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Court filing · April 22, 2021

Newspaper's motion to unseal Epstein's 2006 grand jury transcripts

A newspaper publisher's motion for summary judgment arguing Florida law and public interest require unsealing Epstein's 2006 grand jury materials.Machine-written summary

IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA

CA FLORIDA HOLDINGS, LLC, Publisher of THE PALM REACH POST,

Plaintiff,

v.

DAVE ARONBERG, as State Attorney of Palm Beach County, Florida, SHARON R. BOCK, as Clerk and Comptroller of Palm Beach County, Florida,

Defendants.

CASE NO.: 50-2019-CA-01468 I -XXXX-MB

DIVISION: AG

MOTION OF PLAINTIFF CA FLORIDA HOLDINGS, LLC FOR SUMMARY JUDGMENT AND INCORPORATED MEMORANDUM OF LAW

Plaintiff, CA Florida Holdings, LLC, publisher of The Palm Beach Post, moves pursuant to Fla. R. Civ. P. I.510(a) for Summary Judgment and states:

I. INTRODUCTION

The material facts in this case are not in dispute. Jeffrey Epstein was an extraordinarily wealthy, influential, and ‘,fiat pedophile. It is indisputable that the State failed or refused to use the tools availablito charge and prosecute obvious serial child sexual abuse, emboldening Epstein • , to continue his eoloitation of young women and girls, even after dozens of his victims bravely came forward with their tragic stories of abuse. It is further not in dispute that Epstein received favorableireatment by the Florida State Attorney’s Office during the prosecution, extending to the minimal sentence he received for his well-documented crimes.

The only determination left to be made by this Court is whether, as a matter of law, the grand jury transcripts that allowed Epstein’s crimes to remain out of the plublic eye and cloaked

ID#.12fi ai EVt J28 DATE AMORE 0:

the State Attorney’s prosecution of those crimes in secrecy should be unsealed. The resounding answer to this question — which is not contested by either the Defendant Clerk or the former Defendant, the Palm Beach County Office of State Attorney’ — is yes.

The Palm Beach Post seeks summary judgment on its claim for public access to the testimony, minutes, and other evidence presented in 2006 to the Palm Beach County grand jury empaneled during the first Epstein sex abuse prosecution. Typically, access to suchrtnitefials is limited, for example, in order to prevent the flight of those whose indictment My be contemplated and their ability to conceal or destroy evidence; to ensure jurors’ candor-ill deliberations; and to protect an accused who is later exonerated. However, these_factOririre inapplicable here. Moreover, Florida law expresSly authorizes the disclosure ?freed jury proceedings under certain circumstances, including, as here, in the furtherance of justice! Fla. Stat. § 905.27(1)(c).

It can no longer credibly be maintained that continued blanket secrecy over the proceedings that led to the egregiously flawed 2006 Etistele indictment is warranted ‘under the law. To the , contrary, transparency is required tonromoterpublic understanding of the criminal justice system and public confidence in the fair administration ofjustice. As detailed below, Epstein was accused of sexually abusing and trafficking dozens of women and girls in south Florida (among other locations) over a period Of several years while exploiting his wealth and political connections to derail his prosecutien and obstruct the administration of justice at every turn. Public disclosure of the Epstein arsnd jury proceedings will shed light on the extent to which those in our government entrusted with the solemn responsibility of enforcing our criminal laws equally as to all citizens fulfilled their duties in this instance. Justice will be furthered where it is demonstrated either that

As set forth infra at p. 19, 1 74, based upon his statement that he no longer contests the relief sought by The Palm Beach Post, the Siate Attorney has been dropped from the case pursuant to Fla. )2. Civ. P. 1.250(b).

(1) Epstein was treated like others accused of similar heinous crimes, or (2) as appears more likely, those who chose to give Epstein favorable — “unusual,” in the words of the Town of Palm Beach Police Chief — treatment, are exposed and held accountable. From the incomplete information now in the public domain, the State Attorney’s choice to refer Epstein’s case to the grand jury which was extraordinary for this type of case — gives rise to a strong inference of favo 1tism and corresponding disregard for the rights of the minor victims of Epstein’s habitual tcking. Access to the grand jury materials will allow the public to determine w CI grand jury process, and the secrecy that comes with it, was used to further jus d, operated to shield Epstein and his co-conspirators from the consequen of r criminal activities. Accordingly, Fla. Stat. Section 905.27 authorizes the di sultgl Epstein’s 2006 grand jury proceedings.

tY\ Even in the absence of such a statutory basis, this Court is empqwered to order public disclosure pursuant to its inherent authori ana supervisory powers over the grand jury. Indeed, courts throughout the country in the past seyeral decades, including in the case of the controversial Breonna Taylor shooting in 2020, have ckine exactly that where the public’s interest in high—profile 14/H grand jury proceedings has outweighed the general need for secrecy. This is particularly so where, _ as here, many of the detalls of Epstein’s criminal misdeeds have already been made available in the public domain through extensive news reporting by, among others, The Palm Beach Post; by the many civil suits brought against Epstein and his co-conspirators; and by the victims themselves.

II. FACTS NOT IN DISPUTE

As reflected in the respective Answers of the Defendants, as well as filings by the parties, the material facts underlying this action are uncontested. See Answer of Slate Attorney; Answer of Clerk. 1

A. The First Epstein Sex Crimes Investigation, Indictment, and Plea Agreement: 2005-2008.

1. The Police Investigation and Search of Epstein’s Residence.

  1. The investigation into Epstein’s sex crimes began more than fifteen years ago, when a 14-year-old girl’s stepmother reported to police in the Town of Palm Beach that Epstein and others who worked for him arranged for her to give Epstein a “massage.” Epstein requiAd the, girl to strip, exposed himself, and masturbated while touching her. The girl Was,psj 300. pitein /--- was 52 years old at the time. Appendix at 1 (Recarey Depo. 31:15-37:12).

  2. Following this initial report in 2005, the Palm Beach Police Department (“PBPD”), and later, in 2006, the FBI, investigated Epstein. Interviews under oath with additional victims and witnesses revealed that the events described by the 14-year,-old girl occurred, with disturbingly -1 / similar details, including sexual contact, with each otherIvictims. In addition, one of the girls admitted to having intercourse with Epstei AS h I’)hers stated that they were instructed by Epstein to have sexual relations with a It fet3Pale in front of Epstein. Appendix at 1 (Recarey ./’ Depo. 106:19-24,112:13-17,11k22,=11 , 157:25-158:18, 180:4-181:14, 187:9-24).

  3. One of the victims stated that she was afraid to speak to the police because Epstein “was very wealthy…that he could pay someone to hurt her or her family.” Appendix at 1 (Recarey Depo. 183:4-13).

  4. , Epstein told at least one victim that “bad things could happen” if she “poke of the “massa&e? 16-anyone. Appendix at 1 (Recarey Depo. 188:7-25).

  5. Both the victim/witness interviews, as well as evidence retrieved following a search of Epstein’s home, showed that many of the girls involved were under the agep of 18. According to Detective Recarey, the lead detective on the case, one of the photos removed from the

bedroom was of a naked girl who was “[y]ounger than ten.” Appendix at 1 (Recarey Depo. 150:13- 151:7)

  1. 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. It appeared, however, that some evidence was removed and the house had been “sanitized.” Appendix at 1 (Recarey Depo. 1 20:10). The PBPD believe that Epstein was tipped off about the search, likely thro: n in the State Attorney’s office. Appendix at 3 (Department of Justice Office of Prostes ona Responsibility Report (“OPR Report” p. 21).

