Sun Sentinel Palm Beach Edition
Videos in Kraft’s sex sting won’t be used against parlor operators
New England Patriots owner Robert Kraft on Monday emerged the winner of yet another court order regarding video evidence from his massage parlor prostitution case.
Palm Beach County Circuit Judge Joseph Marx ruled the sex videos featuring Kraft and other men can’t be used in felony prostitution cases against the massage parlor’s operators and workers.
Marx found that the recordings were illegally obtained by Jupiter police at the Orchids of Asia Day Spa, because of failures in a sneak-and-peek warrant that authorized secret cameras in January and resulted in the charges.
Palm Beach County Judge Leonard Hanser made an identical ruling last week, preventing prosecutors from using the tapes in two misdemeanor solicitation of prostitution cases against Kraft, 77.
Without the videos, prosecutors do not have a case against Kraft, spa owner, Hua Zhang, manager Lei Wang, or anyone else ensnared by the prostitution sting.
So Hanser on Monday canceled a Tuesday hearing in which Kraft would have been required to attend for the setting of his trial date.
The battle now moves on to the appeals arena.
Prosecutors have announced they are appealing Hanser’s order to a panel of circuit court judges, which is the typical next step in misdemeanor cases.
The State Attorney’s Office also is expected to appeal Marx’s order to the Fourth District Court of Appeal in West Palm Beach.
Kraft’s lawyers on Monday argued that their case “carries great public importance” and should go directly to the appellate court as well.
Hanser said he was inclined to agree, because similar rulings on spa sex videos by judges in Martin and Indian River counties are expected to be reviewed by the Fourth District Court of Appeal.
The judge said he would decide on the Kraft defense’s request by the end of the week.
It’s not clear how long the appeals will take, but the videos will remain sealed and blocked from the public, Hanser told the lawyers.
During Monday’s hearing before Judge Marx, prosecutors made a significant concession. They agreed part of the sneakand-peek warrant was unlawful because it didn’t require police to “minimize” the covert surveillance by focusing entirely on criminal acts.
Hanser last week wrote that this was a “serious flaw” in the warrant, which resulted in at least four people, both women and men, being videotaped receiving lawful massages with their clothes off.
“We all agree they were not minimized properly,” Assistant State Attorney Greg Kridos told Judge Marx on Monday. “Judge, I’ll be the first to tell you, we should have done it differently. … To those people, we obviously apologize. That should not have happened.”
But the prosecutor argued that this violation of federal law still should not get in the way of the prosecution of Kraft and the others.
Kridos said the evidence against Kraft, Zhang and Wang was still lawfully obtained and should be used in their cases.
“Throwing the baby out with the bath water is not what the courts adhere to,” Kridos said, citing rulings on other cases across the country.
Kathleen S. Phang, attorney for Wang, responded that the prosecutors don’t have the right to
“cherry pick” from the evidence collected from an unlawful warrant.
Tama Kudman, attorney for Zhang, added: “We don’t want to reward law enforcement for creating vague search warrants or using poor discretion.”
Marx agreed with the defense lawyers that the warrant mistakenly allowed for continuous recording in the massage parlor rooms for five straight days, with no instructions to stop recording during lawful massages.
The judge said it wasn’t enough for the officers to merely stop watching.
“When you press record and it runs continuously, the fact that you are not watching for a minute, is not minimization,” Marx said.
In a separate matter, Judge Hanser said he wouldn’t be able to hold a hearing for at least 30 to 45 days on a request by prosecutors to hold two of Kraft’s lawyers in contempt of court.
Prosecutors said the defense attorneys recently made a false accusation against a Jupiter police officer concerning the sneakand-peek warrant.
“It’s not my primary focus in this case,” Hanser said, promising he “will not lose track of it.”