IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CRIMINAL DIVISION¶
STATE OF FLORIDA vs. JEFFREY EPSTEIN, Defendant. ) ) ) ) ) ) ) ) CASE No. 2008CF009381AXX ORIGINAL¶
PROCEEDINGS BEFORE THE PRESIDING: HONORABLE JEFFREY CO APPEARANCES:¶
ON OF THE STATE: • BARRY E. KRISCHER, ESQUIRE;;.= State Attorney 401 North Dixie Highway West Palm Beach, Florida 33401 By: BARBARA , ESQUIRE Assistant State Attorney BEHALF¶
ON BE4AtF:OF THE DEFENDANT: JACK GOLDBERGER, ESQUIRE S Australian Ave Ste 1400 est Palm Beach, Florida 33401 And ROBERT CRITTON, ESQUIRE 515 N Flagler Dr Ste 400 West Palm Beach, Florida 33401¶
ON BEHALF OF THE PALM BEACH POST: DEANNA SHULLMAN, ESQUIRE , LoCicero & Bralow 101 N.E. 3rd Avenue - Ste 1500 Fort Lauderdale, Florida 33301¶
ON BEHALF OF III THE INTERVENER: WILLIAM J. BERGER, ESQUIRE BRAD , ESQUIRE 225 NE Mizner Blvd Ste 675 Boca Raton, Florida 33432¶
C r Cfr? C¶
SCANNED JUL-6211¶
ON BEHALF OF █, MOTION INTERVENER’S PLEADING: SPENCER KUVIN, ESQUIRE 2925 PGA Blvd Ste 200 Palm Beach Gardens, Florida 33410¶
NOTA CERTIFIED COPY¶
1 BE IT REMEMBERED that the following 2 proceedings were had in the above-entitled cause 3 before the HONORABLE JEFFREY COLBATH, one of the 4 judges of the aforesaid court, at the Palm Beach 5 County Courthouse, located in the City of West 6 Palm Beach, State of Florida on June 25, 2009 7 beginning at 1:50 o’clock, p.m. with appi. ances 8 as hereinbefore noted, to wit:¶
9 THEREUPON:¶
10 up the case o ersus Jeffrey Epstein. Let m counsel announce their appeara for the record. THE COURT: 11 of the state of Fl 12 13 Let me¶
MS. L AN: Deanna Shullman of Palg/14 B 4)11 Post. cero & Bralow on behalf of the 14 15 16¶
\ I THE COURT: Ms. Shullman, nice to see 17 18 ou again, good morning.¶
19 MS. SHULLMAN: You too.¶
20 21 the intervener. MR. GERBER: William J. Berger for¶
22 23 MR. : Brad also on behalf of the Ili¶
24 25 of motion intervener’s pleading. MR. KUVIN: Spencer Kuvin on behalf¶
MR. GOLDBERGER: Good afternoon, Judge, Jack Goldberger and Robert Critton on behalf of Jeffrey Epstein.¶
THE COURT: And I’m guessing that, Mr. Kuvin, if I grant the motion to unseal that which has been sealed, your motion to intervene will be moot.¶
MR. KUVIN: Will be.¶
THE COURT: I thought so. This is what I’m thinking and — oh, we’ve got more.¶
MS. BURNS: One more appearance, excuse me, Judge, Barbara REDACTED on behalf of the state of Florida, the state attorney’s office of the 15th Judicial Circuit.¶
THE COURT: All right. Procedurally, I think the way that this came to us is that at the conclusion or at some point during a plea conference between the state of Florida and Mr. Epstein, the state and the defense hand an agreed order to Judge Puccillo.¶
THE COURT: And asked her to sign an¶
agreement to seal some portion of some documents, which she signed off on and now it is the intervener’s and the Post’s motion to unseal those documents; is that kind of procedurally where we are?¶
MR. GOLDBERGER: Procedurally not exactly correct, I don’t know if want me to clarify that.¶
COURT: Please THE¶
MR. ) GOLDBERGER: Your,Honor, this started during the ,course of a plea colloquy in Mr. Epstein’s state proceeding before Judge Puccillo, who is aretired senior judge who was filling in for Judge/ McSOkley on that day, who was the / judge assigned to this division. It was {sup}a plea agreement with the state attorney’s ‘office and it is normal and consistent with any plea colloquy Judge Puccillo asked the defense whether there were any other promises or inducements for Mr. Epstein to enter into his plea agreement other than what was contained in the state standard plea agreement that we had. I felt obligated under the circumstances to alert¶
1 to the Court that there was a confidential 2 agreement between Mr. Epstein’s 3 Mr. Epstein’s attorneys and the United 4 States attorney’s office for the Southern 5 6 7 District of Florida which would have been triggered upon the successful taking of the plea by Judge Puccillo.¶
8 9 10 11 12 13 14 15 16 th matter sealed in the court file. I 17 sai ine, and then we later — I then 18 i moiled that document, and the clerk’s office 19 20 21 A640” /It In other words, if the •1 was accepted by Judge Puccillo Puccillo e’s a confidential agreement be n U.S. attorney’s office a d defense that would be trigger they would agree not to take some I advised that ons against Mr. Epstein. e Puccillo of that, and at e said she would like to see notified me and said we need an order sealing this, and we submitted an order to seal the document.¶
22 23 anybody here from the U.S. attorney’s 24 office? Has anybody notified them, or is 25 there a dog in this fight or do they care? THE COURT: All right. Is there¶
1 2 3 If they’re a party to this confidential thing, wouldn’t you think that they might be.¶
4 5 6 7 8 9 MR. GOLDBERGER: Your Honor, they have been noticed. They have taken a position in parallel proceedings that this matter should remain confidentia , ad they have done that in federal cou and I believe that is their pos • till.¶
10 11 12 13 14 MR. ri4:01r, I have been in communication wi office, and the of taking a position on this issued ich is why they’re not in Your court righ U.S. attorney’s¶
15 16 4;4 4/tRT: going on in fe ourt? What’s¶
17 18 MR. GOLDBERGER: There are a number It . civil cases that are pending right now.¶
19 20 THE COURT: And they’re talking about the same documents that are under seal here in our court?¶
22 MR. : Yes.¶
23 MR. GOLDBERGER: Yes, your Honor, and 24 I will address that at the appropriate time 25 what’s going on here.¶
THE COURT: All right. So thank you, Mr. Goldberger for getting that straightened out.¶
MR. GERBER: Judge, just to clarify one other point.¶
THE COURT: Sure.¶
