IN THE CIRCUIT COURT OF THE F IFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA¶
CA FLORIDA HOLDINGS, LLC, CASE NO.: 50-2019-CA-014681-MOOC-Div.: AG¶
Publisher of THE PALM BEACH POST, MB¶
Plaintiff,¶
v .¶
DAVE ARONBERG, as State Attorney of Palm Beach County, Florida; SHARON IL BOCK, as Clerk and Comptroller of Palm Beach County, Florida,¶
Defendants.¶
Cos¶
PLAINTIFF’S OPPOSITION TO DEFEND t7N IL BOCK, CLERK & COMPTROLLER OF PALM BEACH COUN ON TO DISMISS COUNT II¶
Plaintiff CA Florida Holdings, LLC, pu e Palm Beach Post (“The Palm Beach Pose) files this opposition to Defendant S A. Bock, Clerk and Comptroller of Palm Beach County’s Motion to Dismiss Count lm Beach Post First Amended Complaint:¶
L Y OF ARGUMENT¶
This action is at opporhi6rty for an institution of the State of Florida to exercise its authority, not to • Id th sordid and powerful, but instead to further justice and restore the public’s co e criminal justice system.¶
gues that Florida Statute § 905.27 does not allow The Palm Beach Post to seek disclosure the grand jury records in furtherance of justice for purposes of informing the public. The Clerk also appears to argue that the Court lacks the inherent authority and supervisory powers over the grand jury to order such disclosure. Motion at 13. Both arguments fail.¶
The Palm Beach Post has sufficiently pled its right to maintain an action under Section 905.27 for the benefit of the public and consistent with the general legislative scheme, and its right to use the grand jury materials to inform the public, which is consistent with Section 905.27.¶
The Palm Beach Post has further stated a claim that either together with, or independently of, Section 905.27, the Court has inherent authority to order the release of the grand jury records. The exercise of such authority is regularly made for purposes as varied as promoting court efficiency to providing transparency for the judicial system.¶
The Palm Beach Post has therefore stated a claim under both Section 905.2 ursuant to the Court’s inherent powers by which this Court may order the release of the jjury records sought in this action.¶
IL FACTUAL BACKGRO¶
4 The facts underlying this action are largely unco e Answer of State Attorney; Answer of Clerk. Indeed, they are now largely a mat Sio y l c record as a result of the extensive legal proceedings arising out of the various o pst”ein and his co-conspirators over the course of more than a decade. While t omp e factual allegations are set forth in the First Amended Complaint, a summary ant facts is set forth below.¶
A. First Epstein Sex Crintss Investigation, Indictment, and Plea Agreement: 2005 - 2008¶
The investigation tein’s sex crimes began more than fifteen years ago, when a 14 year-old girl’s ste other orted to police in the Town of Palm Beach, Florida, that Epstein and others who or im arranged for her to give Epstein a “massage.” Epstein required the girl to strip ed himself, and masturbated while touching her. The girl was paid $300. Epstein was 52 years old at the time. First Amended Complaint (“FAC”) ¶ 11.¶
Following this initial report in 2005, the Town of Palm Beach Police, and later, in 2006, the FBI, investigated Epstein. Interviews under oath with five additional alleged victims and seventeen witnesses revealed that the events described by the 14-year-old girl occurred, with disturbingly similar details, with each of the other victims. Id. ¶ 12.¶
Both the victim/witness interviews, as well as evidence retrieved following a search of Epstein’s home, showed that some of the girls involved were under the age of 18. The police search of Epstein’s residence also found two hidden cameras and, throughout the house, large numbers of nude photos of girls, including victims whom the police had not interviewed in the course of their investigation. Id. I 13.¶
In March 2006, a State grand jury was scheduled at which all of the victi expected to testify. The proceeding was postponed, however, due to meetings betw e to Attorney’s office and Epstein’s prominent criminal defense lawyer and perso ’ Alan Dershowitz. M.1 14. Another grand jury was convened in April 2006, but el e day before it was to begin receiving evidence. Id. 915.¶
(1) Police Chief Reiter’s Letter to t e ttornev¶
On May I, 2006, Town of Palm Beac Ailis, ref Michael Reiter wrote a “personal and confidential” letter to then Palm Beach c fl ty 5hte Attorney Barry Krischer, stating:¶
