TALLAHASSEE (CBSMiami/NSF) — One of notorious sex-offender Jeffrey Epstein’s victims is asking an Atlanta-based appeals court to reconsider a ruling that found federal prosecutors did not violate victims’ rights by hatching a secret deal with the wealthy and well-connected financier.
The request came in a challenge to a 2008 “non-prosecution agreement” struck between Epstein’s lawyers and federal prosecutors in Florida that enabled Epstein to avoid a lengthy prison sentence and evade federal sex-crimes charges.
A divided three-judge panel of the 11th U.S. Circuit Court of Appeals last month reluctantly decided prosecutors did not violate the federal Crime Victims’ Rights Act by not getting the input of Epstein’s numerous victims before finalizing the deal.
But lawyers for Courtney Wild, who was a minor when Epstein molested her, asked this week for what is known as an “en banc,” or full court, rehearing, calling it “perhaps the most important case in our nation’s history involving crime victims’ rights in the criminal justice process.”
The April 14 panel ruling called the facts of the case “beyond scandalous” and a “national disgrace” but said the federal victims’ rights law did not apply to Wild because Epstein was never charged with a federal crime in Florida.
Under the agreement, Epstein pleaded guilty to two state prostitution charges, including procuring a minor for sex. The plea deal also provided immunity from federal prosecution for Epstein and at least four co-conspirators.
“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 (Crime Victims’ Rights Act) rights until the government formally files charges,” Paul Cassell, a University of Utah law professor who represents Wild, wrote in Tuesday’s request for an en banc hearing.
Allowing the ruling to stand “will create perverse incentives for the government to negotiate secret agreements” in the 11th Circuit, which includes Alabama, Florida and Georgia, rather than elsewhere, Cassell argued, writing that the panel decision “‘guts’ victims’ rights.”
Epstein, who had a home in Palm Beach County, died of an apparent suicide in August while being held in jail after being arrested on sex-trafficking charges involving minors in Florida and New York. Epstein was arrested last year after reporting by the Miami Herald led to heavy scrutiny of the 2008 plea deal.
Wild filed a lawsuit against prosecutors in 2008, alleging that the non-prosecution agreement violated her rights under the Crime Victims’ Rights Act to confer with the government’s lawyers and to be treated fairly by them.
After more than a decade of litigation, U.S. District Judge Kenneth Marra ruled in February 2019 that federal prosecutors broke the law when they struck the plea deal with the multimillionaire. But after Epstein died, the federal judge refused to undo the plea agreement or grant other remedies sought by Wild, who filed the lawsuit as “Jane Doe 1,” and another victim.
As negotiations about the prosecution agreement were underway in 2008, federal prosecutors promised Wild and other victims of Epstein that they had rights under the federal act, according to court documents.
But prosecutors never consulted Epstein’s numerous victims before reaching the plea deal. The government’s lawyers held off for nearly a year on notifying victims of the existence of the non-prosecution agreement, according to court documents.
“Worse, it appears that prosecutors worked hand-in-hand with Epstein’s lawyers — or at the very least acceded to their requests — to keep the NPA’s (non-prosecution agreement’s) existence and terms hidden from the victims,” Judge Kevin C. Newsom wrote in the April 14 panel opinion.
Newsom acknowledged that the appeals-court decision “leaves the petitioner and others like her largely emptyhanded.”
“We sincerely regret that,” he wrote.
But Cassell argued in this week’s motion that Congress “has made clear” that the federal act can apply during a criminal investigation.
“Given that the majority ‘regret(s)’ its ruling and that it seems ‘obvious’ that prosecutors should have conferred with Epstein’s victims, it is hard to understand how the majority concludes that Congress did not intend to cover cases such as this one,” Cassell wrote.
Cassell also urged the full court to rehear the case because the panel decision is at odds with a ruling by the 5th U.S. Circuit Court of Appeals in a Texas victims-rights case.
Wild’s lawyer also relied on a sharply worded dissent in the April 14 opinion by Judge Frank M. Hull, who found the “plain and unambiguous text of the CVRA” was “repeatedly violated” by the U.S. Attorney’s Office in the Southern District of Florida.
Federal prosecutors “never conferred one minute with victims about the NPA,” “worked closely with Epstein’s lawyers to keep the agreement’s existence and terms hidden from victims,” and “actively misrepresented to the victims that the criminal investigation continued when the NPA was already signed,” Hull wrote.
The victims were never informed about the agreement until Epstein pleaded guilty and the “secret sweetheart deal was done,” the dissent said.
The majority’s interpretation “materially revises the statute’s plain text and guts victims’ rights under the CVRA,” Hull wrote.
“Nothing, and I mean nothing, in the CVRA’s plain text requires the majority result,” Hull added.
Hull also accused the majority of having “dressed up its flawed statutory analysis with rhetorical flourish” while expressing “sincere empathy” for Epstein’s victims.
“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,” Hull wrote last month.
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