MR. GERBER: I think actuaL cthere’s an additional step because Mryi 1 dberger on behalf of Mr. Epstein Critton {sup}I believe filed motion, and ti.Chink that that will tell us who go st today and who has the burden¶
THE COU4( This is — and I’m thinking ot {sup}a {sup}l that my take on that is that ew of the file shows that the ap te steps to seal these documents wasnTt followed initially. I'm looking at {sup}tas it would be whoever's moving to have them sealed, it's their burden to prove the steps that you have to prove to get things sealed by the Court, and so that's -- {sup}I` hinted last meeting that we all had together but that’s where I’d go, so I’d shift the burden over to the federal government and to Mr. Epstein, that’s what¶
1 2 3 I’m thinking. Let me ask first go over to the Post, Ms. Shullman, what are your thoughts on that procedure?¶
4 5 6 7 8 9 10 MS. SHULLMAN: Your Honor, I think that’s the correct procedure here. I think Mr. Epstein’s motion to make court records confidential tacitly admits what suspected last time, which wa initial closure of the do r Ita accePt ab),e procedures. Drat the was not done pursuant to the¶
11 12 THE COURT: A might. Mr. Berger, Mr. Fright with you?¶
13 MR. tC : C ‘We agree. ED¶
14 15 MR. t E : That’s what my point was, yes, ur Honor, thank you.¶
16 17 {sup}I{sup}g ibw ou (ACM ink? COURT: Mr. Goldberger, what do¶
18 19 20 Icr7 MR. GOLDBERGER: That’s fine, your Honor, with the — I’ll wait until after the proceeding.¶
21 22 THE COURT: All right. You may proceed.¶
23 24 25 MR. GOLDBERGER: Judge, as I said to clarify the record, this matter started during the course of Mr. Epstein’s plea¶
1 2 3 4 5 6 7 8 9 10 11 12 13 colloquy in state court and just so that the record was clear that all inducements for Mr. Epstein’s plea was on the record when Judge Puccillo asked me if there had been any promises made to Mr. Epstein, I think properly and ethically we told the Court that there was an agreed confidential agreement with t ederal government that was in pl t basically said we will not prosecute Me. Epstein for federal offenses if t State plea agreement is acc_eike <” Ay the Court and Mr. Epstein’s fence is imposed.¶
14 15 16 17 18 19 20 21 22 23 24 The st to proceeding was over at the time 2 ) advised Judge Puccillo that, in oth er rds, we had gone through the plea colloquy and I simply was advising her of his other agreement. It was Judge Puccillo who then asked us to approach, and the Court has a copy of that transcript, I believe. It was Judge Puccillo that said I’d like to have that document sealed in the court file, and I acquiesced to that, I said that’s fine.¶
25 So, first, as a preliminary matter,¶
1 2 3 4 5 6 7 8 it wasn’t like we were coming into court on that day and asking to seal something, so it would have been presumptuous of me to file something to request to have something sealed when it came up during the course of the proceeding, and, in fact, the committee notes on the rule of judicial administration talk about tha_ ad say 9 matters come up all the t’ ing the 10 course of hearings and the ct that 11 something is not fi 12 necessarily tai advance does not entire process, so we 13 agreed to co rward and file our motion 14 to seala e tefact, because we didn’t 15 know flu tter would be coming up.¶
16 A\ having said that, Judge, this 17 conf ential agreement was not part of any 18 state plea agreement, it’s not part of the 19 proceedings, it was ancillary to the state 20 proceedings and it had nothing to do with 21 the state proceedings. As an accommodation 22 to Judge Puccillo, we filed it in the court 23 file. Quite frankly, it’s unnecessary, it 24 doesn’t need to be there, and the simplest 25 approach would be to simply remove it from¶
1 2 3 4 5 the court file at this point. We didn’t have for it to be there. It’s not part of the plea, it’s not part of the state resolution of the case, and that would be the simple logical approach to that.¶
6 7 8 9 10 11 12 13 14 15 If the Court is inclined not do that or if the parties object to that, en {sup}I think we move onto some other _v , very important issues in this the intervenors in Palm Beach Post mot proceeding for this cria:) as well as the {sup}raccess to this wo very, very d for both significant ra na, they are in the wrong place and \ ’ e attempting to march up the wn 1 here, your Honor.¶
16 17 18 19 20 21 22 23 24 25 (;;) is matter needs to — has to be liti ated in federal court before udge Marra who has already heard hearings on this matter. Now, at our last abbreviated hearing two weeks ago, I told you for the first time that there have been two hearings in front of Judge Marra on this very issue, whether this nonprosecution agreement and that’s the matter that is sealed in your court file,¶
1 whether this nonprosecution agreement 2 should be released to the plaintiffs for 3 their use.¶
4 Judge Marra heard two hearings on 5 this matter and the court has those orders. 6 And in the first hearing Judge Marra very, 7 very, carefully balanced the 8 confidentiality issues of the 9 nonprosecution agreement, tent of the 10 parties as well of the rules Jof i criminal 11 procedure that I about in a 12 moment, with the iff’s right to know 13 what’s going end to have access to this 14 agreement. d Judge Marra crafted an 15 order the nature of a protective 16 or said, plaintiffs, you can have 17 this Fionprosecution agreement, you can use 18 t, you can review it, you cannot give it 19 to anyone else other than your clients, and 20 if you want to use it or you want to give 21 it to your clients, you need to tell them 22 about this order that is not to be 23 disclosed to anybody else. And these plaintiffs that are sitting here will tell you that from day one they have had this¶
