MIAMI (CN) - In the 11th Circuit, government prosecutors at long last uttered the word "sorry" in open court to victims of Jeffrey Epstein's underage sex ring, after years of refusing to apologize for keeping them in the dark about a deal that protected the wealthy money manager from federal charges.
The apology was issued during a Thursday morning appellate proceeding in Miami attended by Courtney Wild, who says Epstein sexually abused her at his mansion when she was 14 years old. She and her lawyers were in court to challenge a federal judge's decision to preserve the 2007 deal, which gave Epstein and his assistants immunity from federal sex-crime charges in South Florida.
"The government should have communicated to Ms. Wild in a straightforward [way] . . . . We are genuinely sorry," assistant U.S. attorney Jill Steinberg said, apologizing for her predecessors' mistreatment of victims.
Wild's longtime lawyer Bradley Edwards said outside the courthouse that while Wild welcomes the government's repentance, she wants more concrete relief. Citing the government's admitted failure to confer with victims, Edwards said that the "clear remedy is to rescind the non-prosecution agreement."
The government told the appellate panel that the Crime Victims Rights Act provides a means for disenfranchised victims to challenge plea bargains, not non-prosecution agreements like Epstein's. Steinberg claimed that because federal prosecutors never filed a formal charging document, the act's rescission remedies do not apply.
Edwards said after the hearing that the government's stance amounts to using a legal loophole to sidestep victims' rights.
"This is an argument the government has been making for some time. They're saying, 'We never formally indicted, so we didn't have to treat the victims with dignity,'" Edwards said.
Epstein, who rubbed shoulders with the richest of the rich in the Palm Beach social scene, members of the British royal family and Presidents Donald Trump and Bill Clinton, died in August 2019 while in custody on new sex-crime charges filed in New York. His death was deemed a suicide by a New York City medical examiner, though a forensic pathologist hired by his brother argued that his injuries suggested homicide.
In the old Florida criminal case, Epstein was accused of luring more than 30 underage girls to his Palm Beach mansion and coercing them into sexual activity in a massage room that his aides allegedly helped him set up and maintain. He cut the 2007 deal with Southern District of Florida prosecutors, under which he pleaded guilty to a state charge of soliciting underage prostitution in exchange for assurances that he would not be charged federally.
Epstein served roughly a year in prison. He was allowed to leave his cell and spend daytime in an office under a work-release program.
In February 2019 - 11 years deep into Wild's lawsuit against the government - U.S. District Judge Kenneth Marra, a George W. Bush appointee, found that federal prosecutors violated the Crime Victims Rights Act by concealing Epstein's deal from victims as plea negotiations played out and even after the deal was signed.
Last September, Marra granted virtually no relief to Wild and the other plaintiff, however. He found that their demand to nullify Epstein's immunity in Florida was made moot when Epstein died.
As for the assistants who allegedly helped Epstein lure underage girls to the Palm Beach mansion, Judge Marra found that the court couldn't void their immunity because they were never parties to Wild's litigation.
Wild's attorneys argued Thursday that if the co-conspirators needed to be brought into the litigation for Judge Marra to grant relief, then the judge could have and should have ordered a joinder. Case law establishes that "if a joinder problem arises in granting relief, the proper response is not to terminate the case but rather to direct that any necessary missing parties be joined," lawyer Paul Cassell argued.
In any event, Cassell claimed, the co-conspirators were nothing more than indirect beneficiaries of the Epstein non-prosecution agreement. Judge Marra's finding that they needed to be brought into the litigation was consequentially untenable, Cassell said.
The deal, which was not signed by the alleged cohorts, reads: "The United States … agrees that it will not institute any criminal charges against any potential co-conspirators of Epstein.” The agreement mentions Epstein’s assistants Sarah Kellen, Nadia Marcinkova and Lesley Groff by name.
The government maintains that the victims' attorneys, not the court itself, were responsible for initiating an action to bring the alleged conspirators into the litigation.
The Department of Justice is also claiming that victims' rights under the CVRA were "vindicated" when they spoke their peace at a New York criminal proceeding last year. An investigation by New York prosecutors may still yield charges against Epstein's alleged cohorts, Steinberg said.
The appellate panel balked at that reasoning.
"How does [the New York proceeding] have any bearing on whether the Southern District made a mistake in this case?" asked Senior U.S. Circuit Judge Gerald Bard Tjoflat, a Gerald Ford appointee.
The government's argument about potential infringements on prosecutorial discretion gained more traction among the panel.
Judge Tjoflat was concerned that if the Crime Victims Rights Act is interpreted too broadly, it could be a slippery slope as far as judicial interference with prosecutors' day-to-day decisions on whether to prosecute a suspect. The judge referenced the old refrain: "Once the camel gets his nose in the tent, his body will soon follow."
Cassell tried to allay the panel's concerns in an exchange that at times grew terse. He said that his client is asking for a narrow decision on violations of victims' rights in the end stage of plea negotiations: a ruling that would not pose an existential threat to prosecutors' executive powers.
Also on appeal is Judge Marra's denial of Wild's request for various documents from the criminal case, including grand jury records and deliberations within the Department of Justice regarding the decision not to prosecute Epstein.
Though the Department of Justice admitted to Judge Marra in 2019 that it failed to confer with the victims about the non-prosecution agreement, it stopped short of issuing an apology to Wild at that time. Until this morning, the Department had taken the position that saying sorry was not a "cognizable remedy."
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