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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¶
CERTIFIED COPY¶
PROCEEDINGS BEFORE THE COURT¶
PRESIDING: HONORABLE JEFFREY COLBATH¶
APPEARANCES :¶
ON BEHALF OF THE STATE:¶
BARRY E. KRISCHER, ESQUIRE¶
State Attorney¶
401 North Dixie Highway¶
West Palm Beach, Florida 33401¶
By: BARBARA BURNS, ESQUIRE¶
Assistant State Attorney¶
ON BEHALF OF THE DEFENDANT:¶
JACK GOLDBERGER, ESQUIRE¶
250 S Australian Ave Ste 1400¶
West 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¶
Thomas, LoCicero & Bralow¶
101 N.E. 3rd Avenue - Ste 1500¶
Fort Lauderdale, Florida 33301¶
ON BEHALF OF EW, THE INTERVENER:¶
WILLIAM J. BERGER, ESQUIRE¶
BRAD EDWARDS, ESQUIRE¶
225 NE Mizner Blvd Ste 675¶
Boca Raton, Florida 33432¶
SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER¶
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ON BEHALF OF EB,¶
MOTION INTERVENER’S PLEADING:¶
SPENCER KUVIN, ESQUIRE¶
2925 PGA Blvd Ste 200¶
Palm Beach Gardens, Florida 33410¶
June 25, 2009¶
Palm Beach County Courthouse¶
West Palm Beach, Florida 33401¶
Beginning at 1:50 o’clock, p.m.¶
SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER¶
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BE IT REMEMBERED that the following proceedings were had in the above-entitled cause before the HONORABLE JEFFREY COLBATH, one of the judges of the aforesaid court, at the Palm Beach County Courthouse, located in the City of West Palm Beach, State of Florida on June 25, 2009 beginning at 1:50 o’clock, p.m. with appearances as hereinbefore noted, to wit:¶
THEREUPON:¶
THE COURT: Let me call up the case of the state of Florida versus Jeffrey Epstein. Let me have counsel announce their appearances for the record.¶
MS. SHULLMAN: Deanna Shullman of Thomas, LoCicero & Bralow on behalf of the Palm Beach Post.¶
THE COURT: Ms. Shullman, nice to see you again, good morning.¶
MS. SHULLMAN: You too.¶
MR. GERBER: William J. Berger for EW, the intervener.¶
MR. EDWARDS: Brad Edwards also on behalf of the EW.¶
MR. KUVIN: Spencer Kuvin on behalf of EB, motion intervener’s pleading.¶
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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 Burns 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.¶
MS. BURNS: Puccillo.¶
THE COURT: And asked her to sign an¶
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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 you want me to clarify that.¶
THE COURT: Please do.¶
MR. GOLDBERGER: Your Honor, this started during the course of a plea colloquy in Mr. Epstein’s state proceeding before Judge Puccillo, who is a retired senior judge who was filling in for Judge McSorley on that day, who was the judge assigned to this division. It was 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¶
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to the Court that there was a confidential agreement between Mr. Epstein’s — Mr. Epstein’s attorneys and the United States attorney’s office for the Southern District of Florida which would have been triggered upon the successful taking of the plea by Judge Puccillo.¶
In other words, if the plea was accepted by Judge Puccillo, there’s a confidential agreement between U.S. attorney’s office and the defense that would be triggered and they would agree not to take some actions against Mr. Epstein. I advised Judge Puccillo of that, and at that time she said she would like to see the matter sealed in the court file. I said fine, and then we later — I then filed that document, and the clerk’s office notified me and said we need an order sealing this, and we submitted an order to seal the document.¶
THE COURT: All right. Is there anybody here from the U.S. attorney’s office? Has anybody notified them, or is there a dog in this fight or do they care?¶
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If they’re a party to this confidential thing, wouldn’t you think that they might be.¶
MR. GOLDBERGER: Your Honor, they have been noticed. They have taken a position in parallel proceedings that this matter should remain confidential, and they have done that in federal court, and I believe that is their position still.¶
MR. EDWARDS: Your Honor, I have been in communication with the U.S. attorney’s office, and they are not taking a position on this issue, which is why they’re not in court right now.¶
THE COURT: What’s going on in federal court?¶
MR. GOLDBERGER: There are a number of civil cases that are pending right now.¶
THE COURT: And they’re talking about the same documents that are under seal here in our court?¶
MR. EDWARDS: Yes.¶
MR. GOLDBERGER: Yes, your Honor, and I will address that at the appropriate time what’s going on here.¶
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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 actually there’s an additional step because Mr. Goldberger on behalf of Mr. Epstein or Mr. Critton I believe filed motion, and I think that that will tell us who goes first today and who has the burden today.¶