24 25 1 nonprosecution agreement, they have it for 2 their use, they know every clause that’s in 3 that nonprosecution agreement, and I 4 suggest to the Court as to their motions 5 why are we here; they have an agreement 6 already.¶
7 They went back to Judge Maxsta14, / 8 sometime thereafter and asked Court to 9 expand their use of the nonpr a cution 10 agreement, and they said, fudge Marra, we 11 have the nonprosecu • greement but we 14 in another e ully crafted order said, 15 nuh-u 16 bu v en1 ,ytou cannot disseminate this to 17 ` anyoTfee else, and the order that I have 19 O y significantly he said, you know what, this 20 is without prejudice. would like to be o disclose that agreement to r sides, and Judge Marra ou have not satisfied your tered remains in place, but most¶
21 If you have some basis, you have some 22 need that you have not briefed, you have 24 dissemination of nonprosecution agreement, 25 come back to me and I’ll review it for you. not litigated with me yet concerning¶
And they have every right to do so, and they have not done so, and it is this motion to intervene that they filed in this court is simply an effort to skirt and to avoid and to go behind the order of Judge Marra that dealt with this issue already.¶
And I think just for the purpose of our hearing, we need to have {sup}i the two orders of Judge Marra entered into the record of this proceeding. I-know,“I gave copies to the Court, but 1_11aNte/additional copies.¶
MR. GO B3%9ER: Your Honor, believe ^htt h~i§ no objection from either of th es.¶
COURT: Thank you so much. Let’s go {sup}aead and mark these as Defendant’s Exhibits No. 1 and 2 for identification CINS{sup}I {sup}S judicial notice of Judge Marra’s order? By {sup}Y purposes. Anybody object to me taking hearing no objection, I’ll go ahead and take judicial notice of it.¶
MR. GOLDBERGER: So, your Honor, Judge Marra has dealt with this issue squarely, there’s a procedure in place and¶
1 these matters should be litigated in front 2 of the district court judge that has 3 already heard these matters.¶
4 THE COURT: Well, let’s say that may 5 be true as it relates to these individual 6 plaintiffs in the federal litigation, what 7 8 9 about the Post’s and the press’s the i, media’s right to take a look ese things?¶
10 11 12 13 14 Beach Post 15 these MR. GOLDBERGER: ^ YotiS,ilonor, and this is the second reaso i yJnot only the plaintiffs but appear to be \ marching up td e tong here. The Palm iled a motion for access to is and they certainly do have 16 fi st endment rights and no one would 17 disp e that they have first amendment 18 tights to access to public records, 20 t 19 however, most significantly in this case is that the nonprosecution agreement which we 21 gave the court permission to review two 22 weeks ago and presumably the Court has had 23 an opportunity to take a look at it, the 24 nonprosecution agreement talks about and 25 relates to a grand jury matter that is¶
1 2 3 4 absolutely 100 percent protected from disclosure by Federal Rule of Criminal Procedure Six. I have a copy of that rule for the Court.¶
5 6 THE COURT: Let me take a look of that, please.¶
7 8 MR. GOLDBERGER: Give us o oment, your Honor, we have it here s ‘ere.¶
9 10 11 12 13 14 15 16 17 18 MR. KUVIN: Your Ho st briefly while they’re looking on lf of the plaintiff I jus ed to point out on my client motio ervene, we are not party to the e ral action. She only has a state co c aim. She’s not bound by any f court order, she is not with the’le ill al court on their claim, so as to i that issue, my client stands here i/-7 `synonymous with the Post.¶
19 20 THE COURT: Thank you for pointing that out to me.¶
21 22 MR. GOLDBERGER: We’ll have it for you in one moment, your Honor.¶
23 24 25 Your Honor, Federal Rule of Criminal Procedure Six is a rule that deals with grand jury proceedings, and it confers in¶
the federal system secrecy of all grand jury matters and it’s pretty clear in this case that the nonprosecution agreemen{sup}t specifically talks about a grand jury investigation of Mr. Epstein, there’s specific reference to a grand jury investigation in the nonprosecut. agreement.¶
The rule does not p us from telling the Court that th was {sup}agrand jury investigation j Epstein, but what it prevents us ing, what it prevents this Court f ping, I believe, is disclosin t ontent of the grand jury inves j {sup}gn, and the agreement itself is ve {sup}sific as to the grand jury inve igation of Mr. Epstein.¶
However, all is not lost for the Palm Y Beach Post and the intervenors, for that matter. The rule has a specific procedure where the grand jury is convened, in this case it would be in the Southern District of Florida before Judge Marra and that is under Rule 6E, your Honor, I think it’s 6E that allows you to go to the district court¶
1 3E actually. It says: In limited 2 circumstances the Court may authorize 3 disclosure of grand jury matters under 7 filed in the district where the d jury 8 is proceeding. request made in connection judicial proceeding, so - with the and the rule goes onto clearly say, that request must be¶
9 So the first — you he Palm 10 Beach Post may have first ndment rights 11 to access but those ¶ amendment rights 12 cannot circumve ederally protected 13 secrecy of g ury proceedings and 14 that’s wha e Post is doing by making 15 this before this Court.¶
17 almo a year now, 11 months and some days 19 anything in this matter until most 22 Rule Six and asked Judge Marra to make a 23 limited disclosure of the nonprosecution 24 agreement and the grand jury matters that 25 are contained therein. Who knows whether nd the is matter has been sealed for Palm Beach Post has not filed recently, and their remedy is to go into the federal court and invoke the process of 1 he will do it, but that’s where this battle 2 need to be fought.¶
