EFTA00180863.pdf

20 1 he will do it, but that's where this battle 2 need to be fought. 3 As a matter of comity, your Honor, 4 this Court should defer to Judge Marra 5 because, A, he has already ruled on the 6 disclosure of the nonpros agreement, but 7 even more importantly, the supremacy clause 8 requires you to defer to the federal laws 9 of criminal procedure that say these 10 matters should be protected and should not 11 be disclosed unless the district court says 12 so. 13 If the Court is going to go on and 14 wants to go to the issues that would be 15 contained if it were not dealing with a 16 grand jury proceeding, obviously there's a 17 test that the Court must then use under the 18 Rules of Judicial Administration and it 19 says matters can be sealed but they should 20 be sealed if there's a compelling 21 government interest or if the sealing is 22 important to the administration of justice. 23 There's a couple other criteria, but the 24 ones obviously that would apply in this 25 case are the compelling government SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180863 21 1 interest, and the importance to the 2 administration of justice. 3 Again, we are dealing with a secret 4 grand jury matter. We cannot circumvent that secrecy by asking the Court to invoke 6 its unsealing power. 7 THE COURT: Thank you. 8 MR. GOLDBERGER: Thank you, your 9 Honor. 10 THE COURT: Let me go over to the 11 other parties and we'll get back to 12 Mr. Goldberger and his client. Post, who 13 wants to go first? 14 MS. SHULLMAN: Mr. Edwards. 15 THE COURT: Mr. Edwards. 16 MR. EDWARDS: Your Honor, inasmuch as 17 Mr. Epstein is relying on Judge Marra's 18 order to support the argument that the 19 nonprosecution agreement needs to remain 20 sealed, I'd like to address that if you are 21 inclined to be persuaded by that argument 22 at all. 23 The orders that have now been moved 24 into evidence are in case No. 80736, and 25 just to put that order in context in SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180864 22 1 actuality, the order says -- specifically 2 puts it back on this Court and confers 3 authority on this Court over this 4 particular document, when in the second 5 page of the February 12th, 2009 order, it's 6 misdated 2009 but it's a 2009 order, and 7 the last two sentences read: If and when 8 petitioners have a specific tangible need 9 to be relieved of the restrictions, they 10 should file an appropriate motion, which we 11 believe we have done in this case, if a 12 specific tangle need arises in the civil 13 cases, which are in circuit court in Palm 14 Beach County, then relief should be sought 15 there and notice to all parties, so to give 16 the Court context for that order, there was 17 a state court plea taken June 30th, 2008, 18 where Mr. Epstein pled guilty to the state 19 court cases as it related to two victims. 20 Now, parallel to that, there was an 21 investigation in federal court where the 22 United States attorney's office and the FBI 23 had more than 30 victims of sex abuse of 24 Mr. Epstein's and they were working with 25 these girls and their cases. Now, several SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180865 23 I 1 2 3 4 5 6 7 8 9 of those girls came to me and said, hey, we're worried that there's a secret deal going on between Epstein and the U.S. attorney's office, so I filed an emergency petition against the U.S. attorney's office asking the federal court to intervene and get in the middle of this and not let this deal go forward without meaningfully conferring with these girls because I was 10 alleging it violated the Crimes Victim's 11 Rights Act; these girls have a right to be 12 heard. That emergency motion was filed 13 July 7th, 2008, and I have that for the 14 Court, and I'd like to enter that into 15 evidence as well. 16 THE COURT: We'll mark that as EW's 17 Exhibit No. 1. 18 MR. EDWARDS: And an emergency 19 hearing was held four days later in front 20 of Judge Marra, who was randomly assigned 21 to this case at the time the plea was taken 22 and the prosecution agreement was sealed. 23 Judge Marra had nothing to do with the 24 agreement, with Epstein, he didn't know 25 anything about it. SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180866 24 1 So four days later now we're in front 2 of him and the United States attorney's 3 office says for the first time, sorry, 4 girls, you are too late, the deal has 5 already been done as to all of your federal 6 cases and it resulted in the nonprosecution 7 agreement that is attached in the state 8 court case. Judge Marra turned to us and 9 said, what is your remedy. 10 At that point in time I said we don't 11 know because we don't know what protections 12 are inside that agreement, so we want you 13 to unseal it, that's where the motion for 14 protective order came about where he gave 15 us the agreement so we can look at it and 16 determine what remedy, if any, was 17 available. Once we had that agreement 18 under the caveat that we were not able to 19 disseminate to third parties and reviewed 20 it and saw there is very little protection 21 for the girls, we asked to unseal it 22 completely, so that we can talk to third 23 parties, to victim's rights groups and get 24 some insight as to what our possible remedy 25 would be. SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180867 25 1 And so our reason for wanting him to 2 unseal it at that time was we want to be 3 able to talk to other people, and that's 4 where this order from February 12th, 2009, 5 came in, and he denied that motion to 6 unseal it for three reasons. 7 First and foremost, this 8 nonprosecution agreement was not sealed in 9 my Court, you are talking to the wrong 10 judge, you need to go back, so we're 11 getting the back and forth here and it's 12 not in my court, I can't mess with some 13 other judge's order. Obviously, there was 14 a hearing held and that document was sealed 15 for a reason, I'm not privy for those 16 reasons, so I'm not going to override 17 whatever that judge was thinking when they 18 sealed that document. 19 Second, your reason is you just want 20 to talk to other people about them, and if 21 I'm going to override some other judge's 22 order, I need to have a more compelling 23 reason than you just want to talk to people 24 about. 25 Third, if and when a specific need SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180868 26 1 arises in any of the civil cases, which by 2 the time this order was coming about they 3 were stacking up in state and federal court 4 against Mr. Epstein, petition that court, 5 petition the appropriate court, and he 6 implies that appropriate court is this 7 court where it was initially sealed, which 8 we've done in this case. 9 This court has none of the problems 10 that Judge Marra had in that it was sealed 11 in this courtroom. We have noticed 12 Mr. Epstein to be heard at this hearing, 13 which is one of the requirements that 14 Judge Marra placed on us, and a specific 15 need has arisen. It has been sealed for 16 over a year now, correct, Mr. Goldberger is 17 correct, but the specific need is arising 18 because we are in the middle of discovery. 