THE COURT: This is — and I’m thinking outloud that my take on that is that my review of the file shows that the appropriate steps to seal these documents wasn’t followed initially. I’m looking at it as 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 — 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¶
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I’m thinking. Let me ask first go over to the Post, Ms. Shullman, what are your thoughts on that procedure?¶
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 we suspected last time, which was that the initial closure of the documents was not done pursuant to the acceptable procedures.¶
THE COURT: All right. Mr. Berger, Mr. Edwards, that’s all right with you?¶
MR. EDWARDS: We agree.¶
MR. GERBER: That’s what my point was, yes, your Honor, thank you.¶
THE COURT: Mr. Goldberger, what do you think?¶
MR. GOLDBERGER: That’s fine, your Honor, with the — I’ll wait until after the proceeding.¶
THE COURT: All right. You may proceed.¶
MR. GOLDBERGER: Judge, as I said to clarify the record, this matter…¶
MR. GOLDBERGER: Judge, as I said to clarify the record, this matter started during the course of Mr. Epstein’s plea¶
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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 the federal government that was in place that basically said we will not prosecute Mr. Epstein for federal offenses if the state plea agreement is accepted by the Court and Mr. Epstein’s sentence is imposed.¶
The state proceeding was over at the time that I advised Judge Puccillo that, in other words, we had gone through the plea colloquy and I simply was advising her of this 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.¶
So, first, as a preliminary matter,¶
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it wasn’t like we were coming into court or 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 that and say matters come up all the time during the course of hearings and the fact that something is not filed in advance does not necessarily taint the entire process, so we agreed to come forward and file our motion to seal after the fact, because we didn’t know this matter would be coming up.¶
But having said that, Judge, this confidential agreement was not part of any state plea agreement, it’s not part of the proceedings, it was ancillary to the state proceedings and it had nothing to do with the state proceedings. As an accommodation to Judge Puccillo, we filed it in the court file. Quite frankly, it’s unnecessary, it doesn’t need to be there, and the simplest approach would be to simply remove it from¶
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whether this nonprosecution agreement should be released to the plaintiffs for their use.¶
Judge Marra heard two hearings on this matter and the court has those orders. And in the first hearing Judge Marra very, very, carefully balanced the confidentiality issues of the nonprosecution agreement, the intent of the parties as well of the rules of criminal procedure that I will talk about in a moment, with the plaintiff’s right to know what’s going on and to have access to this agreement. And Judge Marra crafted an order and in the nature of a protective order and said, plaintiffs, you can have this nonprosecution agreement, you can use it, you can review it, you cannot give it to anyone else other than your clients, and if you want to use it or you want to give it to your clients, you need to tell them about this order that is not to be disclosed to anybody else. And these plaintiffs that are sitting here will tell you that from day one they have had this¶
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nonprosecution agreement, they have it for their use, they know every clause that’s in that nonprosecution agreement, and I suggest to the Court as to their motions why are we here; they have an agreement already.¶
They went back to Judge Marra sometime thereafter and asked the Court to expand their use of the nonprosecution agreement, and they said, Judge Marra, we have the nonprosecution agreement but we would like to be able to disclose that agreement to other sides, and Judge Marra in another carefully crafted order said, nuh-uh, no, you have not satisfied your burden, you cannot disseminate this to anyone else, and the order that I have entered remains in place, but most significantly he said, you know what, this is without prejudice.¶
If you have some basis, you have some need that you have not briefed, you have not litigated with me yet concerning dissemination of nonprosecution agreement, come back to me and I’ll review it for you.¶
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absolutely 100 percent protected from disclosure by Federal Rule of Criminal Procedure Six. I have a copy of that rule for the Court.¶
THE COURT: Let me take a look of that, please.¶
MR. GOLDBERGER: Give us one moment, your Honor, we have it here somewhere.¶
MR. KUVIN: Your Honor, just briefly while they’re looking on behalf of the plaintiff EB, I just wanted to point out on my client motion to intervene, we are not party to the federal action. She only has a state court claim. She’s not bound by any federal court order, she is not with the federal court on their claim, so as to that issue, my client stands here synonymous with the Post.¶
