EFTA00180893 1 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. 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 S. WIGGINS. R.P.R. and OFFICIAL COURT REPORTER EFTA00180894 2 ON BEHALF OF EB, MOTION INTERVENER'S PLEADING: SPENCER KUVIN, ESQUIRE 2925 PGA Blvd Ste 200 Palm Beach Gardens, Florida 33410 June 26, 2009 Palm Beach County Courthouse West Palm Beach, Florida 33401 Beginning at 9:59 o'clock, a.m. SUSAN S. WIGGINS. R.P.R. and OFFICIAL COURT REPORTER EFTA00180895 3 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 26, 2009, beginning at 9:59 o’clock, a.m., with appearances as hereinbefore noted, to wit: THE COURT: Epstein. MR. GOLDBERGER: Yes, your Honor. THE COURT: Let me call up the State of Florida versus Epstein. Let's have everyone announce their appearance, please, name on the record. MR. CRITTON: Robert Critton and Jack Goldberger on behalf of Mr. Epstein as well as Barbara Compiani from the office of Jane Walsh. MS. SHULLMAN: Deanna Shullman of Thomas, LoCicero and Bralow on behalf of the Palm Beach Post. MR. KUVIN: Spencer Kuvin on behalf of the intervener BB. MS. BURNS: Barbara Burns on behalf SUSAN S. WIGGINS. R.P.R. and OFFICIAL COURT REPORTER EFTA00180896 4 of the State of Florida. 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? MR. GOLDBERGER: Mr. Edwards is not here, your Honor. THE COURT: Okay. Mr. Berger, Mr. Edwards. Did I give you enough copies of the order? MR. GOLDBERGER: I ran out. I have just enough. Do you want me to get a copy to Mr. Edwards? THE COURT: Yes, if you’d mail a copy to Mr. Edwards. I got spares if anybody’s interested. Anybody need a spare? MR. GOLDBERGER: We’re good, your Honor. 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 SUSAN S. WIGGINS. R.P.R. and OFFICIAL COURT REPORTER EFTA00180897 5 to Stay? THE COURT: I do, the one that was handed up to me yesterday? MR. CRITTON: Yes, sir, and I have a proposed order in the event the Court chooses to grant; may I provide that to the Court as well? Your Honor, as you know, Mr. Goldberger and I represent Mr. Epstein. We have hired Ms. Walsh and Ms. Compiani as appellate counsel to assist in the filing of a writ of certiorari. I know that comes as no surprise to the Court in that whoever prevailed and lost yesterday, I think the Court recognized we probably filed a writ of certiorari. THE COURT: Let me ask real quick. Anybody objecting to the defendant having the ability to have my decision reviewed by the appellate court before I release these things? I mean, it seems pretty straight forward. MS. SHULLMAN: We have an objection, your Honor, to some extent. The -- you know, the procedure in place here is very SUSAN S. WIGGINS. R.P.R. and OFFICIAL COURT REPORTER EFTA00180898 6 similar to that for which they would have to obtain a preliminary injunction. THE COURT: Right. 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 -- proposed yesterday is a good one, that is you redact and you release on Monday and that gives them today and Monday to get to the Fourth, otherwise, we're stuck in a position where we have a 30-day window to appeal, and we are all delay, delay, delay. THE COURT: What if I do that? I don’t know if it’s a difference with that or distinction, but, procedurally, I was thinking I was leaning yesterday towards issuing the order that I just issued. 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 released until -- I’ll make it, you know, five of five Monday. That will give you Monday to get down to the Fourth to get SUSAN S. WIGGINS. R.P.R. and OFFICIAL COURT REPORTER EFTA00180899 7 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 a transcript from the hearing yesterday which has not yet been obtained. They need the underlying motions, they need some time to research. It’s not a matter of simply filing a writ of petition and that stays the release of the order. There would have to be a separate motion that would be filed with the Appellate Court. The Motion to Stay that we file under Appellate Rule 9.310, subsection A, it provides that the party that seeks review shall come to the lower tribal, which is the trial court, which 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 SUSAN S. WIGGINS. R.P.R. and OFFICIAL COURT REPORTER EFTA00180900 8 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. We believe that based upon the Court decision, respectfully, that the Court, that the Appellate Court, will quash your order, for the reasons Judge Puccillo was the one who requested that the document in this -- this was argued yesterday, so I’m going to be very brief. She is the one who requested post sentencing, that the document be filed under seal. It was her request that the defense seceded to that under 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. Secondly, that it relates to the portions of it, specifically, within the MPA to deal with the grand jury proceeding, SUSAN S. WIGGINS. R.P.R. and OFFICIAL COURT REPORTER EFTA00180901 9 that would be a violation 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 rule, but I do note that within your written order, that you, basically, said that in the second to last page, you said this order is no way to be interpreted as permission not to comply with U.S. District