19 And this document is, as Mr. Goldberger 20 said, a great inducement to Mr. Epstein 21 pleaing guilty to sex crimes in state 22 court, and to ultimately being labeled a 23 sex offender, and the only document that 24 pertains to my clients, my client as a 25 victim of Mr. Epstein's sex crime, so at SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180869 I 1 2 3 4 5 6 27 the very least, we should be allowed to ask people in deposition and do discovery about how this document came about. There is a need here. THE COURT: I don't quite get -- I don't think it's relevant to what my task 7 is here, but I don't get how it's relevant 8 in the civil cases what the federal 9 government did or didn't do with regard to 10 prosecuting Mr. Epstein. I don't get that, 11 but I don't know that I need to. 12 MR. EDWARDS: The standard for 13 discovery is just reasonably calculated to 14 lead to discovery of admissible evidence 15 and without going in depth we do have 16 intention -- 17 MR. GERBER: Your Honor, can I 18 MR. EDWARDS: And with respect to the 19 grand jury argument, you've seen the 20 document, it's only page five and six that 21 it's even referred to. 22 THE COURT: All right. Let me turn 23 it over to -- does the Post want to speak? 24 MS. SHULLMAN: I do, but I think he 25 wants to go first so whenever. SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180870 I I 1 2 3 28 THE COURT: I haven't considered your motion to intervene yet. MR. KUVIN: I don't believe it was an 4 objection. When it was filed, there was no 5 6 7 8 9 objection by Mr. Goldberger or Mr. Critton. THE COURT: Are you going to advocate by motion to intervene or are you going to be jumping into the merits of the sealing? MR. KUVIN: I'll jump right into the 10 merits, I'm not going to duplicate anything 11 that was just raised or anything that the 12 press is going to raise, I have an 13 individual interest. 14 THE COURT: All right. Go ahead 15 Mr. Kuvin. 16 MR. KUVIN: Very briefly, your Honor. 17 I represent BE who has filed only a state 18 court action, she is not under the federal 19 jurisdiction of Judge Marra, she does not 20 subject herself to the federal jurisdiction 21 of Judge Marra, she was never provided an 22 opportunity to brief any issues before 23 Judge Marra with respect to that order that 24 was entered by Judge Marra or either order. 25 In addition, what's also very important is SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180871 29 1 I 1 I i I ) 1 she has never seen this document, so she 2 does not know what is in the contents of 3 the order, so the issue is raised by 4 Mr. Goldberger about the girls are able to 5 see the document and evaluate how they 6 might need to evaluate this document does 7 not apply to my client because she has 8 never seen it and, frankly, without 9 subjecting herself voluntarily to the -10 jurisdiction of Judge Marra, which she 11 chooses not to do, then she cannot get this 12 document, otherwise she would have to go to 13 federal court, submit herself to the 14 jurisdiction of the federal court to then 15 see a state court document, which does not 16 make any sense because if it is a state 17 court document in state court, as 18 previously stated under Judge Marra's 19 order, it is within your purview and your 20 jurisdiction to rule on a state court 21 document. 22 Finally, with respect to why the 23 document may be relevant, the contents of 24 that document speak to the issues of 25 whether or not Mr. Epstein can or cannot i SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180872 30 1 1 assert his fifth amendment right against 2 self incrimination, and we believe on a 3 good faith believe that on the contents of 4 that document speak to the issues of 5 whether or not he can or cannot deny the 6 claims that have been brought against him 7 both in state and federal court. In other 8 words, whether or not he must, in fact, 9 admit that he molested these 14 year old 10 girls, so, therefore, the content of that 11 document is paramount as to the issues in 12 the civil proceedings that are currently 13 pending in state court which is why we 14 would like that document. 15 THE COURT: Okay. Thank you. Thank 16 you so very much. Ms. Shullman from the 17 Post. 18 MS. SHULLMAN: Thank you, your Honor. 19 I feel a little bit like I have stepped 20 into the twilight zone here, so I'd like to 21 address a couple of the things we've 22 addressed and get us to what we are really 23 here to do today. 24 THE COURT: I don't know if you are 25 referring specifically to the courtroom or SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180873 31 1 2 3 4 5 the convoluted situation that brings us to the courtroom. MS. SHULLMAN: Just this whole federal state situation. There is no hill for the public and the press to march up in 6 Judge Marra's court as Mr. Edwards pointed 7 out, Judge Marra has specifically held the 8 agreement was not filed in this case under 9 seal or otherwise, so were I to march into 10 Judge Marra's courtroom and do my whole 11 public access spiel, he would say take it 12 to you, your Honor, because it's not a 13 record in my court. It is a record here, 14 and in the state court as we talked about 15 the last time, we were here, there's a 16 presumption of openness. The burden is on 17 Mr. Epstein to overcome that presumption. 18 While he filed a very brief memorandum 19 after our last hearing, which identified 20 for interest, he has by no means met the 21 test of either establishing those interest 22 or establishing the remainder of that test 23 which would be that closures no broader 24 than necessary ineffective no other 25 reasonable alternatives, so if I could, I'd SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180874 32 1 like to sort of focus us back to the 2 inquiry we're here to make today in this 3 court, and that is whether your Honor is 4 going to provide public access to two 5 records that are, I think, indisputably in 6 your Honor's court file in this court's 7 file. 8 It's a plea agreement and an 9 addendum; those are historically and 10 typically open records. 11 Mr. Goldberger mentioned that the 12 plea agreement was sort of incidentally 13 filed in this court file, and that it was 14 sort of an afterthought that happened. He 15 never came into court intending that it 16 even be part of the court file, but 17 Judge Pucillo specifically said, this is a 18 significant inducement to accepting the 19 plea in my court. This agreement that you 20 have with federal prosecutors is 21 significantly the reason why you're 22 entering this plea before me. And she took 23 those records into the court file 24 presumably because they are significant to 25 this litigation. Even if there was an SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180875 33 1 incidental filing, which cannot possibly be 2 the case here, there is no mechanism in 3 Florida law to call a Mulligan and to pull 4 it out of the court file. As you know, the 5 Floridians have a constitutional right of 6 access, there's no mechanism in that law to 7 just say, oopsy, let's take it out of the 8 file, so they have to meet their burden and 9 they have to show under Rule 2.420 that one 10 of those interests is satisfied. They have 11 identified four here. I have not heard 12 them discuss them at any great length. But 13 I will go through them quickly. 14 The imminent threat to the fair, 15 impartial orderly administration of 16 justice, or to protect a compelling 17 government interest. As your Honor is 18 aware, the federal government is not here 19 today. I have spoken with the state 20 attorney's office who has indicated that 21 their only interest is in protecting to the 22 extent necessary because I've not seen 23 these documents the identity of the victims 24 of these crimes. 25 The Post in its motion to intervene SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180876 34 1 has already set forth that we have no 2 objection to redacting the victim's names 3 if, in fact, that is required because we 4 haven't seen the agreement. To avoid 5 substantial injury to innocent third 6 parties, again, absolutely no showing on 7 that test. I have no burden at this point, 8 but I will simply state that the law in 9 Florida is clear that Mr. Epstein doesn't 10 have standing to assert that interest. 11 And, finally, something else I heard 12 nothing about to avoid substantial injury 13 to a party which, I guess, presumably would 14 be Mr. Epstein by disclosure of matters 15 protected by a privacy right not generally 16 inherent in this specific type of 17 proceedings. Again, I have not heard any 18 attempt to meet the burden on that issue, 19 however, Florida law is equally clear that 20 participants in crimes lose their privacy 21 interest in the matters and facts and 22 circumstances of the commission of those 23 crimes, so Mr. Epstein surely cannot 24 establish that there is a separate privacy 25 interest not inherent in a criminal SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180877 35 1 prosecution regarding the molestation of 2 young girls. 3 The circumstances under which closure 4 is allowed in Florida are exceedingly 5 narrow. We first -- and before we do 6 anything else -- have to find that one of 7 those interests is met here, that it exists 8 and that the movant has met its burden in 9 demonstrating that it's significant enough 10 to require the court to consider closure. 11 That's not the end of inquiry. And, of 12 course, I have not yet heard anything else 13 about that second half of the test which 14 talks about the idea that closure is no 15 broader than necessary to protect that 16 interest and that it would be effective and 17 that there are no other alternatives. 18 In speaking of the federal litigation 19 there are instances when both Mr. Epstein's 20 lawyers and the federal prosecutors have 21 placed portions of the agreement into the 22 public court file. There are -- thus 23 attempts to seal those records in the 24 federal litigation have been unsuccessful, 25 so part of this agreement the cat is SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180878 36 1 already out of the bag. But there is also 2 an enormous public interest in what's going 3 on here, apart from the idea that this man 4 is accused of having many, many victims who 5 were all young children which, of course, 6 in itself creates a lot of public concern, 7 the chief of police at the time sent a 8 letter to the state prosecutors and said, 9 what are you guys doing, how are you 10 handling this, this is highly unusual; I 11 don't like what I'm seeing here. And even 12 went so far as to say, state attorney's 13 office, should you all step away from this 14 case. 15 So we have public interest from the 16 perspective of the police chief questioning 17 the state attorney's office about whether 18 it's doing its job. We have public 19 interest that's spurned by the idea that 20 some of the victims in the federal 21 prosecution -- in the federal court claimed 22 they weren't aware of it, we just heard 23 Mr. Edwards talk about the fact that his 24 clients weren't aware of the agreement 25 unless it all went down, so we have a SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180879 37 r 1 significant public interest about how 2 everybody in this litigation is doing their 3 job. There is nothing more fundamentally 4 important than the ability of the public 5 and the press to observe how its 6 government, all branches of its government, 7 do its job. 8 There are multiple, as Mr. Edwards 9 also mentioned, multiple civil lawsuits 10 that have spurned as a result of 11 Mr. Epstein's conduct, and, again, the 12 public has an interest in what's going on 13 in civil litigation matters. 14 In short, this matter involves a 15 major public interest from a lot of 16 different levels. There is no basis for 17 closure that has been asserted here. It's 18 a heavy burden to meet. We start with the 19 idea that openness is the right thing to do 20 but there is essentially no purpose served 21 at this point by keeping these agreements 22 sealed in this case. 23 Unless your Honor has any questions, 24 I think that's it. 25 THE COURT: Okay. Thank you so very SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180880 i i I 38 1 much. Ms. Burns, on behalf of the state of 2 Florida, anything you'd like to add or 3 advocate? 4 MS. BURNS: If I may, your Honor. 5 THE COURT: Sure. 6 MS. BURNS: Good afternoon, your 7 Honor. 8 THE COURT: Good afternoon. 9 MS. BURNS: Your Honor, the State is 10 not here to take a position on whether or 11 not this court should seal -- continue to 12 seal the records or unseal the records. We 13 are here merely to uphold the state laws 14 which require all of us as members of the 15 judicial system to protect the rights of 16 the confidentiality of the victims. I do 17 see two issues here, your Honor. 18 One is if you decide to unseal the 19 records based upon the arguments that have 20 been presented to you, then the State would 21 ask that the court first do an incamera 22 viewing, not just merely open up that 23 portion of the file for viewing by all 24 interested parties, first, that the Court 25 do an incamera viewing to make two SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180881 39 1 evaluations. 2 Number one, does the document, in 3 fact, have a relationship to the criminal 4 case in the state matter. And, number two, 5 evaluate the right of public access versus 6 the victim's right to confidentiality. If 7 this Court does decide to unseal those 8 records, then the State would ask that this 9 Court before making the document public 10 access, then make certain that in place is 11 that the victim's identities are amended to 12 initials if their names are used. 13 The State does have a concern 14 regarding the argument of the Federal Rule 15 Six in that is this Court bound by a 16 federal rule which perhaps has been made 17 unenforcible by virtue of making it a part 18 of the state file, so I think the Court 19 also would need to address that issue 20 before making its ruling. 