THE COURT: Thank you for pointing that out to me.¶
MR. GOLDBERGER: We’ll have it for you in one moment, your Honor.¶
Your Honor, Federal Rule of Criminal Procedure Six is a rule that deals with grand jury proceedings, and it confers in¶
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the federal system secrecy of all grand jury matters and it’s pretty clear in this case that the nonprosecution agreement specifically talks about a grand jury investigation of Mr. Epstein, there’s specific reference to a grand jury investigation in the nonprosecution agreement.¶
The rule does not prevent us from telling the Court that there was a grand jury investigation of Mr. Epstein, but what it prevents us from doing, what it prevents this Court from doing, I believe, is disclosing the content of the grand jury investigation, and the agreement itself is very specific as to the grand jury investigation of Mr. Epstein.¶
However, all is not lost for the Palm Beach Post and the intervenors, for that matter. The rule has a specific procedure that allows you to go to the district court 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¶
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3E actually. It says: In limited circumstances the Court may authorize disclosure of grand jury matters under request made in connection with the judicial proceeding, so — and the rule goes onto clearly say, that request must be filed in the district where the grand jury is proceeding.¶
So the first — you know the Palm Beach Post may have first amendment rights to access but those first amendment rights cannot circumvent the federally protected secrecy of grand jury proceedings and that’s what the Post is doing by making this request before this Court.¶
This matter has been sealed for almost a year now, 11 months and some days and the Palm Beach Post has not filed anything in this matter until most recently, and their remedy is to go into the federal court and invoke the process of Rule Six and asked Judge Marra to make a limited disclosure of the nonprosecution agreement and the grand jury matters that are contained therein. Who knows whether¶
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he will do it, but that’s where this battle need to be fought.¶
As a matter of comity, your Honor, this Court should defer to Judge Marra because, A, he has already ruled on the disclosure of the nonpros agreement, but even more importantly, the supremacy clause requires you to defer to the federal laws of criminal procedure that say these matters should be protected and should not be disclosed unless the district court says so.¶
If the Court is going to go on and wants to go to the issues that would be contained if it were not dealing with a grand jury proceeding, obviously there’s a test that the Court must then use under the Rules of Judicial Administration and it says matters can be sealed but they should be sealed if there’s a compelling government interest or if the sealing is important to the administration of justice. There’s a couple other criteria, but the ones obviously that would apply in this case are the compelling government¶
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interest, and the importance to the administration of justice.¶
Again, we are dealing with a secret grand jury matter. We cannot circumvent that secrecy by asking the Court to invoke its unsealing power.¶
THE COURT: Thank you.¶
MR. GOLDBERGER: Thank you, your Honor.¶
THE COURT: Let me go over to the other parties and we’ll get back to Mr. Goldberger and his client. Post, who wants to go first?¶
MS. SHULLMAN: Mr. Edwards.¶
THE COURT: Mr. Edwards.¶
MR. EDWARDS: Your Honor, inasmuch as Mr. Epstein is relying on Judge Marra’s order to support the argument that the nonprosecution agreement needs to remain sealed, I’d like to address that if you are inclined to be persuaded by that argument at all.¶
The orders that have now been moved into evidence are in case No. 80736, and just to put that order in context in¶
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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 and when petitioners have a specific tangible need to be relieved of the restrictions, they should file an appropriate motion, which we believe we have done in this case, if a specific tangle need arises in the civil cases, which are in circuit court in Palm Beach County, then relief should be sought there and notice to all parties, so to give the Court context for that order, there was a state court plea taken June 30th, 2008, where Mr. Epstein pled guilty to the state court cases as it related to two victims.¶
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¶
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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 let this deal go forward without meaningfully conferring with these girls because I was alleging it violated the Crimes Victim’s Rights Act; these girls have a right to be heard. That emergency motion was filed July 7th, 2008, and I have that for the Court, and I’d like to enter that into evidence as well.¶
