In In re Wild, No. 19-13843 (Ap. 14, 2020) (Newsom, Tjoflat, Hull), the Court denied a petition for mandamus brought by victims of Jeffrey Epstein.
The Court held, reluctantly, that the rights of victims under the Crime Victims’ Rights Act of 2004, including the right to confer with prosecutors and be treated fairly, do not attach until federal criminal proceedings are initiated. Here, there was no federal criminal proceeding brought. So, despite evidence of a secret non-prosecution agreement between the government and Epstein, the victims’ statutory rights were never triggered. The majority “sincerely regrets” this outcome but thinks it is compelled by the statute Congress wrote.
Judge Tjoflat concurred in full, but wrote separately to explain that allowing victims to sue prosecutors to enforce a right to confer pre-charge would require courts to interfere with the executive’s investigation and prosecution of crimes, and that would raise serious separation of powers problems.
Judge Hull authored a lengthy dissent, opining that the statute confers rights on victims before charges are brought. She criticized the majority for effectively deprived the victims of any rights at all for the government’s egregious violations in this case. She and the majority criticized each other for their rhetoric.