Court Judge Marra’s previous orders. We respectfully submit that it would not comply with Judge Marra’s previously issued orders. We also believe that the supremacy clause, as Mr. Goldberger argued yesterday in conjunction with comity principle, that we think that there’s 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 a confidential agreement. It’s a confidential contract SUSAN S. WIGGINS. R.P.R. and OFFICIAL COURT REPORTER EFTA00180902 10 between Mr. Epstein and the United States. United States vigorously defended Mr. Edwards 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. All plaintiffs' counsel has it. The only ones that don't have it is the Post, under the circumstances, and public under the circumstances, but all the plaintiffs' lawyers of the alleged victims, they either have the MPA and the addendum, which I will refer to as the MPA, or they have the ability to get that. That is very clear from Judge Marra's order. 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 a privilege document where once the proverbial horse is out of the barn, you can’t get him back in. SUSAN S. WIGGINS. R.P.R. and OFFICIAL COURT REPORTER EFTA00180903 11 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, you commented yesterday and said, I don’t see how the MPA is going to be admissible in a civil proceeding anyway. Again, you’re not ruling on that ultimately, the judges in both the State and federal court cases will do that. In the Mariner case, the judge ordered that the defendants object at the direction of incident reports. The judge said, sorry, you’ve got to produce those incident 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, SUSAN S. WIGGINS. R.P.R. and OFFICIAL COURT REPORTER EFTA00180904 12 you cannot remedy that harm on appeal. 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 much lower threshold for production or for discovery reasons, and, again, there’s no harm in an instance like that, even in an incident report came out in the Mariner cases, so what. It won’t be used, you can’t use any of the information you obtained. In this particular instance, because it is confidential, there is no way the Court can remedy the harm. With regard to the defendants in this case, again, I think we’ve demonstrated both irreparable harm, and we believe a substantial likelihood on the success. Again, how do you demonstrate a substantial likelihood on the success? The fact that we would -- if this Court thought that we should prevail, my guess, you would not have ruled as you did, but as the Court is SUSAN S. WIGGINS. R.P.R. and OFFICIAL COURT REPORTER EFTA00180905 13 aware, oh, surprise to all of the lawyers here. Sometimes judges get reversed. I know that's a shock 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 reference that we will prevail and that your order will be quashed. With regard to alleged harm by any other party, the Post in this instance reported at the sentencing of Mr. Epstein on or about June 30th of 2008. They waited until June 1st of '09. This was such a pressing issue, the Post wanted to get this desperately out to the public, they were so anxious to do it, that they waited 11 months before they did anything. Mr. Edwards, who is not here today, filed a federal 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 SUSAN S. WIGGINS. R.P.R. and OFFICIAL COURT REPORTER EFTA00180906 14 case, that would be Judge Hafele or two of Mr. Edwards' cases are where is Mr. Kuvin's case is or Judge Marra, where Mr. Edwards' case is. Judge Marra can certainly control whether or not they should be released, and I've covered Mr. -- oh, and Mr. Edwards because he could have gone back to Judge Marra because he's got one federal court case -- did he try for that form and get it -- no, they came in here. He tried to do it in a run around Judge Marra. He didn't file his motion until late May of '09. My guess is it was Mr. Edwards who probably said to the Post, gee, why don't you join in this, you haven't been here for 11 months, why don't you come in now, maybe intervene. And then Mr. Kuvin, on behalf of his client, BB estate court case, came in on June 11th, again, almost a year to the date after Mr. Epstein's sentence. It's no burning issue, there's no fire here to put out, giving us 30 days, or at least a reasonable period of time to file petition for writ, and then if the SUSAN S. WIGGINS. R.P.R. and OFFICIAL COURT REPORTER EFTA00180907 15 Court denies our stay at least asking the appellate court for stay under the circumstances. There’s no harm to them. The harm is only to Mr. Epstein, and we think as a substantial likelihood, that we would succeed. Therefore, we would request the Court grant a stay as I’ve suggested in my proposed order for 30 days of giving Ms. Walsh and Ms. Compiani an opportunity to actually do their job under the circumstances, so the court reporter doesn’t have to work over the weekend to expedite transcripts for us, and secondly, if we file within the 30 days, then let the appellate court determine whether or not the stay remains or not. THE COURT: Thank you much. Ms. Shullman, don't worry about responding to the issue of motive or seeking this relief or the timing of your request or party's request. I