Epstein Data Wiki

Ruth Pickholz

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tagsperson, judge, new-york, sora, epstein-new-york-cases
aliasesJustice Ruth Pickholz, Hon. Ruth Pickholz, Ruth Pickholz J.

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RoleJustice of the Supreme Court of the State of New York, New York County, Criminal Term, Part 66 (2010–2011)1
Epstein matterPresided over Jeffrey Epstein’s Sex Offender Registration Act risk-level hearing, January 18, 20112
RulingAdjudicated Epstein a level three sex offender; unanimously affirmed on appeal, November 17, 201134
CasePeople v. Epstein, Ind. No. 30129/2010 (N.Y. Sup. Ct., N.Y. Cnty.)24

Ruth Pickholz was, in 2010 and 2011, a Justice of the Supreme Court of the State of New York in New York County, sitting in Criminal Term, Part 661 (the hearing transcript’s own caption reads “Trial Term”2). On January 18, 2011 she presided over the Sex Offender Registration Act (SORA) hearing that set Jeffrey Epstein’s New York sex-offender risk level, and she adjudicated him a level three offender, the highest of the three levels, after the New York County District Attorney’s Office had itself sought a level one classification at the hearing and Epstein’s counsel joined in that application.54 The Appellate Division, First Department, unanimously affirmed her order on November 17, 2011.4 Her remarks from the bench at the hearing were quoted in Epstein’s appellate brief, in the District Attorney’s answering brief, in the 2019 federal bail proceedings before Judge Richard M. Berman, and in press coverage of the case; both parties’ briefs on the appeal were themselves filed under seal, and are discussed below.6789

A search of the released files for “Pickholz” returns 192 hits across 89 documents; the variant “Pickholtz” adds one hit in a further document, and “Picholz” and “Pickolz” return nothing. The documents are not confined to the three categories one might expect (this SORA proceeding and its appeal, the 2019 federal bail proceedings in which it was discussed, and press reporting); they also include a separate 2018–19 motion practice in the Appellate Division, First Department, in which a newspaper sought to unseal the appellate briefs quoted on this page (see NYP Holdings, Inc., which carries that sequence and links back here three times), and a law firm’s own billing records, which itemize hours, rates and disbursements on the matter and are not otherwise used on this page.10

The SORA proceeding

Epstein’s 2008 Florida convictions, for procuring a person under 18 for prostitution and felony solicitation of prostitution, required him to register as a sex offender in states where he had a home, including New York.1112 On August 26, 2010 the Supreme Court, Criminal Term, New York County wrote to Epstein at his New York address that a risk-level hearing had been scheduled for September 15, 2010 at 9:30 a.m. before Pickholz in Part 66, and enclosed the Board of Examiners of Sex Offenders’ summary and its recommendation that he be assigned a risk level of three.1 A parallel letter went to counsel the same day.13

On September 7, 2010 Jay P. Lefkowitz of Kirkland & Ellis wrote to Pickholz by facsimile asking for a continuance, saying the firm “was only recently retained by Mr. Epstein to represent him in this matter” and that it would need time “to collect information to prepare for the hearing”; the letter offered dates on or after October 4, 2010.14 The hearing was adjourned; by late October the parties were working to a hearing date of November 9, 2010.15 Writing to ADAs Gaffney and Egan that October, Lefkowitz enclosed “a select sampling” of materials he said exposed “the stark contrast between the inflammatory, speculative case summary presented by the Board of Examiners” and the actual evidence, and said the defense “hope[d] and expect[ed]” the materials “will validate our position that Mr. Epstein should most appropriately be designated as a Level 1 offender,” the position the District Attorney’s Office itself argued for by the time of the hearing.15 It was ultimately held on January 18, 2011.2

The hearing of January 18, 2011

The hearing took place at 111 Centre Street, New York.2 Jennifer Gaffney appeared for the People, from the office of District Attorney Cyrus R. Vance, Jr.; Jay Lefkowitz and Sandra Musumeci appeared for Epstein, who did not attend and whose appearance his counsel waived.216