21 THE COURT: All right, great. Thank 22 you so much. 23 MS. BURNS: Thank you, Judge. 24 THE COURT: One last chance for the 25 federal government, they're not here and SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180882 40 1 I'll let rebuttal of any other 2 presentation, Mr. Goldberger, or, 3 Mr. Critton, you'd like to make. 4 MR. GOLDBERGER: Thank you, your 5 Honor. As to the last argument made by 6 Ms. Burns as to the applicability of 7 Federal Rule 6 of the Rules of Federal 8 Criminal Procedure it's something that we 9 learned in the law school that the 10 supremacy clause controls and to the extent 11 there's a conflict between the federal 12 doctrine and the state doctrine, the 13 supremacy clause requires the federal rule 14 of law to apply and to control. And 15 certainly in this case you cannot use a 16 state procedure to circumvent a federal 17 rule of criminal procedure that confers 18 secrecy to a grand jury proceeding. 19 And the Palm Beach Post response to 20 the argument never made note of the grand 21 jury rule, they simply avoided that issue 22 and that in our mind is equally important 23 as the fact in the interest of comity this 24 Court should defer to the rulings of 25 Judge Marra already. SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180883 41 1 1 As to Mr. Kuvin's argument that he 2 has a client that is in state court and is 3 not in federal court and therefore he 4 doesn't have a remedy in federal court. 5 With all due respect to Mr. Kuvin, that's 6 similarly wrong. Judge Marra's order 7 spebifically dealt with a class of 8 individuals who were identified as victims 9 of Mr. Epstein's conduct, and Judge Marra's 10 order says that anyone who's been 11 identified by the United States attorney's 12 office as a victim has right to the 13 nonprosecution agreement under the same 14 rules. 15 Just so the Court understands, I know 16 we are talking like the Court understands 17 everything about this case. There was a 18 list of victims that was created at the 19 time that the nonprosecution agreement was 20 entered into and Mr. Kuvin's client is on 21 that list. That list was created by the 22 U.S. attorney's office. He has the same 23 rights to the nonprosecution agreement as 24 if he filed this case in federal court and 25 he knows that we've told him that he has SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180884 42 1 that access. 2 As to the fact that the 3 nonprosecution agreement is presumably not 4 filed in the federal case in our last 5 hearing in front of Judge Marra on June 5th 6 -- I'm sorry, June 12th, Mr. Edwards 7 advised Judge Marra that he had, in fact, 8 filed a nonprosecution agreement to no 9 one's surprise under seal in the federal 10 file, so the nonprosecution agreement 11 according to Mr. Edwards' declaration at 12 that hearing is contained in the federal 13 court system. 14 For all of those reasons, your Honor, 15 and the reasons that I previously indicated 16 to the Court, we would ask the Court to 17 defer to the federal court in this matter. 18 THE COURT: Okay. Thank you very 19 much. Here is what I'm planning on doing, 20 so you know where I'm going on this. I'll 21 make an oral announcement and I'll follow 22 it up with a written order so that you all 23 can have something to take to wherever you 24 want to take it. 25 I find that the appropriate procedure SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180885 43 1 to seal or close these documents has not 2 been met, so I'll deny the motion to seal 3 the documents. I'll grant the motion to 4 unseal them. I will take a look at the 5 documents. I will redact out of them 6 the -- what I'll do is, I'll leave the 7 originals intact sealed in the court file 8 to protect the names of any underage 9 victims. 10 I will make copies of those. I'll 11 redact out the names leaving -- expose the 12 initials of any of the individuals. I'll 13 get that done -- I'll get my written order 14 out granting and denying the respective 15 motions hopefully by the end of today. If 16 not today, tomorrow. I plan on releasing 17 the redacted versions probably Monday, so 18 that those will be available for public 19 consumption on Monday. 20 MR. GOLDBERGER: Your Honor, thank 21 you. Thank you for the oral pronouncement. 22 Your Honor, based on the Court's ruling, we 23 do have a motion to stay disclosure of the 24 nonprosecution agreement. The rules of 25 appellate procedure require us to file that SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180886 44 I 1 before, your Honor. 2 Your Honor, we do intend to take 3 certiorari on this to the Fourth District 4 Court. 5 THE COURT: That's why I figure 6 between the written rule and the disclosure 7 give you a chance to catch your breath and 8 do that. I guess you might want that. Is 9 Monday 5 p.m. enough time for you to get 10 over to the DCA? 11 MR. GOLDBERGER: Actually, your 12 Honor, the Rule of Appellate Procedure 13 maintains jurisdiction with you on this 14 matter to entertain the motion to stay. 15 THE COURT: So I need to handle the 16 motion to stay? 17 MR. GOLDBERGER: Correct, your Honor. 18 THE COURT: Do you want to argue that 19 now? Do you want to take a look at that, 20 catch your breath, come back and see me 21 Monday sometime; what's your pleasure? 22 MR. GOLDBERGER: We're ready to do it 23 now, your Honor. We're ready to do it now. 24 THE COURT: All right. Interveners, 25 your thoughts. SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180887 45 1 MR. KUVIN: Matter of procedure 2 point, I just want to make sure that the 3 motion to intervene is, in fact, granted. 4 THE COURT: You're BB's motion to 5 intervene is granted. Do you have a 6 written order for me to sign off on there? 7 MR. KUVIN: I can submit that. 8 THE COURT: Why don't you catch your 9 breath and come back tomorrow and I'll hear 10 argument. It will give me a chance to read 11 the motion, check out the rules, take a 12 look, got to get myself gassed up. Anybody 13 want to drop anything off for me to read 14 before the hearing, please do that. Why 15 don't we do that tomorrow morning, and why 16 don't we reconvene here tomorrow at 1:30 on 17 the motion to stay. 18 MR. GOLDBERGER: That's fine. 19 THE COURT: How does your schedule 20 look? 21 MR. GERBER: Your Honor, is it 22 possible to have it a little later, perhaps 23 an hour later tomorrow? 24 THE COURT: 2:30. 25 MR. GERBER: If possible. SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180888 46 I 1 I 1 1 THE COURT: How about a little later 2 than that still, let me take a look at our 3 official calendaring system here. 4 MR. CRITTON: Judge Colbath, I'm gone 5 tomorrow, I'm going to Gainesville at one 6 or 12:30-ish. I told my wife I would be 7 home at one. My daughter's birthday, 21, 8 she's having a party, I plan to be there. 