035.pdf

IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
CRIMINAL DIVISION

STATE OF FLORIDA
vs.
JEFFREY EPSTEIN

Case Nos.: 2006-CF-004542-AXX
2008-9381CF-AXX

FILED
09 JUN -2 PM 3:43
CLERK NY
PALM BEACH COUNTY, FL

PALM BEACH POST'S MOTION TO INTERVENE
AND PETITION FOR ACCESS

Palm Beach Newspapers, Inc., d/b/a The Palm Beach Post (the "Post") moves to
intervene in this action for the limited purpose of seeking access to documents filed under seal.
The documents relate directly to the Defendant's guilty plea and sentence. Thus, the sealed
documents go to the heart of the disposition of this case. But in requesting that Judge Pucillo
seal these documents, the parties failed to comply with Florida's strict procedural and substantive
requirements for sealing judicial records. In addition, continued sealing of these documents is
pointless, because these documents have been discussed repeatedly in open court records. For all
of these reasons, the documents must be unsealed. As grounds for this Motion, the Post states:

1. The Post is a daily newspaper that has covered this matter and related
proceedings. In an effort to inform its readers concerning these matters, the Post relies upon
(among other things) law enforcement records and judicial records.

2. As a member of the news media, the Post has a right to intervene in criminal
proceedings for the limited purpose of seeking access to proceedings and records. See Barron v.
Florida Freedom Newspapers, Inc., 531 So. 2d 113, 118 (Fla. 1988) (news media have standing
to challenge any closure order); Miami Herald Publ'g Co. v. Lewis, 426 So. 2d 1, 7 (Fla. 1982)
(news media must be given an opportunity to be heard on question of closure).

NOT A CERTIFIED COPY

3. The particular documents under seal in this case are a non-prosecution agreement
that was docketed on July 2, 2008, and an addendum docketed on August 25, 2008. Together,
these documents apparently restrict any federal prosecution of the Defendant for offenses related
to the conduct to which he pleaded guilty in this case. Judge Pucillo accepted the agreement for
filing during a bench conference on June 30, 2008. The agreement, Judge Pucillo found, was "a
significant inducement in accepting this plea." Such agreements and related documents typically
are public record. See Oregonian Publishing Co. v. United States District Court, 920 F.2d 1462,
1465 (9th Cir. 1990) ("plea agreements have typically been open to the public"); United States v.
Kooistra, 796 F.3d 1390, 1390-91 (11th Cir. 1986) (documents relating to defendant's change of
plea and sentencing could be sealed only upon finding of a compelling interest that justified
denial of public access).

4. The Florida Constitution provides that judicial branch records generally must be
open for public inspection. See Art. I, § 24(a), Fla. Const. Closure of such records is allowed
only under narrow circumstances, such as to "prevent a serious and imminent threat to the fair,
impartial and orderly administration of justice," or to protect a compelling governmental interest.
See Fla. R. Jud. Admin. 2.420(c)(9)(A). Additionally, closure must be effective and no broader
than necessary to accomplish the desired purpose, and is lawful only if no less restrictive
measures will accomplish that purpose. See Fla. R. Jud. Admin. 2. 420(c)(9)(B) & (C); Lewis,
426 So. 2d at 3.

5. In this case, the non-prosecution agreement and, later, the addendum were sealed
without any of the requisite findings. Rather, it appears from the record, the documents were
sealed merely because the Defendant's counsel represented to Judge Pucillo that the non-
prosecution agreement "is a confidential document." See Plea Conference Transcript page 38

(June 30, 2008). Such a representation falls well short of demonstrating a compelling interest, a
genuine necessity, narrow tailoring, and that no less restrictive measures will suffice.
Consequently, the sealing was improper and ought to be set aside.

6. In addition, at this time good cause exists for unsealing the documents because of
their public significance. Since the Defendant pleaded guilty to soliciting a minor for
prostitution, he has been named in at least 12 civil lawsuits that – like the charges in this case –
allege he brought and paid teenage girls to come his home for sex and/or "massages."1 At least
11 cases are pending. In another lawsuit, one of the Defendant's accusers has alleged that
federal prosecutors failed to consult with her regarding the disposition of possible charges
against the Defendant.2 State prosecutors also have been criticized: The Palm Beach Police
Chief has faulted the State Attorney's handing of these cases as "highly unusual" and called for
the State Attorney's disqualification. Consequently, this case – and particularly the Defendant's
agreements with prosecutors – are of considerable public interest and concern.

