“She wanted to give as broad protection to the victims as possible and, unfortunately, in doing so I think people might have felt misled,” Steinberg told the appeals court. “In terms of what the strict requirements are of the (Crime Victims Rights Act) that never changed. It’s sort of a learning lesson for people in my position to be careful about what it is that we say and distinguish between policy and what we want to do as good human beings….We can maybe have it turned against us.”
Victim Courtney Wild sued the federal government in 2008 in a bid to dissolve the complex, aggressively negotiated deal that resulted in Epstein pleading guilty to two prostitution-related felonies in state court in exchange for a guarantee of no federal prosecution over his alleged procurement of dozens of underage girls for sex acts.
Wild’s suit contended that the federal non-prosecution agreement was approved without the “conferral” required by the 2004 victims’ rights statute.
For years, little attention was paid to her suit and the grievances of some victims over the treatment of the wealthy and well-connected Epstein — who served 13 months in county jail and was allowed to visit his office on most days.
However, public outrage intensified last year after a federal judge in West Palm Beach ruled that prosecutors violated the victims’ rights law in their handling of Epstein and that they deliberately misled victims about the status of negotiations with his tenacious attorneys.
Among those skewered by the ruling was Alex Acosta, who served as the chief federal prosecutor in South Florida at the time the deal was cut and was serving as President Donald Trump’s Labor secretary.
Acosta weathered that storm but resigned in July 2019, after federal prosecutors in New York indicted Epstein on sex trafficking charges dating back to the 2000s.
Epstein was denied bail in that case and died while housed at a federal jail in Manhattan. Officials pronounced the death a suicide. One of Epstein’s longtime companions, Ghislaine Maxwell, was arrested in July of this year on charges that she aided Epstein’s abuse. She is also being held without bail.
In April, a three-judge panel of the 11th Circuit ruled, 2-1, that victims could not enforce their rights where no federal prosecution has been filed.
However, lawyers for Wild protested that ruling, and the court later agreed to rehear her case en banc.
Steinberg, who is based in the Atlanta U.S. Attorney’s office, was brought in after the federal judge’s ruling that Acosta’s office broke the law in its handling of the Epstein inquiry.
Steinberg never mentioned Villafaña by name during the arguments Thursday. After handling sex abuse and trafficking cases in Florida for over a decade, Villafaña quit her job last year and joined another federal agency.
The judges who heard arguments for about 70 minutes on Thursday did not explicitly declare their positions on the appeal, but several seemed to either disagree with Wild’s lawyers reading of the law or harbor fears about the potential fallout of giving victims an enforceable right to consult with prosecutors when a deal is arrived at that results in a suspected not being prosecuted.
Judge Charles Wilson noted that such deals are often cut when someone agrees to testify against others or to provide sensitive information, often at the risk of considerable danger to themselves.
“Mr. Epstein was a pretty bad guy, but you’re asking the court to apply precedent in future cases that may not be as bad as this one,” Wilson told Paul Cassell — a law professor and retired federal judge representing Wild.
Cassell said the Crime Victims’ Rights Act doesn’t guarantee a consultation in all circumstances, but only where it would be “reasonable” and, he said, it wouldn’t be reasonable in that kind of scenario.
But other judges raised questions about how workable that distinction would be and whether district court judges were prepared to take on litigation where private parties are examining the agreements reached with fearful government witnesses.
Cassell said that concern was fairly remote, given that Wild’s case was the only one of its kind since the CVRA has been on the books. “This is a once in 16 years situation,” he said.
Cassell also opened his arguments Thursday by pointing to an amicus brief filed by Sen. Dianne Feinstein (D-Calif.) and former Sens. Jon Kyl (R-Utah) and Orrin Hatch (R-Utah) affirming that 2004 law was intended to apply even before a case went to court.
As the judges drilled down on fine points in the law, Cassell cautioned them against a hyper-technical reading. “This act was designed to be interpreted by crime victims, most of whom would lack legal counsel,” he said.
Sterling said the door was open to victims pursuing a complaint at the Justice Department if they felt snubbed by prosecutors, but that victims don’t have a right to get relief from a court in cases that don’t result in prosecution.
But Cassell said that wouldn’t do much for Wild.
“That’s a meaningless remedy because all of the architects of this non-prosecution agreement have left government employment,” he said.
Judge Frank Hull, who was the dissenter from the April appeals court ruling, appeared to be the most vigorous defender of Wild’s position on Thursday.
The appeals court could avoid squaring up to the key question in the case by resolving it on technical grounds. Wild has now conferred with prosecutors in New York about the case there, so Wilson suggested Thursday that the dispute before them might be moot.
But Cassell insisted it was not because the non-prosecution agreement still appears to rule out prosecuting several of Epstein’s associates on some charges stemming from conduct in south Florida.
“Ms. Wild never had a chance to describe what those co-conspirators had done to her,” he said.