don't think that bears upon the merits of either parties. MS. SHULLMAN: The constitutional SUSAN S. WIGGINS. R.P.R. and OFFICIAL COURT REPORTER EFTA00180908 16 right of access doesn't have a waiver provision, your Honor. THE COURT: Well, go ahead. Let me hear -- I'm on board so far with Mr. Critton's version of, Judge, if you let it out, you let it out, so irreparable harm is kind of easy. I think that it is a two-prong test. I think he's got to jump over both hurdles. I think he's got to show some likelihood of success. If you want to spend some energy arguing that there's no irreparable harm, you may do so, but if I hand it out today and everybody gets to see it, you can't fix that tomorrow. THE COURT: So I think they've established that. MS. SHULLMAN: Let me address that very briefly first, your Honor, to remind you in meeting this burden that they failed to meet yesterday, they identified four interests which they liken now to the motion to stay to the four harms. One, of -- for the first three of SUSAN S. WIGGINS. R.P.R. and OFFICIAL COURT REPORTER EFTA00180909 17 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. The only one is, he's not really articulated today it's some sort of invasion of Mr. Epstein's privacy rights. Florida law is clear that those who are participants in crimes do not have privacy rights with respect to the facts and circumstances surrounding those crimes. So unless I’m going hear something outside of the context of Mr. Epstein’s criminal prosecution, he has no privacy right in this agreement. 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 SUSAN S. WIGGINS. R.P.R. and OFFICIAL COURT REPORTER EFTA00180910 18 Fourth sees this case from a different vantage point, a different light, and maybe they’ll look down and say, oh, Judge Colbath, you missed it and, you know, stay the matter. That will give them a reasonable amount of time to get the transcripts to go to the Fourth because I’m a big fan of appellate review and making case law. MS. SHULLMAN: And I understand, your Honor, if you are suggesting a week from today, that's a little bit long. Remember the status quo here, we are in sort of a strange procedural posture because your Honor decided that the initial closure was improper, but the recent request for closure was denied, so instead of a status quo 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 a serious 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 -- SUSAN S. WIGGINS. R.P.R. and OFFICIAL COURT REPORTER EFTA00180911 SUSAN S. WIGGINS. R.P.R. and OFFICIAL COURT REPORTER
2Honor.
3MS. SHULLMAN: I will say he
4respectfully disagreed with you, so I think
5a week is too long. I do this day in and
6day out, I have spent many a weekend on
7these matters in my career. If you want to
8give them till Tuesday, I'll be kind, but
9the Fourth will act quickly on this. I
10don't think that a week's delay is
11necessary. I think, in fact, it under
12minds the public purpose here.
13The COURT: All right. Any other
14respondents want to go anything further?
15MS. SHULLMAN: The State Attorney's
16office also advises me that Friday is a
17holiday and the courts are closed.
18The COURT: Thank you for telling me
19that. Friday is a holiday.
20MR. KUVIN: July 4th.
21The COURT: The day of the birth of
22our constitution.
23MR. KUVIN: Good morning, your Honor.
24On behalf of intervenor BB, obviously, the
25Court is inclined to delay the disclosure
MR. CRITTON: She's pandering, your 19 EFTA00180912 SUSAN S. WIGGINS. R.P.R. and OFFICIAL COURT REPORTER
1of this, but under Rule 9.310, if your Honor were to issue such a stay, we would point out the provision C of the rule, which requires a posting of the bond.
5We not only agree with your Honor’s ruling, but we believe such appeal they are filing is absolutely frivolous and we are going to be requesting fees and cost for the filing of that appeal, so as a result,
10we are requesting a bond be posted if a stay of any type is issued in this case
11because of the fact that we want to make sure that our attorneys’ fee and costs are covered for the frivolous nature of the appeal. And it’s dictated strictly in subsection A. It gives the Court the authority. It says:
18A stay pending review may be conditioned upon a good and sufficient bond, other conditions or both. Therefore, we believe your Honor does have the authority to issue such a requirement that the posting of a bond be issued.
24THE COURT: All right. Thank you very much. I will deny the motion to stay.
25
20 EFTA00180913
1I will delay the release of the documents
2until noon Thursday. I will deny the request to compel the movant, the defendant, Mr. Epstein, to post a bond, and I'll let the appellate court tell us and teach us what the law on this case will be.
6It's always interesting how these cases unfold and come to us a little
9different than everyone else. Now, let me have the attorneys come up here and approach.
11(The following proceedings were held sidebar, out of the hearing of the jury.)
14THE COURT: I reviewed the two documents, I didn't see any kids' names in there. Everybody was hinting the children's names or the initials' names. I had my big black highlighter out, I don't see anything worth redacting, so.
