IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CRIMINAL DIVISION¶
STATE OF FLORIDA ) vs. ) CASE No. 2008CF009381AXX JEFFREY EPSTEIN, ) Defendant. )¶
ORIGINAL¶
PROCEEDINGS BEFORE THE COURT PRESIDING: HONORABLE JEFFREY COLBATH¶
APPEARANCES:¶
ON BEHALF OF THE STATE: BARRY E. KRISCHER, ESQUIRE State Attorney 401 North Dixie Highway By: BARBARA [REDACTED], ESQUIRE Assistant State Attorney¶
SEARCHED INDEXED SERIALIZED FILED JUL 1 1 2009¶
2009 JUL - 1 PM 3:30¶
FILED¶
ON BEHALF OF THE DEFENDANT: JACK GOLDBERGER, ESQUIRE 250 S Australian Ave Ste 1400 And ROBERT CRITTON, ESQUIRE 515 N Flagler Dr Ste 400¶
ON BEHALF OF THE PALM BEACH POST: DEANNA SHULLMAN, ESQUIRE [REDACTED], LoCicero & Bralow 101 N.E. 3rd Avenue - Ste 1500 Fort Lauderdale, Florida 33301¶
ON BEHALF OF [REDACTED] THE INTERVENER: WILLIAM J. BERGER, ESQUIRE BRAD [REDACTED], ESQUIRE 225 NE Mizner Blvd Ste 675 Boca Raton, Florida 33432¶
{sup}ACots¶
ON BEHALF OF III¶
MOTION INTERVENER’S PLEADING:¶
SPENCER KUVIN, ESQUIRE¶
PGA Blvd Ste 200¶
Palm Beach Gardens, Florida 33410¶
June 26, 2009¶
Palm Beach County Courthouse¶
Beginning at 9:59 o’clock, a.m.¶
{sup}1BE IT REMEMBERED that the following {sup}2proceedings were had in the above-entitled cause {sup}3before the HONORABLE JEFFREY COLBATH, one of the {sup}4judges of the aforesaid court, at the Palm Beach {sup}5County Courthouse, located in the City of West 6 Palm Beach, State of Florida, 7 8 9 on June 26, 2009, beginning at 9:59 o’clock, a.m., with ap rances THEREUPON: ‘S {sup}O as hereinbefore noted, to wit:¶
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{sup}15name record. THE COURT of Florida {sup}v everyone a {sup}ecall up the State Epstein. Let’s have nce their appearance, please,¶
CRITTON: Robert Critton and Jack Gol erger on behalf of Mr. Epstein as well sBarbara Compiani from the office of Jane Walsh.¶
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THE COURT: Epstein.0¶
MR. GOLDBERGE , your Honor.¶
MS. SHULLMAN: Deanna Shullman of , LoCicero and Bralow on behalf of the Palm Beach Post.¶
MR. KUVIN: Spencer Kuvin on behalf of the intervener¶
: Barbara on behalf¶
here, your Honor. MR. GOLDBERGER: Mr. ill is not 46,:c{sup}r¶
THE COURT: That’s it.¶
MR. CRITTON: That’s it, it’s a wrap.¶
THE COURT: Okay. Orders. Who’s not here that I have to mail it to?¶
AIR THE COURT: Okay. Mr. e er, Mr. Did I give ydu Tough copies of the order?¶
MR. GOLDBERGE I ran out. I have just enough. to Mr. {sup}C ant me to get a copy¶
THE Yes, if you’d mail a copy to Mr {sup}E ds I got spares if anybody’s in d. Anybody need a spare?¶
MR. GOLDBERGER: we’re good, your¶
THE COURT: All right. Motion to Stay, Mr. Goldberger.¶
MR. GOLDBERGER: Thank you, your Honor.¶
THE COURT: Mr. Critton.¶
MR. CRITTON: Good morning, Judge Colbath, do you have a copy of our Motion 1 to Stay?¶
2 THE COURT: I do, the one that was 3 handed up to me yesterday?¶
4 MR. CRITTON: Yes, sir, and I have a 5 proposed order in the event the Court 6 chooses to grant; may I provide that to the 7 Court as well? Alleti¶
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10 we have hired Ms. Walsh a s. Compiani as 11 appellate counsel t st in the filing 12 of a writ of ce I know that comes 13 as no surpri the Court in that whoever 14 prevailed lost yesterday, I think the 15 Court ized we probably filed a writ 16 of ce r rani. 0 Mr. Goldberger and I repr r. Epstein.¶
17 THE COURT: ask real quick. 18 nybody objecting to the defendant having 19 the ability to have 20 the appellate court before I release these 21 things? I mean, it seems pretty straight 22 forward. Let me my decision reviewed by¶
23 MS. SHULLMAN: We have an objection, 24 your Honor, to some extent. The — you 25 know, the procedure in place here is very¶
Your Honor, as you k 1 similar to that for which they would have 2 to obtain a preliminary injunction.¶
3 THE COURT: Right.¶
4 5 6 7 8 9 10 11 12 13 MS. SHULLMAN: So to demonstrate likelihood of success and irreparable harm, I don’t think they can do that. I think the plan that you put in — prop yesterday is a good one, that ou redact and you release on Monday ‘at gives today and Monday to to the Fourth, otherwise, we’re st a position where we have a 30-da w to appeal, and we are all dela ay, delay. them¶
