IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA.¶
STATE OF FLORIDA,¶
v.¶
JEFFREY EPSTEIN,¶
Defendant.¶
CRIMINAL DIVISION: W CASE NO. 50-2006-CF-009454AXXX¶
ORDER DENYING THE STATE’S MOTION FOR AN ORDER UNS LING GRAND JURY TESTIMONY WITHOUT PREJUDICE¶
THIS CAUSE came before the Court on the State Attorney’s pecomber 16, 2019 Motion for an Order Unsealing Grand Jury Testimony. After careful ration, the Court denies the State’s Motion for the following reasons.¶
Factual BaNtnd¶
In 2006, the Grand Jury for the State Florida indicted Jeffrey Epstein for one count of Felony Solicitation of Prostitution. Th er, Mr. Epstein and the State entered into a negotiated settlement wherein Mr. Epstein pleadocfguifty in exchange for a twelve-month sentence in county - / jail. The circumstances of Mit.\ Epstein’s plea and sentence later became an issue of national interest and, in response, f or Ron DeSantis issued an Executive Order directing the Florida Department of forcement (“FDLE”) to “initiate a preliminary inquiry beyond the work release of et., i and into other irregularities surrounding the prior state investigation and the ul r ea agreement.” In this same Order, the Governor assigned Bruce Colton, State Attorney for the Nineteenth Judicial Circuit of Florida, to “discharge the duties of the Honorable, David Aaronberg, State Attorney for the Fifteenth Judicial Circuit of Florida, as they relate to the investigation, prosecution, and all matters related to allegations related to Jeffrey Epstein and his assigned work release program and other irregularities.” Mr. Colton has now filed the instant¶
Motion on behalf of the State for the purpose of providing the grand jury records to FDLE. In the Motion, the State represents that “[a] review of the grand jury testimony is necessary to fulfill Governor DeSantis’ assignment and required (sic) in the furtherance of justice.”¶
The Court heard the State’s Motion on January 7, 2020. At that hearing, the State introduced testimony from Troy Cope, the FDLE Case Agent assigned to investigate the Epstein case pursuant to the Governor’s Order. Inspector Cope testified that he currentltti a ccess to police reports, victim statements, emails, sworn testimony, and other law e tbreeivnt statements obtained by law enforcement and the State in their investigation of icin. Inspector Cope explained that he wished to have access to the grand jury testi yso he could compare the evidence presented to the grand jury with the document ,,) al during his investigation. He further testified that he hoped to learn why the jury ,C ics, ilii rt indict Mr. Epstein for one count of Felony Solicitation of Prostitution, an offens • h chargeable after “a third or subsequent violation” of the solicitation statute, giv r. rein’s lack of a criminal record at the time. § 796.07(0(c), Fla. Stat. (2006). I ector Cope, the State also submitted the Governor’s Order and the Grand Jury’s ind tog the Court.¶
Based on the fort evidence, the State argued that FDLE needed the grand jury testimony to ” gation.” When pressed by the Court as to the particular need for the testimon to conceded that it did not know what it would find and, therefore, could not predic ific actions would be taken as a result. The State speculated that if it appeared any alleged victims were purposely not called or refused to appear, it might lead to a witness tampering investigation, however, the State also admitted that it had not made any effort to adduce this information from other means, such as direct contact with the victims. The State also speculated that the grand jury may have been misadvised about the nature of a Felony Solicitation¶
of Prostitution’ charge, but again, could not articulate a particular need for this information other than to further FDLE’s investigation in a general sense.¶
Analysis¶
The grand jury system, which is written into the United States Constitution, dates back centuries into the common law. Throughout its long history, secrecy has been an integral component of grand jury proceedings. United States v. Sells Engineering Inc., 46418, 425 (1983). Grand jury secrecy serves several compelling purposes, including: •ing the grand jurors, (2) protecting the witnesses, (3) preventing the escape of a pens before his arrest, (4) preventing subornation of perjury or tampering with witn jury and then testify as a trial witnesses, (5) shielding the indictment is filed, and (6) encouraging the ni p information. Grand Jury Fall Term, A.D. v. ? c ‘SS,g6 , etersburg, Fla. 624 So. 2d 291 (Fla. 2d DCA 1993) (citing Minton v. State, 11 . 2 1 (Fla. 1959)). This secrecy also serves the interests of prospective investigat s n, 113 So. 2d at 365 (“While, in a given case, the reasons for secrecy may no lo er o in, the effect on subsequent grand jury proceedings - on jurors, on witnesses, on ’ acy of the system itself — of indiscriminate disclosure has been said to be ‘of gre om t.’” (quoting United States v. General Motors, 15 F.R.D. 486, 488 (D. Del. 1954)) ( is added)). ified before the grand of a person against whom no disclosure by persons who have¶
secrecy is an integral component of the grand jury, it is not absolute. The common law always recognized a “compelling” necessity exception to grand jury secrecy. v. Superior Court, 195 P.3d 588, 602 (Cal. Ct. App. 2008). This exception carried over¶
{sup}' The State also conceded that there is no decisional authority clarifying what qualifies as a prior “violation” of the solicitation statute for purposes of Felony Solicitation of Prostitution and, therefore, was very measured in its misadvice hypothetical.¶