  2. Then-Palm Beach County State Attorney B et, among other influential members of Palm Beach society, told the PBPD to “bac investigation of Epstein’ s crimes Appendix at 4 (Reiter Depo. at 71:3-16).

,- 8. Another member of the State Attorney’s Office further gave Detective Recarey the feeling “that she was trying to bru under the carpet.” AppendiX at 2 (Recarey Depo. 491:17-492:5).

  1. In March 2006, te grand jury was scheduled at which all of Epstein’s victims identified during e inv ligation by law enforcement authorities were expected to testify. The proceeding ned, however, due to meetings between the State Attorney’s Office and Epstein t criminal defense lawyer and personal friend, Alan Dershowitz. Appendix at 3; 2 (OPR Report, p. 15; Recarey Depo. 476:12-19).

2. Police Chief Reiter Chastises the State Attorney.

  1. Another grand jury was convened in April 2006, but cancelit the day before it was to begin receiving evidence. Appendix at 2 (Recarey Depo. 477:14-22).

11 On May 1, 2006, Town of Palm Beach Police Chief Michael Reiter wrote a “personal and confidential” letter to former State Attorney Krischer, stating:

I must renew my prior observation to you that I continue to lino your office’s treatment of [the Epstein] cases highly unusual. It is regrettable tha I am forced to communicate in this manner, but my most recent telephone calls to you and those of the lead detective to your assigned attorneys have been unanswered and messages remain unretumed. After giving this much thought and consideration, / must urge you to examine the unusual course that your office’s handling of this Matter has taken and consider if good and sufficient reason exists to require your disqualification from the prosecution of these cases. (Emphasis supplied)

Appendix at 5 (“Reiter Letter”).

  1. Chief Reiter wrote the letter because he “knew that ‹ririscher was making decisions about this case” and “felt his objectivity was lacking dix at 4 (Reiter Depo. 99:9- 100:7),

  2. Chief Reiter believed Krischer’s o as compromised because when the Chief first told him about the case, Krischer ( fitSi o for it, this is an adult male in his fifties who’s had sexual contact with childre he ag s of the victims. He said this is somebody who we have to stop.” However, on e ecame aware of the investigation and his attorneys contacted the State Attorney’ , the tone and tenor of the discussions of this case with Mr. tJ Krischer changed comp . One point he suggested that we write [Epstein] a notice to appear which would be’ for a misdemeanor. He just completely changed from not only our first , conversation about this and he didn’t know the name Jeffrey Epstein, till when he had been informed of Mr. Epstein’s reputation and his wealth, and I just thought that very unusual. I feel like I knew him or knew him very well, the State Attorney, and I just felt like he could not objectively make decisions about this case … ” Appendix at 4 (Reiter DepU. 100:23-102:20).

  3. Chief Reiter was further motivated to write his letter because “it was pretty clear to me that Mr. Krischer did not want to proSecute this case… [t]he suggestion that multiple victims

and some of the crimes, felonies, that ‘he should write a notice to appear for a misdemeanor and the scheduling of a grand jury on an issue like this is extremely rare. [And] [t]he fact that he and I had an excellent relationship… [a]nd [yet) he wouldn’t return my phone ca Is, I mean it was clear to me by his actions that he could not objectively look at this case.” Appendix at 4 (Reiter Depo. 104:13-105:25).

3. The State Attorney’s Referral to the Grand Jury: A Single Victim Teatifies. l

  1. Chief Reiter’s letter to State Attorney Krischer enclosed the Town of Palm Beach Police Department’s probable cause affidavits charging Epstein and rtwo of hid 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 charges would be public. Appendix at.5 (Reiter Letter).

  2. Instead, State Attorney Krischer elected, to refer the case to a grand jury, which is \ mandatory for capital cases but rarely usedioN other crimes. This was the first time that a sex crimes case was presented to a grad jiryti-Palm Beach County. Appendix at 4 (Reiter Depo. 301:10-12).

  3. In April 2006, alm Beach Police Department learned that Assistant State Attorney Lanna Belohlav ho was in charge of prosecuting sex crimes, had offered a plea deal to Epstein’s attorneys Alan Dershowitz and Guy Fronstin, without first discussing the matter with the police. Tbpplea deal allowed Epstein to plead to a single count of aggravated assault with intent to commit a felony and receive no more than five years’ probation, upon the completion of which he would not have a criminal record. Epstein rejected the deal. Appendix at 3 (OPR Report, p. 14).

  4. At the July 2006 grand jury proceedings, the State Attorney’s Office presented testimony and evidence from just one victim, even though the State Attorney was “aware of the Greenberg Tootle. PA • 40) East las Otos Boulevard. Sot* }COO • Ft. Lauderdale. Florida 31301 • Tel 954.761.0500 • ax 914161.1477 • yrww claw corn

(true number of victims because they had the] probable cause affidavit which indicated all the facts.” Appendix at 1 (Recarey Depo. at 299:17-25).

  1. After hearing from the single victim, the grand jury returned an indictment on a sole count of solicitation of prostitution. There is no mention in the indictment of the victim being a minor. See Appendix at 6 (Indictment at p. 42).

  2. Chief Reiter did not “consider fifteen—year—olds, sixteen—ybar—olds-tv1HOore paid * • xx money to engage in sexual contact [as] prostitution . . ” Appendix at 4 (Reiter Depo. 143:22- 144:6), Detective Recarey had the same opinion because there was no;“negotiation” between the parties. Appendix ai 2. (Recarey Depo. at 401:3-402:9).

  3. A second of Epstein’s victims was supposed to testify before the grand jury, but was unable to attend because of a school exam. Appendix at 2 (Recarey DO° 541:4-20).

  4. With respect to why the numerouiother young girls known to have been abused by Epstein were not presented as witnesses anclen’ Xvictims to the grand jury convened in July 2006 or why State Attorney Krischer, who wakinifially eager to investigate and. prosecute Epstein for his crimes, over time lost the desire loido so, Krischer recently explained to the U.S. Department ofJustice that “under state law isit existed until changed in 2016, his office prosecuted minors as young as 14 for prostitution. The possibility that Epstein’s victims themselves could have been prosecuted coed great consternation within the office,’ and according to Krischer, resulted in the decision *0148 the case before the grand jury.” But, “[t]he State Attorney’s Office some years earlier oven suggested that [the police] no longer do sting operations for prostitution because they didn’t want to prosecute them.” Appendix at 4 (Reiter Depo. 144: 11-145:5). When Chief Reiter • asked him about the “unusual” decisions to proceed with a grand jury and!call only one witness, .1 . Krischer explained that “the victims weren’t credible in his mind…[and] it was the policy of the

State Attorney’s Office not to charge molestation type cases…when it was onsensual.” Appendix at 4 (Reiter Depo. 157:21-158:15). Krischer also told Chief Reiter that he chose a grand jury because it “was a noteworthy investigation, a noteworthy prosecution.” Appendix at 4 (Reiter Depo. 152:19-153:2).

  1. During the grand jury appearance of the single victim who testified, the State Attorney presented evidence that vilified the victim and attacked her credibility,- -including soliciting testimony regarding underage drinking and questionable personal-behavior that was unrelated to the charges against Epstein. This information was initially, broughtto the attention of the State Attorney’s Office by Epstein’s defense counsel. Appendix at 3; 1,(OPR Report, pp. 14- 15; Recarey Depo. 301:5-302:22).