14 15 don’t n tf it’s a difference with that 16 or ction, but, procedurally, I was 17 thinTcing I was leaning yesterday towards 18 ssuing the order that I just issued. I 19 20 21 22 23 released until — I’ll make it, you know, 24 five of five Monday. That will give you 25 Monday to get down to the Fourth to get THE What if I do that? I think that that’s a fairly accurate rendition of the written version of my oral pronouncement yesterday, but I order that nothing — that the redacted orders not be¶
them to stop this from being released; what do you think?¶
MR. CRITTON: Here’s what the problem is, Judge, is Ms. Compiani and Ms. Walsh spoke to them yesterday and today, we need {sup}atranscript from the hearing yesterday which has not yet been obtained. ey need the ’ underlying motions, they eS some time of simply that stays There would have to research. It’s not {sup}a filing a writ of petition (III: the release of the to be a separat nthat would be filed with the App late Court. The Motion to Stay that ri eunder Appellate Rule 9.310 ction A, it provides that the pa t seeks review shall come to the low tribal, which is the trial court, hich is you, in this instance, and then it’s within your discretion either to stay or not to stay under the circumstances, and we simply don’t have the time within which to file the appeal under those circumstances.¶
There are two criteria that have to be met here, one is the likelihood of¶
1 2 3 4 5 6 7 harm where no stay is granted, and the second criteria, not necessary mutually exclusive; that is, you don’t have to have both of them, but you certainly have to give an indicia of both of them. The second one is the likelihood of success on the merits.¶
8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Court, that your order, for the s Judge Puccillo was the one who ed that the document in this — t was argued yesterday, so I’m going o very brief. She is the one who r d post sentencing, that the qc do me be filed under seal. It was her re t that the defense seceded to that nder the circumstances. That certainly was inadvertent, could have just as easily remained under seal with Mr. Goldberger or with the State Attorney under those circumstances. we believe that base lci on rl the Court decision, respectfu ‘at the the Appellate rt, will quash¶
23 24 25 Secondly, that it relates to the portions of it, specifically, within the MPA to deal with the grand jury proceeding,¶
that would be aviolation of Federal Rule Six. I note you just handed us your order about two minutes ago, Judge, so no one’s had an opportunity to review it, certainly appellate counsel has not had an opportunity to review it. I don’t know if you dealt with the appellate rulejut i do note you, basically, said that • last page, you said this ‘:id {sup}11 that within your written o R:er, , that second to {sup}ris no way to be interpreted as p ion not to comply with U.S. Distr.‘di’ rt Judge Marra’s At previous ord s.t¶
We e tfully submit that it would not c pith Judge Marra’s previously is C. 1/4 ed ders. We also believe that the sup ILacy clause, as Mr. Goldberger argued esterday in conjunction with comity principle, that we think that there’s {sup}a substantial likelihood on success of the merits on this.¶
with regard to the likelihood of harm, this is a paramount issue here. It’s undisputed that this was {sup}aconfidential agreement. It’s aconfidential contract¶
{sup}1between Mr. Epstein and the United States. {sup}2United States vigorously defended {sup}3Mr. when he came into federal court and filed an action to have the MPA released, Judge Marra subsequently entered an order. Another attempt that was made to make the MPA public again.¶
10 Post, under 16 cl ar {sup}mJudge Marra’s order. All plaintiffs’ coun The only ones that don’t the i3las it. ;, {sup}ris the circumsta ad , and public under the circumsta plaintiffs’ they either h\r, the MPA and the addendum, which I wi eer have but all the the alleged victims, to as the MPA, or they lity to get that. That is very¶
So there’s certainly no harm to the plaintiffs from under these circumstances. And the harm in this instance is only to Mr. Epstein under the circumstances because as Judge Letz (phonetic) once said, it’s very much like an attorney/client privilege or {sup}aprivilege document where once the proverbial horse is out of the barn, you can’t get him back in.¶