into our modem system of justice and is recognized in some form by nearly every jurisdiction in this country. See Fed. It Crim. P. 6(eX3)(E); State cc rel. Ronan v. Superior Court In and For Maricopa County 390 P.2d 109, 119 (Ariz. 1964); In re Jessup’s Petition, 136 A.2d 207, 218 (Del. 1957); Diamen v. U.S. 725 A.2d 501, 532 (D.C. 1999); clinojosa v. State 781 N.E.2d 677, 681 (Ind. 2003); In re Grand Jury of Douglas County, 644 N.W.2d 858, 863 (Neb. 2002); People v. Di Napoli 265 N.E.2d 449 (N.Y. 1970); State v. Greer, 420 N.E.2d 982, 989 (Ohio 1 Florida, this exception is codified in section 905.27(1)(c), Florida Statutes, which p at grand jury testimony may be disclosed “when required by a court … for the pu rthering justice.” § 905.27(1), Fla. Stat.¶
Although the term “furthering justice” seems qui % a e history of the exception in common law and modem case law establishes t e tion is actually quite narrow—it 4ti S te does not encompass any reason that could ” ,” but rather requires the showing of a particularized and compelling need w cannot be satisfied in another (holding that “a party seeking I;• Li…eu ghs any interest in maintaining secrecy and kings v. State, 495 So. 2d 135, 137-38 (Fla. 1986) [of grand jury proceedings] must make a strong showing of a particularized need r• to outweigh the public interest in secrecy” (citing United States v. Sells Eng’g, I 463 .S. 418, 443 (1983) (emphasis added))). Such a showing must be comprised than a mere surmise or speculation.” Minton, 113 So. 2d at 365. If a party makes owing, then the trial court may examine the grand jury testimony in camera and make a determination of its materiality. Id. Disclosure should then be permitted only if “essential to the attainment of justice.” Brookings, 495 So. 2d at 138; Minton, 113 So. 2d at 365. There are few Florida cases discussing the furthering justice exception to grand jury secrecy, but all confirm its narrowness.¶
The question then becomes under what circumstances can a person, specifically an investigating body, citing the “furthering justice” exception establish a particularized and compelling need for grand jury records which outweighs any interest in maintaining secrecy? Although this is a highly fact specific inquiry, several decisions issued by various New York courts are instructive.¶
As written by one New York Court, “[t]he mere fact that the disclo ht by a government agency (even a prosecutorial agency that was itself invol e grand jury presentation) will not necessarily warrant the breach of grand jury or will the mere general assertion that disclosure will be in the public interest.” e ey, 4988 N.Y.S.2d 852 “legal presumption against disclosure of gran (N.Y. Sup. Ct. 2014) (citations omitted). Indeed, “if the the public’s awareness could by itself trump all i t • nce, let alone a rule providing that such ietal benefit of maximizing erations,” there would not exist a presumption may be overcome only by ho of a particularized and compelling need for disclosure” Id. at 213. Instead, “[t ust, by a factual presentation, demonstrate why, and to what extent, the party reqiur the nutes of a particular grand jury proceeding to advance the actions or measures take roposed (e.g. legal action, administrative inquiry or legislative investigation), to th the public interest has been, or will be, served.” Matter of James v. Donovan, 14 3 435, 442 (N.Y. App. Div. 2015). (internal quotation and citation omitted).¶
ory of the furthering justice exception to grand jury secrecy and ensuing case law from Florida and around the country reflects that the exception is narrowly construed and requires the movant to establish a particularized and compelling need for the records. When the movant is an investigatory body, its need cannot simply public awareness, but must be the furtherance of a specified course of action. Further, the need must be of such a nature that it outweighs the public interest in maintaining grand jury secrecy. Finally, the information contained in the records must actually serve the specified need and cannot be obtained from any other source.¶
Conclusion¶
In this case, the State has alleged the records are necessary to “fulfill Governor DeSantis’ assignment” and has thrown out a few speculative possibilities for how it could use the testimony, depending on what it contains, of course. Alternatively, as the State aclmowledg estimony could serve no value other than satisfying curious minds. It also has aclmo at it has not exhausted all other avenues in attempting to obtain the information it the Court finds that State has failed to make a strong showing of a particularj an ompelling need for the grand jury testimony. Minton, 113 So. 2d at 365.¶
In arriving at this conclusion, the Court is ni i t*ii e State is simply trying its best to 11% effectuate the Governor’s Order and is in no ( {sup}e i unting the worthiness of that task. The Court is also not foreclosing the possibi . s at State may, in the future, be able establish that the release of the grand jury record ’ e are actually necessary to further justice. However, as it stands, the State has fail e a predicate showing for the release of the grand jury testimony. Accordingly, r • reby¶
ORDE hat th State’s December 16, 2019 Motion for an Order Unsealing Grand Jury Testimo E IED without prejudice.¶
ND ORDERED, in at West Palm Beach, Palm Beach County, Florida this 14th day of January 2020.¶
j•Hi \ “itz • • C WHIMS Wfillt cosset ginle7Crat
¶
¶KRISTA MARX CIRCUIT JUDGE
COPIES TO:¶
M. Levering [REDACTED], ASA, 19{sup}th Circuit via email SA19eService@sao19.org¶
Jack Goldberger, Esq., via email jgoldberger@agwpa.com & smahoney@agwpa.com¶
Robert Critton, Esq. via email rcrit@lawclc.com¶
Spencer Kuvin, Esq., via email skuvin@800goldlaw.com¶
[REDACTED] J. [REDACTED], Esq., via email brad@epllc.com¶
Jeffrey Herman, Esq., via email jherman@hermanlaw.com¶
Theodore J. Leopold, Esq., via email tleopold@cohenmilstein.com¶
A.H. by US mail at confidential address – to be sent by State Atty. Office, 19{sup}th Circuit¶
A.D. by US mail at confidential address – to be sent by State Atty. Office, 19{sup}th Circuit¶
S.G. by US mail at confidential address – to be sent by State Atty. Office, 19{sup}th Circuit¶
Gregory Parkinson by US mail to 7022 Venetian Way, West Palm Beach, FL 33406¶
NOT A CERTIFIED CONFIDENTIAL¶