3 4 5 6 disclosure 7 even more importantly, the supremMclause 8 requires you to defer to the dlCral laws 9 of criminal procedure tha ese 10 matters should be protecte nd should not 11 12 so. be disclosed unless istrict court says gky) As a matter of comity, your Honor, this Court should defer to Judge Marra because, A, he has already ruled on the of the nonpros agreement, but¶
13 14 15 16 17 test hat the Court must then use under the 18 19 says matters can be sealed but they should 20 be sealed if there’s a compelling 21 22 important to the administration of justice. 23 There’s a couple other criteria, but the 24 ones obviously that would apply in this 25 case are the compelling government the As 4ocltr’44> is ’ going to go on and he issues that would be If wants to conta it were not dealing with a y proceeding, obviously there’s a of Judicial Administration and it government interest or if the sealing is¶
1 interest, and the importance to the 2 administration of justice.¶
3 Again, we are dealing with a secret 4 grand jury matter. We cannot circumvent 5 6 that secrecy by asking the Court to invoke its unsealing power.¶
7 THE COURT: Thank you.¶
8 9 Honor. MR. GOLDBERGER: Thank S eyour (:!)¶
10 11 12 13 THE COURT: Let me ever to the other parties and w et back to Mr. Goldberger client. Post, who wants to go f¶
14 MS. L AN: Mr.¶
15 eibRT: Mr.¶
16 17 18 rder to support the argument that the 19 nonprosecution agreement needs to remain A’ Your Honor, inasmuch as C Mr. /14 2i)stein is relying on Judge Marra’s 20 sealed, I’d like to address that if you are 21 - inclined to be persuaded by that argument 22 at all.¶
23 The orders that have now been moved 24 into evidence are in case No. 80736, and 25 just to put that order in context in¶
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 actuality, the order says — specifically puts it back on this Court and confers authority on this Court over this particular document, when in the second page of the February 12th, 2009 order, it’s misdated 2009 but it’s a 2009 order, and the last two sentences read: If when petitioners have a specific t le need to be relieved of the res .4).ns, they should file an appropriateCc? tion, which we believe we have don ghis case, if a specific tangle rises in the civil cases, which in circuit court in Palm Beach Coun 44tir en relief should be sought there th voU,C context for that order, there was a stye court plea taken June 30th, 2008, t li v here Mr. Epstein pled guilty to the state court cases as it related to two victims. ice to all parties, so to give¶
20 22 23 24 25 Now, parallel to that, there was an investigation in federal court where the United States attorney’s office and the FBI had more than 30 victims of sex abuse of Mr. Epstein’s and they were working with these girls and their cases. Now, several¶
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 of those girls came to me and said, hey, we’re worried that there’s a secret deal going on between Epstein and the U.S. attorney’s office, so I filed an emergency petition against the U.S. attorney’s office asking the federal court to intervene and get in the middle of this and not t this deal go forward without meani conferring with these gir use I was alleging it violated the Cafes ’ Victim’s Rights Act; these g ave a right to be heard. That eme ‘/motion was filed July 7th, 20 nd I have that for the Court, and ike to enter that into evide ell.¶
16 17 COURT: We’ll mark that as Exhiait No. 1.¶
18 19 20 21 22 23 24 25 MR. : And an emergency hearing was held four days later in front of Judge Marra, who was randomly assigned to this case at the time the plea was taken and the prosecution agreement was sealed. Judge Marra had nothing to do with the agreement, with Epstein, he didn’t know anything about it.¶
So four days later now we’re in front of him and the United States attorney’s office says for the first time, sorry, girls, you are too late, the deal has already been done as to all of your federal cases and it resulted in the nonprosecution agreement that is attached in the state court case. Judge Marra turned to us and said, what is your remedy (:¶
At that point in ti said we don’t know because we don t w what protections are inside that ent, so we want you to unseal it test’s where the motion for protective o e came about where he gave us Ur, e ment so we can look at it and de era ,’ what remedy, if any, was avai (‘:able. Once we had that agreement nder the caveat that we were not able to disseminate to third parties and reviewed it and saw there is very little protection for the girls, we asked to unseal it completely, so that we can talk to third parties, to victim’s rights groups and get some insight as to what our possible remedy would be.¶
1 And so our reason for wanting him to 2 unseal it at that time was we want to be 3 able to talk to other people, and that’s 4 where this order from February 12th, 2009, came in, and he denied that motion to unseal it for three reasons.¶
10 judge, you need to go 17 ` whatever that judge was thinking when they getting the back an not in my court, t mess with some other judge . Obviously, there was a hearing a and that document was sealed for a , I’m not privy for those re so I’m not First and foremost, this nonprosecution agreement was sealed in my Court, you are talking wrong we’re here and it’s going to override ealed that document. bacCo¶
Second, your reason is you just want to talk to other people about them, and if I’m going to override some other judge’s order, I need to have a more compelling reason than you just want to talk to people about.