I must renew my prior ob [the Epstein] cases high manner, but my most assigned attorneys have this much thought nsideration, I must urge you to examine the unusual course that your office’s sand, of this matter has taken and consider if good and sufficient reason exists to r we your disqualification from the prosecution of these cases. (Emphasis suppli ou that I continue to find your office’s treatment of t is regrettable that I am forced to communicate in this hone calls to you and those of the lead detective to your unanswered and messages remain unretumed. After giving¶
Id.¶
Reiter’s letter to State Attorney Krischer enclosed the Town of Palm Beach Police Department’s probable cause affidavits charging Epstein and two of his assistants with multiple counts of unlawful sex acts with a minor and one count of sexual abuse, and requested that either an arrest warrant be issued for Epstein or the State Attorney directly initiate the charges against him, which would be public. Id.117.¶
(2) The July 2006 State Grand Jun’ Presentation¶
Instead, State Attorney Krischer elected to refer the case to a grand jury, which is mandatory for capital cases but rarely used for all other crimes. According to an official spokesperson, this was the first time that a sex crimes case was presented to a grand jury in Palm Beach County. Id. ¶ 18.¶
In July 2006, after State Attorney Krischer presented testimony and evidenttn just one victim, the grand jury returned an indictment on a sole count of solicitatio tution. There is no mention in the indictment of the victim being a minor. Id. ¶ 19. Q pstein’s victims was supposed to testify before the grand jury, but did not. Id. ¶ o1 nable explanation has been provided as to why the numerous other known victi (q: j t presented as witnesses and crime victims to the grand jury convened in July 200 Ni . t or has any reasonable explanation been provided as to why State Attorney ’ o was initially eager to investigate and c’ i, ils v prosecute Epstein for his crimes, over ti c ost desire to do so. Id. I¶
During the grand jury app the single victim who testified, the State Attorney presented evidence that vilifi ictim and attacked her credibility, including soliciting testimony regarding and ‘nking and questionable personal behavior that was unrelated to the charges agai Id. ¶ 22. This information was initially brought to the attention of the State Attorn- ce by Epstein’s defense counsel. M.¶
+(3) The FBI’s Investigation and Epstein’s Non-Prosecution Agreement With Federal Authorities¶
Following the deficient July 2006 indictment, and with Chief Reiter’s encouragement, the FBI began its own investigation of Epstein. Id. ¶ 23. Records unsealed in 2015 revealed that the FBI compiled reports on “34 confirmed minors” that were victims of Epstein’s sexual predations. Based on evidence gathered by the FBI, a 53-page indictment was prepared by the U.S. Attorney’s Office in June 2007. Id. ¶ 24. However, at the request of Epstein’s lawyers, the indictment was never presented to a federal grand jury. Id.¶
Instead, then U.S. Attorney for the Southern District of Florida, Alexander Acosta, negotiated a plea deal with Epstein’s team of lawyers to grant immunity to Epstein (along with four named co-conspirators and any unnamed potential co-conspirators) from all fe I criminal charges. Id. ¶ 25. Throughout the remainder of 2007 and through the first half of Epstein’s lawyers and the U.S. Attorney continued negotiating the plea arrangementC. ormation and belief, Epstein’s lawyers insisted that (1) the victims not be no confidential and under seal, and (3) all grand jury subpoenas issued for Epstein’s computers) be withdrawn. Id. ¶ 26. the deal be kept e that had already been¶
iS< ,Ic14 On June 30, 2008, Epstein pled guilty to prostitution and one count of solicitation of (p ft Art hs ‘with , a minor under the age of 18. He was sentenced to 18 months in jail, followed y of community control or house attest, and was adjudicated as a convicted sex off ‘Fed to register twice a year in Florida. Id. ¶ 27. es: one count of solicitation of¶
The plea deal, called a secution agreement (“NPA”), allowed Epstein to receive immunity from federal s eking charges that could have sent him to prison for life. Public records reveal th ate Attorney Krischer communicated with then U.S. Attorney Acosta concern’ ‘s negotiation with Epstein’s lawyers. Id. ¶ 28.¶
Epstein was not incarcerated in a Florida prison for the State crimes for which he was convicted. Instead, he was placed in a private wing of the Palm Beach County Stockade, where, after 3 12 months, he was allowed to leave the jail on “work release” for up to 12 hours a day, 6 days a week. His private driver provided his transportation to and from “work.” Id. 1 29. Epstein was also known to have violated the terms of his probation, but was not prosecuted. Id. Epstein was then released five months early. Id.1 30.¶