  2. The State Attorney who presented the_case to the grand jury did not believe that some of the victims were “victims based on the (social media] materials that were supplied” by Epstein’s defense team. Appendix at 2 (Recitrey Depo. 484:24-486:5).

4. The Federal Investigation: tht State Attorney “Intentionally Torpedoed” the Case Before the Grand Jury.

  1. Following the deficient July 2006 indictment, and with Chief Reiter’s encouragement, the FlInteganits own investigation of Epstein, because Chief Reiter did not “feel as though justice ad been’sufficiently served” by the State. Appendix at 4 (Reiter Depo. 299:25- 300:8). be#c14,ReCarey shared the same view that “it wasn’t any justice served.” Appendix at 2 o. 496:1-2).

Deputy Chief of the Criminal Division of the U.S. Attorney’s Office, Andrew Lourie, in a transmittal letter with the prosecution memo of Assistant U.S. Attorney Ann Villafana, told Criminal Chief Matthew Menchel: “The state intentionally torpedoed /the case/ in the grandjury so it was brought to us.” Appendix at 3 (OPR Report, p. 24 (emphasis supplied)).

  1. When the FBI commenced its own investigation, then-U.S. Attorney for the Southern District of Florida, Alexander Acosta, asked First Assistant U.S. Attorney Jeffrey Sloman whether it was “appropriate to approach [State Attorney Krischeri and give him a heads up re where we might go?” Sloman replied, “No for fear that it will be leaked straight to Epstein.” Appendix at 3 (OPR Report, p.21).

5. The Infamous Non-Prosecution Agreement: “Please Tell Me YotiAre Joking.”

, - 28. Acosta was well aware that the PBPD brought the case [o the FBI’s attention because of a concern that the State Attorney’s Office had succumbed to “pressure” from defense counsel. Villafaiia informed both Acosta and Sloman of this when _ she met with them at the start hew that the PBPD was dissatisfied A ”Y with the State Attorney’s Office’s handling of the coe._APpendix at 3 (OPR Report, p. 174). ”

  1. Records unsealed in 2015 reveled 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. However, at the request of Epstein’s lawyers, the indictment was never presented to a federal grand jury. Appendix at 3 (OPR Report, pp. 35;z75):

V 7 30. Instead, Adosta, negotiated a plea deal in the form of a Non-Prosecution Agreement (“NPA’) with Epstein’s team of lawyers that granted immunity to Epstein (along with four named co-conspirators and any unnamed potential co-conspirators) from all federal criminal charges. Appendix at 7 (NPA).

  1. Shortly before the NPA was signed, additional informatiOn came to light that suggested the State Attorney’s Office was predisposed to manipulating the, process in Epstein’s favor. Specifically, during a September 12, 2007 meeting, at the State prosecutor’s suggestion, the USAO team agreed, with Acosta’s subsequent approval, to permit Epstein to plead guilty to one state charge of solicitation of minors to engage in prostitution, rather than the three charges the USAO had originally specified. The State prosecutor assured Laurie that the selected charge would require Epstein to register as a sexual offender. Shortly thereafter, the USAO was told by defense counsel that despite the assurances made to Lourie, the State prosecutor had advised pstein incorrectly, it turned out — that a plea to that particular offense would nor require t gi ster as a sexual offender. Yet, despite this evidence, which at least suggested t e to Attorney should not have been considered to be a reliable partner in enforcing th sta did not alter his decision about proceeding with a process that depended corn 5yel tate authorities for its successful execution. Appendix at 3 (OPR Report, p. 174)./

  2. Throughout the remainder of 2007 and through the first half of 2008, Epstein’s lawyers and the U.S. Attorney continued negotiating the plea arrangement. Epstein’s lawyers insisted that (1) the victims not be notified; (2),,te deal be kept confidential and under seal; and (3) all grand jury subpoenas (inclucla had already been issued for Epstein’s computers) be withdrawn. Appendix at 3; port, pp. 69, 176, 212-216; Reitei.Depo. 97:2-20).

  3. Upon learning o lea deal offered by State Attorney KriScher that would result in a mere 90—dayijail tern)7for7Epstein, Villafafia wrote to her immediate supervisor: “Please tell me that you are joking. Maybe we should throw him [Epstein] a party and tell him we are sorry’ to have bothered him.” Villafaila and her immediate supervisor later had phorfc and email exchanges with Knscher and with Epstein’s local counsel to insist that the S.tate plea comply with the terms of the NPA, or “we will consider it a breach of the agreement and proceed accordingly.” Villafafia further advised her superior: “Someone really needs to talk to Barry [Krigcher].” Appendix at 3 (OPR Report, p. 109).

  4. In a September 2007 email from State Attorney Krischer to Villafana regarding the NPA, Krischer stated: “Glad we could get this worked out for reasons I won’t put in writing.” Appendix at 3 (OPR Report, p. 81, n.127).

  5. According to Chief Reiter, the NPA was unsatisfactory, as the U.S. Attorney’s Office had advised him that “typically these kinds of cases with [just] one victim wouldiend up in a ten—year sentence.” Appendix at 4 (Reiter Depo. 96:22-98:3).

  6. On June 30, 2008, Epstein pled guilty to two State charges: o ibgf solicitation of prostitution and one count of solicitation of prostitution with a mi the age of 18. He was sentenced to 18 months in jail, followed by a year of commutjy cSrltf 1 or house arrest, and was adjudicated as a convicted sex offender required to register a year in Florida. Appendix at 8 (Plea Deal).

  7. The NPA allowed Epstein to receive immunity from federal sex—trafficking charges that could have sent him to prison for life.’ Former State Attorney Krischer communicated with Acosta concerning the NPA’s nego eati w1 Epstein’s lawyers. Appendix at 7; 3 (NPA; OPR Report, p. 81).

  8. Epstein was not 1 erated 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 311E nitmths, he was allowed to leave the jail on “work release” for up to 12 hours a day, 6 day,s 8 week. His private driver provided his transportation to and from “work.” Appendix at 3 (OPR Report, pp. 114-115).

  9. Epstein was released five months early. Appendix at 3 (OPIt Report, p. 117).

  10. Epstein violated the terms of his probation, but was not prosfcuted. Appendix at 2; 3 (Recarey Depo. 556:24-557:4; OPR Report, p. 118).

  11. Epstein’s victims only learned after the fact about his plea State court and filed an emergency petition to force federal prosecutors to comply with the Crime Victims’ Rights Act (18 U.S.C. § 3771, “CVRA”), which mandates certain rights for crime victims, including the right to be informed about plea agreements and the right to appear at sentencing. U.S. District Judge for the Southern District of Florida, Kenneth A. Marra, ruled in 2019 that federal prosecutors violated the CVRA by failing to notify Epstein’s victims before allowing him to plead guilty-16 only the two State offenSes. Appendix at 3 (OPR Report, p. 242-243).

  12. Following publicity exposing the extraordinary leniency of Epstein’s plea deal, public records reveal that dozens of civil suits were brought against EtiStein, most of which Epstein’s lawyers settled out—of-court.

  13. In 2010, Epstein was registered as a “leveIthr* (i.e., high risk of repeat offense) sex offender in New York, a lifelong design 2011, the New York County District Attorney’s office unsuccessfully sought to I w hIS registration to low—risk “level one.”