¶
¶Third, if and when a specific need
1 arises in any of the civil cases, which by 2 the time this order was coming about they 3 were stacking up in state and federal court 4 against Mr. Epstein, petition that court, 5 6 7 court where it was 8 petition the appropriate court, and he implies that appropriate court is this initially sealecU which we’ve done in this case.¶
9 This court has none problems 10 that Judge Marra 11 12 13 which is one he 14 Judge Marr a ed on us, and a specific 15 need sen. It has been sealed for 16 ov ar now, correct, Mr. Goldberger is 17 corr ct, but the specific need is arising 18 because we are in the middle of discovery. 19 20 21 pleaing guilty to sex crimes in state 22 court, and to ultimately being labeled a 23 sex offender, and the only document that 24 pertains to my clients, my client as a 25 victim of Mr. Epstein’s sex crime, so at had in t it was sealed in this courtroom. Mr. Epstein to And this document is, as Mr. Goldberger said, e noticed at this hearing, requirements that a great inducement to Mr. Epstein¶
1 2 3 4 the very least, we should be allowed to ask people in deposition and do discovery about how this document came about. There is a need here.¶
5 6 THE COURT: I don’t quite get — I don’t think it’s relevant to what my task 7 is here, but I don’t get how it’ levant 8 in the civil cases what the f - . al 9 government did or didn’t regard to 10 prosecuting Mr. Epstein. on’t get that, 11 but I don’t know th ceed to.¶
12 MR. EDWAR e standard for 13 discovery is u reasonably calculated to 14 lead to di efy of admissible evidence 15 and w h going in depth we do have 16 in ent¶
17 MR. GERBER: Your Honor, can I¶
18 li llijir MR. : And with respect to the 19 ( 0.4’S grand jury argument, you’ve seen the 20 AO document, it’s only page five and six that 21 it’s even referred to.¶
22 THE COURT: All right. Let me turn 23 it over to — does the Post want to speak?¶
24 MS. SHULLMAN: I do, but I think he 25 wants to go first so whenever.¶
1 THE COURT: I haven’t considered your 2 motion to intervene yet.¶
3 MR. KUVIN: I don’t believe it was an 4 objection. When it was filed, there was no 5 objection by Mr. Goldberger or Mr. Critton.¶
6 THE COURT: Are you going to advocate 7 by motion to intervene or are you4g ing to 8 be jumping into the merits of sealing?¶
9 MR. KUVIN: I’ll ju FP t into the 10 merits, I’m not going to icate anything 11 that was just raise gnything that the 12 press is going e, I have an 13 individual in¶
14 THE O • All right. Go ahead 15 Mr. K i¶
16 17 I e resentM who has filed only a state {sup}18e‹: ourt action, she is not under the federal 19 jurisdiction of Judge Marra, she does not 20 subject herself to the federal jurisdiction 21 of Judge Marra, she was never provided an 22 opportunity to brief any issues before 23 Judge Marra with respect to that order that 24 was entered by Judge Marra or either order. 25 In addition, what’s also very important is KUVIN: Very briefly, your Honor.¶
document, she has never seen this document, so she does not know what is in the contents of the order, so the issue is raised by Mr. Goldberger about the girls are able to see the document and evaluate how they might need to evaluate this document does not apply to my client because s never seen it and, frankly, w subjecting herself volunt ’ o the jurisdiction of Judge Mar which she ‘a chooses not to do, he cannot get this fix otherwi chl would have to go to federal cour bmit herself to the jurisdictib gf the federal court to then t “e— Court document, which does not sense because if it is a state document in state court, as reviously stated under Judge Marra’s order, it is within your purview and your jurisdiction to rule on a state court document.¶
Finally, with respect to why the document may be relevant, the contents of that document speak to the issues of whether or not Mr. Epstein can or cannot¶
1 2 3 4 5 6 7 8 9 10 11 12 13 14 assert his fifth amendment right against self incrimination, and we believe on a good faith believe that on the contents of that document speak to the issues of whether or not he can or cannot deny the claims that have been brought against him both in state and federal court. other 113 words, whether or not he must lo,fact, admit that he molested th sit ear old girls, so, therefore, the Lei tent of that document is paramou to the issues in the civil proce hat are currently pending in st court which is why we would like t t document.¶
15 16 17 RT: Okay. Thank you. Thank I yo C so ry much. Ms. Shullman from the Post.¶
18 MS. SHULLMAN: Thank you, your Honor. 19 i feel a little bit like I have stepped 20 AN .. _-) into the twilight zone here, so I’d like to 21 address a couple of the things we’ve 22 addressed and get us to what we are really 23 here to do today.¶
24 THE COURT: I don’t know if you are 25 referring specifically to the courtroom or 1 the convoluted situation that brings us to 2 the courtroom.¶
3 MS. SHULLMAN: Just this whole 4 federal state situation. There is no 5 for the public and the press to march up in 6 Judge Marra’s court as Mr. pointed 7 out, Judge Marra has specifically held the 8 agreement was not filed in this case under 9 seal or otherwise, so were/1442}march into 10 Judge Marra’s courtroom a o my whole 11 public access spiel/ be\yould say take it 12 to you, your Honor, because it’s not a 13 record in my court. It is a record here, 14 and in the state court as we talked about 15 the last time, we were here, there’s a 16 presumption of openness. The burden is on 17 Mr. Epstein to overcome that presumption. 18 While he filed a very brief memorandum 19 after our last hearing, which identified 20 for interest, he has by no means met the 21 test of either establishing those interest 22 or establishing the remainder of that test 23 which would be that closures no broader 24 than necessary ineffective no other 25 reasonable alternatives, so if I could, I’d¶