Following publicity exposing the extraordinary leniency of the plea deal, dozens of civil suits were brought against Epstein, most of which Epstein’s lawyers settled out-of-court. Id.1 34.¶
(4) The Crime Victims’ Rights Act Litigation¶
During the course of the Town of Palm Beach and FBI investigations, Epstein retained private investigators to follow, harass, and photograph his victims and their fan as well as Chief Reiter and the Town of Palm Beach detective who investigated the st Epstein. Id. ¶ 36. Epstein’s victims were threatened against cooperating with law o t and told that they would be compensated only if they did not cooperate with law t. Id.1 37.¶
To add insult to injury, Epstein’s victims only I a the fact about his plea deal in State court and filed an emergency petition to forceal secutors to comply with the Crime Victims’ Rights Act (18 U.S.C. § 3771, “C ), force V; rn mandates certain rights for crime victims, including the right to be informed about agr ents and the right to appear at sentencing. U.S. District Judge Kenneth A. Marra i 019 that federal prosecutors violated the CVRA by failing to notify Epstein’s victi allowing him to plead guilty to only the two State offenses. Id. ¶ 32. The prosecuti lure to keep the victims apprised, among other things, also contravenes the F}tCia Co stitution, Article 1, § 16(b) and Fla. Stat. § 960.001. Id. ¶ 33.¶
B. + Sec 14 tein Sex Crimes Investigation, Indictment, Suicide: 2019¶
6, 2019, Epstein was arrested on federal sex trafficking charges. M.1 38. The Unit States government’s prosecution of Epstein based on new allegations and charges stemmed, in part, from continued press investigations and reporting on the mishandling of the 2006 charges and the civil suits that followed. Id. ¶ 39.¶
In a July 8, 2019, letter to the federal district court by the U.S. Attorney for the Southern District of New York, Epstein was described as “a serial sexual predator who preyed on dozens of minor girls over a period of years.” The letter emphasized that “the Government has real concerns — grounded in past experience with this defendant — that if allowed to remain out on bail, the defendant could attempt to pressure and intimidate witnesses and potential witnesses in this case, including victims and their families, and otherwise attempt to obstruct justice.” It also described the results of the FBI’s search of Epstein’s Manhattan townhouse: evidence of sex tra eking in the form of “hundreds—and perhaps thousands—of sexually suggestive photo fully- or partially-nude females,” including underage females. In a locked safe, co s were found with handwritten labels including the descriptions: “Young [Name] , ’ “Mist nudes 1,” and “Girl pits nude.” Id. ¶ 40.¶
On July 8, 2019, prosecutors with the Public Co t n t of the U.S. Attorney’s office for the Southern District of New York charged Epste cio trafficking and conspiracy to traffic minors for sex. The grand jury indictment alle ( it,t zens” of underage girls were brought into Epstein’s mansions for sexual encounte s fe ys later, owing to public outcry over the NPA with Epstein entered into by the ey for the Southern District of Florida, Alexander Acosta, who by then was sery as Li. . Secretary of Labor in the Trump administration, resigned from office. Id.1 41.¶
On or abo? ugust , 2019, Florida Governor Ron DeSantis ordered a state criminal probe into the actio e aim Beach Sheriff and former State Attorney Krischer for their handling of the E ge sex trafficking case. Id. ¶ 43.¶
On August 20, 2019, Epstein was found dead, by apparent suicide, at the federal Metropolitan Correction Center in lower Manhattan where he was being held without bail. Id. ¶¶ 42, 44.¶
C. The August 27. 2019. SDNY Hearine: Enstein’s Victims Sneak¶
Following Epstein’s death, prosecutors sought to dismiss the indictment against Epstein,¶
while maintaining that they would continue to investigate his co-conspirators. Id. ¶ 45. United States Senior District Judge Richard M. Berman ordered a hearing on August 27, 2019, on the prosecutors’ decision to dismiss the indictment and allowed victims to speak at the hearing. Id. ¶ 46.¶
In the course of the hearing, more than two dozen victims delivered their personal stories of pain, frustration, and sexual abuse at the hands of Epstein. Several victims spoke cillolent rape by Epstein. Many more victims were present in the courtroom but did not test’ 47.¶