THE COURT: We’ll mark that as EW’s Exhibit No. 1.¶
MR. EDWARDS: 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.¶
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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 time I said we don’t know because we don’t know what protections are inside that agreement, so we want you to unseal it, that’s where the motion for protective order came about where he gave us the agreement so we can look at it and determine what remedy, if any, was available. Once we had that agreement under 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.¶
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And so our reason for wanting him to unseal it at that time was we want to be able to talk to other people, and that’s where this order from February 12th, 2009, came in, and he denied that motion to unseal it for three reasons.¶
First and foremost, this nonprosecution agreement was not sealed in my Court, you are talking to the wrong judge, you need to go back, so we’re getting the back and forth here and it’s not in my court, I can’t mess with some other judge’s order. Obviously, there was a hearing held and that document was sealed for a reason, I’m not privy for those reasons, so I’m not going to override whatever that judge was thinking when they sealed that document.¶
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¶
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arises in any of the civil cases, which by the time this order was coming about they were stacking up in state and federal court against Mr. Epstein, petition that court, petition the appropriate court, and he implies that appropriate court is this court where it was initially sealed, which we’ve done in this case.¶
This court has none of the problems that Judge Marra had in that it was sealed in this courtroom. We have noticed Mr. Epstein to be heard at this hearing, which is one of the requirements that Judge Marra placed on us, and a specific need has arisen. It has been sealed for over a year now, correct, Mr. Goldberger is correct, but the specific need is arising because we are in the middle of discovery. And this document is, as Mr. Goldberger said, a great inducement to Mr. Epstein pleaing guilty to sex crimes in state court, and to ultimately being labeled a sex offender, and the only document that pertains to my clients, my client as a victim of Mr. Epstein’s sex crime, so at¶
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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.¶
THE COURT: I don’t quite get — I don’t think it’s relevant to what my task is here, but I don’t get how it’s relevant in the civil cases what the federal government did or didn’t do with regard to prosecuting Mr. Epstein. I don’t get that, but I don’t know that I need to.¶
MR. EDWARDS: The standard for discovery is just reasonably calculated to lead to discovery of admissible evidence and without going in depth we do have intention —¶
MR. GERBER: Your Honor, can I —¶
MR. EDWARDS: And with respect to the grand jury argument, you’ve seen the document, it’s only page five and six that it’s even referred to.¶
THE COURT: All right. Let me turn it over to — does the Post want to speak?¶
MS. SHULLMAN: I do, but I think he wants to go first so whenever.¶
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THE COURT: I haven’t considered your motion to intervene yet.¶
MR. KUVIN: I don’t believe it was an objection. When it was filed, there was no objection by Mr. Goldberger or Mr. Critton.¶
THE COURT: Are you going to advocate by motion to intervene or are you going to be jumping into the merits of the sealing?¶
MR. KUVIN: I’ll jump right into the merits, I’m not going to duplicate anything that was just raised or anything that the press is going to raise, I have an individual interest.¶
THE COURT: All right. Go ahead Mr. Kuvin.¶
MR. KUVIN: Very briefly, your Honor.¶
I represent BB who has filed only a state court action, she is not under the federal jurisdiction of Judge Marra, she does not subject herself to the federal jurisdiction of Judge Marra, she was never provided an opportunity to brief any issues before Judge Marra with respect to that order that was entered by Judge Marra or either order. In addition, what’s also very important is¶
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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 she has never seen it and, frankly, without subjecting herself voluntarily to the jurisdiction of Judge Marra, which she chooses not to do, then she cannot get this document, otherwise she would have to go to federal court, submit herself to the jurisdiction of the federal court to then see a state court document, which does not make any sense because if it is a state court document in state court, as previously 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¶
