On Friday, April 18, 2014, the Eleventh Circuit ruled that discovery can move forward in an important Crime Victims’ Rights Act case that my co-counsel Paul Cassell and I (Brad Edwards) have been litigating for nearly six years. The narrow issue before the Circuit was whether prosecutors and defense attorneys share an absolute privilege, to the exclusion of even the victims of the crime, so as to prevent anyone (including the victims) from knowing anything about the plea discussions. The District Court ruled that no such privilege exists and the 11th Circuit has now agreed. In this case, the ruling means that the victims will have a chance to review the correspondence exchanged between Epstein and prosecutors to learn how exactly the secretive deal was reached while the victims were lead to believe a prosecution was underway. The ruling will also get the victims one step closer to returning to the district court and seeking to invalidate the plea agreement that was consummated in violation of their rights. We hope that the case will ultimately set an important precedent establishing the timing for when victim’s rights are triggered and ultimately prevent prosecutors from keeping victims in the dark about the plea deals reached with perpetrators.
Here are the important facts, taken from the Eleventh Circuit’s opinion: In 2006 the FBI began investigating allegations that Jeffrey E. Epstein had sexually abused dozens and dozens of minor girls. The United States Attorney’s Office for the Southern District of Florida accepted Epstein’s case for prosecution, and the FBI issued victim notification letters to my two clients, minors Jane Doe No. 1 and Jane Doe No. 2, in June and August 2007. Extensive plea negotiations ensued between the United States and Epstein. Despite the investigation revealing that Epstein had molested more than 40 minor girls, in late 2007, the United States entered into a non-prosecution agreement (NPA) with Epstein – essentially agreeing to immunize Epstein for all of the Federal Sex crimes he committed in exchange for his offer to plead guilty to minor Florida state offenses (e.g., solicitation of prostitution), for which he served the majority of his “time” in a lush private office, as opposed to a cell.
During the Federal Plea negotiations, not only did the United States neglect to “meaningfully confer” with the victims before it entered into the agreement with Epstein, it also concealed its existence of the agreement for at least 9 months. For example, the United States sent post-agreement letters to the victims reporting that the “case is currently under investigation” and explaining that “[t]his can be a lengthy process and we request your continued patience while we conduct a thorough investigation.” Some of those letters were delivered to victims as late as May, 2008 – many months after the NPA was signed and just before Epstein’s state court plea that served to permanently extinguish the rights of victims.
On June 27, 2008, the United States informed me that Epstein planned to plead guilty to the Florida state charges three days later. But the United States failed to disclose that Epstein’s pleas to those state charges arose from his federal non-prosecution agreement and that the pleas would bar a federal prosecution. As a result, the victims did not attend the state court proceedings. In fact, Federal prosecutors asked that I express my concerns about Mr. Epstein in a letter addressed to them. I sent that letter on July 3, 2008 detailing the reasons why federal prosecution of Mr. Epstein were extremely important for the safety of children. This exercise was obviously futile, especially in light of the fact that the plea to which Epstein had already entered brought an end to any chance of federal prosecution.
On July 7, 2008, while under the mistaken belief (along with my clients) that a federal plea deal was imminent and should be stopped – at least to give my clients a chance to first confer with the prosecutor as to the terms of the plea deal – I filed a petition alleging that Jane Doe No. 1 was a victim of federal sex crimes committed by Epstein and that the United States was wrongfully excluding her from plea negotiations. We also alleged that the prosecutors had violated her rights under the Crime Victims’ Rights Act (CVRA) — specifically her rights to confer with federal prosecutors, to be treated with fairness, to receive timely notice of relevant court proceedings, and to receive information about restitution. The United States response was the first time we realized that there was no imminent federal plea to stop – the deal had already been done. By telling my clients to be patient, and by having me spend time writing letters about the need to prosecute Mr. Epstein, the United States had effectively run out the clock on my clients’ rights. Remarkably, the United States, in its pleadings, defended the allegations that it had violated the victims’ rights by claiming the Act did not apply to pre-indictment negotiations with potential federal defendants; therefore, the victims’ “rights” had never been triggered and thus could not have been violated. The defense was that the victims had no rights…despite the CVRA.
After Jane Doe No. 2 joined the initial petition, the district court (Marra, J.) found that both women qualified as “crime victims” under the Act. The district court later rejected the Government’s argument that the CVRA only applies after a federal criminal indictment has been filed.