  14. During the course (“the ?own of Palm Beach and FBI investigations, Epstein retained private investigators to folloWvliarass, and photograph his victims and their families, as well as Chief Reiter and the Town of Palm.Beach detective who investigated the case against Epstein. Appendi t 4; 2,(Rei ter Depo. 53:10-55:23; Recarey Depo. 627:18-629:23).

  15. s ‘s victims were threatened against cooperating with’ law enforcement and told th uld be compensated only if they did not cooperate with law enforcement. Appen at 2 (Recarey Depo. 537:14-24).

  16. Detective Recarey died on May 25,2018.

B. TheSecond Epstein Sex Crimes Investigation, Indictment, Suicide: 2019.

  1. On July 6,2019, Epstein was arrested on federal sex trafficking charges. Appendix at 3. (OPR Report, p. iv).

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  1. The United States government’s investigation of new allegations and charges stemmed, in part, from continued press investigations into and reporting on the mishandling of the 2006 charges and the civil suits that followed. Appendix at 3 (OPR Report, pp. i,

  2. 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 Gove concerns — grounded in past experience with this defendant — that if alto bail, the defendant could attempt to pressure and intimidate witness this case, including victims and their families, and otherwise a described the results of the FBI’s search of Epstein’s hailii2 t nds — of sexually suggestive ding underage females. In a locked safe, s including the descriptions: “Young [Name] + Appendix at 9 (Berman Letter at pp. 1, 9). trafficking in the form of “hundreds — and per photographs of fully— or partially—nude femal compact discs were found with handwritte [Name],” “Misc nudes 1,” and “Gir as real main out on al witnesses in struct justice.” It also wnhouse: evidence of sex

drs with the Public Corruption Unit of the U.S. Attorney’s ew York charged Epstein with sex trafficking and conspiracy 50. On July 8, 201 office for the Southern District to traffic minors f sex he grand jury indictment alleges that “dozens” of underage girls were brought into ter mansions for sexual encounters. A few days later, owing to public outcry over the w Epstein entered into by Acosta, who by then was serving as U.S. Secretary of Labor Zn the Trump administration, Acosta resigned from office. Appendix at 10; 3 (DOJ U.S. Attorney’s Office S.D.N.Y. Press Release; OPR Report, p. iv).

5J Epstein was denied bail and was placed into pretrial detention at the federal Metropolitan Correction Center in lower Manhattan. Appendix at 3 (OPR Report, p. iv).

  1. On or about August 6, 2019, Florida Gov. Ron DeSantis ordered a State criminal probe into the actions of the Palm Beach Sheriff and former State Attorney Krischer for their handling of the Epstein underage sex trafficking case. Appendix at 3 (OPR Report, p. vii).

  2. On August 10, 2019, Epstein was found dead in his cell at the Metropolitan Correctional Center. His cause of death was determined to be suicide. Appendix at 3 (OPIR Report, p. v).

C. The August 27, 2019, SDNY Hearing: Epstein’s Victims Speak ----

  1. On account of his death, prosecutors sought to dis *stithapefictment against Epstein, while maintaining that they would continue to investiga s , nspirators.

  2. United States Senior District Judge Richard an ‘Ordered a hearing On August :27, 2019, on the prosecutors’ decision to di iAictment and allowed victims to speak at the hearing. Appendix at 11 (August 27. Hearing Transcript before the Honorable Richard M. Berman (“Hearing Transcript”)

  3. In the course of the hea re than two dozen victims delivered their personal stories of pain, frustration, and sexua1Aouse at the hands of Epstein. Several victims spoke of violent rape by Epstein. Many victims were present in the courtroom but did not testify. Appendix at 11 (II/acing yanscript, 28:22-85:15).

  4. __chile some questioned the reasoning behind the court’s decision to give the victims voice aftertpstein’s death, District Judge Berman noted that “a public hearing is [the] preferred vehicle-for its resolution,” emphasizing that “public hearings are exactly what judges do. Hearings promote transparency and they provide the court with insights and information which the court may not otherwise be aware of.” Indeed, even Epstein’s defense lawyer noted at the hearing that the court “is the institution that most people have confidence in, in these’ very troubled times.” Appendix at II (Hearing Transcript, 4:1-3, 5:14-17, 18:25-19:2).

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  1. At the August 27th hearing, Epstein’s victims, now mature women, spoke about their “exploitation and coercion,” and to the fact that many of them “were in very vulnerable situations and in extreme poverty, circumstances where [they] didn’t have anyone on [their] side, to speak on [their] behalf . ” One victim lamented that “as a victim, [she never got to see what the agreement was or why the special treatment got approved” in the Florida case years earlier. Another noted how “completely different” the investigators who secured the 2019 federal indictment were from the prosecutors in the Florida case, both in their trey investigation of her victimization by Epstein. Appendix at 11 (Hearin 22, 41:25-42:1, 48:4-5). er and their fit, 36:24, 38:19-

  2. A former federal judge in attendance at the August 27th hearing emphasized that “transparency is one of the overriding objectives in ourtriminat justice system.” Appendix at 11 (Hearing Transcript, 49:21-22)

  3. Nearly all of the victims eipregaW l the conviction that the secrecy that shielded Epstein has caused them “irreparable lianirand that an opportunity toaddress his criminal wrongdoings, and those of the individual’s 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 untouchable” Another victim expressed fear that this is a world “where there are predators in power, here people can avoid justice if their pockets run deep enough.” In short, the “unusu treatment Epstein received in Florida in 2006 based on his wealth, social status, and connections severely eroded the public’s faith in the integrity and impartiality of the criminal justice system. Appendix at 11 (Hearing Transcript, 68:21-23, 74:16-19, 4’1:12).

D. The Palm Beach Post’s Extensive 15-Year Reporting On Epstein’s Crimes.

  1. Plaintiff, 77w Palm Beach Post, is a community newspaper serving readers in Palm Beach County and the Treasure Coast vicinity.

  2. The Palm Beach Post has been a Pulitzer Prize winner and nominated as a finalist three other times.

  3. Beginning in 2004, The Palm Beach Post has extensively investigated and reported on the allegations against, the law enforcement investigation of, and the Epstein and his co-conspirators. A true and correct copy of a compilafofr$n ( 64 4\ et4mmitted by e Palm Beach Post’s reportage, in either the computerized format in which the artic e maintained in The Palm Beach Post’s electronic archives or the news print editio `7\t ich originally published, is included in the Appendix at 12.

  4. Since the filing of the initial Complaint in this matter, The Palm Beach Post along with media worldwide — has continued to report on Epstein’s crimes and the ongoing official proceedings resulting from se simes.

E. Procedural History.

  1. The initial Com~lain Jin this action was filed on November 14, 2019. It alleged one count under Florida Sta ection 905.27.

  2. l efefidants named in the Complaint, the Clerk of Palm Beach County and Dave the State Attorney, moved to dismiss the Complaint.

In response to the Defendants’ motions, The Palm Beach Post filed an Amended Complaint on January 17, 2020, adding an additional count for declaratory’relief.

  1. On January 24, 2020, both Defendants, the Clerk and the State Attorney’s Office, answered Count I of the Amended Complaint (declaratory relief) and moved to dismiss Count II of the Amended Complaint (Section 905.27).

