(CN) — A lawyer fighting for victims of Jeffrey Epstein’s underage sex ring wants a second chance to convince the 11th Circuit that prosecutors violated federal law by keeping the wealthy financier’s plea arrangement concealed from the girls he abused.
Attorney Paul Cassell is challenging an 11th Circuit decision handed down last month, which found Epstein’s victims are not entitled to relief under the Crime Victims’ Rights Act in connection with a 2007 nonprosecution deal between Epstein and federal prosecutors in Florida.
Among other provisions, the Act establishes victims’ right to confer with prosecutors, “to be treated with fairness” and to be timely informed about plea bargains.
The 2-1 majority decision on April 14 found, however, that the Act does not protect victims until criminal charges are filed. Even if plea negotiations are well underway with a soon-to-be defendant – as was the case with the Epstein matter – victims have no rights under the Act so long as charges are not yet filed in the court record, the majority found.
Cassell argues in a petition for rehearing en banc filed Tuesday that the ruling will deprive countless victims of legal recourse if prosecutors snub them during plea negotiations in the 11th Circuit jurisdiction – Florida, Georgia and Alabama. Cassell is representing Courtney Wild, who says she was abused by Epstein at his Palm Beach Island mansion as a young teenager.
In the underlying lawsuit, Wild demanded access to grand jury documents and a nullification of Epstein’s nonprosecution deal, among other remedies under the Crime Victims’ Rights Act.
Cassell claims last month’s ruling creates “perverse incentives for the government to negotiate secret agreements within this circuit.” He noted that in the adjoining Fifth Circuit, the Crime Victims’ Rights Act does apply during the pre-charge phase.
“As the majority reads the [law], Congress drafted the Crime Victims’ Rights Act—essentially a broad bill of rights for crime victims—to be easily circumvented by prosecutors through the simple expedient of ‘negotiating ‘secret’ plea and non-prosecution agreements … before instituting criminal proceedings,’” Cassell wrote, quoting from the 11th Circuit decision.
The 2007 criminal case involved dozens of teenager who were lured to Epstein’s mansion in Palm Beach, believing they would be giving paid massages to Epstein. The encounters devolved into Epstein engaging in sexual activity with girls as young as 13.
Under his deal with federal prosecutors, Epstein pleaded guilty to soliciting underage prostitution in state court in exchange for assurances that he and his cohorts would not be federally charged.
Wild kept fighting to overturn the deal after Epstein’s apparent suicide in a New York City prison last August. She says the government still needs to tear up the deal’s ancillary provisions that shield Epstein’s assistants from federal prosecution for helping him lure girls to his mansion. Wild took the case to the 11th Circuit after a federal judge denied relief last September.
Cassell says the 11th Circuit decision went against plain wording in the Crime Victims’ Rights Act, including text that references “agencies of the United States engaged in the detection, investigation, or prosecution of crime.” The wording makes it clear that the Act protects victims during the investigatory phase of a case, Cassell argues.
The 11th Circuit majority had interpreted that section of the law to be defining which government entities are bound by the Crime Victims’ Rights Act, not when the Act goes into effect.
The April decision likewise discounted the possibility of pre-charge rights for victims in light of the law’s mention of relief while “no prosecution is underway.” In part, the judges in the majority reasoned that the phrase could be referencing victims’ rights after a criminal case has concluded.
U.S. Circuit Judge Kevin Newsom, who penned last month’s decision, appeared concerned that a broad interpretation of the Act could interfere with prosecutorial discretion and police investigations.
“Freed from any line limiting the Act’s applicability to the post-charge phases of a prosecution, courts would be empowered to issue injunctions requiring (for instance) consultation with victims before raids, warrant applications, arrests, witness interviews, lineups, and interrogations. That would work an extraordinary expansion of an already extraordinary statute,” wrote Newsom, who was appointed by President Donald Trump, a former friend of Epstein.
Cassell counters in Tuesday’s petition that Newsom was focusing on a “parade of horribles” – worst case scenarios that would never realistically come to pass. The law describes victims’ “reasonable right to confer” and does not envision victims having unbridle input on criminal investigations, Cassell argues.
In an additional procedural argument, the attorney claims the government improperly used a reply brief to inject the question of the Crime Victims’ Rights Act’s pre-charge applicability into Wild’s appeal.
“The government was required to seek such a broad ruling by filing a cross-appeal, rather than by using its response brief to inject this separate issue into Ms. Wild’s CVRA application,” Cassell wrote.
Wild and Cassell want the full roster of the 11th Circuit to review case.