Does Jeffrey Epstein think he’s above the law? The answer is probably Yes.
Lawyers for the accused underage sex offender are fighting to keep plea negotiations between Epstein’s attorneys and prosecutors out of public scrutiny.
Epstein is implicated in a suit against federal prosecutors brought by women who claim to have been sexually abused by Epstein when they were minors. The plaintiffs claim that the government failed to fulfill its duty under the Crime Victims’ Rights Act to involve Epstein’s victims in the settlement process. The women contend that the government instead secretly handed a sweetheart deal to the well-connected billionaire and any of his possible co-conspirators. The women are represented by lawyers Brad Edwards and Paul Cassell.
Although the defendant in the suit is the U.S. government, not Epstein himself, he moved to intervene in the case in July 2013. Attorneys Roy Black, Jay Lefkowitz, Bruce Reinhart, and Martin Weinberg are also intervenors in the CVRA suit between the alleged victims and federal prosecutors. And, of course, Harvard law professor and former Epstein defense counsel Alan Dershowitz moved to intervene earlier this month, apparently motivated by the allegations by Virginia Roberts (aka “Jane Doe #3”) that Dershowitz had personally participated in some of Epstein’s sexual misconduct.
On January 14, U.S. District Judge Kenneth Marra ordered the parties in the case to brief the issue of sealing the correspondence, asking for “adequate justification” for sealing because “public policy favors judicial records being open to the public.”
The plaintiffs want the correspondence unsealed. They have already won a related battle to access many of these documents. In 2014, the Eleventh Circuit ruled that the plea negotiations are not privileged from discovery. In the plaintiffs’ motion this week, they argue that the emails and letters between Epstein’s lawyers and federal prosecutors are “central to this lawsuit” and sealing the correspondence “would prevent the public from learning about matters of considerable public concern.”
In the brief on behalf of Epstein, attorneys Roy Black and Martin Weinberg argue that their client could be “irreparably harmed” if Judge Marra allows emails and letters between Epstein’s defense counsel and federal prosecutors to enter the public record. On January 26, Epstein’s lawyers responded to Judge Marra’s order by filing Limited Intervenor Jeffrey Epstein’s Response to Order Requesting Justification for Supplemental Protective Order. Although there is a protective confidentiality order already in place, attorneys for Epstein contend that the current order’s coverage is insufficient. Epstein’s counsel complains:
“The order followed Epstein’s motion seeking protection from the constant leaks, comments, and inflammatory accusations made by the plaintiffs’ lawyers to the national and international media, as well as to various online outfits of varying reputations. The recent filings, comments, and exclusives granted to gossip reporters show that the frolic with the media has not abated.”
They further point out that “the Order does not provide any protection when those documents are converted into exhibits and filed as a public record with the Court.” They fear that Edwards and Cassell will skirt the spirit of the original order by citing to tiny portions of sensitive documents, then “dumping” entire documents into the public record by attaching them as exhibits.
Epstein’s lawyers favor a temporary seal order on the plea negotiation correspondence, whereby the documents would stay sealed unless and until Judge Marra ruled on a motion to unseal them individually. Epstein’s lawyers write, “These temporary precautions are appropriate because Mr. Epstein and his legal counsel will be irreparably harmed if what are historically confidential plea negotiations are wrongly filed in the public record, making their way around the world on the internet in minutes, before the court has an opportunity to rule.”
Epstein’s lawyers further insist that there is a longstanding tradition in the criminal justice system to keep plea negotiations confidential. They argue that defense attorney would be unable to fulfill their duties to their clients “if they fear that they cannot communicate with prosecutors openly and frankly, without tempering or censoring their plea/settlement communications to avoid making statements that could later come back to haunt their clients in TMZ, the National Enquirer or the grocery store tabloids.”
With allegations as salacious as those found in documents already in the public record, one shudders to think what information Epstein may be fighting to keep out of view. If the public is after sordid — but unproven — details about Epstein’s past, the Palm Beach Police Department’s probable cause affidavit provides more than enough fodder.
I’ve been dutifully checking PACER for updates in the case. I’m sure other writers and journalists covering the story have been as well. Still, a lot of the language Epstein’s lawyers use to describe the spread of information via the internet and sundry media sounds vaguely histrionic.
Still, Epstein’s lawyers may have the better argument in the end on this issue. The chilling effect on future plea negotiations provides a strong public policy argument.
As a general matter, plea negotiations ought to be kept confidential, in order to inspire candor. Our justice system leans heavily on plea deals to resolve criminal cases. To agree on a deal, prosecutors and defense attorneys must haggle. Their haggling won’t be as effective if they can’t speak freely. If the specter of future publicity haunts defense counsel’s negotiations with prosecutors, defense attorneys might be less forthcoming.
Moreover, defense attorneys may be required to be less chatty during negotiations with prosecutors since they owe a duty to their clients not to say things that might later harm their clients.
Furthermore, it would be wrong to expect defense lawyers to be responsible for whether the prosecutors have involved victims as the CVRA requires. Later revealing the negotiations in effect punishes the defense for the prosecution’s failure to meet its legal obligations.
Courts can limit disclosure of plea negotiations, while still maintaining that they are not privileged.
Of course, a CVRA suit such as this one might be seriously crippled by the inability to introduce evidence of the wrangling between defense counsel and prosecutors. If the evidence is worth introducing for the court’s consideration, there is a strong presumption that the public ought to have access to it. But the temporary seal order favored by Epstein doesn’t preclude those documents from entering the public record. Rather, it only delays it, pending a determination by the Court.
Sure, this process would add time and hassle to the proceedings. But the gossip media, the internet, and the public are patient. We’ll wait.