The People’s position

Gaffney told the court that the People had received the Board’s level three recommendation but did not “believe that we can rely on the entire probable cause affidavit” from Florida, because of the victims described in that affidavit the Florida authorities “actually only went forward on one case.”16 She cited the Board’s own risk-assessment guidelines, under which “if an offender is not indicted for an offense, it is strong evidence that the offense did not occur,” and said the People could not treat the uncharged conduct as clear and convincing evidence where “the prosecutor’s office never went forward on it.”17 Relaying what she described as the Florida prosecution’s own account rather than her own knowledge, she added: “The prosecution said that the victims, although they spoke to the police early on, did not cooperate with them.”17 Pressed by the court, Gaffney said she had spoken to the prosecutor who took over the Florida case but not to the prosecutor who had handled it; the court replied, “You did not speak to the prosecutor yourself, you did not speak to them, that is hearsay. You did not speak to the prosecutor that handled the case,” and, after Gaffney agreed, “I don’t think you did much of an investigation here.”18

The court’s response

Pickholz said she had never seen a district attorney’s office take such a position:

But the board found a Level Three. I have to tell you, I am a little overwhelmed because I have never seen the prosecutor’s office do anything like this. I have never seen it.17

Comparing the case to an earlier matter before her in which the People had refused a downward modification, she added: “I could cite many many, I have done many SORAs much less troubling than this one where the People would never make a downward argument like this.”19 Gaffney replied that she agreed it was “incredibly unusual for us to make a downward argument,” but that the Board’s recommendation appeared to contradict its own guidelines.19

The defense argument

Musumeci argued that Epstein was not a New York resident, that his primary residence was in the U.S. Virgin Islands, that he was registered at the lowest level available in the Virgin Islands and in Florida, and that New Mexico had determined he need not register at all.2012 She said a level three classification “would actually require him to come to New York more than he does normally,” because it would require him to appear every 90 days to renew his registration.5 Later in the hearing she said: “I am sorry he may have to come here every 90 days. He can give up his New York home if he does not want to come every 90 days.”3 Musumeci also told the court that the parties had met and that the defense had supplied materials to the District Attorney’s office, and joined in the People’s application.521 When Gaffney described the complainant’s age at the time of the charged conduct, Pickholz said, “She is a child.”22

The ruling

Pickholz adjudicated Epstein a level three sex offender with no further designation, saying “I rely on the board.”323 Asked by Musumeci for the scoring “for purposes of the appeal,” she read the Board’s risk-assessment factors into the record one by one. She agreed outright with only two: sexual contact with the victim (25 points) and the absence of any mental disability or helplessness (“I agree” on each).23 On the number of victims (“three or more,” the factor central to a level-three finding, where Epstein had pleaded guilty to conduct involving only one), she adopted the finding over the defense’s standing objection to its reliability, noting on the record: “apparently there were more than one and I think the People concede that although they say it was not reliable.”23 On the age of the victim (20 of the points scored were for a victim between 11 and 16), she made a contested finding of fact against the defense’s own argument, stating “she was 16 at the time”; Musumeci had argued earlier in the hearing that there was “no clear and convincing evidence as to her specific age at the time of the specific conduct.”2223 The remaining factors (use of violence, 10 points; duration of the offense; relationship to the victim; age at first act; prior criminal history; recency; substance abuse; acceptance of responsibility; conduct while confined; and supervision and living situation) she read into the record as the Board had scored them, without stating agreement or disagreement.2324 Of the 130-point total, she said: “They gave him 130 points, which is the highest level, and I agree with that.”24 Lefkowitz then argued that the Board had relied on a Florida police report the lead sex-crimes prosecutor there had found not credible, and that sworn testimony taken since in civil litigation had the complainants themselves “disclaiming much of what appears in the police report.”24 Pickholz closed the hearing: “I feel the board looked into all of this, made their recommendation, found him to have 130 points and I see no reason to disturb that.”25 On January 19, 2011 the court’s correspondence unit transmitted the final determination, risk level three, to the Sex Offender Registry Unit of the New York State Division of Criminal Justice Services.26