Among other relief, we sought rescission of the non-prosecution agreement as a remedy for the violation of the victims’ rights. To make the case for such a remedy, we moved for discovery of the correspondence between the United States and Epstein’s attorneys during the plea negotiations. Epstein’s attorneys intervened, arguing that Federal Rule of Evidence 410 and Federal Rule of Criminal Procedure 11 create a privilege for plea negotiations blocking release of the correspondence. They also argued that the court should find that the materials were protected under the work product doctrine or, alternatively, should be protected under a new “common-law privilege for plea negotiations.” Yes, Epstein’s defense attorneys argued at the District level and appellate level that absolute confidentiality should exist between defendants and prosecutors to the exclusion of everyone – including the victims of the crime.
The district court first ruled that rescission of the plea agreement was a possible remedy under the Act. The court then ruled that we were entitled to review the correspondence, rejecting all of Epstein’s arguments.
On Friday, the Eleventh Circuit affirmed the district court’s decision. At pp. 18-22, the Circuit concluded that there was no basis for restricting access to the correspondence when the victims had a legitimate need to review. The Circuit rejected, for example, the work product argument:
Disclosure of work-product materials to an adversary waives the work-product privilege. See, e.g., In re Chrysler Motors Corp. Overnight Evaluation Program Litig., 860 F.2d 844, 846 (8th Cir. 1988); In re Doe, 662 F.2d 1073, 1081–82 (4th Cir. 1981). Even if it shared the common goal of reaching a quick settlement, the United States was undoubtedly adverse to Epstein during its investigation of him for federal offenses, and the intervenors’ disclosure of their work product waived any claim of privilege. . .
The Circuit also declined to recognize a new privilege for “plea bargaining”:
As a last-ditch effort, the intervenors contend that “[i]f more is needed in addition to the plain language of Rule 410 to preclude disclosure of the correspondence to plaintiffs, it can be found in the conjunction of Rule 410, the work-product privilege, and the Sixth Amendment right to the effective assistance of counsel in the plea bargaining process,” but this novel argument fails too. As explained above, Rule 410 does not create a privilege and the intervenors waived any work-product privilege. The intervenors concede too that the right to counsel under the Sixth Amendment had not yet attached when the correspondence was exchanged. Lumley v. City of Dade City, Fla., 327 F.3d 1186, 1195 (11th Cir. 2003) (“[T]he Sixth Amendment right to counsel ordinarily does not arise until there is a formal commitment by the government to prosecute,” such as a “formal charge, preliminary hearing, indictment, information, or arraignment.”). The “conjunctive” power of three false claims of privilege does not rescue the correspondence from disclosure. . . .
The Supreme Court has identified several considerations relevant to whether a court should recognize an evidentiary privilege—the needs of the public, whether the privilege is rooted in the imperative for confidence and trust, the evidentiary benefit of the denial of the privilege, and any consensus among the states, Jaffee v. Redmond, 518 U.S. 1, 10–15, 116 S. Ct. 1923, 1928–31 (1996)—but none of these considerations weighs in favor of recognizing a new privilege to prevent discovery of the plea negotiations. Although plea negotiations are vital to the functioning of the criminal justice system, a prosecutor and target of a criminal investigation do not enjoy a relationship of confidence and trust when they negotiate. Their adversarial relationship, unlike the confidential relationship of a doctor and patient or attorney and client, warrants no privilege beyond the terms of Rule 410. See Jaffee, 518 U.S. at 10, 116 S. Ct. at 1928. But the victims would enjoy an evidentiary benefit from the disclosure of plea negotiations to prove whether the United States violated their rights under the Act.
The bigger issue is whether the Crime Victims’ Rights Act is going to be taken seriously by prosecutors and the courts. We have a very strong case that, prodded by Epstein, the federal prosecutors deliberately concealed the sweetheart plea deal they had cooked up with him to avoid public criticism of the deal. But the CVRA was the law of the land and required the prosecutors to confer with the victims about the deal – before it was made. I am hopeful that this case substantiates and advances the rights of crime victims in the criminal process at an early stage, and that ultimately the violation of our client’s rights in this case can be resurrected through the invalidation of this agreement that was reached in violation of their rights.