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  1. In its Answer, the State Attorney’s Office denied that it “is in possession and/or control of documents that are the subject of this action.” State Attorney Answer ¶ 3.

  2. By contrast, in its Answer, the Clerk admitted that she “is in possession and/or control of documents that are the subject of this action.” Clerk Answer ¶ 3.

  3. The Defendants’ Motions to Dismiss were heard on June 3, 2020. While is “case is assigned to Division AG, which is currently presided over by the Honorable dyHafele . ”, Chief Judge of the Fifteenth Judicial Circuit, [Hon. Krista Marx) pro r the June 3, 2020 hearing on the State Attorney and Clerk’s Motions as the Motionsiriiplicie records of the Palm Beach County grand jury, over which the Chief Judge presides.” June-8, 2020 Order granting motions to dismiss (“Order”).

  4. At the June 3 hearing, Chief Judge`x’ don’t think anybody is saying that there isn’t a cause of action [under Section or that the press doesn’t have standing.” Appendix at 13 (June 3, 2020 Hearing Tr ns tt before the Honorable Krista Marx (“June 3 Hearing Transcript”), at 8:2-4; see a_Lcv Wrnowhere have I said there isn’t a cause of action.”); 15-16 (“So I’m not telling yo and the State Attorney’s Office records sought by The 19:5). have a cause of action.”)). Attorneys for both the Clerk ivocally stated that they did not seek to “block access” to the each Post. Appendix at 13 (June 3 Hearing Transcript at 18:23—

June 8, 2020, Chief Judge Marx issued an order granting Defendants’ motions to dismiss Count II of the Amended Complaint, leaving Count I — against which neither Defendant had filed a motion — in the action. The Court held that there was no private cause of action embodied in Section 905.27. Specifically, the Order stated that “the Court does not suggest The Post has no available mechanism to obtain a court order granting it access to the grand jury

proceedings. The Court also does not render any opinion as to whether releasing these records is appropriate for the purpose of ‘furthering justice’ within the meaning of section 905.27. Rather, the Court’s dismissal of Count 11 is necessitated by precedent and the simple fact that a civil lawsuit against the State Attorney and Clerk under section 905.27 is not the proper mechanism for The Post to pursue its goal.” Order at 6.

  1. In its Amended Motion for Attorneys’ Fees, filed on November 9, 2020:the State Attorney’s Office stated that the “State Attorney has no objection to the Clerk producing arid disclosing the Requested Materials should the Court grant an order to-that effeet…” Amended Motion for Attorneys’ Fees, ¶ 20; see also ¶ 25 (“the State Attorney has nb objection, and never has had any objection, to the Clerk releasing the records so tt Aintiff . ”).

  2. In November 2020, the Office of Profes atrta2ponsibility at the Department of Justice released the results of its investigation i ations that in 2007-2008 prosecutors in the U.S. Attorney’s Office for the Southern nct of Florida improperly resolved a federal investigation into the criminal conduct ey Epstein by negotiating and executing the NPA referenced above. Appendix afl (OPRReport, p. i).

  3. The OPR “collected and reviewed materials relating to the state investigation and prosecution of Ep ein, including sealed pleadings, grand jury transcripts, and grand jury audio recordings . dix at 3 (OPR Report, p. 283).

A41. A. legal Standard.

M. ARGUMENT

  1. A party moving for summary judgment must show the absence of any genuine issue of material fact. O’Donnell v. W.F. Taylor Co., 292 So.3d 785, 787-88 (Fla. Dist.. Ct. App. 2020) (citing Moore v. Morris, 475 So.2d 666, 668 (Fla. 1985)). Inferences must be drawn in favor of the non—moving party; “[h]owever, Title judgment sought must be rendered immediately if the

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pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”’ Id. (quoting Fla. R. Civ. P. 1.510(c)). This is such a case: there are no issues as to any material fact underlying The Palm Beach Post’s request for summary judgment on its declaratory relief claim.

B. Relevant Legal Framework: Fla. Stat. § 905.27.

1. Grand Jury Secrecy Is Not Absolute.

  1. Typically, grand jury proceedings are conducted and maintains et. Fla. Stat. § 905.24. But this secrecy has never been — and was never intended to bCt >Qa¢s_te.First, grand jury proceedings are subject to public disclosure to the extent mandated.by constitutional free speech principles, as a testifying grand jury witness is freerlistseher gtand jury testimony. In Butterworth v. M, the United States Supreme Court, weighing the competing interests of grand jury secrecy and the First Amendment, held unconstitutional Section 905;27’s prohibition on a witness revealing her own testimony. 494 115624 b26 (1990).2 The “secrecy” of grand juries in Florida is thus qualified — not absotute —based on principles embodied in, the First Amendment.

  2. Second, Section-905.27(1)’ specifically provides exceptions ‘to grand jury secrecy: “the testimony of a witness exanined before the grand jury or other evidence received by it” may be disclosed “when requ>by a court … for the purpose of: (a) Ascertaining whether it is consistent with he,stimony given by the witness before the court; (b) Determining whether the witness is guiltyy perjury; or (c) Furthering justice.” Fla. Stat. § 905 27(1)(a)—(c). The Florida

{sup}2 The Florida Supreme Court has similarly confirmed that grand jury secrecy is not abtelute and that any “harm to public officeholders [from disclosure] dill be the product of their own conduct, and not the consequence of an unrestrained body of misguided citizens.”Alinini Herald Pub. Co. v. Marko, 352 So.24 518, 523 (Fla. 1977). The decision in Marko emphasized that a grand jury’s important role in “ex-potting] official misconduct” precludes restricting access to its activities for the purpose of protecting “public officeholdersi Id. (“The 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 fight of the people to be informed of its findings.”).

legislature therefore clearly intended to empower a court to order the disclosure of grand jury proceedings for, among other reasons, td further justice, as this Court should do here.

  1. Subsequent to such disclosure, The Palm Beach Post is not as the State Attorney has previously argued (State Attorney Motion to Dismiss at pp. 12-13), constrained by the statute from using the materials for public disclosure—nor could it be, under the First Amendm nt.3

2. The Palm Beach Post Has Standing Under Section 905.27.

  1. The Palm Beach Post has the right to maintain this private ri oP ion because the furtherance of justice, an express legislative exception to grand j tirts , is intended for the public benefit, and The Palm Beach Post seeks access on behalf Nt:thel public it serves. Fla. Stat. § 905.27(1)(c). It is further mandated in Fla. Stat. § 90 court to be the party to make the determination of discic e legislature intended for a tat. § 905.27(1). In other words, the legislature granted the judiciary the power t der and determine the propriety and scope of grand jury secrecy.

  2. The United States Supreaourt has “recognized that the invocation of grand jury ’ /7 I 7 interests is not ‘some talisman c sat 0)dissolves all constitutional protections.’”Burrerworrh, 494 U.S. at 630-31 (quoting U.S. v. Dim ’ , 410 U.S. 1, 11 (1973)); see also Landitzark Communications, Inc. v. Virginia, 435 U.S ‘838 (1978) (balancing state’s interest in preserving confidentiality of judicial mis proceedings against rights of newspaper reporting such proceedings).

Ilk Supreme Court has further recognized that the press has a constitutional right of acctiminal proceedings, see, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555,

{sup}3 Indeed, such a limitation would render the statute a prior restraint, “the most scribes and the least tolerable infringement on First Amendment rights.” Nebraska Press .4ss’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 panics, the Court of course may require such redactions prior to ordering disClosure of the records.

