The Volokh Conspiracy
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Was it Lawful for the Justice Department to Reach a Secret Non-Prosecution Agreement with Jeffrey Epstein Without Telling His Victims?
My cert petition to the U.S. Supreme Court asks it review the Eleventh Circuit en banc's decision concluding that Epstein's victims cannot enforce their right to confer with prosecutors under the Crime Victims' Rights Act because the Department never formally filed charges against Epstein.
Today I filed a cert petition with the U.S. Supreme Court, asking it to review whether crime victims can enforce their rights under the Crime Victims' Rights Act (CVRA) before prosecutors file charges. The petition, filed by one of the nation's leading crime victims' attorneys, Bradley J. Edwards, and me on behalf of one of Epstein's victims—Courtney Wild—seeks review of a 7-4 en banc decision from the Eleventh Circuit. The Circuit held that the CVRA is only triggered when prosecutors file federal charges. Before then, according to the Eleventh Circuit, prosecutors are free to conceal from victims any deal that they may strike with the target of a federal investigation—as they did in the Epstein case. This issue has sweeping implications for the proper enforcement of the CVRA, and we hope that the Court grants Ms. Wild's petition to review this very important legal question.
This petition is the latest chapter in more than twelve years of litigation brought by Edwards and me on behalf of Ms. Wild. I've blogged about this case numerous times before, including here, here, and here, and co-authored two law review articles on the case, found here and here.
As explained in our petition filed today, between 1999 and 2007, Epstein sexually abused more than 30 minor girls, including Ms. Wild. The FBI investigated the case and referred it to federal prosecutors for prosecution. At this point, the prosecutors prepared a 53-page indictment. They also sent victim notification letters to the victims about their rights under the CVRA, informing them that they had rights under the CVRA—including their right to confer with prosecutors on the case—and that they could enforce those rights in court. A copy of the CVRA rights notification letter the prosecutors sent to Ms. Wild in 2007 is found here.
Ultimately, however, instead of prosecuting Epstein, the federal prosecutors in Florida reached a non-prosecution agreement (NPA) with Epstein blocking not only his prosecution for federal sex crimes but also prosecution of his co-conspirators, in exchange for Epstein's agreement to plead guilty to two low-level Florida state offenses. It is undisputed that, from the time the federal government began investigating Epstein until the time it concluded the non-prosecution agreement, the Justice Department prosecutors never conferred with Epstein's victims about the NPA nor even told them that such an agreement was under consideration. Indeed, the Justice Department's efforts (according to the Eleventh Circuit) "graduated from passive nondisclosure to (or at least close to) active misrepresentation." Rather than disclosing the NPA it had signed, the Justice Department sent letters to Ms. Wild and other Epstein victims telling them the case was "currently under investigation" and requesting their "continued patience."
When Epstein's sexual abuse victims became concerned about what was happening in their cases, in July 2008 Edwards and I filed a CVRA enforcement action alleging that the prosecutors had violated the victims' rights under the CVRA. The case proceeded and, in 2010, the Justice Department reversed its promise to Ms. Wild that she had rights under the CVRA. Instead, the Justice Department now took to the position that the CVRA did not apply at all because the Department had not filed federal charges. The district court rejected the Justice Department's new and novel position, finding that there were clearly rights in the CVRA that applied pre-charging.
Years of litigation followed, in which Edwards and I attempted to prove that the Justice Department had violated the victims' rights. To make a long story short, in February 2019, the district court ruled in favor of the victims, finding that the prosecutors had violated the victims' rights under the Act. But following Epstein's death by apparent suicide, the district court dismissed the case on mootness grounds. In September 2019, we appealed to the Eleventh Circuit, arguing that the case was not moot, because the victims sought to invalidate a provision in the NPA providing immunity from federal prosecution in Florida to Epstein's co-conspirators—an issue that remains important and justiciable even though Epstein is dead.
In April of this year, the Eleventh Circuit ducked the mootness issue. Instead, the Eleventh Circuit ruled in an en banc decision, 7-4, that the CVRA does not give Ms. Wild and other victims the ability to even appear in court to enforce their rights until the Justice Department files federal charges. Because the Justice Department never formally charged Epstein, the Eleventh Circuit en banc held that the prosecutors were free to conceal their non-prosecution deal with Epstein from the Epstein's victims. Indeed, Circuit held that the prosecutors were free to "mislead" the victims about the existence of the NPA, even though this was "shameful behavior" that produced a "national disgrace."