20MR. GOLDBERGER: It's the plaintiff's document that identifies the children's names. It's a letter to me actually.
23THE COURT: I was wondering if everybody thought there was something in there that wasn't in there.
21 EFTA00180914 SUSAN S. WIGGINS. R.P.R. and OFFICIAL COURT REPORTER MR. CRITTON: It’s a test of your skills, your Honor. THE COURT: You’re right, exactly. One is page one through seven, and the second one is just two pages that’s not even signed by everybody. MR. GOLDBERGER: While we’re all up here chatting, there are references to other names up here. THE COURT: Yes, Mr. Goldberger, and no one has identified in the document says these are people that are not going to be prosecuted. Mr. Kuvin made the argument that these are co-conspirators. These are innocent people that have nothing to do with these proceedings. They have nothing to do with -- MS. SHULLMAN: They have a standing. THE COURT: I will renew my ruling that I gave you yesterday, and deny your request to redact those names out of there. All right, so I’ll hang on to these till Thursday at noon, and anybody that comes wants to come and get them, I don’t know if there’s a mechanism for -- I stand on the 22 EFTA00180915 SUSAN S. WIGGINS. R.P.R. and OFFICIAL COURT REPORTER
1courthouse steps and pass them out.
2MS. SHULLMAN: If there are no redactions to be made.
3The COURT: No redaction.
4MS. SHULLMAN: I would do an order directing the Court to release them and they may become unsealed. You don’t need --
9MS. COMPIANI: Your Honor, are you going to write up a written order denying --
12MR. GOLDBERGER: Are you going to do that?
13
14The COURT: Put together a written order?
15MS. SHULLMAN: Denying the stay?
17The COURT: Yes, A, denying the stay
18B, delaying the disclosure or unsealing of these documents until noon Thursday; C, denying the motion for bond.
20MR. GOLDBERGER: And you’ll need that order quickly.
22
23The COURT: Yeah, fax that and we’ll get it signed quick today.
24
25MR. GOLDBERGER: Are you forcing the
23 EFTA00180916 SUSAN S. WIGGINS. R.P.R. and OFFICIAL COURT REPORTER for moving us this morning. MR. CRITTON: Thank you, your Honor, we can get a transcript? court reporter to work over the weekend so 24 EFTA00180917 SUSAN S. WIGGINS. R.P.R. and OFFICIAL COURT REPORTER
4The STATE OF FLORIDA,
5COUNTY OF PALM BEACH.
6I, SUSAN S. WIGGINS, R.P.R., Official
7Court Reporter for the Fifteenth Judicial Circuit,
8Criminal Division, in and for Palm Beach County,
9Florida; do hereby certify that I was authorized
10to and did report the foregoing proceedings before
11the Court at the time and place aforesaid; and
12that the preceding pages numbered from 1 to 24,
13inclusive, represent a true and accurate
14transcription of my stenonotes taken at said
15proceedings.
16IN WITNESS WHEREOF, I have hereunto
17affixed my official signature this 29th day of
18June 2009.
21 Boston & Wiggins SUSAN S. WIGGINS, R.P.R. C E R T I F I C A T E 25 EFTA00180918
and
JACK A. GOLDBERGER
ATTERBURY, GOLDBERGER & WEISS, P.A.
250 Australian Avenue South, Suite 1400
West Palm Beach, FL 33401
ROBERT D. CRITTON BURMAN, CRITTON, LUTTIER & COLEMAN 515 North Flagler Drive, Suite 400 West Palm Beach, FL 33401 HONORABLE JEFFREY COLBATH Palm Beach County Courthouse 205 North Dixie Highway Room 11F West Palm Beach, FL 33401 Counsel for The Palm Beach Post Tampa, FL 33602 P. O. Box 2602 (33601) 400 North Ashley Drive, Suite 1100 DEANNA K. SHULLMAN 401 North Dixie Highway West Palm Beach, FL 33401 2925 PGA Boulevard, Suite 200 WILLIAM J. BERGER ROTHSTEIN ROSENFELDT ADLER 401 East Las Olas Boulevard, Suite 1650 Fort Lauderdale, FL 33394 Counsel for E.W. Palm Beach Gardens, FL 33410 SPENCER T. KUVIN LEOPOLD-KUVIN, P.A. JUDITH STEVENSON ARCO State Attorney’s Office-West Palm Beach # CERTIFICATE OF SERVICE # I HEREBY CERTIFY that a copy of the foregoing has been sent by E-Mail Counsel for B.B. JEFFREY H. SLOMAN U.S. Attorney’s Office-Southern District 500 South Australian Avenue, Suite 400 West Palm Beach, FL 33401 and Federal Express this day of June, 2009, to: