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Case 1:20-cr-00330-AJN Document 33 Filed 07/28/20 Page 3 of 7

The Honorable Alison J. Nathan
July 28, 2020
Page 3

speak—by name on the public record in this case, as one victim has already chosen to do, because those victims, and only those victims, have affirmatively chosen to be publicly identified in connection with this case. These proposals are reasonable, narrowly tailored, and not broader than necessary to protect victims’ privacy interests, safety, and well-being, to avoid potential harassment of witnesses by the press and others, and to prevent undue embarrassment and other adverse consequences. At this stage in the case, permitting defense counsel to refer to witnesses by name in sealed filings, to refer to witnesses by name in the course of private conversations during their investigation, and to refer by name to individuals who have made the affirmative choice to be identified by name in connection with this criminal case is more than enough to enable the defendant ability to vigorously pursue her defense.

The defendant has rejected this proposal because, as noted above, she believes that she and her counsel should be permitted to “publicly referenc[e]” individuals, by name, who have “spoken on the public record to the media or in public fora, or in litigation – criminal or otherwise – relating to Jeffrey Epstein or Ghislaine Maxwell.” In support of the defendant’s application for such sweeping ability to publicly name any such individuals, defense counsel provides only the conclusory assertion that an inability to publicly reference the names of victims, in court proceedings and beyond, will hinder their ability to investigate, prepare witnesses for trial, and advocate on the defendant’s behalf. The Government has repeatedly asked defense counsel to explain how or why it would need to publicly name victims of sexual abuse to prepare for trial, and the defense repeatedly has declined to do so, presumably because the argument borders on the absurd.²

The Government’s proposed protective order would do no such thing. As described above, the Government’s proposed order would permit defense counsel and defense staff to reference the identities of individuals they believe may be relevant to the defense to potential witnesses and their counsel (who then would be prohibited from further disclosing or disseminating such identifying information). Government Proposed Order ¶ 5. It would further permit the defendant to publicly identify individuals who have chosen to speak on the record on this case. Id. ¶ 6. And it would permit the defendant to reference identifying information in filings made under seal. See id.

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² Despite the Government’s requests for clarity on the need for the defendant’s requested modification, the sole additional reason provided by defense counsel for why it would be appropriate or necessary to publicly name victims is that certain of these victims have obtained what defense counsel described as the “benefit” of publicly identifying themselves as victims (and thus, as the defendant presumably would have it, deserve whatever public identification and scrutiny the defendant intends to invite upon them). Beyond the offensive notion that victims of sexual abuse experience a “benefit” by making the incredibly difficult decision to share their experience publicly, the suggestion that victims who receive this supposed “benefit” should receive fewer protections than the law ordinarily offers to victims in criminal cases is alarming. Permitting defense counsel to publicly identify witnesses who have not identified themselves on the record in this case risks subjecting witnesses to harassment and intimidation, with no conceivable benefit to the defense other than perhaps discouraging witnesses from cooperating with the Government.

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