9 Can we do it tomorrow morning any time, it 10 would be great. 11 THE COURT: Tomorrow morning is ugly. 12 This isn't going to take long. 13 MS. BURNS: This is a five-minute 14 motion. 15 THE COURT: Why don't we do this, 16 meet at 6:15? 17 MS. SHULLMAN: Your Honor, I'm not 18 going to be able to get my kids to school 19 if I have to be here at 8:15. My husband 20 is in California right now. 21 MR. GOLDBERGER: I don't mean to jump 22 in. I wonder if we can do some of this 23 telephonically. 24 MS. SHULLMAN: Yes, I can appear by 25 phone or I can have one of my partners. SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180889 47 1 THE COURT: In the morning what would 2 be a good start time for you? 3 MS. SHULLMAN: Nine would be getter. 4 I can't drop them off before eight. 5 THE COURT: It's going to be brief 6 argument, let's do it 9:00 tomorrow 7 morning; 9:00 work for you? 8 MR. CRITTON: Yes, sir. Thank you. 9 MR. GOLDBERGER: Just very briefly, 10 the Court is going to look at the 11 nonprosecution agreement and do some 12 redacting, I believe. I just need to 13 advise the court in addition to Mr. Epstein 14 and perhaps victims mention the 15 nonprosecution agreement, there are third 16 parties who the Court needs to look about 17 redacting their names also, and that's 18 contained in the nonprosecution agreement. 19 In other words, there are other 20 people beside Mr. Epstein and Mr. Victims 21 whose names are mentioned in the 22 nonprosecution agreement, and I would ask 23 the Court to look at those names also for 24 the purpose of redacting. 25 THE COURT: I'll like a look. SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180890 48 1 2 3 MR. EDWARDS: Your Honor, those are not names of victims, those are co-conspirators as listed in the agreement 4 and we would object to any redaction of 5 those names. I don't think there's any 6 standing to ask for that. 7 THE COURT: I'll take a look. All 8 right. See you all tomorrow morning at 9 nine. If you want to send anything to me 10 later this afternoon or tomorrow morning 11 before we take the bench, I'm happy to 12 receive it. Have a good afternoon. 13 (Proceedings concluded.) I 14 15 16 17 18 19 20 21 I 22 s 23 24 25 i SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180891 49 1 2 CERTIFICATE 3 4 THE STATE OF FLORIDA, 5 COUNTY OF PALM BEACH. 6 I, SUSAN S. WIGGINS, R.P.R. Official 7 Court Reporter for the Fifteenth Judicial Circuit, 8 Criminal Division, in and for Palm Beach County, 9 Florida; do hereby certify that I was authorized 10 to and did report the foregoing proceedings before 11 the Court at the time and place aforesaid; and 12 that the preceding pages numbered from 1 to 48, 13 inclusive, represent a true and accurate 14 transcription of my steno notes taken at said 15 proceedings. 16 IN WITNESS WHEREOF, I have hereunto 17 affixed my official signature this 29th day of 18 June, 2009. 19 20 21 G5144411 (i3 1,1)V4-4 22 SUSAN S. WIGGINS,T.P.R. 23 24 25 SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180892 - 7 777 771 771 - 1 LE GAL RECYCLED PAPER • TO REORDER CALL 954446-9399 EFTA00180893 1 1 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT 2 IN AND FOR PALM BEACH COUNTY, FLORIDA CRIMINAL DIVISION 3 STATE OF FLORIDA ) 4 ) vs. ) CASE No. 2008CF009381AXX 5 ) JEFFREY EPSTEIN, ) 6 ) Defendant. ) CERTIFIED COPY 7 ) 8 PROCEEDINGS BEFORE THE COURT 9 PRESIDING: HONORABLE JEFFREY COLBATH 10 APPEARANCES: 11 ON BEHALF OF THE STATE: 12 BARRY E. KRISCHER, ESQUIRE State Attorney 13 401 North Dixie Highway West Palm Beach, Florida 33401 14 By: BARBARA BURNS, ESQUIRE Assistant State Attorney 15 ON BEHALF OF THE DEFENDANT: 16 JACK GOLDBERGER, ESQUIRE 250 S Australian Ave Ste 1400 17 West Palm Beach, Florida 33401 And 18 ROBERT CRITTON, ESQUIRE 515 N Flagler Dr Ste 400 19 West Palm Beach, Florida 33401 20 ON BEHALF OF THE PALM BEACH POST: DEANNA SHULLMAN, ESQUIRE 21 Thomas, LoCicero & Bralow 101 N.E. 3rd Avenue - Ste 1500 22 Fort Lauderdale, Florida 33301 23 ON BEHALF OF EW, THE INTERVENER: WILLIAM J. BERGER, ESQUIRE 24 BRAD EDWARDS, ESQUIRE 225 NE Mizner Blvd Ste 675 25 Boca Raton, Florida 33432 SUSAN S. WIGGINS. R.P.R. and OFFICIAL COURT REPORTER EFTA00180894 2 1 ON BEHALF OF EB, MOTION INTERVENER'S PLEADING: 2 SPENCER KUVIN, ESQUIRE 2925 PGA Blvd Ste 200 3 Palm Beach Gardens, Florida 33410 4 1 I 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 June 26, 2009 24 Palm Beach County Courthouse West Palm Beach, Florida 33401 25 Beginning at 9:59 o'clock, a.m. SUSAN S. WIGGINS. R.P.R. and OFFICIAL COURT REPORTER EFTA00180895 3 1 BE IT REMEMBERED that the following 2 proceedings were, had in the above-entitled cause 3 before the HONORABLE JEFFREY COLBATH, one of the 4 judges of the aforesaid court, at the Palm Beach 5 County Courthouse, located in the City of West 6 Palm Beach, State of Florida, on June 26, 2009, 7 beginning at 9:59 o'clock, a.m., with appearances 8 as hereinbefore noted, to wit: 9 THEREUPON: 10 THE COURT: Epstein. 11 MR. GOLDBERGER: Yes, your Honor. 12 THE COURT: Let me call up the State 13 of Florida versus Epstein. Let's have 14 everyone announce their appearance, please, 15 name on the record. 16 MR. CRITTON: Robert Critton and Jack 17 Goldberger on behalf of Mr. Epstein as well 18 as Barbara Compiani from the office of Jane 19 Walsh. 20 MS. SHULLMAN: Deanna Shullman of 21 Thomas, LoCicero and Bralow on behalf of 22 the Palm Beach Post. 23 MR. KUVIN: Spencer Kuvin on behalf 24 of the intervener BB. 25 MS. BURNS: Barbara Burns on behalf SUSAN S. WIGGINS. R.P.R. and OFFICIAL COURT REPORTER EFTA00180896 4 1 of the State of Florida. 2 THE COURT: That's it. 3 MR. CRITTON: That's it, it's a wrap. 4 THE COURT: Okay. Orders. Who's not 5 here that I have to mail it to? 6 MR. GOLDBERGER: Mr. Edwards is not 7 here, your Honor. 8 THE COURT: Okay. Mr. Berger, 9 Mr. Edwards. Did I give you enough copies 10 of the order? 11 MR. GOLDBERGER: I ran out. I have 12 just enough. Do you want me to get a copy 13 to Mr. Edwards? 14 THE COURT: Yes, if you'd mail a copy 15 to Mr. Edwards. I got spares if anybody's 16 interested. Anybody need a spare? 17 MR. GOLDBERGER: We're good, your 18 Honor. 19 THE COURT: All right. Motion to 20 Stay, Mr. Goldberger. 21 MR. GOLDBERGER: Thank you, your 22 Honor. 23 THE COURT: Mr. Critton. 24 MR. CRITTON: Good morning, Judge 25 Colbath, do you have a copy of our Motion SUSAN S. WIGGINS. R.P.R. and OFFICIAL COURT REPORTER EFTA00180897 5 1 to Stay? 2 THE COURT: I do, the one that was 3 handed up to me yesterday? 4 MR. CRITTON: Yes, sir, and I have a 5 proposed order in the event the Court 6 chooses to grant; may I provide that to the 7 Court as well? 8 Your Honor, as you know, 9 Mr. Goldberger and I represent Mr. Epstein. 10 we have hired Ms. Walsh and Ms. Compiani as 11 appellate counsel to assist in the filing 12 of a writ of certiorari. I know that comes 13 as no surprise to the Court in that whoever 14 prevailed and lost yesterday, I think the 15 Court recognized we probably filed a writ 16 of certiorari. 