055.pdf

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. )
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 [REDACTED] THE INTERVENER:
WILLIAM J. BERGER, ESQUIRE
BRAD EDWARDS, ESQUIRE
225 NE Mizner Blvd Ste 675
Boca Raton, Florida 33432
SCANNED JUL - 6 2009
SUSAN S. WIGGINS. R.P.R. and OFFICIAL COURT REPORTER

ON BEHALF OF [REDACTED] 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

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:
THEREUPON:
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 [REDACTED]
MS. BURNS: Barbara Burns on behalf 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 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 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 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 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, 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 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.
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, 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 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 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, [REDACTED] 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 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 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.
MS. SHULLMAN: Sure.
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 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 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 --
MR. CRITTON: She's pandering, your Honor.
MS. SHULLMAN: I will say he respectfully disagreed with you, so I think a week is too long. I do this day in and day out, I have spent many a weekend on these matters in my career. If you want to give them till Tuesday, I'll be kind, but the Fourth will act quickly on this. I don't think that a week's delay is necessary. I think, in fact, it under minds the public purpose here.
THE COURT: All right. Any other respondents want to go anything further?
MS. SHULLMAN: The State Attorney's office also advises me that Friday is a holiday and the courts are closed.
THE COURT: Thank you for telling me that. Friday is a holiday.
MR. KUVIN: July 4th.
THE COURT: The day of the birth of our constitution.
MR. KUVIN: Good morning, your Honor. On behalf of intervenor [REDACTED] obviously, the Court is inclined to delay the disclosure of 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.
We 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, we are requesting a bond be posted if a stay of any type is issued in this case because 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: A 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.
THE COURT: All right. Thank you very much. I will deny the motion to stay. I will delay the release of the documents until 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. It's always interesting how these cases unfold and come to us a little different than everyone else. Now, let me have the attorneys come up here and approach.
(The following proceedings were held sidebar, out of the hearing of the jury.)
THE 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.
MR. GOLDBERGER: It's the plaintiff's document that identifies the children's names. It's a letter to me actually.
THE COURT: I was wondering if everybody thought there was something in there that wasn't in there.
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 courthouse steps and pass them out.
MS. SHULLMAN: If there are no redactions to be made.
THE COURT: No redaction.
MS. SHULLMAN: I would do an order directing the Court to release them and they may become unsealed. You don't need --
MS. COMPIANI: Your Honor, are you going to write up a written order denying --
MR. GOLDBERGER: Are you going to do that?
THE COURT: Put together a written order?
MS. SHULLMAN: Denying the stay?
THE COURT: Yes, A, denying the stay; B, delaying the disclosure or unsealing of these documents until noon Thursday; C, denying the motion for bond.
MR. GOLDBERGER: And you'll need that order quickly.
THE COURT: Yeah, fax that and we'll get it signed quick today.
MR. GOLDBERGER: Are you forcing the court reporter to work over the weekend so we can get a transcript?
MR. CRITTON: Thank you, your Honor, for moving us this morning.
(Side bar conference held outside the hearing of the jury concluded.)

CERTIFICATE
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 24, inclusive, represent a true and accurate transcription of my stenonotes taken at said proceedings.
IN WITNESS WHEREOF, I have hereunto affixed my official signature this 29th day of June 2009.
SUSAN S. WIGGINS. R.P.R. and OFFICIAL COURT REPORTER