Prosecutors cannot use secretly recorded video allegedly showing New England Patriots owner Robert Kraft engaging in massage parlor sex, a judge ruled Monday, striking a serious blow to their case charging him with soliciting prostitutes.
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 Orchids of Asia Day Spa in Jupiter did not do enough to minimize the invasion of privacy of other customers, some of whom only received legal massages. If upheld on appeal, it could lead to prosecutors dropping two second-degree misdemeanor counts. 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.
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Kraft's attorneys declined comment. Prosecutors did not immediately respond to emails seeking comment, but they could still appeal.
"I think it's a sound ruling," legal analyst Michael Coyne told NBC10 Boston. "I don't see that it would be likely reversed on appeal, so I don't think the government is likely to challenge it by way of appeal, but obviously, that is their option."
Kraft's attorneys argued during a recent hearing aimed at throwing out the recordings that detectives lied to a judge to obtain the warrant. They also argued that the recordings violated Kraft's right to privacy under state and federal law and that officers did not exhaust less-invasive means of investigating the spa. Additionally, they said Florida law allowing audio wiretaps says they can only be used for serious felonies such as murder or kidnapping, not lesser offenses such as prostitution. They argued video should have a higher threshold.
Prosecutors argued that the warrant was aimed at stopping a felony-level prostitution operation and legally obtained. Neither Kraft nor the 24 other men charged in the county were specifically targeted.
Jupiter was part of a multicounty investigation of massage parlor prostitution and possible human trafficking that resulted in the arrests of about 300 men and the closure of 10 spas stretching 130 miles 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.
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. Under league policy, players, owners, coaches and other employees can be punished for "conduct detrimental to the integrity of and public confidence in" the NFL.
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.
Hours later, he 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.
The video's release could have been highly embarrassing for Kraft.
"The case could go away at this point," Coyne said. "I would expect that Mr. Kraft's lawyers would file a motion to dismiss, suggesting that there really isn't enough evidence for the government to move forward and prove its charges beyond a reasonable doubt."
Prosecutors have offered to drop the charges if Kraft enters 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.