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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. In other words, whether or not he must, in fact, admit that he molested these 14 year old girls, so, therefore, the content of that document is paramount as to the issues in the civil proceedings that are currently pending in state court which is why we would like that document.¶
THE COURT: Okay. Thank you. Thank you so very much. Ms. Shullman from the Post.¶
MS. SHULLMAN: Thank you, your Honor. I feel a little bit like I have stepped into the twilight zone here, so I’d like to address a couple of the things we’ve addressed and get us to what we are really here to do today.¶
THE COURT: I don’t know if you are referring specifically to the courtroom or¶
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the convoluted situation that brings us to the courtroom.¶
MS. SHULLMAN: Just this whole federal state situation. There is no hill for the public and the press to march up in Judge Marra’s court as Mr. Edwards pointed out, Judge Marra has specifically held the agreement was not filed in this case under seal or otherwise, so were I to march into Judge Marra’s courtroom and do my whole public access spiel, he would say take it to you, your Honor, because it’s not a record in my court. It is a record here, and in the state court as we talked about the last time, we were here, there’s a presumption of openness. The burden is on Mr. Epstein to overcome that presumption. While he filed a very brief memorandum after our last hearing, which identified for interest, he has by no means met the test of either establishing those interest or establishing the remainder of that test which would be that closures no broader than necessary ineffective no other reasonable alternatives, so if I could, I’d¶
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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 and an addendum; those are historically and typically open records.¶
Mr. Goldberger mentioned that the plea agreement was sort of incidentally filed in this court file, and that it was sort of an afterthought that happened. He never came into court intending that it even be part of the court file, but Judge Pucillo specifically said, this is a significant inducement to accepting the plea in my court. This agreement that you 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 presumably because they are significant to this litigation. Even if there was an¶
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incidental filing, which cannot possibly be the case here, there is no mechanism in Florida law to call a Mulligan and to pull it out of the court file. As you know, the Floridians have a constitutional right of access, there’s no mechanism in that law to just say, oopsy, let’s take it out of the file, so they have to meet their burden and they have to show under Rule 2.420 that one of those interests is satisfied. They have identified four here. I have not heard them discuss them at any great length. But I will go through them quickly.¶
The imminent threat to the fair, impartial orderly administration of justice, or to protect a compelling government interest. As your Honor is aware, the federal government is not here today. I have spoken with the state attorney’s office who has indicated that their only interest is in protecting to the extent necessary because I’ve not seen these documents the identity of the victims of these crimes.¶
The Post in its motion to intervene¶
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has already set forth that we have no objection to redacting the victim’s names 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 this point, but I will simply state that the law in Florida is clear that Mr. Epstein doesn’t have standing to assert that interest.¶
And, finally, something else I heard nothing about to avoid substantial injury to a party which, I guess, presumably would be Mr. Epstein by disclosure of matters protected by a privacy right not generally inherent in this specific type of proceedings. Again, I have not heard any attempt to meet the burden on that issue, however, Florida law is equally clear that participants in crimes lose their privacy interest in the matters and facts and circumstances of the commission of those crimes, so Mr. Epstein surely cannot establish that there is a separate privacy interest not inherent in a criminal¶
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prosecution regarding the molestation of young girls.¶
The circumstances under which closure is allowed in Florida are exceedingly narrow. We first — and before we do anything else — have to find that one of those interests is met here, that it exists and that the movant has met its burden in demonstrating that it’s significant enough to require the court to consider closure. That’s not the end of inquiry. And, of course, I have not yet heard anything else about that second half of the test which talks about the idea that closure is no broader than necessary to protect that interest and that it would be effective and that there are no other alternatives.¶
In speaking of the federal litigation there are instances when both Mr. Epstein’s lawyers and the federal prosecutors have placed portions of the agreement into the public court file. There are — thus attempts to seal those records in the federal litigation have been unsuccessful, so part of this agreement the cat is¶
