Over the past 20 years or so, there has been a real push to protect the rights of victims in the criminal justice system. People who are victims of crime now have the right to speak in court, to receive restitution, and to be informed about all phases of a criminal case against the person who victimized them in the first place. In federal criminal cases, where we do a bulk of our work, this trend to give victims more rights culminated in the 2004 Crime Victims Rights Act (CVRA). I have spoken to lawyer meetings around the country since 2004, pointing out how criminal defense attorneys need to account for the fact that victims are now more heavily involved in federal criminal cases.
A decision issued yesterday by the United States Court of Appeals here in Atlanta shows how even good laws like the CVRA can sometimes lead to bad consequences. The case is Jane Doe #1 and Jane Doe #2 v. Roy Black, et al. You can access the decision here.
A man named Epstein apparently sexually abused two minor girls. Epstein hired Roy Black, a prominent criminal defense attorney in Miami. Epstein faced potential criminal charges in both the local Miami courts as well as in the federal court system. Recall, the under the CVRA, victims have lots of rights, one of which is to be notified about all developments in a case. Victims also own the right to have their opinions heard when prosecutors are considering resolving a case with an agreement of some sort.
The federal prosecutors told the victims that they were considering a case against Epstein. However, they ultimately decided to not prosecute Epstein in return for his plea of guilty in the local court system. Here's the problem: although they properly informed the victims about the state court guilty plea, the feds failed to tell the victims there would not be a federal prosecution, thus potentially violating the victims' rights to be heard as to the fairness of this resolution.
The victims eventually filed a law suit, but the important part of the case is that they wanted all correspondence and communications between Epstein's lawyers and the federal prosecutors. Everybody knows that it is is very important to keep plea negotiations (and just about every other type of negotiation) secret. Lawyers and their clients are far less likely to put their cards on the table if they know that their communications later can be opened up to outsiders. However, that is exactly what happened in the decision issued yesterday. The Court of Appeals ruled that there is no privilege or other reason that prevents the victims from getting access to Epstein's attorneys' confidential communications with the federal prosecutors.
Again, I am mostly in favor of the greater rights we not afford to victims of crimes. This movement has helped regain respect for the criminal justice system. However, I fear that this ruling and others like it will make it far harder for criminal defense attorneys and prosecutors to do their jobs, knowing that somebody down the line one day can pry open an old file and try to use a seemingly private business communication for another purpose.