A Big Win for Child Crime Victims

In a groundbreaking decision, a Florida federal court recently handed crime victims a significant victory, ruling for the first time that victims are entitled to confer with an assistant United States attorney before the Government enters a pre-charging, non-prosecution agreement with a defendant. Jane Doe v. United States, 08-cv-80736-KAM (S.D. Fla.). The case involved billionaire hedge fund operator Jeffrey Epstein, who induced minors to prostitute themselves, and then was granted what appears to be a special, sweetheart deal by the Feds without any victim notification or input, much less approval.

I. The Victims’ Rights Movement and Our Victims’ Rights Practice

In recent years, the Marsh Law Firm has represented victims of crimes such as fraud, theft, sexual assault, and child pornography seeking redress for their injuries. On June 27, 2013, the Supreme Court decided to hear a case in which one of our clients, a victim of child pornography, is seeking restitution from a man in Texas convicted of possessing images of her being sexually exploited as a child.

We believe that victims of crime have been marginalized and ignored in our criminal process for far too long. Criminal law and procedure courses in law school have traditionally focused almost exclusively on the rights of defendants and the government’s awesome power to prosecute. Victims are viewed as afterthoughts—sometimes needed as witnesses—but otherwise generally irrelevant to the criminal process.

This is beginning to change. Over the last several decades, many states have adopted victim rights statutes or constitutional amendments reflecting a growing awareness that victims should also be heard and protected in the criminal process.

In 2004, Congress passed landmark legislation providing victims rights in federal prosecutions. Known as the “Crime Victims’ Rights Act”, the CVRA gives victims the right (i) to be reasonably protected from the accused, (ii) to reasonable, (iii) to accurate and timely notice of any public court proceeding or any parole proceeding, (iv) to attend and be heard at any such public court proceeding, (v) to confer with the attorney for the government, (vi) to full and timely restitution, (vii) to proceedings free from unreasonable delay, and (viii) to be treated with fairness and respect for their dignity and privacy.

II. Florida District Court Decision

In this post, we report on a very important victory for crime victims; a Florida federal Court decision granting crime victims the right to re-open a pre-charging non-prosecution agreement where the victims’ right to confer under the CVRA were violated. Jane Doe v. United States, 08-cv-80736-KAM (S.D. Fla.). Paul Cassell, a high-powered attorney, professor of criminal law at the Utah School of Law, and former federal judge who frequently serves as co-counsel in many of our cases, is Jane Doe’s counsel in this case.

A. Facts

Jane Doe (a pseudonym used to protect her identity) is a victim of Jeffrey Epstein, a billionaire hedge fund operator, who induced her and other minors to prostitute themselves. The FBI investigated Epstein and the United States Attorney’s Office for the Southern District of Florida accepted it for prosecution.

In the summer of 2007, the government sent standard victim notification letters to Jane Doe and other victims. Shortly thereafter, it entered into a non-prosecution agreement with Epstein, but “without first conferring with [his victims] and without alerting [them] to the existence of the agreement either before or promptly after the fact.” Id. *1.

It was a sweetheart deal smacking of special privilege for a wealthy and well-connected political donor.

Epstein agreed to plead guilty to two state court charges—solicitation of prostitution and solicitation of minors to engage in prostitution—and received an 18 month sentence (of which he served only 13). Under the Federal Sentencing Guidelines, a defendant convicted of promoting commercial sex with a minor under these circumstances would be sentenced to significantly more time, at least two and probably three or four times what Epstein received in Florida state court. The non-prosecution agreement also contained a special provision in which the federal prosecutor and Epstein expressed their “anticipat[ion]” that the “agreement will not be made part of any public record.” Id.

The government waited nine months after the non-prosecution agreement was signed to notify Jane Doe that Epstein was about to plead guilty (three days later, on June 30, 2008) in state court to these charges. Id. That notice did not, however, mention the non-prosecution agreement or give any hint that the Feds had agreed to Epstein’s deal with Florida. Id. And on May 30, 2008, long after the non-prosecution agreement was signed, the government sent another victims a false notification that its case against Epstein was “currently under investigation.” Id. at note 4.

After receiving the Government’s notice, Jane Doe filed an “emergency” petition under the CVRA, contending that Epstein was currently involved in plea negotiations with the Federal government which “may likely result in a disposition of the charges in the next several days.” Since she was wrongfully excluded from the discussions, Jane Doe asserted a violation of her CVRA rights to confer with federal prosecutors, to be treated with fairness, to receive timely notice of relevant court proceedings, and to receive information about her right to restitution. As relief she requested entry of an injunction directing the Federal government to “comply with the provisions of the CVRA prior to and including any plea or other agreement with [Epstein] and any attendant proceedings.” Id.

The government moved to dismiss the petition on several grounds including: (i) the CVRA does not apply to pre-charge negotiations with prospective defendants, and (ii) Jane Doe lacks standing and the court lacks subject matter jurisdiction because the remedy sought of vacating or re-opening the non-prosecution agreement “is not a legally viable option at this juncture.” Id. *2.

B. The Decision

On June 19, 2013, in a precedent setting decision, Judge Kenneth A. Marra denied the government’s motion to dismiss. Jane Doe v. Untied States, 08-cv-80736-KAM (S.D. Fla.). He determined that the CVRA authorizes the re-opening of a pre-charging, prosecutorial agreement—including a non-prosecution arrangement—when it is reached in violation of a prosecutor’s duty under the CVRA to confer with victims. He therefore ordered the case to proceed to discovery (which had been stayed pending a decision on the government’s motion to dismiss), mandating that the government and Epstein’s lawyers give Jane Doe communications between them during the course of the plea negotiations in Epstein’s criminal case.

Following the ruling, Federal prosecutors produced more than 13,000 pages of documents in camera to Judge Marra and asserted privilege over all of them. Such a data dump smacks of bad faith and one can only hope that Judge Marra will consider sanctions. The ruling is now subject to an appeal in the Eleventh Circuit brought by Epstein’s lawyers.

III. The Government Should Admit Error

Because of Epstein’s notoriety and the prominence of the lawyers involved (including Paul Cassell for Jane Doe and Roy Black for Epstein), the case promises to yield additional important decisions. The government already has egg on its face and is not likely to look any cleaner as more facts are revealed in discovery. Although admitting error is always difficult, it would behoove the government to do so soon and to promptly grant the victims of Mr. Epstein their rights under the CVRA.

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