WEST PALM BEACH, Fla. — Prosecutors cannot use secretly recorded video allegedly showing New England Patriots owner Robert Kraft engaging in massage parlour sex, a judge ruled Monday, striking a serious blow to their case against him and others charged with soliciting prostitutes at the Orchids of Asia Day Spa.
In his 10-page ruling, Judge Leonard Hanser wrote that Jupiter police detectives and the judge who issued the search warrant allowing the secret installation of cameras at the spa did not do enough to minimize the invasion of privacy of customers who only received legal massages. Hanser also ruled that detectives cannot testify about what they saw on the video or when they stopped Kraft.
If upheld on appeal, Hanser’s ruling could lead to prosecutors dropping the second-degree misdemeanour cases against Kraft and other men charged with paying for sex at the Orchids of Asia Day Spa. Kraft, 77, has pleaded not guilty but issued a public apology.
"The fact that some totally innocent women and men had their entire lawful time spent in a massage room fully recorded and viewed intermittently by a detective-monitor is unacceptable," Hanser wrote. He said the judge should have given the officers explicit instruction for how to monitor the video.
Kraft’s attorneys declined comment. Palm Beach County State Attorney spokesman Mike Edmondson said prosecutors were still reviewing the ruling but would appeal if they found a legal basis. The ruling is similar to one in a neighbouring county, where a judge also suppressed video of men allegedly paying for massage parlour sex.
Kraft’s attorneys argued during a recent hearing aimed at throwing out the recordings that Florida law allowing audio wiretaps says they can only be used for serious felonies such as murder or kidnapping, not lesser offences such as prostitution. They argued video, which is not specifically covered under Florida law, should have a higher threshold.
Hanser agreed, writing "video surveillance is even more invasive of privacy, just as a strip search is more invasive than a pat down search."
Jupiter was part of a multicounty investigation of massage parlour prostitution and possible human trafficking that resulted in the arrests of about 300 men and the closure of 10 spas stretching 130 miles (210 kilometres) from Palm Beach to Orlando. The spa owners and some employees have been charged with felonies. Prosecutors have conceded they found no evidence of human trafficking at the Jupiter spa and no one has been charged with it elsewhere. Neither Kraft nor the 24 other men charged in the county were specifically targeted.
David S. Weinstein, a Miami-based defence attorney and former prosecutor, said Hanser’s ruling will be followed by the judges overseeing the misdemeanour cases of the other men, but not necessarily the judge overseeing the women’s felony cases. He said the good news for prosecutors is that Hanser did find they police had probable cause to get the warrant, which could be key if the rest of his order is overturned.
Prosecutors in their appeal will likely argue that Hanser "overreached…by suppressing the observations of the officers and by excluding the results of the car stops," Weinstein said. "They will also argue that despite no explicit instructions, the officers did in fact minimize their observations in the context of the ongoing investigation." He expects the case will reach the Florida Supreme Court.
Hanser had already ruled that the Kraft videos cannot be released publicly until his trial is underway or the case is settled or dismissed.
NFL officials have said they are watching the case, but have not disciplined Kraft.
According to police records, Kraft, a widower worth $6 billion, was chauffeured to the Orchids of Asia spa on the evening of Jan. 19, where officers secretly recorded him engaging in a sex act with two women and then handing over an undetermined amount of cash.
Investigators said Kraft returned 17 hours later and was again videotaped engaging in sex acts with a woman before paying with a $100 bill and another bill, police said. On Monday, prosecutors consolidated the two cases into one charge.
Hours later, Kraft was in Kansas City for the AFC Championship game, where his Patriots defeated the Chiefs. His team then won the Super Bowl in Atlanta, the Patriots’ sixth NFL championship under his ownership.
Prosecutors offered to drop the original charges if Kraft entered a diversion program for first-time offenders, as some others charged have. That would include an admission he would be found guilty if the case went to trial, a $5,000 fine, 100 hours of community service and attendance in a class on the dangers of prostitution and its connection to human trafficking. Prosecutors have said the fine and community service are required by law and are not negotiable.
Hanser has ordered Kraft to appear in court for a May 21 pretrial hearing. It is unclear how Monday’s ruling will affect that hearing.