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April 14, 2020

Split Eleventh Circuit panel rules Jeffrey Epstein's victims had no rights under federal CVRA before any complaint or indictment

A divided Eleventh Circuit panel today handed down a very long opinion on an very interesting issue concerning the rights of victims of a very high profile (and now very dead) federal defendant. The opinion for the court authored by Judge Newsom in In re Courtney Wild, No. 9:08-cv-80736-KAM (11th Cir. April 14, 2020) (available here), gets started this way:

This case, which is before us on a petition for writ of mandamus, arises out of a civil suit filed under the Crime Victims’ Rights Act of 2004.  Petitioner Courtney Wild is one of more than 30 women — girls, really — who were victimized by notorious sex trafficker and child abuser Jeffrey Epstein.  In her petition, Ms. Wild alleges that when federal prosecutors secretly negotiated and entered into a non-prosecution agreement with Epstein in 2007, they violated her rights under the CVRA — in particular, her rights to confer with the government’s lawyers and to be treated fairly by them.

Despite our sympathy for Ms. Wild and others like her, who suffered unspeakable horror at Epstein’s hands, only to be left in the dark — and, so it seems, affirmatively misled — by government lawyers, we find ourselves constrained to deny her petition.  We hold that at least as matters currently stand — which is to say at least as the CVRA is currently written — rights under the Act do not attach until criminal proceedings have been initiated against a defendant, either by complaint, information, or indictment.  Because the government never filed charges or otherwise commenced criminal proceedings against Epstein, the CVRA was never triggered.  It’s not a result we like, but it’s the result we think the law requires.

Judge Hull issued a near 60-page dissenting opinion (roughly matching the length of the majority opinion). Here is are key passages from its opening:

This appeal presents legal questions of first impression in this Circuit regarding the Crime Victims’ Rights Act (“CVRA”), 18 U.S.C. § 3771, which grants a statutory “bill of rights” to crime victims.  In my view, the Majority patently errs in holding, as a matter of law, that the crime victims of Jeffrey Epstein and his co-conspirators had no statutory rights whatsoever under the CVRA.  Instead, our Court should enforce the plain and unambiguous text of the CVRA and hold that the victims had two CVRA rights — the right to confer with the government’s attorney and the right to be treated fairly — that were repeatedly violated by the U.S. Attorney’s Office in the Southern District of Florida....

I dissent because the plain and unambiguous text of the CVRA does not include this post-indictment temporal restriction that the Majority adds to the statute.  Although, as I discuss later, the two rights provisions at issue include other limiting principles, there is no textual basis for the bright-line, post-indictment only restriction the Majority adds to the statute.  Rather, the Majority’s contorted statutory interpretation materially revises the statute’s plain text and guts victims’ rights under the CVRA.  Nothing, and I mean nothing, in the CVRA’s plain text requires the Majority’s result.

It will now be very interesting to see if this this matter gets further attention from either the full Eleventh Circuit and/or the US Supreme Court.

April 14, 2020 at 02:04 PM | Permalink


I have the deepest respect for the brilliant legal mind of Judge Frank Hull (who is a woman, but was named after he Uncle Frank!). I would bet that Judge Hull will make it her business to secure Rehearing En Banc in this case before the entire 11th Circuit. You just have to know this woman. I appeared before her while I was representing plaintiffs in a hotly contested legal malpractice case against a well know Atlanta attorney, when she was a Judge on the Superior Court of Fulton County (Georgia). Before she became a Judge, Frank Hull had excelled in law school at Emory University, and had Clerked for Judge Elbert Tuttle on the old Fifth Circuit Court of Appeals (the 11th Circuit split off from the Fifth Circuit in 1982), at a time when there were few women attorneys. She became the first woman partner ever elected at one of Atlanta's largest and most elite law firms. Once she decided to leave private practice and go to the bench, she moved up rapidly from State Court to Superior Court, to becoming a U.S. District Judge and then an 11th Circuit Judge (appointed by Bill Clinton, I think). She took over Federal Judgeships previously held by Marvin Shoob and Phyllis Kravitch. Judge Hull assumed Senior Status on 12/31/2017 and is now 71 years old. Keep your eyes on this case, and know that Judge Hull must be working behind the scenes even now to obtain Rehearing En Banc, even before the Petitioners file their Petitioner for Rehearing En Banc. She is very smart and a force to be reckoned with.

Posted by: James Gormley | Apr 14, 2020 7:18:51 PM

Although the legal value of the case has very little to do with the identity of the parties, this case is likely to be one of the most closely monitored cases.

Posted by: Phillip Blaine Moffitt | May 31, 2020 7:13:47 AM

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