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‘Violence to the Statutory Text’: Two Female Judges Issue Blistering Dissents as Court Rules Epstein Victims Can’t Sue Over Prosecutors Who Lied About Sweetheart Deal


jeffrey epstein mugshot

A federal court has, for the second time in as many years, told victims of Jeffrey Epstein that they cannot void the plea agreement that minimized his punishment, kept them silenced, and purported to immunize his alleged co-conspirators.

In a series of opinions and dissents spanning 185 pages, the U.S. Court of Appeals for the Eleventh Circuit ruled that survivor Courtney Wild has no standing to challenge how the government’s decades-old deal with the deceased pedophile. That deal by the U.S. Attorney’s Office for the Southern District of Florida in 2007 included an unusual non-prosecution agreement for Epstein’s accused co-conspirators.

Specifically, the en banc court ruled 7-4 that the Crime Victims Rights Act of 2004 (CVRA) is only triggered by the filing of an indictment and since the shadowy non-prosecution agreement foreclosed that outcome, Epstein’s victims–victims acknowledged by the court–cannot sue federal prosecutors for violating the act.

The court found the CVRA does not authorize “Wild to file a freestanding civil suit seeking judicial enforcement of her rights under the CVRA in the absence of any underlying proceeding.”

In the majority opinion, Donald Trump-appointed Circuit Judge Kevin Newsom expressed empathy for Wild and dozens in her place but insisted that the law has bound the court’s hands.

“We have the profoundest sympathy for Ms. Wild and others like her, who suffered unspeakable horror at Epstein’s hands, only to be left in the dark—and, so it seems, affirmatively misled—by government attorneys,” the majority opinion reads. “Even so, we find ourselves constrained to deny Ms. Wild’s petition crime victim like Ms. Wild to ‘mov[e]’ for relief within the context of a preexisting proceeding—and, more generally, to pursue administrative remedies— it does not authorize a victim to seek judicial enforcement of her CVRA rights in a freestanding civil action. Because the government never filed charges against Epstein, there was no preexisting proceeding in which Ms. Wild could have moved for relief under the CVRA, and the Act does not sanction her stand-alone suit.”

In one of two dissents, Circuit Judge Elizabeth L. Branch, another Trump appointee, describes how Epstein and the U.S. government’s lawyers both worked to keep the victims in the dark.

“Epstein’s attorneys opposed any victim notifications, but the U.S. Attorney’s Office insistently and repeatedly told Epstein’s attorneys that it was statutorily obligated under the CVRA to notify and confer with the victims about the Agreement and upcoming events, including Epstein’s state plea,” she notes. “Nevertheless, for still unknown reasons, the U.S. Attorney’s Office acquiesced to the demands of Epstein’s attorneys and did not notify all of the victims of the Agreement. Rather, the U.S. Attorney’s Office affirmatively misled victims for months concerning the Agreement and the resolution of the federal case.”

Though the majority opinion elided these lies and omissions by claiming the hew to the text of the statute, both dissents argued that the law did not actually mandate with the circuit found.

“The Majority then, in essence, adds a new requirement to the text of the CVRA—that there must be a preexisting indictment and ongoing court proceeding before a crime victim may file a motion for relief under [the relevant section of federal law],” Branch notes. “I dissent because the Majority errs in failing to enforce the plain text of the CVRA and in concluding that this case should have been dismissed at the outset in 2008.”

“The flaw is that the Majority’s line-drawing is of its own making and does violence to the statutory text,” Branch writes elsewhere in her dissent.

The first dissent, though lengthy, tersely sums up its reasoning:

I respectfully dissent because (1) the plain text of the CVRA grants crime victims two “pre-charge” rights—the “reasonable right to confer with the attorney for the Government” and the “right to be treated with fairness”—and (2) it provides crime victims with the statutory private remedy of judicial enforcement of those rights “if no prosecution is underway” by filing a motion for relief “in the district court in the district in which the crime occurred.”

Branch also notes that the majority opinion effectively skips over the threshold question of whether or not CVRA rights attach prior to the filing of an indictment–a decision the majority defends in a footnote by arguing that “our path results from a shared conviction that courts should decide cases narrowly wherever possible.”

“The first issue on which we ordered en banc briefing is whether the CVRA grants crime victims the rights to confer and be treated fairly prior to the filing of an indictment,” Branch notes. “This question is about the timing of when CVRA rights attach, not the scope of the rights. This issue, which was the basis of the prior panel’s decision, is an important legal question of first impression in our Circuit. Nevertheless, the Majority declines to address it in its en banc decision.”

The Florida district court, notably, found that the CVRA “clearly contemplates pre-charge proceedings.”

Bill Clinton-appointed Senior Circuit Judge Frank M. Hull joined the Branch dissent in full (along with two Barack Obama-appointed judges) but also penned her own, which focuses first and foremost on the “pre-charge” issue–and uses a significantly less patient tone.

“The conferral-right issue is an important legal question of first impression in our Circuit,” Hull writes. “But the Majority blithely skips over the issue, although it was the basis of the Panel opinion and is now the first en banc issue briefed and argued.”

The second dissent then takes the majority opinion to task:

The Majority now says “we needn’t decide whether, in the abstract, the rights to confer and to be treated with fairness might attach prior to the formal commencement of criminal proceedings.” Good gracious, there’s nothing abstract about this case. The Majority admits that the facts are “beyond scandalous” and the victims were not only “left in the dark,” but “affirmatively misled” by government attorneys. To add insult to injury, the Majority refuses to answer the first en banc question as to whether the Epstein victims had any CVRA rights that attached pre-charge.

“Moreover, that first en banc question—whether the CVRA in § 3771(a) granted victims rights that attach pre-charge—is an integral part of the proper statutory interpretation of the remedy provision in § 3771(d), which refers back to those § 3771(a) rights,” Hull’s dissent goes on. “If the CVRA grants the victims rights that do attach pre-charge—as the plain language of § 3771(a)(5) and (a)(8) suggests—that would also support Judge Branch’s conclusion that § 3771(d) provides Ms. Wild a private cause of action to enforce those rights in the precharge period before an indictment.”

Judge Hull famously dissented in the original panel decision–released exactly one year and one day ago–by suggesting that Newsom feigned shock and outrage at Epstein’s treatment of women by using floral language instead of accurately interpreting the law.

From that prior dissent:

The Majority also dresses up its flawed statutory analysis with rhetorical flourish, using language like “scandalous,” “national disgrace,” and “the sad details of this shameful story,” while also expressing sincere empathy for the victims … The Majority confesses that “[i]t isn’t lost on us that our decision leaves petitioner and others like her largely emptyhanded” and “we sincerely regret that.” 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’s Thursday dissent is equally no-holds-barred:

The petition Ms. Wild filed in the district court was one that the CVRA expressly authorizes when no prosecution is underway. Ms. Wild has spent over ten years seeking to vindicate her statutory rights expressly created by Congress. Today, the Majority tells Ms. Wild and Epstein’s other victims that all of that was for naught, since they never had the right to file their motion in the first place back in 2008. The Epstein victims have no remedy as to the government’s appalling misconduct because the Majority rewrites the CVRA to add a blanket postindictment limitation and reads out of the statute any ability for crime victims to judicially enforce their conferral rights outside of a preexisting criminal proceeding. The Majority’s ruling eviscerates the CVRA and makes the Epstein case a poster child for an entirely different justice system for crime victims of wealthy defendants. I respectfully dissent, once again.

[image via mugshot]

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