like to sort of focus us back to the inquiry we’re here to make today in this court, and that is whether your Honor is going to provide public access to two records that are, I think, indisputably in your Honor’s court file in this court’s file.¶
It’s a plea agreement {sup}a addendum; those are historiAc and typically open records. _¶
Mr. Goldberg ioned that the plea agreement of incidentally significant inducement to accepting the plea in my court. This agreement that you O have with federal prosecutors is significantly the reason why you’re entering this plea before me. And she took those records into the court file this litigation. Even if there was an filed - in this crt file, and that it was sort of an a {sup}ethought that happened. He never nto court intending that it ev l art of the court file, but Judd Pucillo specifically said, this is {sup}a presumably because they are significant to¶
1 incidental filing, which cannot possibly be 2 the case here, there is no mechanism in 3 Florida law to call a and to pull 4 5 6 access, there’s 7 just say, oopsy, let’s take it o f the 8 file, so they have to meet th urden and 9 they have to show under R 20 that one 10 of those interests is sat ‘ed. They have 11 identified four her have not heard 12 them discuss th ny great length. But 13 I will go thr u them quickly. it out of the court file. As you know, the Floridians have a constitutional right of no mechanism in that law to¶
14 15 16 17 18 19 20 attorney’s office who has indicated that 21 their only interest is in protecting to the 22 extent necessary because I’ve not seen 23 these documents the identity of the victims 24 of these crimes. impar ju 1c lc or to protect a compelling gove ment interest. As your Honor is The iifent threat to the fair, derly administration of ware, the federal government is not here today. I have spoken with the state¶
25 The Post in its motion to intervene¶
1 has already set forth that we have no 2 objection to redacting the victim’s names 3 4 5 6 7 8 9 10 have standing to if, in fact, that is required because we haven’t seen the agreement. To avoid substantial injury to innocent third parties, again, absolutely no showing on that test. I have no burden at t. point, but I will simply state that 1-R,k aw in Florida is clear that Mr. n doesn’t assert {sup}tCinterest.¶
11 12 13 to a party wh c I 14 be Mr. Eps y disclosure of matters 15 protec 16 in Pete in this specific type of 17 prod€dings. Again, I have not heard any 18 t empt to meet the burden on that issue, {sup}19(4SY however, Florida law is equally clear that 20 Nib-) participants in crimes lose their privacy 21 interest in the matters and facts and 22 circumstances of the commission of those 23 crimes, so Mr. Epstein surely cannot 24 establish that there is a separate privacy 25 interest not inherent in a criminal And, finally, nothing about to hing else I heard substantial injury guess, presumably would a privacy right not generally¶
1 prosecution regarding the molestation of 2 young girls.¶
3 The circumstances under which closure 4 5 6 anything else — have to find that one of 7 those interests is met here, that exists 8 and that the movant has met i urden in 9 demonstrating that it’s sills► ant enough 10 to require the court to consider closure. 14 15 16 in 17 is allowed in Florida are exceedingly narrow. We first — and before we do That’s not the end /of inquiry. And, of course, I have not yet heard anything else about talks broadeyf flan necessary to protect that that second half of the test which about the idea that closure is no and that it would be effective and that here are no other alternatives.¶
18 19 20 In speaking of the federal litigation there are instances when both Mr. Epstein’s lawyers and the federal prosecutors have 21 placed portions of the agreement into the 22 23 24 federal litigation have been unsuccessful, 25 so part of this agreement the cat is public court file. There are thus attempts to seal those records in the¶
1 2 3 4 5 6 7 8 9 10 11 12 13 14 already out of the bag. But there is also an enormous public interest in what’s going on here, apart from the idea that this man is accused of having many, many victims who were all young children which, of course, in itself creates a lot of public the chief of police at the time letter to the state prosecuto nd said, what are you guys doing, you handling this, this is hi unusual; I don’t like what I’m g here. And even went so far as concern, state attorney’s office, should u all step away from this case.¶
15 16 17 18 19 20 21 22 23 24 25 have public interest from the pe spe ACL )ve of the police chief questioning the ate attorney’s office about whether s doing its job. We have public interest that’s spurned by the idea that some of the victims in the federal prosecution — in the federal court claimed they weren’t aware of it, we just heard Mr. talk about the fact that his clients weren’t aware of the agreement unless it all went down, so we have a¶