The appeal

Epstein appealed. His brief, filed by Kirkland & Ellis, argued that the level three finding lacked record support and that Pickholz’s conduct of the hearing was improper. It said her comparison of his case to an earlier one was “improper and highly irregular,” that in telling him he could “give up his New York home if he does not want to come every 90 days” she “abandoned any semblance of judicial objectivity,” and that “the Court improperly allowed its judgment to be clouded by apparent personal disdain for Appellant.”6 A footnote to that page raised the brief’s only concrete, checkable objection to the scoring itself: “Significantly, the Court in fact scored 10 points against Appellant for forcible compulsion, despite the parties’ agreement that there was no legitimate evidentiary basis to score Appellant for the use force or violence.”27 On that basis it asked that any remand be to a different Justice, arguing that “the Court’s apparent personal distaste for Appellant has eliminated any likelihood that Appellant will receive a fair redetermination hearing should this matter be remanded back to the same Justice.”28

The District Attorney’s office, which had argued for level one at the hearing, defended the ruling on appeal. Its brief said that at the hearing the People had been “[a]pparently misapprehending the governing legal standards” and had relied on “a mistaken interpretation of the governing legal standards and certain secondhand information about the Florida case.”2930 Answering the bias claim, it argued that “any ‘personal’ disdain displayed by the court was directed at the prosecutor, not at defendant,” and that the level three designation “was the product of its reasoned evaluation of the severity of the conduct that he had committed, and not any personal animus toward him.”7

The Appellate Division, First Department, decided the appeal on November 17, 2011 and unanimously affirmed, without costs.431 It held that “[c]lear and convincing evidence, including reliable hearsay … supported the assessment of points for risk factors sufficient for a level three sex offender adjudication,” and that “[i]n the circumstances of this case, the court properly relied on highly reliable proof of criminal conduct for which defendant was neither indicted nor convicted.”4 On the significance of the Florida charging decisions it said: “here the strong evidence that the offenses against the other victims did occur outweighs any inferences to be drawn from the manner in which this case was prosecuted in Florida. The reasons for the actions taken by the Florida authorities remain unclear on this record. The record permits competing inferences. In any event, the hearing court was entitled to rely on the reliably proven facts themselves, and was not necessarily bound by any exercises of prosecutorial discretion.”4 It recorded that “[a]t the hearing, the People mistakenly conceded that the conduct for which defendant was not indicted should not be considered, and that defendant should be adjudicated a level one offender,” and rejected Epstein’s argument that the People should be estopped from changing position: “These were legal arguments that the court rejected, and it is the court’s determination that we review on this appeal.”4 On the fairness of the hearing itself (the subject of the bias claim, though the court did not address that claim by name), it held that “when the court announced that it was rejecting the People’s position and would consider the offenses against additional victims, defendant did not request any opportunity to challenge the reliability of the additional charges. Accordingly, defendant was not deprived of a fair opportunity to litigate the issue.”4 It held that “[d]efendant’s remaining claims are improperly raised for the first time on appeal … and are unavailing in any event.”4 The panel was Mazzarelli, J.P., Sweeny, Moskowitz, Acosta and Abdus-Salaam, JJ.4

Both briefs were filed under seal. The People’s brief carries on its cover the legend: “Pursuant to Civil Rights Law § 50-b, the identities of the victims, who are the victims of sex offenses, shall be confidential, and this document shall not be made available for public inspection.”32 Seven years later, NYP Holdings, Inc., publisher of the New York Post, twice moved the Appellate Division under 22 NYCRR § 1250.1(e)(3) for an order unsealing both parties’ briefs, with victims’ names redacted: first on December 21, 2018, withdrawn without prejudice on January 4, 2019 after the District Attorney’s Office objected that the newspaper had not given the notice New York Civil Rights Law § 50-b requires; then refiled on January 11, 2019, after notice to the Florida prosecutors, whereupon the District Attorney’s Office objected again on the same ground. Epstein’s counsel did not oppose the request. No order of the Appellate Division resolving either motion was returned by the searches described there. The full sequence and the underlying documents are at NYP Holdings, Inc..33

Later citation of the ruling

The hearing transcript was filed as an exhibit in the Crime Victims’ Rights Act litigation in the Southern District of Florida in October 2011.34

At Epstein’s federal bail hearing on July 15, 2019, Judge Richard M. Berman told the parties he had read the transcript that morning and placed it on the docket the same day.3536 Reading from it, he said: “Back to Judge Pickholz, she says, among other things, but the board found a level 3. Then she goes on to say: ‘I have to tell you, I’m a little overwhelmed because I have never seen the prosecutor’s office do anything like this. I have never seen it.’”37 In the written decision remanding Epstein, issued on July 18, 2019, Berman wrote that “Judge Pickholz appeared to be stunned by the joint Defense Counsel/District Attorney application,” quoted her remarks, and noted that her decision “was unanimously affirmed, on November 17, 2011, by a panel of five judges of the Appellate Division of the New York State Supreme Court.”8

Two press pieces in the release reported on the hearing, one of them years before the transcript resurfaced in 2019. The Palm Beach Daily News reported the affirmance on November 21, 2011 under the headline “Epstein must register as NY’s highest level sex offender,” already quoting Pickholz’s “give up his New York home” remark from the hearing.9 The Wall Street Journal reported on August 18, 2019, in a piece by Joe Palazzolo, that Manhattan prosecutors had agreed to seek a low-risk designation after receiving submissions from Epstein’s lawyers, that Gaffney was the deputy chief of the sex crimes unit and Patrick Egan the other assistant district attorney involved, and that the District Attorney’s office changed its position after Epstein appealed.38 The same piece carries Gaffney’s own account of the determination the page’s quotations are otherwise adverse to her for: “After two months of seeking out additional information, I still had nothing more. At that time, I made a legal determination that I could not rely solely on the police reports,” she said, adding that she had told Epstein’s lawyers by email that the office would consent to a low-risk designation.38 It also quotes Stephen Weber, a former member of the Board of Examiners who had reviewed Epstein’s case, calling the office’s position “extremely unusual”: “Generally speaking, most [district attorneys] want an upward departure, never down,” he said.38

Compliance with the order

The order the hearing produced was not obeyed, on both cited accounts of it. Berman’s July 2019 decision, quoting a July 10, 2019 New York Post investigative report, recorded that “Jeffrey Epstein never once checked in with City cops in eight-plus years since a Manhattan judge ordered him to do so every 90 days,” and that “[t]he NYPD cop assigned to monitor Epstein has repeatedly complained to [the New York County District Attorney’s] Sex Crimes Unit that Epstein wasn’t in compliance, according to a source familiar with the matter.”8 The Wall Street Journal’s account gives a different reason he was never made to comply: “The New York City Police Department never required him to check in, however, because his primary residence was in the Virgin Islands, an agency spokeswoman said. But he was entered in the sex-offender database his lawyers had so hoped to avoid.”38

Timeline

DateEventSource
August 26, 2010Supreme Court notifies Epstein and counsel of a SORA risk-level hearing set for September 15, 2010 before Pickholz, enclosing the Board’s level three recommendation113
September 7, 2010Lefkowitz writes to Pickholz requesting a continuance14
October 26, 2010Lefkowitz writes to ADAs Gaffney and Egan on the SORA determination, referring to a hearing set for November 9, 201015
January 18, 2011SORA hearing; Pickholz adjudicates Epstein a level three sex offender2323
January 19, 2011Court transmits the final determination of risk level three to the state Sex Offender Registry Unit26
November 17, 2011Appellate Division, First Department, unanimously affirms431
July 15, 2019Pickholz’s remarks read into the record at Epstein’s federal bail hearing; the transcript is docketed353736
July 18, 2019Berman’s written decision remanding Epstein quotes the hearing8
  • Cases: Palm Beach Police investigation (source of the probable cause affidavit the court relied on); CVRA litigation (where the hearing transcript was filed as an exhibit); SDNY 2019 indictment (where it was docketed in 2019).
  • Entities: NYP Holdings, Inc. (twice moved the Appellate Division to unseal the two appellate briefs quoted above).
  • Places: 9 East 71st Street.
  • Topics: Epstein New York cases; Epstein’s defense team.
  • Also named in the record for this proceeding, and covered on this wiki: Jay P. Lefkowitz (Kirkland & Ellis, for Epstein).
  • Also named in the record for this proceeding, without pages here: Sandra Musumeci (Kirkland & Ellis, for Epstein); Jennifer Gaffney and Patrick Egan (New York County District Attorney’s Office); Cyrus R. Vance, Jr. (District Attorney); Deborah L. Morse (of counsel on the People’s appellate brief); Richard M. Berman (U.S. District Judge, S.D.N.Y.).

Coverage

  • Palm Beach Daily News, November 21, 2011.
  • The Wall Street Journal, August 18, 2019.

Footnotes

  1. Letter from Supreme Court, Criminal Term, New York County, to Jeffrey Epstein informing him of the SORA level determination hearing, August 26, 2010, reproduced at A68 of the record on appeal. https://epstein-data.com/EFTA00792400 (PDF p.72). ↩ ↩2 ↩3 ↩4

  2. SORA hearing transcript, transcript p.1 (PDF p.2). https://epstein-data.com/EFTA01659328 ↩ ↩2 ↩3 ↩4 ↩5 ↩6 ↩7

  3. SORA hearing transcript, transcript p.12 (PDF p.13). https://epstein-data.com/EFTA01659328 ↩ ↩2 ↩3 ↩4

  4. People v. Epstein, 2011 NY Slip Op 08293 (1st Dep’t, decided November 17, 2011), pp. 2–3 as PDF-paginated. https://epstein-data.com/EFTA00614180 (PDF pp.2–3). ↩ ↩2 ↩3 ↩4 ↩5 ↩6 ↩7 ↩8 ↩9 ↩10 ↩11 ↩12

  5. SORA hearing transcript, transcript p.8 (PDF p.9). https://epstein-data.com/EFTA01659328 ↩ ↩2 ↩3

  6. Brief for Defendant-Appellant, People v. Epstein (N.Y. App. Div. 1st Dep’t), pp. 44–45 as printed. https://epstein-data.com/EFTA00603264 (PDF pp.47–48). ↩ ↩2

  7. Brief for Respondent, p. 54 as printed. https://epstein-data.com/EFTA00792500 (PDF p.58). ↩ ↩2

  8. Decision and Order Remanding Defendant, United States v. Epstein, No. 19-cr-490 (RMB) (S.D.N.Y., filed July 18, 2019), pp. 19–20 as printed. https://epstein-data.com/EFTA00039383 (PDF pp.19–20). ↩ ↩2 ↩3 ↩4

  9. Michele Dargan, “Epstein must register as NY’s highest level sex offender,” Palm Beach Daily News, November 21, 2011, p. A1; reproduced in a confidential due-diligence report held in the release. https://epstein-data.com/EFTA01480904 and https://epstein-data.com/EFTA01480905 ↩ ↩2

  10. Kirkland & Ellis LLP billing records itemizing hours, rates and disbursements on the matter, naming Judge Pickholz in individual task descriptions (e.g. “Draft letter to Judge Pickholz re extension”). https://epstein-data.com/EFTA00312648 and https://epstein-data.com/EFTA00312716. ↩

  11. Brief for Respondent, People v. Epstein (N.Y. App. Div. 1st Dep’t), Introduction (page unnumbered as printed). https://epstein-data.com/EFTA00792500 (PDF p.5). ↩

  12. SORA hearing transcript, transcript p.7 (PDF p.8). https://epstein-data.com/EFTA01659328 ↩ ↩2

  13. Letter from Supreme Court, Criminal Term, New York County, to counsel informing of the SORA level determination hearing, August 26, 2010, reproduced at A71 of the record on appeal. https://epstein-data.com/EFTA00792400 (PDF p.75). ↩ ↩2

  14. Letter from Jay P. Lefkowitz to the Hon. Ruth Pickholz requesting a continuance, dated September 7, 2010, reproduced at A77 of the record on appeal; the appendix index page describes it as dated September 9, 2010. https://epstein-data.com/EFTA00792400 (PDF p.81). The date on the letter is confirmed in Epstein’s reply brief. https://epstein-data.com/EFTA01168858 (PDF p.18). ↩ ↩2

  15. Letter from Jay P. Lefkowitz, Kirkland & Ellis LLP, to ADA Jennifer Gaffney and ADA Patrick Egan, October 26, 2010, on the SORA determination. https://epstein-data.com/EFTA00731232 (PDF p.1). ↩ ↩2 ↩3