We cited a case called Mariner versus Baker 3 — So. 39, So.2d 608 First District 1989. In the Mariner case, this was not a usual incident report and the Court, I know your Honor previously did a great deal of personal injury work and related work, you’re very familiar. In fact, y commented yesterday and said, on’t see how the MPA is going to b sible in a civil proceeding anyway. Ch: in, you’re not 2”\xhT / ruling on that ultimate34, the judges in both the State Aslfbesderal court cases will do that. Asf ,¶
6 In 4s ip >riner case, the judge order A di of incident reports. The judge sal , sorry, you’ve got to produce those ncident reports. And the Court said, give them to me under seal because, again, we are talking about incident reports as distinct from an agreement between two parties which was deemed to be confidential between the United States government and Mr. Epstein. Only irreparable harm here as to Mr. Epstein because if it’s released, the defendants object at the¶
9 reasons, 10 instance And in the Mariner case, if the judge said, if you put the documents under seal, which is exactly the situation we have now is, I will grant the stay and let the appellate court determine whether or not incident reports, which have a {sup}mlower threshold AS for production or f scovery arm in an incident and, again, the {sup}r like that, even 1 C’ a)n report came out in what. It won’t , you can’t use any of the inform n you obtained. In this particular i t nce, because it is conf iAck;2 {sup}n, there is no way the Court can re e y e harm. riner cases, so¶
{sup}18ase, again, Ithink we’ve demonstrated With regard to the defendants in this {sup}19O y both irreparable harm, and we believe {sup}a substantial likelihood on the success. Again, how do you demonstrate asubstantial {sup}22likelihood on the success? The fact that {sup}23we would — if this Court thought that we {sup}24should prevail, my guess, you would not {sup}25have ruled as you did, but as the Court is¶
aware, here. Sometimes judges get reversed. {sup}I surprise to all of the lawyers know that’s ashock to most of the lawyers in this room and most of the courts, but that happens on occasion, and, therefore, we believe we can show through the supremacy clause, the grand jury ..r_e4erence 3r ✓ that we will prevail and that\_yo t order will be quashed. {sup}C`Cht__ _ il¶
With regard other party, the Po this instance to a ed harm by any reported at the cing of Mr. Epstein on or about 30th of 2008. They waited until June 1 f '09. This was such {sup}a press de the Post wanted to get this ly out to the public, they were so anxi us to do it, that they waited {sup}11` onths before they did anything.¶
Mr. , who is not here today, filed afederal court action and those issues were talked about and discussed at some length with regard to Judge Marra’s two orders.¶
Judge Marra’s rule, you can’t get them, if you want to get them, go to that¶
case, that would be Judge Hafele or two of Mr. ’ cases are where is Mr. Kuvin’s case is or Judge Marra, where Mr. case is. Judge Marra can certainly control 5 whether or not they should be released, and 6 I’ve covered Mr. II, and Mr. - 7 because he could have gone back udge 8 Marra because he’s got one fe court 9 case — did he try for th and get 10 it no, they came in he He tried to 11 do it in a run around e Marra.¶
12 He did his motion until 13 late May of My guess is it was 14 Mr. o probably said to the Post, 15 gee, o ‘t you join in this, you \ haven’t been here for 11 months, why don’t ’ “I come in now, maybe intervene. And then ,you ’--- .!,r. Kuvin, on behalf of his client, 19 estate court case, came in on June 11th, 20 again, almost a year to the date after 21 \,” Mr. Epstein’s sentence.¶
22 It’s no burning issue, there’s no 23 fire here to put out, giving us 30 days, or 24 at least a reasonable period of time to 25 file petition for writ, and then if the¶
1 Court denies our stay at least asking the 2 appellate court for stay under the 3 circumstances. There’s no harm to them. 4 The harm is only to Mr. Epstein, and we 5 think as a substantial likelihood, that we 6 would succeed.¶
7 Therefore, we would requ the 8 Court grant a stay as I’ve su ed in my 9 proposed order for 30 days ing 10 Ms. Walsh and Ms. CompianiVsY opportunity 11 to actually do thei ‘i nder the 12 circumstances, s court reporter 13 doesn’t have rk over the weekend to 14 expedite t ipts for us, and secondly, 15 if we thin the 30 16 appetlIcE) court determine whether or not 17 the stay remains or not. days, then let the¶