In the cert petition to the U.S. Supreme Court, we argue that "[t]he important legal issue of whether the nation's preeminent crime victims' rights statute permits the Government to secretly conclude pre-indictment non-prosecution agreements warrants immediate review by the Court." Our petition makes three arguments for why the Supreme Court should hear Ms. Wild's case.
Our first argument concerns the importance of immediate Supreme Court review of the issue. Given that the underlying legal issue involves a practice that the Justice Department intends to keep secret, the Supreme Court may well face a now-or-never opportunity to consider the question presented. It was only due to unusual circumstances that the Justice Department's NPA with Epstein was revealed to the victims—and the public. In future cases, there is no guarantee that the Justice Department will disclose its clandestine NPAs, much less disclose them in a way that would permit the kind of district and appellate court challenges that we were able to make for Epstein's victims. Accordingly, unlike many other areas of federal law, Ms. Wild's petition presents an issue that the Court cannot simply leave to percolate in the circuits, confident that it will have future opportunities for review. To ensure that it can review the important issue of whether the CVRA permits secret NPAs, the Court must immediately grant the petition.
Our second argument concerns the importance of the underlying legal issue. As explained at length in our petition, Congress clearly drafted the Crime Victims' Rights Act to block such covert Government maneuvers. By ignoring the "rights creating" language found in the CVRA, the Eleventh Circuit en banc misapplied Alexander v. Sandoval, 532 U.S. 275 (2001). As the dissenting judges below explained, the effect of the ruling is to "gut" the Crime Victims' Rights Act and create a two-tier system of justice, in which wealthy defendants can scheme with prosecutors to reach agreements that entirely exclude victim input and thwart transparency with the public.
Our third argument concerns the importance of this case—and the need for the Supreme Court to correct the errors by the Eleventh Circuit. As the majority below recognized, "t]he facts underlying this case … are beyond scandalous—they tell a tale of national disgrace." The nation's highest Court should review this "national disgrace" and bring some measure of justice by overturning the decision below.
This case involves "one of this era's most infamous child predators," as the majority below recognized. Any other criminal who ran such an extensive international child sex trafficking conspiracy would, no doubt, have received a lengthy federal prison term. But somehow Epstein arranged a secret deal that avoided federal prosecution allowed him to serve most of his state term on "work release." See Jeffrey Epstein's Wealth Allowed Him Many Perks While Serving Jail Time in Florida, Wash. Post (July 19, 2019). This "preposterous" non-prosecution agreement, Tung Yin, Learning from the Jeffrey Epstein Mess: It's Time to Add a Cause of Action for Damages to the Crime Victims' Rights Act, 69 Kans. L. Rev. 447, 489 (2021), has left Epstein's victims—and the public—to wonder why Epstein was treated so favorably. As the dissent below explained, "mysteries remain about how Epstein escaped federal prosecution and why, for nearly a year, the government made affirmative misrepresentations to the Florida victims of his serious sex crimes and to the victims' counsel."
These "mysteries" about the deal have led to fierce criticism from all quarters. For example, Senator Ben Sasse, then-Chairman of the Senate Judiciary Oversight Subcommittee, wrote to Attorney General William Barr that "[t]he idea that wealth and connections can buy injustice—the only plausible explanation for such pathetically soft terms for a serial child rapist at the heart of a massive international criminal enterprise—is wholly and completely inconsistent with the basic notions of fairness and equality that undergird the rule of law enshrined in our Constitution." Letter from Sen. Sasse to Attorney General Barr (Aug. 13, 2019). The bottom line is that the shocking Epstein deal has "ignited a crisis of public trust in the Department and exacerbated the erosion of trust that the American people have in our institutions of republican self-government more broadly." Letter from Senators Sasse, Blumenthal, Cruz, and Blackburn to Inspector General Horowitz (Dec. 2, 2019).
It is, perhaps, conceivable, that the CVRA somehow allows such deceitful behavior by the Justice Department. But such an important issue should be decided by the Supreme Court on plenary review.
Our client, Courtney Wild, certainly hopes that the Court will grant her petition: "The government badly mistreated me and many others. I'm counting on our United States Supreme Court to take my case and give me my day in court." We believe we have a strong petition and we, too, hope that the Supreme Court will give Courtney her day in court.