17 THE COURT: Let me ask real quick. 18 Anybody objecting to the defendant having 19 the ability to have my decision reviewed by 20 the appellate court before I release these 21 things? I mean, it seems pretty straight 22 forward. 23 MS. SHULLMAN: We have an objection, 24 your Honor, to some extent. The -- you 25 know, the procedure in place here is very SUSAN S. WIGGINS. R.P.R. and OFFICIAL COURT REPORTER EFTA00180898 6 1 similar to that for which they would have 2 to obtain a preliminary injunction. 3 THE COURT: Right. 4 MS. SHULLMAN: So to demonstrate 5 likelihood of success and irreparable harm, 6 I don't think they can do that. I think 7 the plan that you put in -- proposed 8 yesterday is a good one, that is you redact 9 and you release on Monday and that gives 10 them today and Monday to get to the Fourth, 11 otherwise, we're stuck in a position where 12 we have a 30-day window to appeal, and we 13 are all delay, delay, delay. 14 THE COURT: What if I do that? I 15 don't know if it's a difference with that 16 or distinction, but, procedurally, I was 17 thinking I was leaning yesterday towards 18 issuing the order that I just issued. I 19 think that that's a fairly accurate 20 rendition of the written version of my oral 21 pronouncement yesterday, but I order that 22 nothing -- that the redacted orders not be 23 released until -- I'll make it, you know, 24 five of five Monday. That will give you 25 Monday to get down to the Fourth to get SUSAN S. WIGGINS. R.P.R. and OFFICIAL COURT REPORTER EFTA00180899 7 1 them to stop this from being released; what 2 do you think? 3 MR. CRITTON: Here's what the problem 4 is, Judge, is Ms. Compiani and Ms. Walsh 5 spoke to them yesterday and today, we need 6 a transcript from the hearing yesterday 7 which has not yet been obtained. They need 8 the underlying motions, they need some time 9 to research. It's not a matter of simply 10 filing a writ of petition and that stays 11 the release of the order. There would have 12 to be a separate motion that would be filed 13 with the Appellate Court. The Motion to 14 Stay that we file under Appellate Rule 15 9.310, subsection A, it provides that the 16 party that seeks review shall come to the 17 lower tribal, which is the trial court, 18 which is you, in this instance, and then 19 it's within your discretion either to stay 20 or not to stay under the circumstances, and 21 we simply don't have the time within which 22 to file the appeal under those 23 circumstances. 24 There are two criteria that have 25 to be met here, one is the likelihood of SUSAN S. WIGGINS. R.P.R. and OFFICIAL COURT REPORTER EFTA00180900 8 1 2 3 harm where no stay is granted, and the second criteria, not necessary mutually exclusive; that is, you don't have to have 4 both of them, but you certainly have to 5 give an indicia of both of them. The 6 7 8 second one is the likelihood of success on the merits. We believe that based upon the 9 Court decision, respectfully, that the 10 Court, that the Appellate Court, will quash 11 your order, for the reasons Judge Puccillo 12 was the one who requested that the document 13 in this -- this was argued yesterday, so 14 I'm going to be very brief. She is the one 15 who requested post sentencing, that the 16 document be filed under seal. It was her 17 request that the defense seceded to that 18 under the circumstances. That certainly 19 was inadvertent, could have just as easily 20 remained under seal with Mr. Goldberger or 21 with the State Attorney under those 22 circumstances. 23 Secondly, that it relates to the 24 portions of it, specifically, within the 25 MPA to deal with the grand jury proceeding, SUSAN S. WIGGINS. R.P.R. and OFFICIAL COURT REPORTER EFTA00180901 9 1 that would be a violation of Federal Rule 2 Six. I note you just handed us your order 3 about two minutes ago, Judge, so no one's 4 had an opportunity to review it, certainly 5 appellate counsel has not had an 6 opportunity to review it. I don't know if 7 you dealt with the appellate rule, but I do 8 note that within your written order, that 9 you, basically, said that in the second to 10 last page, you said this order is no way to 11 be interpreted as permission not to comply 12 with U.S. District Court Judge Marra's 13 previous orders. 14 We respectfully submit that it would 15 not comply with Judge Marra's previously 16 issued orders. We also believe that the 17 supremacy clause, as Mr. Goldberger argued 18 yesterday in conjunction with comity 19 principle, that we think that there's a 20 substantial likelihood on success of the 21 merits on this. 22 With regard to the likelihood of 23 harm, this is a paramount issue here. It's 24 undisputed that this was a confidential 25 agreement. It's a confidential contract SUSAN S. WIGGINS. R.P.R. and OFFICIAL COURT REPORTER EFTA00180902 10 1 between Mr. Epstein and the United States. 2 United States vigorously defended 3 Mr. Edwards when he came into federal court 4 and filed an action to have the MPA 5 released, Judge Marra subsequently entered 6 an order. Another attempt that was made to 7 make the MPA public again. 8 All plaintiffs' counsel has it. 9 The only ones that don't have it is the 10 Post, under the circumstances, and public 11 under the circumstances, but all the 12 plaintiffs' lawyers of the alleged victims, 13 they either have the MPA and the addendum, 14 which I will refer to as the MPA, or they 15 have the ability to get that. That is very 16 clear from Judge Marra's order. 17 So there's certainly no harm to 18 the plaintiffs from under these 19 circumstances. And the harm in this 20 instance is only to Mr. Epstein under the 21 circumstances because as Judge Letz 22 (phonetic) once said, it's very much like 23 an attorney/client privilege or a privilege 24 document where once the proverbial horse is 25 out of the barn, you can't get him back in. SUSAN S. WIGGINS. R.P.R. and OFFICIAL COURT REPORTER EFTA00180903 11 1 We cited a case called Mariner versus 2 Baker 3 -- So. 39, So.2d 608 First District 3 1989. In the Mariner case, this was not a 4 usual incident report and the Court, I know 5 your Honor previously did a great deal of 6 personal injury work and related work, 7 you're very familiar. In fact, you 8 commented yesterday and said, I don't see 9 how the MPA is going to be admissible in a 10 civil proceeding anyway. Again, you're not 11 ruling on that ultimately, the judges in 12 both the State and federal court cases will 13 do that. 14 In the Mariner case, the judge 15 ordered that the defendants object at the 16 direction of incident reports. The judge 17 said, sorry, you've got to produce those 18 incident reports. And the Court said, give 19 them to me under seal because, again, we 20 are talking about incident reports as 21 distinct from an agreement between two 22 parties which was deemed to be confidential 23 between the United States government and 24 Mr. Epstein. Only irreparable harm here as 25 to Mr. Epstein because if it's released, SUSAN S. WIGGINS. R.P.R. and OFFICIAL COURT REPORTER EFTA00180904 12 1 you cannot remedy that harm on appeal. 