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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 concern, the chief of police at the time sent a letter to the state prosecutors and said, what are you guys doing, how are you handling this, this is highly unusual; I don’t like what I’m seeing here. And even went so far as to say, state attorney’s office, should you all step away from this case.¶
So we have public interest from the perspective of the police chief questioning the state attorney’s office about whether it’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. Edwards talk about the fact that his clients weren’t aware of the agreement unless it all went down, so we have a¶
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significant public interest about how everybody in this litigation is doing their job. There is nothing more fundamentally important than the ability of the public and the press to observe how its government, all branches of its government, do its job.¶
There are multiple, as Mr. Edwards also mentioned, multiple civil lawsuits that have spurned as a result of Mr. Epstein’s conduct, and, again, the public has an interest in what’s going on in civil litigation matters.¶
In short, this matter involves a major public interest from a lot of different levels. There is no basis for closure that has been asserted here. It’s a heavy burden to meet. We start with the idea that openness is the right thing to do but there is essentially no purpose served at this point by keeping these agreements sealed in this case.¶
Unless your Honor has any questions, I think that’s it.¶
THE COURT: Okay. Thank you so very¶
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much. Ms. Burns, on behalf of the state of Florida, anything you’d like to add or advocate?¶
MS. BURNS: If I may, your Honor.¶
THE COURT: Sure.¶
MS. BURNS: Good afternoon, your Honor.¶
THE COURT: Good afternoon.¶
MS. BURNS: Your Honor, the State is not here to take a position on whether or not this court should seal — continue to seal the records or unseal the records. We are here merely to uphold the state laws which require all of us as members of the judicial system to protect the rights of the confidentiality of the victims. I do see two issues here, your Honor.¶
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 viewing, not just merely open up that portion of the file for viewing by all interested parties, first, that the Court do an incamera viewing to make two¶
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evaluations.¶
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 those records, then the State would ask that this Court before making the document public access, then make certain that in place is that the victim’s identities are amended to initials if their names are used.¶
The State does have a concern regarding the argument of the Federal Rule Six in that is this Court bound by a federal rule which perhaps has been made unenforcible by virtue of making it a part of 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.¶
MS. BURNS: Thank you, Judge.¶
THE COURT: One last chance for the federal government, they’re not here and¶
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I’ll let rebuttal of any other presentation, Mr. Goldberger, or, Mr. Critton, you’d like to make.¶
MR. GOLDBERGER: Thank you, your Honor. As to the last argument made by Ms. Burns as to the applicability of Federal Rule 6 of the Rules of Federal Criminal Procedure it’s something that we learned in the law school that the supremacy clause controls and to the extent there’s a conflict between the federal doctrine and the state doctrine, the supremacy clause requires the federal rule of law to apply and to control. And certainly in this case you cannot use a state procedure to circumvent a federal rule of criminal procedure that confers secrecy to a grand jury proceeding.¶
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.¶
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As to Mr. Kuvin’s argument that he has a client that is in state court and is not in federal court and therefore he 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 of individuals who were identified as victims of Mr. Epstein’s conduct, and Judge Marra’s order says that anyone who’s been identified by the United States attorney’s office as a victim has right to the nonprosecution agreement under the same rules.¶
Just so the Court understands, I know we are talking like the Court understands everything about this case. There was a list of victims that was created at the time that the nonprosecution agreement was entered into and Mr. Kuvin’s client is on that list. That list was created by 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 he knows that we’ve told him that he has¶
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that access.¶