573 (1980), including pre—trial criminal proceedings. v. Graddick, 696 F.2d 796 (11th Cir. 1983). Indeed, “the integrity of the judicial process, which public s4utiny 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 (Ha. 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 spoke* See Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.g. 748, 756-57(1976) (“Where a speaker exists . the protection afforded [by the First Amendinent] is to the communication, to its source and to its recipients both.”), Pattnatt v. Cole, 267 F.3d 1269, 1283 n.12 (11th Cir. 2001) (“The Supreme Court has recognkzed that the First Amendment offers protection to both speakers and those wishing to receive speech/”); see aHo Stephens v. Cnty. of Albemarle, VA, 524 F.3d 485, 492 (4th Cir. 2008)”(providing that a plaintiff has “standing to assert a right to receive speech” by “show[ing] that t6re exists a speaker willing to convey the information to her”).

  1. Because of the iniiiique tole performed by the press as a “public surrogate” (M, 426 So.2d at 6-7) in protecting the-right of access and its interest in reporting information about criminal proceedings, news organizations “presumptively have a right to access judicial records,” Comm ‘r, Alatffiep tolCorr. v. Advance Local Media, LW, 918 F.3d 1161, 1166 (11th Cir. 2019), and “statteg to question the validity of an order restricting publicity because its ability to gather news iallirectly impaired or curtailed.” , 426 So.2d at 4; see also Carlson v. United States, 837 F.3d 753, 757-58 (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”).

  2. Here, the continued denial of access to the information sought by 77w 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. 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).

  3. The Palm Beach Post does not disagree that Section 905.27_makes no express provision for a civil suit or civil liability, but that is just the star; of the inquiry. Where a statute, like 905.27, “forbids the doing of an act which may be to [the plaintiff’s] injury, though no action be given in express terms by the statute for the omision or commission, the general rule of law is that the party injured should have an action; for where a statute gives a right, there, although in express terms it has not given a remedy, the remedy which by law is properly applicable to that right follows as an incident” Smith’. Piero Tech. and Prof? Admirs, 427 So.2d 182, 184 (Fla 1983) (Supreme Court of Florida implied a statutory cause of action for the wrongful discharge of employees who sought workers’ compensation benefits). Here, the forbidding of disclosure of grand jury proceedings injures The Palm Beach Post. The statute, in turn gives a “right” to disclosure of those proceedings, and The Palm Beach Post should have a cause of action to enforce Chi) that n

In determining whether a private right of action lies in a statute, courts in Florida consider: (1) whether the plaintiff is one of the class for whose special benefit the statute was enacted; (2) whether there is any indication, either explicit or implicit, of a legislative intent to create or deny such a remedy; and (3) whetherjudiciai implication is consistent with the underlying purposes of the legislative scheme. Fischer v. Metcalf, 543 So.2d 785 (Fla. id DCA 1989) (adding the second and third factors; previously, courts considered solely the “class benefited” factor). “Courts must strike a balance; neither `fashioning a per se rule of construction that implicit in every penal statute is a concomitant civil remedy,’ nor relinquishing the taskofjudici al implication in the face of legislative faltering or uncertainty.” Fischer, 543 So.2d at 789 (quoting Roger Rankin Fitters., Inc. v. , 433 So.2d 1248, 1250 (Fla. 3d DCA 1983)).

  1. Consideration of these three factors establishes a private rig action in Section 905.27. First, the statutory exception to grand jury secrecy emb ‘on 905.27 - “furthering justice” — is intended to benefit the public at large, u se previously party to the grand jury proceeding at issue. Becaue, as set forth a e, Mr r prhers of the press are “public surrogate[s]” (=, 426 So.2d at 6-7) and play a vital rde i igathering information and reporting on the criminal justice system, The Palm Beach ne of the class for whose especial benefit the statute was enacted” — namely, the pub is elf. See Moyatzt v. Beanie, 561 So.2d 1319 (Fla. 4th DCA 1990) (finding plaintiffs “had ti Qg to maintain a private cause of action as the persons the legislature intended to protect by drenactment of the relevant statute).

yr! 89. Second, there is a dearth of legislative history surrounding Section 905.27, and The Palm Beach Post as b unable to identify any documents capturing the Legislature’s intent regarding the of a private right of action. There is no explicit statement in favor of such a right, lear, there is also no intent — express or otherwise — to prohibit a private right of acti in the absence of which disclosure of grand jury materials to “further justice’ under the statute would be rendered a hollow vessel. See Moyant, 561 So.2d at 1320 (“The absence of express provision for civil liability in the case of violation of a statute does not negative the

existence of a legislative intent that the statute shall effect private rights.”) (quoting Florida Statutes, Sectión 475.482 (1989)).

  1. In such circumstances, consideration of the third factor — whether judicial implication is consistent with the underlying purposes of the legislative scheme — is particularly instructive. When scrutinizing the history of legislation to determine legislative intent, it is appropriate to consider acts passed at subsequent sessions. Fischer, 543 So.2d at 790. In 1994, at the same time Section 905.27 was reenacted to expressly provide the three exceptions to grand jury secrecy, including furthering justice, the Florida legislature also reenacted Fla. Stat. § 905.395, which concerns the secrecy of statewide grand juries. 1994 Fla. ALS 285, 1994 Fla. Laws ch. 285, 1994 Fla. SB 114; Fla. Stat. § 905.395. Like Section 905.27, Section 905.395 has a general prohibition on disclosure of grand jury proceedings, absent a court order. Fla. Stat. § 905.395. Tellingly, however, Section 905.395 does not provide any specific exceptions to nondisclosure. Through the intentional omission of these exceptions, including the fundamental “furthering justice” exception, it can be understood that the legislature did not intend for court-ordered disclosure of statewide grand jury records to further justice, and did not anticipate such disclosures would benefit the public. By contrast, the legislature’s decision to include the catchall “furthering justice” exception in Section 905.27 reflects an intent to protect and inform the public — the ultimate benefactors of the criminal justice system — by providing a means of access in those rare situations where the integrity and legitimacy of the grand jury process have been called into serious question. Accordingly, implying a private right of action is consistent with the purposes underlying the legislative scheme in Chapter 900 of the Florida Statutes.

C. This Court Has Inherent Power to Release Grand Jury Records in Order to Further Justice and Promote Public Confidence in the Judicial Process.:

  1. Even in the absence of Section 905.27’s statutory fraiiiework, disclosure is appropriate pursuant to this Court’s inherent authority over grand jury proceedings because of the exceptional public interest in this case and the compelling circumstances supporting transparency rather than continued secrecy.

1. The Grand Jury is Under the Court’s Supervision and Jurisdiction.

..:’ •,..’,_ 92. It is well—settled that the grand jury is “‘a judicial pr t ins in a court of 9,, justice … an appendage or adjunct to the circuit court.”’ In re Grand Investigation, 287 So.2d 43 (Fla. 1973) (quoting Craft v. State, 42 Fla. 567, 29 So. 418 ). Indeed, it is the court that gives the grand jury its initial charge and advises the g rant ’ ” t its legal duties. Ha. Stat. § 905.18.

tn implied ?lc 93. “It has long been understood t ASS, ’ powers must necessarily result to our Courts of justice from the natur their stitution,’ powers ‘which cannot be dispensed with in a Court, because they to the exercise of all others.” v. NASCO, Inc., 501 U.S. 32, 43 (1991).” here be no question of the inherent power of a court ‘to protect itself, and hence socie instrument of justice.’” In re Osborn, 376 F.2d 808, 810 (6th Cir. 1967).