While some questioned the reasoning behind the court’s deci on t the victims voice after Epstein’s death, Judge Berman noted that “a public h is e] preferred vehicle of resolution,” emphasizing that “public hearings are exa5 14, / udges do. Hearings promote transparency and they provide the court with insi ASA%, tormation which the court may not otherwise be aware of.” Indeed, even Epstein’ awyer noted at the hearing that the court “is the institution that most people have den in, in these very troubled times.” ld.1 48.¶
At the August 27th heart s, now women, spoke about their “exploitation and coercion,” and to the fact that any them “were in very vulnerable situations and in extreme poverty, circumstances they] didn’t have anyone on [their] side, to speak on [their] behalf…” One that “as a victim, [she] never got to see what the agreement was or why the sp atment got approved” in the Florida case years earlier. Another noted how “comp t” the investigators leading to the 2019 federal indictment were from the prosecutors in the Florida case, both in their treatment of her and their investigation of her victimization by Epstein. Id.1 49. A former federal judge in attendance at the August 27th hearing emphasized that “transparency is one of the overriding objectives in our criminal justice system.” Id.1 50.¶
Nearly all of the victims expressed the conviction that the secrecy that shielded Epstein has caused them “irreparable harm” and that an opportunity to address his criminal wrongdoings, and those of the individuals who enabled his sexual racketeering, would allow for at least some measure of justice to be served after his death. Indeed, one victim stated: “Any efforts made to protect Epstein’s name and legacy send a message to the victims that he wins and that he is u touchable.” Another victim expressed fear that this is a world “where there are predators a world where people can avoid justice if their pockets run deep enough.” Id. 1 51¶
In short, the “unusual” treatment Epstein received in Florida - based on his wealth, social status, and connections severely eroded the public’s fai a tlRl grity and impartiality of the criminal justice system. Allowing The Palm Beach Po cla o proceed in this action would allow for public examination and understanding of”S ., on of the criminal justice system in Florida.¶
A. Legal Standard¶
Fla. R. Civ. P. 1.110(b) vid that a pleading that sets forth a claim for relief shall contain a short and plain statem grounds of the ultimate facts showing that the pleader is entitled to relief. Fla. R. 0(g) permits a party to “set up in the same action as many claims or causes of act the pleader has, and claims for relief may be stated in the alternative.” The Rule ffl vides “[a] party may also state as many separate claims or defenses as that party has, regardless of consistency and whether based on legal or equitable grounds or both.” Ma. R. Civ. P. 1.110(g).¶
Here, The Palm Beach Post brings two claims: one pursuant to Fla. Stat. § 905.27, and one for declaratory relief based on the principles set forth in Section 905.27 as well as constitutional¶
(GSOr RGUNIENT¶
principles of freedom of the press as protected by the Court’s inherent authority and supervisory powers. The Clerk concedes that the declaratory relief claim is adequately plead. For the same reasons requiring that concession—and those set forth below—the Court should, respectfully, find that both claims have been sufficiently plead.¶
B. Relevant Leeal Framework: Fla. Stat. 905.27¶
Typically, grand jury proceedings are conducted and maintained in s Fla. Stat. § 905.24. But this secrecy has never been—and was never intended to b0 te. First, as a practical matter, grand jury proceedings are already subject to pub i re, as a testifying grand jury witness is free to disclose her grand jury testimony. AO tie rth v.M, the United States Supreme Court, weighing the competing in tereiSf i d jury secrecy and the First Amendment, held unconstitutional Section 905.27’ “S prohibition ec prohibition on a witness revealing her own testimony.’ 494 U.S. 624, 626 (1 ; 4,44; 0 ” recy” of grand juries in Florida is thus qualified — not absolute — based on prin ’ em died in the First Amendment. 2¶
Second, Section 905.27(1 ’ ly provides exceptions to grand jury secrecy: “the testimony of a witness examin the grand jury or other evidence received by it” may be disclosed “when required tut … for the purpose of: (a) Ascertaining whether it is consistent with the testimo nitc’yen b the witness before the court; (b) Determining whether the witness is¶