significant public interest about how everybody in this litigation is doing their job. There is nothing more fundamentally and the press to observe how its important than the ability of the public government, do its job. all branches of its government,¶
also mentioned, that have spume of Mr. Epstein’s condu , again, the public has an i in what’s going on in civil lit on matters. There are multiple, as d as a re multiple {sup}c awsuits¶
, this matter involves {sup}a di er levels. There is no basis for but there is essentially no purpose served at this point by keeping these agreements sealed in this case. ma closure that has been asserted here. It’s heavy burden to meet. We start with the idea that openness or interest from a lot of is the right thing to do¶
Unless your Honor has any questions, I think that’s it.¶
THE COURT: Okay. Thank you so very¶
1 much. , on behalf of the state of 2 Florida, anything you’d like to add or 3 advocate?¶
4 If I may, your Honor.¶
5 THE COURT: Sure.¶
6 7 Honor. : Good afternoon, your¶
8 THE COURT: Good aftern••i¶
9 Your Ho Ire State is 10 not here to 11 12 13 14 15 16 17 take a positi Codn whether or not this court show — continue to seal the record seal the records. We are here mer o uphold the state laws which re u ( S r p11 of us as members of the judic 1 tem to protect the rights of th~~ dentiality of the victims. I do see o issues here, your Honor.¶
18 19 20 21 22 viewing, not just merely open up that 23 portion of the file for viewing by all 24 interested parties, first, that the Court 25 do an incamera viewing to make two One is if you decide to unseal the records based upon the arguments that have been presented to you, then the State would ask that the court first do an incamera¶
Number one, does the document, in fact, have a relationship to the criminal case in the state matter. And, number two, evaluate the right of public access versus the victim’s right to confidentiality. If this Court does decide to unseal {sup}s records, then the State would jQthat this Court before making the docaa) public access, then make certain t in place is that the victim’s i e 1• ies are amended to initials if thei sare used.¶
The St e oes have a concern regarding a gument of the Federal Rule Six i is this Court bound by {sup}a fe era ule which perhaps has been made unen orcible by virtue of making it a part f the state file, so I think the Court also would need to address that issue before making its ruling.¶
THE COURT: All right, great. Thank you so much.¶
: Thank you, Judge.¶
THE COURT: One last chance for the federal government, they’re not here and¶
1 2 3 I’ll let rebuttal of any other presentation, Mr. Goldberger, or, Mr. Critton, you’d like to make.¶
4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 MR. GOLDBERGER: Thank you, your Honor. As to the last argument made by as to the applicability of Federal Rule 6 of the Rules of F Criminal Procedure it’s somet ‘VIZ,that we learned in the law school (:!)he supremacy clause controls to the extent there’s a conflict e n the federal {sup}4 ;:e) doctrine and the supremacy cla requires the federal rule of law to and to control. And certa this case you cannot use a t rule doctrine, the cedure to circumvent a federal f criminal procedure that confers secrecy to a grand jury proceeding.¶
19 20 21 22 23 24 25 And the Palm Beach Post response to the argument never made note of the grand jury rule, they simply avoided that issue and that in our mind is equally important as the fact in the interest of comity this Court should defer to the rulings of Judge Marra already.¶
1 As to Mr. Kuvin’s argument that he 2 has a client that is in state court and is 3 not in federal court and therefore he 4 doesn’t have a remedy in federal court. With all due respect to Mr. Kuvin, that’s similarly wrong. Judge Marra’s order specifically dealt with a class R , individuals who were identifi s victims of Mr. Epstein’s conduct,(::,L een dge Marra’s order says that anyone who identified by the U office as a vict tates attorney’s right to the nonprosecutio Ass,, eement under the same rules.¶
19 y time that the nonprosecution agreement was 20 entered into and Mr. Kuvin’s client is on 21 that list. That list was created by the 25 he knows that we’ve told him that he has (SY *u o the Court understands, I know we re milking like the Court understands ever hing about this case. There was a ist of victims that was created at the U.S. attorney’s office. He has the same rights to the nonprosecution agreement as if he filed this case in federal court and¶
As to the fact that the nonprosecution agreement is presumably not filed in the federal case in our last hearing in front of Judge Marra on June 5th — I’m sorry, June 12th, Mr. advised Judge Marra that he had, inifact, filed a nonprosecution agreement to no one’s surprise under seal4n the federal file, so the nonprosecution agreemen{sup}t according to Mr. declaration at that hearing 4 is ned in the federal court system¶
For a f those reasons, your Honor, and t ons that I previously indicated to I curt, we would ask the Court to def₹T to the federal court in this matter.¶
lc 7 THE COURT: Okay. Thank you very much. Here is what I’m planning on doing, make an oral announcement and i’ll follow it up with a written order so that you all can have something to take to wherever you want to take it. so you know where I’m going on this. I’ll¶
I find that the appropriate procedure¶
