There’s hope for New England Patriots owner Robert Kraft if he tries to beat the misdemeanor prostitution solicitation charges pending against him in Florida, legal specialists in that state said Thursday.
The Globe contacted the experts after news broke Wednesday that Kraft, the 77-year-old billionaire Pats owner, had reportedly rejected a proposed deal to have the charges dropped in exchange for admitting the government could prove him guilty, among other conditions.
Kraft, through a spokesman, has denied engaging in any illegal activity.
Court records show that hidden cameras captured women performing sex acts on Kraft when he visited the Orchids of Asia Day Spa in Jupiter, Fla., on Jan. 19 and 20. The footage also showed Kraft handing the women cash after the acts, according to legal filings.
Richard Hornsby, an Orlando defense lawyer and legal commentator, said Thursday that it’s hard to evaluate what defenses are available to Kraft before the release of discovery evidence.
“With that said, Mr. Kraft’s only realistic avenue of attack is to have the video evidence suppressed,” Hornsby wrote in an e-mail. “Given that this case will be presided over by a county court judge and [given] the quality of Mr. Kraft’s legal team, I would not be surprised if the video evidence ultimately gets suppressed.”
Hornsby stressed that “since the discovery has not been released, this opinion is based on my anecdotal experience in similar cases of high profile defendants represented by a high caliber defense team.”
Kraft was one of 25 men nabbed in the Orchids sting, part of a larger probe into suspected human trafficking at spas in multiple Florida counties. Local cops installed hidden cameras inside Orchids pursuant to a warrant, legal filings show. Neither Kraft nor any of the other spa patrons have been charged with human trafficking.
Instead, Kraft faces two misdemeanor counts of soliciting another to commit prostitution.
But if there’s no audio available with the video footage, Kraft could successfully argue that he didn’t solicit the sexual acts, according to Andrew Metcalf, immediate past president of the Florida Association of Criminal Defense Lawyers.
“Is there conversation [heard on tape]?” said Metcalf, who’s representing several defendants swept up in the probe in Indian River County. Kraft got nabbed in Palm Beach County.
Metcalf said if video footage shows that a woman performing a sex act on Kraft is “aggressive,” then perhaps “she’s the one that solicited. I don’t know. . . . Without audio, it makes it very difficult, but that’s why the state shouldn’t be overcharging these cases. And they have.”
An affidavit said that on both visits, Kraft paid at the front desk and was brought to a massage room, where sex acts were performed on him. Kraft and the women hugged and he gave them cash afterward, the affidavit said. On the second visit, Kraft and a woman in the massage room hugged before she performed a sex act, according to court filings.
A more appropriate charge, Metcalf said, would have been the lesser misdemeanor of simply engaging in an act of prostitution, rather than soliciting the act, which Kraft and the other defendants have been charged with.
A spokesman for Palm Beach County Attorney Dave Aronberg, whose office is prosecuting Kraft and the other Orchids defendants, didn’t immediately respond to an inquiry about whether there’s audio available in the Kraft videos.
All the Orchids defendants have been offered the same deal, known as a deferred prosecution agreement, that was extended to Kraft, authorities say.
Hornsby said he believes they all got the same offer so that “the less well off defendants accept the [deal] and clear out the prosecution’s overall workload so that they can then focus on Kraft and the other higher profile defendants.”
He said the longer “all (or many of) the defendants stay together, the more difficult the prosecution’s job becomes, because each of the defendants will adopt any suppression motions filed by Kraft’s attorneys and the prosecution will have to respond to each in kind. Ultimately, I would not be surprised if an agreement is reached where Kraft does not admit guilt as currently required by the Pretrial Diversion offer on the table and simply makes a donation to a related charitable cause with no other requirements.”
In addition to admitting enough evidence to prove guilt, the deal currently on the table for the Orchids defendants, including Kraft, would also require them to perform 100 hours of community service, pay court fees, and attend a course about the social harm caused by prostitution and human trafficking. In exchange, they can have their cases dismissed and records expunged if they avoid any further brushes with the law for a fixed amount of time.
Michelle S. Jacobs, a professor at the University of Florida’s Levin College of Law, also weighed in on the video evidence Thursday. Jacobs, who teaches criminal law, noted that she’s not licensed to practice in Florida and can’t give advice on state law.
“If I were teaching a Criminal Procedure class I would discuss with my students whether the police had court authorization for the video at the spa or if the video belonged to the spa whether the police had a search warrant signed by a neutral magistrate that specifically authorized them to seize any video at the spa,” Jacobs wrote in an e-mail. “If either of those two pieces are in place, ordinarily a piece of evidence would be admissible. If the video were admissible under those circumstances and it showed a defendant engaged in a crime, then the court would be allowed to consider that evidence.”