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. Edwards advised Judge Marra that he had, in fact, filed a nonprosecution agreement to no one’s surprise under seal in the federal file, so the nonprosecution agreement according to Mr. Edwards’ declaration at that hearing is contained in the federal court system.¶
For all of those reasons, your Honor, and the reasons that I previously indicated to the Court, we would ask the Court to defer to the federal court in this matter.¶
THE COURT: Okay. Thank you very much. Here is what I’m planning on doing, so you know where I’m going on this. I’ll 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.¶
I find that the appropriate procedure¶
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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 court file to protect the names of any underage victims.¶
I will make copies of those. I’ll redact out the names leaving — expose the initials of any of the individuals. I’ll get that done — I’ll get my written order out granting and denying the respective motions hopefully by the end of today. If not today, tomorrow. I plan on releasing the redacted versions probably Monday, so that those will be available for public consumption on Monday.¶
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¶
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before, your Honor.¶
Your Honor, we do intend to take certiorari on this to the Fourth District Court.¶
THE COURT: That’s why I figure between the written rule and the disclosure give you a chance to catch your breath and do that. I guess you might want that. Is Monday 5 p.m. enough time for you to get over to the DCA?¶
MR. GOLDBERGER: Actually, your Honor, the Rule of Appellate Procedure maintains jurisdiction with you on this matter to entertain the motion to stay.¶
THE COURT: So I need to handle the motion to stay?¶
THE COURT: Do you want to argue that now? Do you want to take a look at that, catch your breath, come back and see me Monday sometime; what’s your pleasure?¶
MR. GOLDBERGER: We’re ready to do it now, your Honor. We’re ready to do it now.¶
THE COURT: All right. Interveners, your thoughts.¶
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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 BB’s motion to intervene is granted. Do you have a written order for me to sign off on there?¶
MR. KUVIN: I can submit that.¶
THE COURT: Why don’t you catch your breath and come back tomorrow and I’ll hear argument. It will give me a chance to read the motion, check out the rules, take a look, got to get myself gassed up. Anybody want to drop anything off for me to read before the hearing, please do that. Why don’t we do that tomorrow morning, and why don’t we reconvene here tomorrow at 1:30 on the motion to stay.¶
MR. GOLDBERGER: That’s fine.¶
THE COURT: How does your schedule look?¶
MR. GERBER: Your Honor, is it possible to have it a little later, perhaps an hour later tomorrow?¶
THE COURT: 2:30.¶
MR. GERBER: If possible.¶
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THE COURT: How about a little later than that still, let me take a look at our official calendaring system here.¶
MR. CRITTON: Judge Colbath, I’m gone tomorrow, I’m going to Gainesville at one or 12:30-ish. I told my wife I would be home at one. My daughter’s birthday, 21, she’s having a party, I plan to be there. Can we do it tomorrow morning any time, it would be great.¶
THE COURT: Tomorrow morning is ugly. This isn’t going to take long.¶
MS. BURNS: This is a five-minute motion.¶
THE COURT: Why don’t we do this, meet at 8:15?¶
MS. SHULLMAN: Your Honor, I’m not going to be able to get my kids to school if I have to be here at 8:15. My husband is in California right now.¶
MR. GOLDBERGER: I don’t mean to jump in. I wonder if we can do some of this telephonically.¶
MS. SHULLMAN: Yes, I can appear by phone or I can have one of my partners.¶
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THE COURT: In the morning what would be a good start time for you?¶
MS. SHULLMAN: Nine would be getter. I can’t drop them off before eight.¶
THE COURT: It’s going to be brief argument, let’s do it 9:00 tomorrow morning; 9:00 work for you?¶
MR. CRITTON: Yes, sir. Thank you.¶
MR. GOLDBERGER: Just very briefly, the Court is going to look at the nonprosecution agreement and do some redacting, I believe. I just need to advise the court in addition to Mr. Epstein and perhaps victims mention the nonprosecution agreement, there are third parties who the Court needs to look about redacting their names also, and that’s contained in the nonprosecution agreement.¶
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.¶
THE COURT: I’ll like a look.¶
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MR. EDWARDS: 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.)¶
(Proceedings concluded.)¶
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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 48, inclusive, represent a true and accurate transcription of my steno notes taken at said proceedings.¶
IN WITNESS WHEREOF, I have hereunto affixed my official signature this 29th day of June, 2009.¶
Susan 28 Ways¶
SUSAN S. WIGGINS, R.P.R.¶
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