1 2 3 4 5 6 7 8 to seal or close these documents has not been met, so I’ll deny the motion to seal the documents. I’ll grant the motion to unseal them. I will take a look at the documents. I will redact out of them the — what I’ll do is, I’ll leave the originals intact sealed in the co file to protect the names of any u victims.¶
10 11 12 13 14 15 16 17 18 19 I will make copies hose. I’ll redact out the name sing — expose the initials of any individuals. I’ll e\ get that don - I’ll get my written order out granti g n denying the respective motio fully by the end of today. If ‘Sal 1;…, no to , tomorrow. I plan on releasing the edacted versions probably Monday, so at those will be available for public consumption on Monday.¶
20 21 22 23 24 25 MR. GOLDBERGER: Your Honor, thank you. Thank you for the oral pronouncement. Your Honor, based on the Court’s ruling, we do have a motion to stay disclosure of the nonprosecution agreement. The rules of appellate procedure require us to file that¶
1 before, your Honor.¶
2 3 4 Your Honor, we do intend to take certiorari on this to the Fourth District Court.¶
5 6 THE COURT: That’s why I figure between the written rule and the disclosure 7 give you a chance to catch your th and 8 do that. I guess you might w that. Is 9 Monday 5 p.m. enough time fPo u to get 10 over to the DCA?¶
11 12 Honor, the Rule ellate Procedure 13 maintains ju ction with you on this 14 matter to n r ain the motion to stay. MR. GOLDBERGE tually, your¶
15 RT: 16 mo stay? So I need to handle the¶
17 MR. GOLDBERGER: Correct, your Honor.¶
18 THE COURT: Do you want to argue that 19 now? Do you want to take a look at that, 20 catch your breath, come back and see me 21 Monday sometime; what’s your pleasure?¶
22 MR. GOLDBERGER: We’re ready to do it 23 now, your Honor. We’re ready to do it now.¶
24 THE COURT: All right. Interveners, 25 your thoughts.¶
MR. KUVIN: Matter of procedure point, I just want to make sure that the motion to intervene is, in fact, granted.¶
THE COURT: You’re motion to written order for me to sign off on there? intervene is granted. Do you have {sup}a¶
MR. KUVIN: I can submit that:¶
THE COURT: Why don’t atch your breath and come back tomor d I’ll hear argument. It will give mom/chance to read the motion, check {sup}o look, got to ge f gassed up. Anybody want to drop hing off for me to read before the ring, please do that. Why don’t e) that tomorrow morning, and why do ‘t ACa I c r reconvene here tomorrow at 1:30 on the otion to stay. rules, take {sup}a¶
look? THE COURT: How does your schedule¶
MR. GERBER: Your Honor, is it possible to have it alittle later, perhaps an hour later tomorrow?¶
THE COURT: 2:30.¶
MR. GERBER: If possible.¶
MR. GOLDBERGER: That’s fine.¶
1 THE COURT: How about a little later 2 than that still, let me take a look at our 3 official calendaring system here.¶
4 MR. CRITTON: Judge Colbath, I’m gone 5 tomorrow, I’m going to Gainesville at one 6 or 12:30-ish. I told my wife I would be 7 home at one. My daughter’s birtthhi 21, 8 she’s having a party, I plan e there. 9 Can we do it tomorrow morriiM time, it 10 would be great.¶
11 THE COURT: 12 This isn’t goin morning is ugly. e long.¶
14 motion. This is a five-minute¶
15 RT: Why don’t we do this, 16 me :15?¶
17 MS. SHULLMAN: Your Honor, I’m not 18 ^ o ng to be able to get my kids to school if I have to be here at 8:15. is in California right now. My husband¶
22 in. I wonder if we can do some of this 23 telephonically. MR. GOLDBERGER: I don’t mean to jump¶
24 MS. SHULLMAN: Yes, I can appear by 25 phone or I can have one of my partners.¶
1 2 THE COURT: In the morning what would be a good start time for you?¶
3 4 MS. SHULLMAN: Nine would be getter. I can’t drop them off before eight.¶
5 6 7 THE COURT: It’s going to be brief argument, let’s do it 9:00 tomorrow morning; 9:00 work for you?¶
8 MR. CRITTON: Yes, sir. ank you.¶
9 10 11 12 13 14 15 16 17 18 MR. GOLDEERGER: Jul briefly, the Court is going to loo the nonprosecution agre and do some redacting, I be I just need to c in addition to Mr. Epstein and perha c ims mention the nonpr ) b pa (e ho the Court needs to look about redacting their names also, and that’s ontained in the nonprosecution agreement. advise the on agreement, there are third¶
19 20 21 22 23 24 In other words, there are other people beside Mr. Epstein and Mr. Victims whose names are mentioned in the nonprosecution agreement, and I would ask the Court to look at those names also for the purpose of redacting.¶
25 THE COURT: I’ll like a look.¶
MR. REDACTED: Your Honor, those are not names of victims, those are co-conspirators as listed in the agreement and we would object to any redaction of those names. I don’t think there’s any standing to ask for that.¶
THE COURT: I’ll take a look. All right. See you all tomorrow morning at nine. If you want to send anything to me later this afternoon or tomorrow morning before we take the bench, I’m happy to receive it. Have a good afternoon.¶
(Proceedings concluded.)¶
2 CERTIFICATE¶
7 Court Reporter for 8 Criminal Division, 9 Florida; do hereby 10 to and did report the 11 the Court at the time and 12 that the preceding pag 13 inclusive, represen a 14 transcription of t no notes taken at said proceedings. I, SUSAN S. WIGGINS, R.P.R. Official the Fifteenth Judicia4ircuit, in and for Palm 2M County, certify that uthorized foregoin• chadeedings w before aforesaid; and ered from 1 to 48, rue and accurate¶
17 affix d my\dficial signature this 29th day of 18 Ju 09 ITNESS WHEREOF, I have hereunto¶
THE STATE OF FLORIDA, COUNTY OF PALM BEACH.¶
(.2kkkti4 a -Oen-14*o SUSAN S. WIGGINS, R.P.R.
¶