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Legal experts: prosecutors could drop Kraft case

02-03-19: Atlanta, GA: Robert Kraft on the podium following the New England victory. The New England Patriots met the Los Angeles Rams in Super Bowl LIII at Mercedes-Benz Stadium. (Jim Davis /Globe Staff)
02-03-19: Atlanta, GA: Robert Kraft on the podium following the New England victory. The New England Patriots met the Los Angeles Rams in Super Bowl LIII at Mercedes-Benz Stadium. (Jim Davis /Globe Staff)Jim Davis/Globe Staff

Prosecutors may drop their prostitution case against New England Patriots owner Robert Kraft, after an appellate court Wednesday upheld a lower court decision to toss video evidence that allegedly captured him paying for sex inside a Jupiter, Fla. spa last year, legal experts told the Globe.

Wednesday’s ruling from Florida’s Fourth Circuit Court of Appeal “is a fatal blow to the State’s case,” said Neama Rahmani, a former federal prosecutor who also served as enforcement director of the Los Angeles City Ethics Commission, via e-mail. “With no video evidence, there is no case, and absent an appeal to the Florida Supreme Court, I expect the prosecution to dismiss the charges soon.”

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Kraft has pleaded not guilty to two misdemeanor prostitution charges stemming from a police investigation at the spa. He was charged in February 2019, based largely on secret video recordings a judge had authorized under a “sneak-and-peek” warrant.

Prosecutors must now decide whether to appeal Wednesday’s ruling, go forward with the case without the tapes, or drop the charges altogether.

“We are in the process of reviewing the opinion and will comment publicly at the appropriate time” said Mike Edmondson, a spokesman for Palm Beach County State Attorney Dave Aronberg, in a statement.

The government’s error, Rahmani said, was obtaining a “very overbroad” search warrant to secretly equip the spa with hidden cameras that allegedly captured Kraft and some two-dozen other men paying for sex acts.

The warrant improperly allowed for recording, “all customers, including those who were not targets of the investigation and others who were wholly innocent altogether,” Rahmani said. “The State also failed to consider the very high expectation of privacy when one is nude, and that courts are likely to protect those privacy interests. Finally, the State went all in on the video evidence, overplayed its hand, and lacked a backup plan if the evidence was suppressed.”

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Martin G. Weinberg, a prominent Boston defense lawyer, sounded a similar note.

“The Court’s opinion was predictable and unassailable,” Weinberg said in an e-mail message. “The open-ended use of video surveillance of private conduct not otherwise visible to the public violated all of the cornerstone principles of the Fourth Amendment which protect citizens privacy and its state law corollaries in Florida.”

Absent further appeal, Weinberg added, “the State would be left without their pivotal evidence and would have at most to rely on the testimony of a witness who may be unwilling - if available - to waive her constitutional right of silence. The State’s case against Bob Kraft has been dramatically weakened if not extinguished by the suppression order.”

Another well-known defense lawyer, Mark J. Geragos, whose many high-profile clients have included pop stars Chris Brown and Michael Jackson, was even more blunt in his assessment of the government’s pursuit of Kraft.

“A case that never should have been brought will now die a quick death,” Geragos said via email.

He also faulted prosecutors.

“The Trial Court made the correct ruling by tossing the so called evidence,” Geragos said. “Frankly the arguments by the Prosecutors were rather sophomoric and the Appellate Court called out the State for the circular arguments. Every Judge who has looked at this has been outraged and so should the public.”


Travis Andersen can be reached at travis.andersen@globe.com. Follow him on Twitter @TAGlobe.