  1. , Thus, in a variety of contexts, it has been held that “courts have the inherent power to protectlbeintegrity of the judicial process from perversion and abuse.” Vitakis-Valchthe v. Valchine,-193 So.2d 1094, 1099-1100 (Fla. 4th DCA 2001); Anwood v. .Single wry, 661 So.2d 1216 (Flo. 1995) (invoking court’s inherent authority 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).

  2. 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.” S ate V. Clemmons, 150 So.2d 231, 233-34 (Fla. 1963).4 “[I]n states such as Florida, where the grand jury is preserved, it is an important appendage of the court which impanels it… [and] it should not be forgotten that the judge of that court is equally important and he is generally charged with the supervii n of the grand jury’s activities … .” /d. “The importance of public confidence in the int udges stems from the place of the judiciary in the government.” n—Yulee . 575 U.S. 433, 445 (2015). Courts do not command armies and have “no influe v a er the sword or the purse[.]” Id. (citing The Federalist No. 78, p. 465 (C. Rossite (A. Hamilton)). “The judiciary’s authority therefore depends in large measure o f s willingness to respect and follow its decisions.” 14; see also Carlson v. United to 7 F.3d at 765 (recognizing the court’s “wide discretion” to use its “inherent pow \6,’ t hion exceptions pertaining to the release of grand jury records). “The perception of SeSv le e,althy judiciary is of critical importance to our system of justice.” 1980 U.S.C. 5, 4321. This “perception” is of equal importance with respect to state courts, tdnvested with primary responsibility for overseeing the investigation and prosecution otZlYmes.

  3. Th , Supre e ourt of the United States, while acknowledging the value in grand jury secrecy ( s lOng authorized the disclosure of grand jury records where the need for transp eighs any remaining interest in secrecy. Douglas Oil Co. ofCalifornia v. Petrol Stops tInvest, 441 U.S. 211, 223 (1979). Courts around the country have followed suit. See, e.g., In re Petition of Noel Sec. Archive, No. 08 CIV. 6599, 2008 WL 8985358 (S.D.N.Y. Aug. 26, 20M (release of grand jury records concerning the indictment of Julius:and Ethel ’,,

{sup}4 State v, Clemons was _superwded by statute. See Kelly v. Sturgis, 453 So.2d 1179 (Fld 5th DCA 1984).

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In re Petition of Nail Sec. Archive, 104 F. Supp. 3.d 625 (S.D.N.Y. 2015) (Same); In re Petition of Kutler, 800 F. Supp. 2d 42 (D.D.C. 2011) (release of President Nixon’s grand jury deposition testimony in connection with third Watergate grand jury); In re Unseal Dockets Related to the Indep. Counsel’s 1998 Investigation of President Clinton, 308 F. Supp. 3d 314 (D. D.C. 2018) (release of records related to independent counsel’s investigation of President Clinto ); In Re: Application of the Committee on the Judiciary, U.S. House of Representatives Order Authorizing the Release of Certain Grand Jury Materials, Committee on iary, United States House of Representatives v. U.S. Department of :Justice, No. 19 . Cir. March 20, 2020) (ordering the Trump administration to provide the Hous Committee redacted portions of grand jury materials from former special coun ueller’s probe into Russian election interference).

  1. More recently, Kentucky’s Jefferson County Circuit Court released audio of the grand jury proceedings in the Breonna Taylor case in which a young woman was tragically shot by police who were executing a/ search’ Warrant. The grand jury returned only one wanton endangerment charge, which did not lnyOlve Ms. Taylor’s death, against a single police officer.

  2. Like Florida, Kentuelcy has a rule, punishable by contempt of court, maintaining the secrecy of grand jury ‘proceedings. Kentucky Rules of Criminal Procedure (RCr) Rule 5.24. A court has authority to.direct disclosure of those proceedings, though unlike Section 905.27, RCr 5.24 does not enumerate specific reasons allowing the Court to exercise its discretion in ordering disclosure.

  3. After community outrage over the indictment, a member of the grand jury requested the court to release the grand jury transcripts. The Jefferson County Circuit Court ‘released redacted audio recordings of the grand jury proceeding and in the interest of public trust and

transparency, permitted grand jurors who desired to speak out to do so.” Estate o=v. City of Martinsburg, Nos. 18-0927, 18-1045, 2020 W. Va. LEXIS 709, at *68 n.51’(Oct. 30, 2020) (citing Commonwealth v. Hankison, No. 20CR1473, Order of Arraignment and Discovery (Ky. Jefferson Cir. Ct. Div. 13 entered September 29, 2020)).

  1. Following the court’s order authorizing disclosure in the Taylor case, grand jurors informed the public that the prosecutor did not present the jury with any options o first degree wanton endangerment charges. One rand juror said the prosectitori • alk the jury through Kentucky’s homicide laws or explain why they decided that two o _officers who shot at Breonna Taylor were justified. When the panel asked about additionai charges, prosecutors told them there would not be any because they “didn’t feel theyAould maIce them stick,” the juror said. .“1 Estate of 2020 W. Va. LEXT3’. ivs9, at !68 n.51 (citing https://vAvw.washingtonpost.com/nationa1/2nd-bizimittaylor-grand-juror-criticizes- /,,,- {sup}V proceedings/2020/10/22/c26ee432-14bb-11 —t34/258614acf2b906dstory html). In all probability, the grand jury transcripts in the Epsteitflintieeedings will similarly reveal what charges were , presented, how they were presented, how questions from grand jurors were handled by the State Attorney, the testimony of witnesses, and whether the post hoc explanations provided by the State Attorney’s Office ign Wit/h what actually transpired.

  2. he s no evidence that the disclosures resulting from the above cases have adversel the grand jury process. On the other hand, there is no doubt that the release of these rAaterials has contributed greatly to the historical record and public understanding of significant events in our country’s history, as well as exposing failures in our justice system. And, in the case of Breon.na Taylor, as a result of the transparency surrounding the events that led to her

death, the practice of “no knock” warrants has largely been condemned and banned throughout the country.5

2. This Court Has Inherent Power to Release Grand Jury Records in Order to Further Justice and Vindicate Public Confidence in the Judicial Process.

  1. Courts have identified nine “non-exhaustive” factors that may be considered in determining whether 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 ptiviously 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 ainttifig secrecy in the particular case in question.

;Cutler, 800 F. Supp. 2d at 47-48 (quoting MAIO of Craig, 131 F.3d 99, 106 (1997)).6

  1. The vast majority of those factors support disclosure in this case. First, the party seeking disclosure does so in furtherance of its First Amendment right to report information informing the public about th’ operation of the criminal justice system. See Va. Pharmacy lid, 425 U.S. at 756-57; Pitpraqii, 267 F.3d at 1283; Richmond Newspapers, 448 U.S. at 596 (“the

""{” *7

{sup}5 No k ”.,.a us have been banned in Florida since 1994. See State v. Bomber, 630 So.2d 1048 (Fla. 1994).