18 THE COURT: Thank you much.¶
19 Ms. Shullman, don’t worry about 20 responding to the issue of motive or 21 seeking this relief or the timing of your 22 request or party’s request. i don’t think 23 24 that bears upon the merits of either parties.¶
25 MS. SHULLMAN: The constitutional 1 2 right of access doesn’t have a waiver provision, your Honor.¶
3 4 THE COURT: Well, go ahead. Let me hear — I’m on board so far with 5 Mr. Critton’s version of, Judge, if you let 6 it out, you let it out, so irreparable harm 7 8 9 is kind of easy. I think that it two-prong test. I think he’s to jump over both hurdles. I thi got to 10 show some likelihood of s ss. If you 11 12 13 14 15 want to spend some there’s no irrep harm, you may do so, but if I hand out today and everybody gets to se t you can’t fix that tomorr. arguing that¶
16 SHULLMAN: Sure.¶
(:11 17 THE 18 COURT: established that. So I think they’ve¶
19 MS. SHULLMAN: Let me address that 20 \\__—) very briefly first, your Honor, to remind 21 you in meeting this burden that they failed 22 to meet yesterday, they identified four 23 interests which they liken now to the 24 motion to stay to the four harms.¶
25 One, of — for the first three of¶
1 2 3 4 5 6 7 8 9 10 them, they mentioned they have no standing to assert the compelling government interest, the government didn’t show up, the imminent threat to the administration of justice, again, that’s the government’s issue. The innocent third party privacy rights, they have no standing. T nly one is, he’s not really artic d today it’s some sort of invasion Epstein’s privacy rights.¶
11 12 13 14 15 16 17 18 Florida la 4 who are particip crimes do not have privacy righ th respect to the facts and circum t ces surrounding those crimes. So unl s mmtt going hear something outside of h (n e? ntext of Mr. Epstein’s criminal pros ution, he has no privacy right in is agreement. ear that those¶
19 20 21 22 23 24 25 THE COURT: Let me share with you what I’m thinking about doing, even at the conclusion of Mr. Critton’s presentation, and that is deny the motion to stay, but delay the release of the records in question until noon Friday. That will give them a little bit of time to see if the¶
Fourth sees this case from adifferent vantage point, adifferent light, and maybe they’ll look down and say, •, Judge Colbath, you missed it and, you know, stay the matter. That will give them {sup}a reasonable amount of time to get the transcripts to go to the Fourth bEuse I’m {sup}abig fan of lgt appellate review making case law.¶
MS. SHULLMAN: And derstand, your Honor, if you are {sup}sing aweek from today, that’s abit long. Remember the status we are in sort of {sup}a strange pr {sup}c luYal posture because your Honor A im ropes; but the recent request for clos re was denied, so instead of a status uo where we have a document that should be released, it’s under seal where it shouldn’t be, so any moment that it is kept under seal is aserious deprivation of the public and the press’s right to access, which you have already determined they have, we think you are correct, of course, so I would ask that any stay - the initial closure was¶
1 2 MR. CRITTON: She’s pandering, your Honor.¶
3 4 5 6 7 8 9 10 11 12 MS. SHULLMAN: I will say he respectfully disagreed with you, so I think a week is too long. I do this day in and day out, i have spent many a weekend on these matters in my career. If [ y want to give them till Tuesday, I’ll d, but the Fourth will act quicklyi is. I don’t think that a week’s ‘ay is necessary. I think fact, it under minds the public here.¶
13 14 THE COU : All right. Any other respondent nt to go anything further?¶
15 16 17 LLMAN: The State Attorney’s n.c of ce so advises me that Friday is a ho y and the courts are closed.¶
18 19 THE COURT: Thank you for telling me that. Friday is a holiday.¶
20 MR. KUVIN: July 4th.¶
21 22 THE COURT: The day of the birth of our constitution.¶
23 24 25 MR. KUVIN: Good morning, your Honor. On behalf of intervenor obviously, the Court is inclined to delay the disclosure¶
1 of this, but under Rule 9.310, if your 2 Honor were to issue such a stay, we would 3 point out the provision C of the rule, 4 which requires a posting of the bond.¶