  16. SORA hearing transcript, transcript p.2 (PDF p.3). https://epstein-data.com/EFTA01659328 ↩ ↩2

  17. SORA hearing transcript, transcript p.3 (PDF p.4). https://epstein-data.com/EFTA01659328 ↩ ↩2 ↩3

  18. SORA hearing transcript, transcript p.5 (PDF p.6). https://epstein-data.com/EFTA01659328 ↩

  19. SORA hearing transcript, transcript p.4 (PDF p.5). https://epstein-data.com/EFTA01659328 ↩ ↩2

  20. SORA hearing transcript, transcript p.6 (PDF p.7). https://epstein-data.com/EFTA01659328 ↩

  21. SORA hearing transcript, transcript p.9 (PDF p.10). https://epstein-data.com/EFTA01659328 ↩

  22. SORA hearing transcript, transcript p.11 (PDF p.12). https://epstein-data.com/EFTA01659328 ↩ ↩2

  23. SORA hearing transcript, transcript p.13 (PDF p.14). https://epstein-data.com/EFTA01659328 ↩ ↩2 ↩3 ↩4 ↩5 ↩6

  24. SORA hearing transcript, transcript p.14 (PDF p.15). https://epstein-data.com/EFTA01659328 ↩ ↩2 ↩3

  25. SORA hearing transcript, transcript p.15 (PDF p.16). https://epstein-data.com/EFTA01659328 ↩

  26. Letter from the Supreme Court, Criminal Term, correspondence unit, to the Sex Offender Registry Unit, New York State Division of Criminal Justice Services, January 19, 2011, enclosing the final determination of risk level three, reproduced at A78 of the record on appeal. https://epstein-data.com/EFTA00792400 (PDF p.82). ↩ ↩2

  27. Brief for Defendant-Appellant, p. 44 as printed, footnote 17. https://epstein-data.com/EFTA00603264 (PDF p.47). ↩

  28. Brief for Defendant-Appellant, p. 45 as printed. https://epstein-data.com/EFTA00603264 (PDF p.48). ↩

  29. Brief for Respondent, p. 4 as printed. https://epstein-data.com/EFTA00792500 (PDF p.8). ↩

  30. Brief for Respondent, pp. 33–34 as printed; the quotation crosses the page break. https://epstein-data.com/EFTA00792500 (PDF pp.37–38). ↩

  31. Decision and order of the Appellate Division, First Department, entered November 17, 2011, No. 6081, Ind. 30129/10. https://epstein-data.com/EFTA00208154 ↩ ↩2

  32. Brief for Respondent, cover page, carrying the Civil Rights Law § 50-b sealing legend. https://epstein-data.com/EFTA00792500 (PDF p.1). ↩

  33. Notice of Motion to Unseal Appellate Briefs, NYP Holdings, Inc., December 21, 2018, https://epstein-data.com/EFTA00806708; Affirmation in Response to Motion of ADA Karen Friedman Agnifilo, December 28, 2018, https://epstein-data.com/HOUSE_OVERSIGHT_016474; letter withdrawing the motion, January 4, 2019, https://epstein-data.com/EFTA00794227; refiled Notice of Motion, January 11, 2019, https://epstein-data.com/HOUSE_OVERSIGHT_016421. Full sequence and further documents at NYP Holdings, Inc.. ↩

  34. SORA hearing transcript filed as Exhibit A, Doe v. United States, No. 9:08-cv-80736-KAM (S.D. Fla.), docketed October 10, 2011. https://epstein-data.com/EFTA00205712 ↩

  35. Transcript of bail hearing, United States v. Epstein, No. 19-cr-490 (RMB) (S.D.N.Y., July 15, 2019), p.7 as printed (PDF p.7). https://epstein-data.com/EFTA00095388 ↩ ↩2

  36. SORA hearing transcript, People v. Epstein, Ind. No. 30129/2010 (N.Y. Sup. Ct., N.Y. Cnty., Jan. 18, 2011), docketed as Dkt. 14 in United States v. Epstein, No. 19-cr-490 (RMB) (S.D.N.Y.) under a July 15, 2019 order of Judge Berman. https://epstein-data.com/EFTA01659328 (order at PDF p.1). ↩ ↩2

  37. Bail hearing transcript, p.40 as printed (PDF p.40). https://epstein-data.com/EFTA00095388 ↩ ↩2

  38. Joe Palazzolo, “Documents Show Efforts by Jeffrey Epstein’s Attorneys to Sway Prosecutors,” The Wall Street Journal, August 18, 2019; reproduced in a Southern District of New York news-clips compilation circulated by email on August 19, 2019. https://epstein-data.com/EFTA00092932 (PDF pp.1–3). ↩ ↩2 ↩3 ↩4

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