Unlocking the secret buried in Jeffrey Epstein's Palm Beach County grand jury records

Palm Beach Post - 5/30/2020

For more than 15 years, the justice system has allowed one of the most confounding mysteries surrounding serial child molester Jeffrey Epstein to remain shrouded in secrecy.

Why, when the multimillionaire was accused by police of sexually assaulting nearly two dozen girls at his Palm Beach mansion, was he indicted on only a single charge of solicitation of prostitution?

To unlock the secret, The Palm Beach Post is headed to court this week to ask a Palm Beach County Circuit Court judge to ignore protests from State Attorney Dave Aronberg and courts Clerk Sharon Bock and open long-sealed grand jury records to public view.

The records would reveal why only one of Epstein's young accusers was called to testify, what the 14-year-old was asked, whether her credibility was attacked and what other evidence was presented by then-State Attorney Barry Krischer's top prosecutors.

Most importantly, it would help explain why grand jurors didn't, as police recommended, charge Epstein with multiple child molestation crimes and instead indicted him for solicitation of prostitution, ignoring that the victim who testified was under the age of 16 and therefore couldn't consent to having sex.

The newspaper's quest is lofty, perhaps even quixotic.

Few times in the nation's history have courts agreed to lift the curtain, exposing the inner workings of grand juries.

>> Read The Post's investigation: "Epstein case: The First Failure"

Chief Circuit Judge Krista Marx emphasized just that when she rejected a similar request from a special prosecutor who was appointed by Gov. Ron DeSantis to investigate whether Krischer and the sheriff's office bowed to pressure from Epstein's high-powered lawyers and gave him special treatment.

"Throughout its long history, secrecy has been an integral component of grand jury proceedings," Marx wrote in January, when she rejected Treasure Coast State Attorney Bruce Colton's attempt to get transcripts from the 2006 grand jury.

But, Marx left the door cracked. If Colton finds evidence that wrongdoing occurred in the grand jury room before he wraps up his year-long investigation in August, she said she might be willing to reconsider her decision and release at least some of the records.

In the interest of justice

While mindful of Marx's ruling, lawyers for the newspaper claim their request is different from the one Marx rejected.

Like Colton, they claim that releasing the grand jury transcripts would further the interest of justice. That is one of the few reasons the secrecy of the grand jury can be pierced.

>> A decade of coverage: See the original Epstein stories

But, rather than using the information as part of an investigation, the newspaper wants to release it so the public can decide whether the self-described money manager who hung himself in a New York City jail cell last year was treated differently because of his wealth and political connections.

"Access to the grand jury materials will allow the public to determine whether the grand jury process, and the secrecy that comes with it, was used to further justice or, instead, operated to shield Epstein and his co-conspirators from the consequences of their criminal activities," The Post's attorneys, who include Boca Raton'sStephen Mendelsohn, wrote in the request.

Releasing the documents would end speculation about why Epstein wasn't treated more harshly to begin with, setting the stage for him to cut a deal with then-South Florida U.S. Attorney Alexander Acosta, the newspaper's attorneys claim. Under the controversial nonprosecution agreement, Epstein escaped a 53-page federal indictment by pleading guilty to two state prostitution charges.

He served 13 months of an 18-month sentence in a largely vacant wing of the County Stockade -- a cell he was allowed to leave six days a week, 12 hours a day even though he was a registered sex offender.

While out of his cell, working at his West Palm Beach office, he had sex with a woman while under guard by sheriff's deputies, according to a lawsuit filed after his death while awaiting trial on child sex trafficking charges that could have sent him to prison for more than 45 years.

>> See the Epstein biography buried for a decade, did he write it himself?

The decade-long saga and the international outrage it sparked could have been avoided if Krischer had followed the recommendations of Palm Beach police in 2006, Post attorneys claim.

"No reasonable explanation has been provided as to why the numerous other known victims were not presented as witnesses and crime victims to the grand jury convened in July 2006," they wrote. "Nor has any reasonable explanation been provided as to why State Attorney Krischer, who was initially eager to investigate and prosecute Epstein for his crimes, over time lost the desire to do so."

Release of the grand jury documents could answer those questions, they said. "Transparency is required to promote public understanding of the criminal justice system and public confidence in the fair administration of justice," they wrote.

A tool for prosecutors

That such a request even has to be made rankles defense attorneys. The secrecy of the grand jury, a procedure the nation's Founding Fathers imported from England, has long outlived its usefulness and should be abandoned, they said.

While grand juries are required in federal court, even England and about half of the nation's 50 states no longer use them, according to the American Bar Association.

"Grand jury secrecy rules are outdated," said defense attorney Richard Lubin. "It's just one of those traditions. It's a 'that's the way we've always done it' kind of thing."