5 we not only agree with your Honor’s 9 the filing of that appeal, 10 we are requesting a b posted if a 11 stay of any type is in this case 12 because of the f t we want to make 13 sure that our.. orneys’ fee and costs are 14 covered fo e frivolous nature of the 15 appeal it’s dictated strictly in 16 su a c I A It gives the Court the 17 auth ity. It says: ruling, but we believe such appeal filing is absolutely frivolous ante are going to be requesting fees a bond they are 4Slyst for a result,¶
21 we believe your Honor does have the 22 authority to issue such a requirement that 23 the posting of a bond be issued. A stay pending review may be conditioned upon a good and sufficient bond, other conditions or both. Therefore,¶
24 THE COURT: All right. Thank you 25 very much. I will deny the motion to stay. 1 I will delay the release of the documents 2 until noon Thursday. I will deny the 3 request to compel the movant, the 4 defendant, Mr. Epstein, to post a bond, and 5 6 I’ll let the appellate court tell us and teach us what the law on this case will be.¶
7 It’s always interesting ho ese 8 cases unfold and come to us a le 9 different than everyone e ee. ow, let me 10 have the attorneys come up re and 11 approach. Acs:)¶
12 (The folio oceedings were held 13 sidebar, out 4S, e hearing of the jury.)¶
14 THE I reviewed the two 15 docum didn’t see any kids’ names in 16 th verybody was hinting the 17 chi en’s names or the initials’ names. I 18 19 lag my big black highlighter out, I don’t see anything worth redacting, so.¶
20 21 \ 22 MR. GOLDBERGER: It’s the plaintiff’s document that identifies the children’s names. It’s a letter to me actually.¶
23 24 25 THE COURT: I was wondering if everybody thought there was something in there that wasn’t in there.¶
1 MR. CRITTON: It’s a test of your 2 skills, your Honor.¶
3 THE COURT: You’re right, exactly. 4 One is page one through seven, and the 5 6 even signed by everybody. second one is just two pages that’s not¶
7 8 here chatting, there are refe es to 9 other names up here. MR. GOLDBERGER: While we’re*. up¶
10 11 12 13 prosecuted. . Kuvin made the argument 14 that these o-conspirators. These are 15 16 17 THE COURT: Yes, Mr.Call)). dberger, and no one has identified he document says these are people re not going to be innoc le that have nothing to do e proceedings. They have nothing tit with —¶
18 MS. SHULLMAN: They have a standing.¶
19 20 21 request to redact those names out of there. 22 All right, so I’ll hang on to these till 23 Thursday at noon, and anybody that comes — 24 wants to come and get them, I don’t know if 25 there’s a mechanism for — I stand on the THE COURT: I will renew my ruling that I gave you yesterday, and deny your¶
1 courthouse steps and pass them out.¶
2 3 MS. SHULLMAN: If there are no redactions to be made.¶
4 THE COURT: No redaction.¶
5 6 7 8 MS. SHULLMAN: I would do an order directing the Court to release them and they may become unsealed. You d need —¶
9 10 (s) MS. COMPIANI: Your are you 11 denying - going to write up a writte rder Agl)¶
12 13 MR. GOLDBE Are you going to do that?¶
14 THE 15 order? Put together a written¶
16 . SHULLMAN: Denying the stay?¶
17 18 19 20 THE COURT: Yes, A, denying the stay; delaying the disclosure or unsealing of these documents until noon Thursday; C, denying the motion for bond.¶
21 22 MR. GOLDBERGER: And you’ll need that order quickly.¶
23 24 get it signed quick today. THE COURT: Yeah, fax that and we’ll¶
25 MR. GOLDBERGER: Are you forcing the court reporter to work over the weekend so we can get a transcript?¶
MR. CRITTON: Thank you, your Honor, for moving us this morning.¶
(Side bar conference held outside the hearing of the jury concluded.)¶
Cox¶
C E R T I F I C A T E¶
THE STATE OF FLORIDA, COUNTY OF PALM BEACH.¶
I, SUSAN S. WIGGINS, R.P.R., Official Court Reporter for the Fifteenth Judicial Circuit, Criminal Division, in and for Palm Beach County, Florida; do hereby certify that I was authorized to and did report the foregoing proceedings before the Court at the time and place aforesaid; and that the preceding pages numbered from 1 to 24, inclusive, represent a true and accurate transcription of my stenonotes taken at said proceedings.¶
IN WITNESS WHEREOF, I have hereunto affixed my official signature this 29th day of June 2009.¶