The urt in Buttenvorth further “recogniz[ed] that the invocation of grand jury interests is not “‘some to issolves all constitutional protections.’” 494 U.S. at 630-31 (quoting U.S. v. Dionisio, 410 U.S. 1, 11 (197 ; see also Landmark Communications, at 838 (balancing state’s interest in preserving confidentiality of judicial review proceedings against rights of newspaper reporting on such proceedings).¶
{sup}2 The Florida Supreme Court has similarly confirmed that grand jury secrecy is not absolute and that any “harm to public officeholders” from disclosure will be the product of their own conduct, and not the consequence of an unrestrained body of misguided citizens.” Miami Herald Pub. Co. v. Marko, 352 So. 2d 518 (Fla. 1977). The decision in Marko emphasized that a grand jury’s important role in “expos[ing] official misconduct” precludes restricting access to its activities for the purpose of protecting “public officeholders.” Id. (“[t]he benefits to be derived from this extraordinary exercise in citizen participation [in the grand jury] would be severely limited if the fruits of that activity were not available to the public on whose behalf it is undertaken. Implicit in the power of the grand jury to investigate and expose official misconduct is the right of the people to be informed of its findings.”).¶
guilty of perjury; or (c) Furthering justice.” Fla. Stat. § 905.27( I Xa)-(c). The Florida legislature therefore clearly intended to empower a court to order the disclosure of grand jury proceedings to, among other things, further justice, as this Court should do here.¶
Subsequent to such disclosure, The Palm Beach Post is not, as the Clerk argues, constrained by the statute from using the materials for public disclosure—nor could it be, under the First Amendment.; The Clerk argues that “grand jury testimony `can only be used ’ defense or prosecution of the civil or criminal case and for no other purpose whatsoevgwh c tion at 13. But that limitation only applies “[w]hen such disclosure is ordered by a co for use in a civil case.” Fla. Stat. § 905.27 (emphasis added)., alm Beach Post is not asking the Court to order the disclosure of grand jury r use in a civil case;” rather, it seeks disclosure for the express reason set forth in ifs’, i .27(1X0—te., to further justice by allowing the public, through the efforts of The ch Post, access to this information.4 t to subsection (1)¶
The Palm Beach Post’s ability t ’ onn e public is critical to the role it plays in public discourse and its safeguarding of I process. As explained in the FAC (1111 56-59), the Supreme Court has further re at the press has a constitutional right of access to criminal proceedings, see, e.g., Ric Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980), including pre-trial criminal (p cdicee s. v. Graddick, 696 F.2d 796 (11th Cir. 1983). Indeed, “the¶
{sup}3In ihi gar the Clerk’s interpretation of Section 905.27 would render the statute a prior restraint, “the most serious a the least tolerable infringement on First Amendment rights.” Nebraska Press Ass ‘n v. Stuart, 427 U.S. 539, 559 (1976) (noting a “deeply-seated American hostility to prior restraints”). To the extent redactions to the grand jury materials may be required to protect the privacy of unnamed victims or third parties, the Court of course may require such redactions prior to ordering disclosure of thc records.¶
{sup}4 While the Clerk (unlike the State Attorney) does not expressly make the argument that The Palm Beach Post lacks standing to seek the disclosure of the grand jury records, it bears noting that The Palm Beach Post has the right to maintain this private right of action because the furtherance of justice, an express legislative exception to grand jury secrecy, is intended for the public benefit, and The Palm Beach Post seeks access on behalf of the public it serves. Fla. Stat. § 905.27(IXc). It is further mandated in Fla. Stat. § 905.27 that the legislature intended for a court to be the party to make the determination of disclosure. Fla. Stat. § 905.27(1). In other words, thc legislature granted the courts the power to consider and determine the propriety and scope of grand jury secrecy.¶