2 And in the Mariner case, if the judge 3 said, if you put the documents under seal, 4 which is exactly the situation we have now 5 is, I will grant the stay and let the 6 appellate court determine whether or not 7 incident reports, which have a much lower 8 threshold for production or for discovery 9 reasons, and, again, there's no harm in an 10 instance like that, even in an incident 11 report came out in the Mariner cases, so 12 what. It won't be used, you can't use any 13 of the information you obtained. In this 14 particular instance, because it is 15 confidential, there is no way the Court can 16 remedy the harm. 17 With regard to the defendants in this 18 case, again, I think we've demonstrated 19 both irreparable harm, and we believe a 20 substantial likelihood on the success. 21 Again, how do you demonstrate a substantial 22 likelihood on the success? The fact that 23 we would -- if this Court thought that we 24 should prevail, my guess, you would not 25 have ruled as you did, but as the Court is SUSAN S. WIGGINS. R.P.R. and OFFICIAL COURT REPORTER EFTA00180905 13 1 aware, oh, surprise to all of the lawyers 2 here. Sometimes judges get reversed. 3 know that's a shock to most of the lawyers 4 in this room and most of the courts, but 5 that happens on occasion, and, therefore, 6 we believe we can show through the 7 supremacy clause, the grand jury reference 8 that we will prevail and that your order 9 will be quashed. 10 With regard to alleged harm by any 11 other party, the Post in this instance 12 reported at the sentencing of Mr. Epstein 13 on or about June 30th of 2008. They waited 14 until June 1st of '09. This was such a 15 pressing issue, the Post wanted to get this 16 desperately out to the public, they were so 17 anxious to do it, that they waited 11 18 months before they did anything. 19 Mr. Edwards, who is not here 20 today, filed a federal court action and 21 those issues were talked about and 22 discussed at some length with regard to 23 Judge Marra's two orders. 24 Judge Marra's rule, you can't get 25 them, if you want to get them, go to that SUSAN S. WIGGINS. R.P.R. and OFFICIAL COURT REPORTER EFTA00180906 14 1 case, that would be Judge Hafele or two of 2 Mr. Edwards' cases are where is Mr. Kuvin's 3 case is or Judge Marra, where Mr. Edwards' 4 case is. Judge Marra can certainly control 5 whether or not they should be released, and 6 I've covered Mr. -- oh, and Mr. Edwards 7 because he could have gone back to Judge 8 Marra because he's got one federal court 9 case -- did he try for that form and get 10 it no, they came in here. He tried to 11 do it in a run around Judge Marra. 12 He didn't file his motion until 13 late May of '09. My guess is it was 14 Mr. Edwards who probably said to the Post, 15 gee, why don't you join in this, you 16 haven't been here for 11 months, why don't 17 you come in now, maybe intervene. And then 18 Mr. Kuvin, on behalf of his client, BB 19 estate court case, came in on June 11th, 20 again, almost a year to the date after 21 Mr. Epstein's sentence. 22 It's no burning issue, there's no 23 fire here to put out, giving us 30 days, or 24 at least a reasonable period of time to 25 file petition for writ, and then if the SUSAN S. WIGGINS. R.P.R. and OFFICIAL COURT REPORTER EFTA00180907 15 1 Court denies our stay at least asking the 2 appellate court for stay under the 3 circumstances. There's no harm to them. 4 The harm is only to Mr. Epstein, and we 5 think as a substantial likelihood, that we 6 would succeed. 7 Therefore, we would request the 8 Court grant a stay as I've suggested in my 9 proposed order for 30 days of giving 10 Ms. Walsh and Ms. Compiani an opportunity 11 to actually do their job under the 12 circumstances, so the court reporter 13 doesn't have to work over the weekend to 14 expedite transcripts for us, and secondly, 15 if we file within the 30 days, then let the 16 appellate court determine whether or not 17 the stay remains or not. 18 THE COURT: Thank you much. 19 Ms. Shullman, don't worry about 20 responding to the issue of motive or 21 seeking this relief or the timing of your 22 request or party's request. I don't think 23 that bears upon the merits of either 24 parties. 25 MS. SHULLMAN: The constitutional SUSAN S. WIGGINS. R.P.R. and OFFICIAL COURT REPORTER EFTA00180908 16 1 right of access doesn't have a waiver 2 provision, your Honor. 3 THE COURT: Well, go ahead. Let me 4 hear -- I'm on board so far with 5 Mr. Critton's version of, Judge, if you let 6 it out, you let it out, so irreparable harm 7 is kind of easy. I think that it is a 8 two-prong test. I think he's got to jump 9 over both hurdles. i think he's got to 10 show some likelihood of success. If you 11 want to spend some energy arguing that 12 there's no irreparable harm, you may do so, 13 but if I hand it out today and everybody 14 gets to see it, you can't fix that 15 tomorrow. 16 MS. SHULLMAN: Sure. 17 THE COURT: So I think they've 18 established that. 19 MS. SHULLMAN: Let me address that 20 very briefly first, your Honor, to remind 21 you in meeting this burden that they failed 22 to meet yesterday, they identified four 23 interests which they liken now to the 24 motion to stay to the four harms. 25 One, of -- for the first three of SUSAN S. WIGGINS. R.P.R. and OFFICIAL COURT REPORTER EFTA00180909 17 I I 1 1 I I I 1 them, they mentioned they have no standing 2 to assert the compelling government 3 interest, the government didn't show up, 4 the imminent threat to the administration 5 6 7 8 9 10 11 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 12 who are participants in crimes do not have 13 privacy rights with respect to the facts 14 and circumstances surrounding those crimes. 15 So unless I'm going hear something outside 16 of the context of Mr. Epstein's criminal 17 prosecution, he has no privacy right in 18 this agreement. 19 THE COURT: Let me share with you 20 what I'm thinking about doing, even at the 21 conclusion of Mr. Critton's presentation, 22 and that is deny the motion to stay, but 23 delay the release of the records in 24 question until noon Friday. That will give •25 them a little bit of time to see if the SUSAN S. WIGGINS. R.P.R. and OFFICIAL COURT REPORTER EFTA00180910 I 1 e I 1 2 3 4 5 6 7 8 9 10 11 12 18 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 13 the status quo here, we are in sort of a 14 strange procedural posture because your 15 Honor decided that the initial closure was 16 improper, but the recent request for 17 closure was denied, so instead of a status 18 quo where we have a document that should be 19 released, it's under seal where it 20 shouldn't be, so any moment that it is kept 21 under seal is a serious deprivation of the 22 public and the press's right to access, 23 which you have already determined they 24 have, we think you are correct, of course, 25 so I would ask that any stay -- • SUSAN S. WIGGINS. R.P.R. and OFFICIAL COURT REPORTER • EFTA00180911 19 1 MR. CRITTON: She's pandering, your 2 Honor. 