On Friday,the 11th Circuit ruled that discovery can move forward in an important Crime Victims’ Rights Act case that my co-counsel, Brad Edwards, and I are pursuing.  The narrow issue before the court was whether prosecutors and defense attorneys could assert some sort of “privilege” to prevent crime victims from reviewing the correspondence that lead to a plea bargain.  More broadly, the ruling means that the victims will have a chance to return to the district court and seek to invalidate a plea agreement that (we alleged) was consummated in violation of their rights.  I hope that the case will ultimately set an important precedent that federal prosecutors can’t keep victims in the dark about the plea deals that they reach.

Here are the important facts, taken from the 11th Circuit’s opinion:  The case arose in 2006, the FBI began investigating allegations that wealthy investor Jeffrey Epstein had sexually abused dozens and dozens of minor girls. The U.S. Attorney’s Office for the Southern District of Florida accepted Epstein’s case for prosecution, and the FBI issued victim notification letters to my two clients, minors Jane Doe No. 1 and Jane Doe No. 2, in June and August 2007. Extensive plea negotiations ensued between the prosecutors and Epstein.  On Sept. 24, 2007, the  prosecutors entered into a non-prosecution agreement with Epstein in which they agreed not to file any federal charges against Epstein in exchange for his guilty plea to minor Florida offenses (e.g., solicitation of prostitution).  Not only did the prosecutors neglect to confer with the victims before they entered into the agreement with Epstein, they also concealed its existence for at least nine months. For example, the prosecutors sent post-agreement letters to the victims reporting that the “case is currently under investigation” and explaining that “[t]his can be a lengthy process and we request your continued patience while we conduct a thorough investigation.”

On June 27, 2008, the prosecutors informed my co-counsel, Brad Edwards, that Epstein planned to plead guilty to the Florida charges three days later. But the prosecutors failed to disclose that Epstein’s pleas to those state charges arose from his federal non-prosecution agreement and that the pleas would bar a federal prosecution. As a result, the victims did not attend the state court proceedings.

On July 7, 2008, Edwards and I filed a petition alleging that Jane Doe No. 1 was a victim of federal sex crimes committed by Epstein and that the United States had wrongfully excluded her from plea negotiations.  We also alleged that the federal prosecutors had violated her rights under the Crime Victims’ Rights Act (CVRA) — specifically her rights to confer with the government, to be treated with fairness, to receive timely notice of relevant court proceedings, and to receive information about restitution. The United States responded by claiming that it used its “best efforts” to comply with the rights afforded to victims under the CVRA, but that the act did not apply to pre-indictment negotiations with potential federal defendants.

After Jane Doe No. 2 joined the initial petition, the district court (Marra, J.) found that both women qualified as “crime victims” under the CVRA.  The district court later rejected the government’s argument that the act only applies after the filing of a federal criminal indictment.  (I’ve written a law review article about the issue of how early crime victims’ rights attach in the criminal process, which can be downloaded here.)

Among other relief, we sought rescission of the non-prosecution agreement as a remedy for the violation of the victims’ rights.  To make the case for such a remedy, we moved for discovery  of the correspondence between the U.S. and Epstein’s attorneys during the plea negotiations. Epstein’s attorneys intervened, arguing that Federal Rule of Evidence 410 and Federal Rule of Criminal Procedure 11 create a privilege for plea negotiations, barring release of the correspondence.  They also argued that the court should find that the materials were protected under the work product doctrine or, alternatively,  should be protected under a  new “common-law privilege for plea negotiations.”

The district court first ruled that rescission of the plea agreement was a possible remedy under the act.  The court then ruled that we were entitled to review the correspondence, rejecting all of Epstein’s arguments.

On Friday, the 11th Circuit  affirmed the district court’s ruling that we could review the plea correspondence.  At pp. 18-22 of its published opinion, the court concluded that there was no basis for restricting access to such correspondence when crime victims have a legitimate need to review it.  The court rejected, for example, the work product argument because plea discussions are not confidential:

 Disclosure of work-product materials to an adversary waives the work-product privilege. See, e.g., In re Chrysler Motors Corp. Overnight Evaluation Program Litig., 860 F.2d 844, 846 (8th Cir. 1988); In re Doe, 662 F.2d 1073, 1081–82 (4th Cir. 1981). Even if it shared the common goal of reaching a quick settlement, the United States was undoubtedly adverse to Epstein during its investigation of him for federal offenses, and the intervenors’ disclosure of their work product waived any claim of privilege. . . .

The court also declined to recognize a new privilege for plea bargaining, finding the relationship between prosecutors and defense attorneys did not need special protection:

As a last-ditch effort, the intervenors contend that “[i]f more is needed in addition to the plain language of Rule 410 to preclude disclosure of the correspondence to plaintiffs, it can be found in the conjunction of Rule 410, the work-product privilege, and the Sixth Amendment right to the effective assistance of counsel in the plea bargaining process,” but this novel argument fails too. As explained above, Rule 410 does not create a privilege and the intervenors waived any work-product privilege. The intervenors concede too that the right to counsel under the Sixth Amendment had not yet attached when the correspondence was exchanged. Lumley v. City of Dade City, Fla., 327 F.3d 1186, 1195 (11th Cir. 2003) (“[T]he Sixth Amendment right to counsel ordinarily does not arise until there is a formal commitment by the government to prosecute,” such as a “formal charge, preliminary hearing, indictment, information, or arraignment.”). The “conjunctive” power of three false claims of privilege does not rescue the correspondence from disclosure. . . .

The Supreme Court has identified several considerations relevant to whether a court should recognize an evidentiary privilege—the needs of the public, whether the privilege is rooted in the imperative for confidence and trust, the evidentiary benefit of the denial of the privilege, and any consensus among the states, Jaffee v. Redmond, 518 U.S. 1, 10–15 (1996)—but none of these considerations weighs in favor of recognizing a new privilege to prevent discovery of the plea negotiations. Although plea negotiations are vital to the functioning of the criminal justice system, a prosecutor and target of a criminal investigation do not enjoy a relationship of confidence and trust when they negotiate. Their adversarial relationship, unlike the confidential relationship of a doctor and patient or attorney and client, warrants no privilege beyond the terms of Rule 410. See Jaffee, 518 U.S. at 10. But the victims would enjoy an evidentiary benefit from the disclosure of plea negotiations to prove whether the United States violated their rights under the Act.

Moving forward, this case raises the important issue of what kinds of remedies are available for violations of the Crime Victims’ Rights Act.  Our complaint alleges that, prodded by Epstein, the federal prosecutors deliberately concealed the sweetheart plea deal they had reached with him to avoid public criticism of the deal.  I am hopeful that in future district court proceedings, we will be able to prove that clear violation of the CVRA and then obtain the remedy of invalidating the illegally-negotiated plea deal.