integrity of the judicial process, which public scrutiny is supposed to safeguard, is just as much at issue in proceedings of this kind [pre- and post-trial] as at trial.” Id. at 801; see also Miami Herald Publ. Co. v. M, 426 So. 2d 1,6-7 (Fla. 1982) (identifying the news media as a “public surrogate” in matters concerning the closure of judicial proceedings). The press also has a First Amendment interest in receiving information from willing speakers. See Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 756-57 (1976) (“Where a spe protection afforded [by the First Amendment] is to the communication, • recipients both.”); Pittman v. M, 267 F.3d 1269, 1283 n.12 (11th t has recognized that the First Amendment offers protection to spe 5 <a); receive speech.”); see also Stephens v. Cty. of Albemarl Cti) .3d 485, 492 (4th Cir. 2008) (providing that a plaintiff has “standing to assert a ri Cc t exists a speaker willing to convey the informa c’ \n h h )… . the and to its e Supreme Court l’s and those wishing to ve speech” by “show[ing] that there¶
Because of the unique role perfo t eeeby e press as a “public surrogate” (=, 426 So. d its interest in reporting information about criminal mptively have a right to access judicial records,” Comm ‘r, Local Media, LLC, 918 F.3d 1161, 1166 (11th Cir. 2019), and idity of an order restricting publicity because its ability to gather news or curtailed.” M, 426 So. 2d at 4; see also Carlson v. United States, 837 F.3d 7 8 (7th Cir. 2016) (“[a]s a member of the public, [the Reporters Committee] has standing to assert [its] claim” to grand jury materials because such materials are “public records to which the public may seek access, even if that effort is ultimately unsuccessful”). 2d at 6-7) in protecting the right o proceedings, news organizatio Ala. Dep’t of Corr. v. A “standing to ques is directly¶
Here, the continued denial of access to information sought by The Palm Beach Post on behalf of its journalists and the public “unquestionably constitutes irreparable injury.” Gainesville¶
Woman Care, LLC v. State of Florida, 210 So. 3d 1243, 1263 (Fla. 2017); see also Zerilli v. M, 656 F.2d 705, 711 (D.C. Cir. 1981) (noting that “the press’s function as a vital source of information is weakened whenever the ability of journalists to gather news is impaired,” as it is by Attorney General’s refusal to disclose unredacted report and underlying grand jury materials).¶
C. This Court has Inherent Power to Release Grand Jury Records in Ord to Further Justice and Vindicate Confidence in the Judicial Process¶
As set forth in the FAC (11 60-64), even in the absence of the statutory or m Section 905.27, disclosure is appropriate pursuant to this Court’s inherent a ver grand jury proceedings because of the exceptional public interest in this case and Ccojhpelting circumstances supporting transparency rather than continued secrecy.¶
1. The Grand Jury is Under the Co sion and Jurisdiction¶
It is well-settled that the grand jury is ”’ cia proceeding in a court of justice…an ( Neand ., Jury Investigation, 287 So. 2d 43 (Fla. . 418 (1900)). Indeed, it is the court that gives the grand jury about its legal duties. Fla. Stat. § 905.18. appendage or adjunct to the circuit court.’ 1973) (quoting Craft v. State, 42 Fla. grand jury its initial charge and C i d )¶
“It has long been unders that Iciertain implied powers must necessarily result to our Courts of justice frog th Court, becau 32, 43 (I hence soc , as an instrument of justice.” In re Osborn, 376 F.2d 808, 810 (6th Cir. 1967). of their institution,’ powers which cannot be dispensed with in a ecessary to the exercise of all others." v. NASCO. Inc., 501 U.S. ere can be no question of the inherent power of a court to protect itself, and¶
Thus, in a variety of contexts, it has been held that “courts have the inherent power to protect the integrity of the judicial process from perversion and abuse.” Vitalds-Valchine v. Valchine, 793 So. 2d 1094, 1099-1100 (Fla. 4th DCA 2001); Attwood v. Singletary, 661 So. 2d 1216 (Fla. 1995) (invoking court’s inherent authority to prevent “abusive filer” from filing additional cases to prevent interference with orderly process of judicial administration); Tramel v. Bass, 672 So. 2d 78 (Fla. 1st DCA 1996) (invoking court’s inherent authority to strike pleadings to sanction fraud perpetrated on the court).¶
The Florida Supreme Court has noted that it is “of vital importance to maintain the dignity and the integrity of both the grand jury and the presiding judge.” State v. Clemmons 150 So. 2d 231, 233-34 (Fla. 1963).5 “[I]n states such as Florida, where the grand jury is ed, it is an important appendage of the court which impanels it…[and] it should not be forgoricn that the judge of that court is equally important and he is generally charged with jury’s activities…” Id. “The importance of public confidence ii• lb5) in? the place of the judiciary in the government.” -Y ar, 575 U.S. 433, 445 (2015). Courts do not command armies and have “no influ #t ether the sword or the purse[.]” Id. (citing The Federalist No. 78, p. 465 (C. c Itis ” . 