3 MS. SHULLMAN: I will say he 4 respectfully disagreed with you, so I think 5 a week is too long. I do this day in and 6 day out, I have spent many a weekend on 7 these matters in my career. If you want to 8 give them till Tuesday, I'll be kind, but 9 the Fourth will act quickly on this. I 10 don't think that a week's delay is 11 necessary. I think, in fact, it under 12 minds the public purpose here. 13 THE COURT: All right. Any other 14 respondents want to go anything further? 15 MS. SHULLMAN: The State Attorney's 16 office also advises me that Friday is a 17 holiday and the courts are closed. 18 THE COURT: Thank you for telling me 19 that. Friday is a holiday. 20 MR. KUVIN: July 4th. 21 THE COURT: The day of the birth of 22 our constitution. 23 MR. KUVIN: Good morning, your Honor. 24 On behalf of intervenor BB, obviously, the 25 Court is inclined to delay the disclosure SUSAN S. WIGGINS. R.P.R. and OFFICIAL COURT REPORTER EFTA00180912 20 1 of this, but under Rule 9.310, if your 2 Honor were to issue such a stay, we would 3 point out the provision C of the rule, 4 which requires a posting of the bond. 5 We not only agree with your Honor's 6 ruling, but we believe such appeal they are 7 filing is absolutely frivolous and we are 8 going to be requesting fees and cost for 9 the filing of that appeal, so as a result, 10 we are requesting a bond be posted if a 11 stay of any type is issued in this case 12 because of the fact that we want to make 13 sure that our attorneys' fee and costs are 14 covered for the frivolous nature of the 15 appeal. And it's dictated strictly in 16 subsection A. It gives the Court the 17 authority. It says: 18 A stay pending review may be 19 conditioned upon a good and sufficient 20 bond, other conditions or both. Therefore, 21 we believe your Honor does have the 22 authority to issue such a requirement that 23 the posting of a bond be issued. 24 THE COURT: All right. Thank you 25 very much. I will deny the motion to stay. SUSAN S. WIGGINS. R.P.R. and OFFICIAL COURT REPORTER EFTA00180913 21 1 I will delay the release of the documents 2 until noon Thursday. I will deny the 3 request to compel the movant, the 4 defendant, Mr. Epstein, to post a bond, and 5 I'll let the appellate court tell us and 6 teach us what the law on this case will be. 7 It's always interesting how these 8 cases unfold and come to us a little 9 different than everyone else. Now, let me 10 have the attorneys come up here and 11 approach. 12 (The following proceedings were held 13 sidebar, out of the hearing of the jury.) 14 THE COURT: I reviewed the two 15 documents, I didn't see any kids' names in 16 there. Everybody was hinting the 17 children's names or the initials' names. I 18 had my big black highlighter out, I don't 19 see anything worth redacting, so. 20 MR. GOLDBERGER: It's the plaintiff's 21 document that identifies the children's 22 names. It's a letter to me actually. 23 THE COURT: I was wondering if 24 everybody thought there was something in 25 there that wasn't in there. SUSAN S. WIGGINS. R.P.R. and OFFICIAL COURT REPORTER EFTA00180914 22 i 1 MR. CRITTON: It's a test of your 2 skills, your Honor. 3 THE COURT: You're right, exactly. 4 One is page one through seven, and the 5 second one is just two pages that's not 6 even signed by everybody. 7 MR. GOLDBERGER: While we're all up 8 here chatting, there are references to 9 other names up here. 10 THE COURT: Yes, Mr. Goldberger, and 11 no one has identified in the document says 12 these are people that are not going to be 13 prosecuted. Mr. Kuvin made the argument 14 that these are co-conspirators. These are 15 innocent people that have nothing to do 16 with these proceedings. They have nothing 17 to do with 18 MS. SHULLMAN: They have a standing. 19 THE COURT: I will renew my ruling 20 that I gave you yesterday, and deny your 21 request to redact those names out of there. 22 All right, so I'll hang on to these till 23 Thursday at noon, and anybody that comes -- 24 wants to come and get them, I don't know if 25 there's a mechanism for -- I stand on the SUSAN S. WIGGINS. R.P.R. and OFFICIAL COURT REPORTER EFTA00180915 23 1 courthouse steps and pass them out. 2 MS. SHULLMAN: If there are no 3 redactions to be made. 4 THE COURT: No redaction. 5 MS. SHULLMAN: I would do an order 6 directing the Court to release them and 7 they may become unsealed. You don't 8 need 9 MS. COMPIANI: Your Honor, are you 10 going to write up a written order 11 denying -- 12 MR. GOLDBERGER: Are you going to do 13 that? 14 THE COURT: Put together a written 15 order? 16 MS. SHULLMAN: Denying the stay? 17 THE COURT: Yes, A, denying the stay; 18 B, delaying the disclosure or unsealing of 19 these documents until noon Thursday; C, 20 denying the motion for bond. 21 MR. GOLDBERGER: And you'll need that 22 order quickly. 23 THE COURT: Yeah, fax that and we'll 24 get it signed quick today. 25 MR. GOLDBERGER: Are you forcing the SUSAN S. WIGGINS. R.P.R. and OFFICIAL COURT REPORTER EFTA00180916 24 1 court reporter to work over the weekend so 2 we can get a transcript? 3 MR. CRITTON: Thank you, your Honor, 4 for moving us this morning. 5 (Side bar conference held outside the 6 hearing of the jury concluded.) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SUSAN S. WIGGINS. R.P.R. and OFFICIAL COURT REPORTER EFTA00180917 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 proceedings. 16 17 18 June 2009. 19 20 21 22 23 24 25 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 IN WITNESS WHEREOF, I have hereunto affixed my official signature this 29th day of (Too (23 6\.) SUSAN S. WIGGINS,R.P.R. SUSAN S. WIGGINS. R.P.R. and OFFICIAL COURT REPORTER EFTA00180918 1 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been sent by E-Mail and Federal Express this 30*-4 day of June, 2009, to: JEFFREY H. SLOMAN U.S. Attorney's Office-Southern District 500 South Australian Avenue, Suite 400 West Palm Beach, FL 33401 WILLIAM J. BERGER ROTHSTEIN ROSENFELDT ADLER 401 East Las Olas Boulevard, Suite 1650 Fort Lauderdale, FL 33394 Counsel for E.W. SPENCER T. KUVIN LEOPOLD-KUVIN, P.A. 2925 PGA Boulevard, Suite 200 Palm Beach Gardens, FL 33410 Counsel for B.B. JUDITH STEVENSON ARCO State Attorney's Office-West Palm Beach 401 North Dixie Highway West Palm Beach, FL 33401 DEANNA K. SHULLMAN 400 North Ashley Drive, Suite 1100 P. O. Box 2602 (33601) Tampa, FL 33602 Counsel for The Palm Beach Post HONORABLE JEFFREY COLBATH Palm Beach County Courthouse 205 North Dixie Highway Room 11F West Palm Beach, FL 33401 ROBERT D. CRITTON BURMAN, CRITTON, LUTTIER & COLEMAN 515 North Flagler Drive, Suite 400 West Palm Beach, FL 33401 and JACK A. GOLDBERGER ATTERBURY, GOLDBERGER & WEISS, P.A. 250 Australian Avenue South, Suite 1400 West Palm Beach, FL 33401 EFTA00180919 JANE ICREUSLER-WALSH and BARBARA J. COMPIANI of KREUSLER-WALSH, COMPIANI & VARGAS, P.A. 501 South Flagler Drive, Suite 503 West Palm Beach, FL 33401-5913 (561) 659-5455 janewalsh@jkwpa.com Counsel for Petitioner By: - 1=17 -B7 -i t-WALSH lorida Bar No. 272371 EFTA00180920