In the centuries since the system was adopted, it has been transformed from a means to ferret out the truth and instead become a tool prosecutors can use to escape public criticism for unpopular charging decisions made in high-profile cases or to hide information from the defense, attorneys say.

>> Palm Beach Post sues for grand jury records

If police officers and others testify truthfully before the panel of citizens, there is nothing to hide, said West Palm Beach defense attorney Michael Salnick. If witnesses lie or prosecutors mislead the jury, those indicted, their attorneys and even the public should have the right to know about it, he said.

"I don't know what the big secret is," Salnick said.

Refused in Garner, Brown cases

Attorney John Howe compared a grand jury to a police investigation. Once police have completed their work, the information they have uncovered becomes public. The same rules should apply to grand juries, he said.

"Once the grand jury proceedings are over, it's not just in the public's interest but it's the right of the public to know what happened behind closed doors," Howe said.

>> Many teen victims of sex abuse got raw deal under Krischer

In recent years, the failure of grand juries to indict police officers for killing unarmed black men has increased public interest in knowing what happens in the secret proceedings.

In two 2014 cases -- the choke-hold death of Eric Garner by a New York police officer and the fatal shooting of Michael Brown by a Missouri police officer that sparked days of rioting -- lawsuits were filed, challenging the secrecy of the grand jury process. Both failed.

In upholding a lower court decision, a New York appeals court rejected a request by the NAACP, the New York City public advocate and others to release transcripts of the grand jury proceedings that cleared the officer of wrongdoing in Garner's death.

"The public interest in disclosure was outweighed by the dangers inherent in violating the secrecy of the grand jury process," it ruled.

>> VIDEO: What the victims saw in Jeffrey Epstein's home

In an unusual move, designed to quell public outrage, the St. Louis County prosecuting attorney released redacted transcripts from the grand jury that refused to indict the police officer in Brown's death.

But, one of the jurors sued, claiming the prosecutor misrepresented what went on in the secret hearing. She challenged a law that makes it a crime for grand jurors to disclose what happens behind closed doors. That request, too, was denied.

"Affording a grand juror unrestrained ability to disclose her interpretation of what happened in the proceedings completely destroys the idea of secrecy, which is crucial to the proper functioning of the grand jury process," a Missouri appeals court wrote.

Secrecy is important, it ruled. It safeguards the jurors from harassment, allows witnesses to speak candidly and protects "the integrity of the grand jury process by shielding witnesses from threats, bribes, or other means of inducing fabricated testimony," it said.

Make it all public

But, Lubin said, such lofty sentiments ignore that some grand jury testimony in federal cases is required to be released to defense attorneys. Further, it ignores that such protections aren't in place everywhere in the country.

"So, what, is secrecy more important in Florida than in New Mexico, or wherever?" he asked.

He acknowledged that provisions should be put in place that would prevent the release of some information, such as the names of sex abuse victims or to protect national security.

>> The open secret at Royal Palm Beach High

"But most grand jury material isn't dangerous, mysterious or inflammatory," he said. "It's pretty run of the mill stuff."

Rules should be in place that would allow the release of grand jury testimony but give prosecutors the opportunity to block it for valid reasons, he said.

"The presumption should be that it does get released but allow prosecutors to argue why it shouldn't be," Lubin said.

As a defense attorney, Darren Shull said he understands Lubin's concerns. But, as a former prosecutor, he said he realizes the danger of allowing the release of grand jury transcripts.

"Having it open to anybody to view would certainly have a chilling effect," he said. "It's a good idea to keep the process uninhibited and to keep law enforcement, prosecutors, witnesses and jurors free from harassment."

To attorneys representing Aronberg and Bock, the issue is much more clear-cut: The law gives the newspaper no right to publish transcripts of grand jury proceedings and its claims of "furthering justice" are flimsy at best.

Critics of the grand jury system say it leans too far in favor of the prosecution. With no legal training, grand jurors are easily swayed to do prosecutors' bidding, they say. A prosecutor could "indict a ham sandwich," they say.

Shull scoffs at the well-worn attack on the grand jury system. "That's an awful good prosecutor," he said with a laugh.

Ham sandwich aside, The Post attorneys said, there should be exceptions that allow the release of grand jury materials. Like Lubin, they said, the names of Epstein's victims and other sensitive material should be redacted.

>> Conflict of interest? Krischer retained role at state attorney's office

But, few details about Epstein's exploits are unknown. Since his death, dozens of women have talked publicly about the abuse they suffered. Hundreds of newspaper and magazine stories have been published and scores of television news programs have been broadcast. A multi-part Netflix series is being aired.

Still, they say, troubling questions remain that can only be answered by the release of the grand jury transcripts.

"In a case of this magnitude and importance, where the accused is dead and so many of his crimes, as well as the identities and crimes of his co-conspirators, and the identities of the victims have already been exposed, the need for grand jury secrecy is no more," they said.

jmusgrave@pbpost.com

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