1961) (A. )). “The judiciary’s authority therefore depends in large m 5cEsion e public’s willingness to respect and follow its pest & Copy Grand July Materials, 735 F.2d 1261, exercise of the court’s inherent power to release grand jury at societal importance” that affected “the public confidence in the of a viable healthy judiciary is of critical importance to our system of “perception” is of equal importance with respect to state courts, which primary responsibility for overseeing the investigation and prosecution of crimes. decisions.” Id.; see also In re Pe • 1269-70 (11th Cir. 1984) (upho records to further “a matt judiciary”). “The justice.” Id. are inv eptio irvision of the grand ty of judges stems from¶
The Supreme Court of the United States, while acknowledging the values in grand jury secrecy, has long authorized the disclosure of grand jury records where the need for transparency outweighs any remaining interest in secrecy. Douglas Oil Co. of Califirnia v. Petrol Stops¶
{sup}5 State v. Clemons was superseded by statute. See Kelly v. Sturgis, 453 So. 2d 1179 (Fla. 5th DCA 1984).¶
Northwest, 441 U.S. 211, 223 (1979). Courts around the country have followed suit. See, e.g., In re Petition of Nat’l Sec. Archive, No. 08 CIV. 6599, 2008 WL 8985358 (S.D.N.Y. Aug. 26, 2008) (release of grand jury records concerning the indictment of Julius and Ethel [;i; In re Petition ofNat’l Sec. Archive, 104 F. Supp. 3d 625 (S.D.N.Y. 2015) (same); In re Petition ofKutler, 800 F. Supp. 2d 42 (D.D.C. 2011) (release of President Nixon’s grand jury deposition estimony in connection with the third Watergate grand jury); In re Unseal Dockets Relat21ltielthe Indep. Counsel’s 1998 Investigation of President Clinton, 308 F. Supp. 3d 314 ( 8) (release of records related to independent counsel’s investigation of president cr recently, the D.C. Circuit ordered the Trump administration to provide the HoAc u Committee redacted t , portions of grand jury materials from former special cou Mueller’s probe into Russian election interference. In Re: Application of the 8s’ t on the Judiciary, U.S. House of Representatives, For an Order Authorizin ase of Certain Grand Jury Materials, Committee on the Judiciary, United StataousF fRepresentatives v. U.S. Department ofJustice, No. 19-5288 (D.C. Cir. March 20, . ere is no evidence that the disclosures resulting from these cases have adversely aff ed th nd jury process. On the other hand, there is no doubt that the release of these mat contributed greatly to the historical record of significant events in our country’s his as w 1 as exposing failures in our justice system.¶
Coy ha i entified nine “non-exhaustive” factors that a court may consider when determ gSkether their inherent authority should be exercised to order the release of grand jury documents. These factors include:¶
- (i) the identity of the party seeking disclosure; (ii) whether the defendant to the grand jury proceeding or the government opposes the disclosure; (iii) why disclosure is being sought in the particular case; (iv) what specific information is being sought for disclosure; (v) how long ago the grand jury proceedings took place; (vi) the current status of the principals of the grand jury proceedings and that of their families; (vii) the extent to which the desired material—either permissibly or impermissibly—has been previously made public; (viii)
whether witnesses to the grand jury proceedings who might be affected by disclosure are still alive; and (ix) the additional need for maintaining secrecy in the particular case in question.¶
Kutler, at 47-48 (quoting In re Petition of Craig, 131 F.3d 99,106).6¶
The vast majority of these factors weigh in favor of disclosure in this case. First, the party seeking disclosure does so pursuant to its First Amendment right to receive inforrnatio in order to inform the public. See Va. Pharmacy Bd., 425 U.S. at 756-57; Pittman, 267 F.3d 3. Second, the defendant to the grand jury proceeding is deceased, although the gov ecv pposed to the disclosure. The Palm Beach Post respectfully submits that the gov e O position should be given little weight where, as here, the disclosure of records~a ou to uncover the alleged misconduct of a prior State Attorney (as opposed to, for t , ex ess perjury). Third, disclosure is being sought—based on information learned by T fqie S c ot Public Records Law requests, (2) law enforce c u s with direct knowledge of the grand jury evidence and proceedings, (3) judicial ume obtained from independent but related court proceedings, and (4) documents o ’ ailable in the public record—to inform the public as to whether the then State A r Palm Beach County presented truncated evidence of Epstein’s criminal wron to the 2006 grand jury in a manner that precluded Epstein’s indictment for the mes he committed, including sex trafficking and sexual assault. Fourth, the records tight are the testimony, minutes, and other evidence presented in 2006 to the Palm unty grand jury, which appear to have been whitewashed so that Epstein would not ch Post from (I) a series of Florida¶
