By Robert Y. Lewis

In a bellwether decision, a Florida federal court recently handed crime victims a significant victory, ruling for the first time that they are entitled to confer with the prosecutor before he enters a pre-charging, non-prosecution agreement with a defendant. Jane Doe v. Untied 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 knowledge or input, much less approval.

I. The Victim Rights Movement and Our Victim Rights Practice

In recent years Freeman Lewis LLP has represented victims of crimes such as fraud, theft, sexual assault, and child pornography seeking redress for their injuries. As we reported on June 27, 2013, the Supreme Court recently 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 molested as a young girl by her uncle.

We believe that victims of crime have for too long been marginalized or ignored in our criminal process. 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 beyond the purview of 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 too should 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 E-Update, 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’ conferral rights under the CVRA have been violated. Jane Doe v. United States, 08-cv-80736-KAM (S.D. Fla.) . Paul Cassell, a professor of criminal law at the Utah School of Law and former federal judge with whom we often collaborate, is counsel to Jane Doe in this case.

A. Facts

Jane Doe (a pseudonym used to protect the plaintiff's identity) was a victim of one Jeffrey Epstein, a billionaire hedge fund operator, who had induced her and others to prostitute themselves while they were minors. The FBI opened an investigation of 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 the wealthy and well-connected. Epstein agreed to plead guilty to two then pending state court charges – solicitation of prostitution and solicitation of minors to engage in prostitution – and received a 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 twice and probably thrice or four times what Epstein received in Florida state courts. 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.

Not until nine months after the Non-Prosecution Agreement was signed did the government finally give Jane Doe notice 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 one of other 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." Claiming to be wrongfully excluded from the discussions, Jane Doe asserted the 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."

The government sought 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 prosecutors’ 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.

Freeman Lewis LLP is a boutique firm focusing on employment law, victims' rights, securities arbitration, white-collar criminal law, commercial litigation, and ERISA litigation. For more information, visit http://www.freemanlewis.com.