made an agreement with the government, plead guilty, and served time. He did not violate the CVRA.

If the plea agreement is now set aside does his estate have recourse against the government?

[pdgpa]

A criminal defendant cannot "violate the CVRA." The Act imposes duties on prosecutors and to some extent on courts, not on defendants. It does, however, impose burdens on defendants, which in some instances can be unconstitutional to the extent the statutory "rights" of persons deemed to be "victims" impinge on the defendant's actual, constitutionally guaranteed rights.