A Palm Beach County (Fla.) judge gave Robert Kraft some, but not all, of what he wanted today, in regards to video evidence in the New England Patriots owner’s criminal case for solicitation. County Court Judge Leonard Hanser blocked the video from being released by any agencies, saying he was concerned that its release would jeopardize Kraft’s right to a fair trial—but Hanser also limited how long that protective order would be in place. Because the block is only connected to Kraft’s right to a fair trial, the tape can be released when one of the following things happen, according to the order:
a. Trial juries being sworn in each case;
b. The cases resolving by plea agreement;
c. The State no longer pursuing the charges against Defendant.
d. At any other time at which the Court finds the fair trial rights of Defendant are not at risk, after notice to the parties and hearing thereon.
Kraft is charged with two counts of misdemeanor soliciting prostitution after he was caught earlier this year in a weeks-long investigation of a Jupiter massage parlor. As part of the investigation, Jupiter police got a warrant from a judge allowing them to place video cameras inside the massage parlor, and police documents say the recordings show Kraft twice receiving sex acts. The probable cause affidavits describe one visit as showing a woman “manipulating Kraft’s penis” and a second showing a woman who was “manipulating Kraft’s penis and testicles and then put her head down by his penis.”
Kraft, one of the most powerful men in American football, really doesn’t want the video being released. The charges are misdemeanors, and his wealth affords him the ability to easily handle whatever results come from the cases. His problem is the Florida Constitution, which contains some of the strongest protections around releasing public records in the country, and those records include police evidence, which in his case includes the videos.
In his ruling, Hanser acknowledged there’s a lot of competing interests hovering around the Kraft case. In a matter of weeks, two misdemeanor soliciting charges have morphed into proxy discussions of the constitutionality of sneak-and-peek warrants, the history of law enforcement claiming sex trafficking when the evidence doesn’t back it up, the importance of the public being able to monitor its government, and the right to a fair trial. For his decision, Hanser focused on the right to a fair trial versus the public’s right to government records.
At the risk of hyperbole, while the underlying charge in this case may be only a misdemeanor, it places in sharp contest issues fundamental to society, i.e. the right of the public to be fully informed about the operations of its government, through the media’s First Amendment rights, and the right of a defendant to a fair trial, guaranteed through the Sixth Amendment. Also implicated are Article I, sec. 16 of the Florida Constitution guaranteeing a defendant the right to be tried “by impartial jury in the county where the crime was committed” and Article, Sec. 24 guaranteeing “every person the right to inspect or copy any public record made or received in connection with the official business of any public body.” Each side makes compelling arguments but in the end, it is not possible to accommodate equally each side’s interests.
Ultimately, Hanser ruled that Kraft’s right to a fair trial outweighed what the public would gain from seeing the video now. He wrote: “Because the videotapes add little of value to the public’s knowledge of the case, a restriction of temporary duration is a slight disaccomaodation to the public, clearly outweighed by the risk posed to Defendant’s fair trial rights under the Sixth Amendment.”
Hanser added that he believes the video could be critical evidence in a trial, and releasing the video meant “the jury pool would be given the opportunity to preview the trial evidence, including identifying Defendant as the person depicted in the videotapes.”
But the order isn’t forever, and in explaining why Hanser shot down several of Kraft’s other arguments. The judge noted that a previous Florida Supreme Court ruling limited him to taking action “no further than the circumstances warranted.” To the argument that the video violated Kraft’s right to privacy and to the argument that the video isn’t a public record, Hanser responded: “The Court does not find these arguments legally or factually sufficient to support Defendant’s request.”
A copy of the order in full is below.