7. The Defendant's non-prosecution agreement with federal prosecutors also was
important to Judge Pucillo. As she noted in the June 2008 plea conference, "I would view [the
non-prosecution agreement] as a significant inducement in accepting this plea." See Plea
Conference Transcript page 39. Florida law recognizes a strong public right of access to
documents a court considers in connection with sentencing. See Sarasota Herald Tribune, Div.

1 See, e.g., Doe v. Epstein, Case No. 08-80069 (S.D. Fla. 2008); Doe No. 2 v. Epstein,
Case No. 08-80119 (S.D. Fla. 2008); Doe No. 3. v. Epstein, Case No. 08-80232 (S.D. Fla. 2008);
Doe No. 4. v. Epstein, Case No. 08-80380 (S.D. Fla. 2008); Doe No. 5 v. Epstein, Case No. 08-
80381 (S.D. Fla. 2008); C.M.A. v. Epstein, Case No. 08-80811 (S.D. Fla. 2008); Doe v. Epstein,
Case No. 08-80893 (S.D. Fla 2008); Doe No. 7 v. Epstein, Case No. 08-80993 (S.D. Fla. 2008);
Doe No. 6 v. Epstein, Case No. 08-80994 (S.D. Fla. 2008); Doe II v. Epstein, Case No. 09-80469
(S.D. Fla. 2009); Doe No. 101 v. Epstein, Case No. 09-80591 (S.D. Fla. 2009); Doe No. 102 v.
Epstein, Case No. 09-80656 (S.D. Fla. 2009); Doe No. 8 v. Epstein, Case No. 09-80802 (S.D.
Fla. 2009).
2 See In re: Jane Doe, Case No. 08-80736 (S.D. Fla. 2008).

of the New York Times Co. v. Holtzendorf, 507 So. 2d 667, 668 (Fla. 2d DCA 1987) ("While a
judge may impose whatever legal sentence he chooses, if such sentence is based on a tangible
proceeding or document, it is within the public domain unless otherwise privileged."). In this
case, no interest justifies continued sealing of these "significant" documents that Judge Pucillo
considered in accepting the plea and sentencing the Defendant. The lack of any such
compelling interest – as well as the parties' failure to comply with the standards for sealing
documents initially – provide good cause for unsealing the documents at this time.

8. Finally, continued closure of these documents is pointless, because many portions
of the sealed documents already have been made public. For example, court papers quoting
excerpts of the agreement have been made public in related federal proceedings.3 As the Florida
Supreme Court has noted, "there would be little justification for closing a pretrial hearing in
order to prevent only the disclosure of details which had already been publicized." Lewis, 426
So. 2d at 8. Similarly, in this case, to the extent that information already has been made public,
continued closure is pointless and, therefore, unconstitutional.

9. The Post has no objection to the redaction of victims' names (if any) that appear
in the sealed documents. In addition, insofar as the Defendant or State Attorney seek continued
closure, the Post requests that the Court inspect the documents in camera in order to assess
whether, in fact, continued closure is proper.

3 See, e.g., "Defendants Jeffrey Epstein and Sarah Kellen's Motion for Stay," C.M.A. v.
Epstein, Case No. 08-80811 (S.D. Fla. July 25, 2008) (filed publicly Jan. 7, 2009).

WHEREFORE, the Post respectfully requests that this Court unseal the non-prosecution
agreement and addendum and grant the Post such other relief as the Court deems proper.

Respectfully submitted,
THOMAS, LOCICERO & BRALOW PL
Deanna K. Shullman
Florida Bar No.: 0514462
James B. Lake
Florida Bar No.: 0023477
101 N.E. Third Avenue, Suite 1500
Fort Lauderdale, FL 33301
Telephone: (813) 984-3060
Facsimile: (813) 984-3070
Attorneys for The Palm Beach Post

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished
via facsimile and U.S. Mail to: R. Alexander Acosta, United States Attorney's Office - Southern
District, 500 S. Australian Ave., Ste. 400, West Palm Beach, FL 33401 (fax: 561-820-8777);
Michael McAuliffe, Esq., and Judith Stevenson Arco, Esq., State Attorney's Office - West
Palm Beach, 401 North Dixie Highway, West Palm Beach, FL 33401 (fax: 561-355-7351); Jack
Alan Goldberger, Esq., Atterbury Goldberger, et al., 250 S. Australian Ave., Ste. 1400, West
Palm Beach, FL 33401 (fax: 561-835-8691); and Bradley J. Edwards, Esq. and William J.
Berger, Esq., Rothstein Rosenfeldt Adler, 401 East Las Olas Blvd., Suite 1650, Fort Lauderdale,
FL 33394 (fax: 954-527-8663) on this 1st day of June, 2009.

Rachel Fugate
Attorney