{sup}6’,sf ,1 rjjely federal courts that have applied these nine factors, (1) there can be no dispute that Florida corl - endowed with inherent authority like their federal counterparts, see supra at 15-16; and (2) federal courts consider these factors when the enumerated exceptions to grand jury secrecy set forth in Federal Rule of Criminal Procedure 6(e)(3)(E) do not appear to apply. See, e.g.. Carlson v. United States, 837 F.3d at 763 (7th Cir. 2016) (“As the Supreme Court put it Rule 6(e) is ‘but declaratory’ of the long-standing ‘principle’ that `disclosure’ of grand jury materials is ‘committed to the discretion of the trial court.”’); United States v. John Doe, Inc. 1,481 U.S. 102, 116 (1987) (the Court “stressed that wide discretion must be afforded to district court judges in evaluating whether disclosure is appropriate”); Douglas Oil CO. v. Petrol Stops Northwest, 441 U.S. 211,223 (1979) (•‘[W]c emphasize that a court called uponio determine whether grand jury transcripts should be releated necessarily is infused with substantial distrction.”). 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 “substantial” (id.) grounds for such disclosure.

conduct of the [criminal] trial is pre-eminently a matter of public interest j… More importantly, public access to trials acts as an important check, akin in purpose to the othhr checks and balances that infuse our system of government.”); Globe Newspaper Co. v. Superfor Court for Norfolk County, 457 U.S. 596, 606 (1982) (“the right of access to criminal trials plays a particularly significant role in the functioning of the judicial process and the government as a whole”).

  1. Second, the defendant to the grand jury proceeding is deceased, and thh goternment has unequivocally stated that is not opposed to the disclosure requested by T*04 Beach Post.

  2. Third, disclosure is being sought—based on information learned by 4he Palm Beach Post from (1) a series of Florida Public Records Law requests, (2) law enforcement sources with direct knowledge of the grand jury evidence and proceedings, (3) judicial documents obtained from independent but related court proceedings, aryi doeutnents otherwise available in the public record—to inform the public as to whether the then State Attorney for Palm Beach County presented truncated evidence of Epstein’s crimirttrongdoing to the 2006 grand jury in a manner that precluded Epstein’s indictment or t ous crimes he committed, including sex trafficking and sexual assault.

  3. Fourth, the reco78S6eing sought are the testimony, minutes, and other evidence presented in 2006 o the alm Beach County grand jury. The evidence known to date strongly supports the cl that the State Attorney willfully skewed and downplayed his case before the gr rough a seriously under-charged indictment that ignored the true extent of Epstei crimes and denigrated his victims as prostitutes unworthy of legal protection. Indeed, the State Attorney appears to have ignored the evidence of how Epstein had groomed the girls and how he had manipulated them into doing his bidding. Plainly, Epstein’s payments to them were part of his scheme to attack the girls should he be charged with crimes, and to convince the State

Attorney that he had merely solicited prostitutes who were not “true” victims. The machination of buying their services was also intended to counter the fact that the girls were minors.

  1. Fifth, the grand jury proceedings took place fifteen years ago.

  2. Sixth, the current status of the principals of the grand jury proceedings are unknown.

  3. 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 co=conspizators, and public records requests and extensive news reporting, this factor weighsin favarof full disclosure.

  4. Eighth, the status of the witnesses who appeared’is unicnown — indeed, The Palm Beach Post’s request is made, in part, to learn who the witpesse’S were that the State Attorney did decide to call (as well as those he decided not to call).1

  5. Finally, The Palm Beach Post submits that with the death of the defendant, the publicly-known and litigated acts of his co-conspirators, the length of time that has passed, and the widely reported nature of this miscarriage of justice, there is no additional need for maintaining secrecy. See U.S. v. Socony-VactitiM Oil Co., 310 U.S. 150,234 (1940) (“[A]fter the grand jury’s functions are end e disclosure is wholly proper where the ends of justice require it.”).

  6. __Courts, have long realized that a transparent criminal justice system affords “signifiettn _ornmunity therapeutic value.” Richmond Newspapers, 448 U.S. at 570-71. “[T]he open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion.” Id. at 571. “The crucial prophylactic aspects of the

With 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.

administration of justice cannot function in the dark; no community cathathis can occur if justice is done in a corner [or] in any covert manner.” Id.

  1. The Palm Beach Post is accordingly entitled to disclosure of the Epstein grand jury materials maintained by the Clerk of Palm Beach County pursuant to this Court’s inherent authority and supervisory powers, which allow the Court to take appropriate and necessary action to preserve, promote, and protect the integrity of the justice system. The citizens qfPahtt,Beach County and throughout the State of Florida are entitled to nothing less in tIir Jparamount importance and public interest.

  2. As a surrogate for the public it serves, The Palm h respectfully requests that the Court declare, pursuant to Fla. Stat. Section 905,27(1), that it is entitled to access the testimony, minutes, and other evidence presented n2006 totte Palm Beach County grand jury because such disclosure would be in the furtherance of justice. Fla. Stat. § 905.27(1)(c) Because The Palm Beach Post is not seeking these rilatetvls in connection with either a civil or criminal case, it also seeks a declaration that jtte s, a its use of the disclosed materials is not so limited. See Fla. Stat. § 905.27(2).

  3. The Palm Beach st further seeks a declaration that disclosure of the testimony, “ii 7 7 minutes, and other evideriCe presented in 2006 to the Palm Beach County grand jury is appropriate pursuant to thistoutt’s inherent authority over grand jury proceedings because of the exceptional public intereat in,this case and the compelling circumstances supporting transparency.

IV. CONCLUSION

  1. The Palm Beach Post respectfully requests that this Court,, pursuant to Fla. Stat. Section 905.27(1) and the Court’s inherent authority, order the Clerk of the; Court to file with this Court copies of the testimony, minutes, and other evidence presented in 2006 to the Palm Beach

County grand jury during the first Epstein sex abuse investigation so that, following an in camera inspection, it can be made available to The Palm Beach Post and the public on an expedited basis.

Dated: April 22, 2021

Respectfully submitted,

GREENBERG TRAURIG, P.A.

Attornéys for CA Florida Holdings, LLC, Publisher of The Palm Beach Post

Stephen A. Mendelsohn, Esq. 401 East Las Olas Blvd., Ste. 2000 Fort Lauderdale, Florida 33301 Telephone: (954) 768-8225 Facsimile: (561) 338-7099

By: /s/ Stephen A. Mendelsohn

STEPHEN A. MENDELSOHN Florida Bar No. 849324 mendelsohns@gtlaw.com smithl@gtlaw.com FLService@gtlaw.com

By: /s/ Michael J Grygiel

MICHAEL J. GRYGIEL (Admitted Pro Hac Vice) 54 State St., 6th Floor Albany, New York 12207 Telephone: (518) 689-1400 Facsimile: (518) 689-1499 grygielm@gtlaw.com

By: /s/ Nina D. Boyajian

NINA D. BOYAJIAN (Admitted Pro Hac Vice) 1840 Century Park East, Ste. 1900 Los Angeles, California 90067 Telephone: (310) 586-7700 Facsimile: (310) 586-7800 boyajiann@gtlaw.com riveraal@gtlaw.com

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 22{sup}nd day of April, 2021, a true and correct copy of the foregoing has been filed with the Clerk of the Court using the State of Florida e-filing system, which will send a notice of electronic service for all parties of record herein

/s/ Stephen A. Mendelsohn

STEPHEN A. MENDELSOHN

NOT A CERTIFIED COPY

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