{sup}6 While it is largely federal courts that have applied these nine factors, (1) there can be no dispute that Florida courts arc endowed with inherent authority like their federal counterparts, see supra at 13-14; and (2) notably, federal courts consider these factors when the enumerated exceptions to grand jury secrecy set forth in Federal Rule of Criminal Procedure 6(eX3)(E) do not appear to apply. See, e.g., In re Petition to Inspect & Copy Grand Jury Materials, 735 F.2d 1261, 1268 (11th Cir. 1984) (“it has been authoritatively said that [Rule 6(e)] is not the true source of the district court’s power with respect to grand jury records but rather is a codification of standards pertaining to the scope of the power entrusted to the discretion of the district court”). Thus, to the extent the Court does not find that it is authorized by Fla. Stat. § 905.27 to order disclosure of the Epstein grand jury materials, its inherent authority provides “ample[]” (id.) grounds for such disclosure.¶
be charged with serious crimes of which there was ample evidence. Fifth, the grand jury proceedings took place nearly fifteen years ago. Sixth, the current status of the principals of the grand jury proceedings are unknown. Seventh, because much of the requested information has now entered the public domain through victims protesting their mistreatment by and misgivings concerning prosecutors (both state and federal), other lawsuits surrounding Epstein and his coconspirators, and public records requests and extensive news reporting, this facts in favor of fill disclosure. Eighth, the status of the witnesses who appeared is unkn. eed, The Palm Beach Post’s request is made, in part, to learn who the witnesses we a tate Attorney did decide to call.? Finally, The Palm Beach Post submits that w h of the defendant, the widely reported nature of this miscarriage of justi , h ono c ) additional need for maintaining widely-known and litigated acts of his co-conspirators, t time that has passed, and the \ secrecy. See U.S. v. Socony-Vacuum Oil Co., . . 50, 234 (1940) (“[A]fter the grand jury’s functions are ended, disclosure is wholl per ere the ends of justice require it.”).¶
Courts have long realized arent criminal justice system, affords “significant community therapeutic value.” d Newspapers v. Virginia, 448 U.S. at 570-71. “[T]he open processes of justice important prophylactic purpose, providing an outlet for community con , and emotion.” Id. at 571. “The crucial prophylactic aspects of the administrati tice cannot function in the dark; no community catharsis can occur if justice is don er [or] in any covert manner.” Id.¶
The Palm Beach Post has accordingly stated a claim pursuant to this Court’s inherent authority and supervisory powers, which allow the Court to take appropriate and necessary action to preserve and promote the integrity of the justice system. The citizens of Palm Beach County and¶
{sup}7With respect to the sixth and eighth factors, an in camera review by this Court, followed by appropriate redactions, would remedy any potential harm to innocent parties.¶
throughout the State of Florida are entitled to nothing less in this case of exceptional importance and public interest.¶
IV. CONCLUSION¶
Pursuant to Fla. Stat. § 905.27 and this Court’s inherent supervisory authority, The Palm Beach Post has sufficiently pleaded its claims.¶
Dated: March 13, 2020¶
ACTIVE 49239002v1¶
GREENBERG TRAURIG, P A Respectfully submitted, Attorneys for CA Florida Holdin LC, Publisher of The Palm BealOt¶
Stephen A. Mendelso C , Es . 5100 Town Center C. ite 400 Boca Raton, Fl 3486 Telephone: 7629 Facsimil -7099¶
By: /s/ ) endeisohn sN ri MENDELSOHN o ar No. 849324 ~ftFnd Isolutsagtlaw.com ha enh@gtlaw.com LService@gtlaw.com¶
y: /s/ Michael J Grvgiei MICHAEL J GRYGIEL (Admitted Pm Hac Vice) 54 State St., 6th Floor Albany, New York 12207 Telephone: (518) 689-1400 Facsimile: (518) 689-1499 grvaielmegtlaw.com¶
By: /s/ Nina D. Boyajian NINA D. BOYAJIAN (Admitted Pro Hac Vice) 1840 Century Park East, Suite 1900 Los Angeles, California 90067 Telephone: (310) 586-7700 Facsimile: (310) 586-7800 boyajiann@gtlaw.com riveraal®gtlaw.com¶