Did Patriots owner Robert Kraft make the correct decision to plead not guilty despite the police claiming to having video evidence? Our latest legal breakdown from the charges surrounding the Patriots owner. 

By Michael McCann
February 28, 2019

Not guilty.

New England Patriots owner Robert Kraft, who has been charged with two misdemeanor offenses for solicitation, entered a plea on Thursday through his attorney, Jack Goldberger. Kraft has also requested a bench trial. Under Florida law, a criminal defendant can elect to waive his or her Sixth Amendment right to trial by jury so long as the prosecutor and judge agree. This means that, in the unlikely event that Kraft’s case ever goes to trial, a judge probably would decide it rather than a jury.

The “not guilty” plea was expected. Kraft had no reason to plead guilty to charges that have not yet been proven. If Kraft had pleaded guilty, he could, at least in theory, be sentenced to jail: Defendants convicted of violating Florida Statute 796.07 face up to one year in jail, 100 hours of community service, a $5,000 fine and completion of an educational program on prostitution and human trafficking. It would have been strategically unwise for Kraft to admit to a crime when Goldberger will likely be able to negotiate a plea deal whereby Kraft avoids jail and, most likely, pays a fine.

Kraft did not have to enter a plea at this time. He could have waited several weeks. His first appearance in North County Courthouse in Palm Beach Gardens is currently scheduled to occur on March 27. Kraft does not have to appear at that hearing, nor would he have been obligated to enter a plea at that time. Likewise, by entering a plea, Kraft bypasses the need for him or his attorney to enter a plea at an arraignment. Given that he has now entered a plea, Kraft will not have to appear in court any time soon—if ever.

Along those lines, it wouldn’t be surprising if Kraft’s attorney negotiated a plea deal to bypass the need for court hearings. As I detailed a few days ago, Kraft—as a first-time, non-violent offender—may be eligible for Florida’s pretrial misdemeanor diversion program. If Kraft participates in the program, he would acknowledge responsibility for his acts and make restitution through a paying a fine and/or performing community service. If Kraft complied with the terms of the diversion program, the charges against him would be dismissed and he would not have a criminal record. He would still face a punishment from NFL commissioner Roger Goodell.

A plea deal may take time to negotiate. In the meantime, Kraft and his attorney will contest the charges. Much has been speculated about possible defenses. Possibilities include a lack of certain evidence that Kraft that solicited a sexual act. While the Jupiter Police Department claim that there is compelling and clear video evidence of Kraft, at the Orchids of Asia spa in Jupiter, engaged in sexual acts with women—one allegedly “manipulated Kraft’s penis and testicles and then put her head down by his penis”—the video lacks audio. Given that prosecutors would need to prove that Kraft is guilty beyond a reasonable doubt, there could be doubt that Kraft asked for these sexual experiences.

Of course, this type of defense is problematic for several reasons. First, the relevant Florida statute, 796.07, does not technically require solicitation for a solicitation crime to have occurred. As worded, the statute also prohibits a person from “inducing, enticing, or procuring” another person into a sexual act. Kraft, then, did not have to ask for sex in order to have violated the law. His conduct, in light of the circumstances, could have been considered inducement, enticement or procurement.

Second, Kraft is allegedly shown on video paying the woman with a $100 bill and another bill after the sexual act occurred. He did so (allegedly) after already paying a separate amount at the spa’s front desk for a massage. This depiction suggests there was an exchange of money for sex.

Third, the depiction of the video from the second day, Jan. 20, indicates that no massage took place. The woman described in the police narrative hugged Kraft. After Kraft removed his clothes and placed himself on the massage table, the woman began to rub his penis and testicles. This depiction indicates that payment was for the sexual act. In addition, Kraft is accused of going back to the spa for a second day. If Kraft had been shocked or upset by the sexual act the first time it occurred, he presumably would not have returned the second day.

The solicitation defense could also trigger negative public relations for Kraft. Some would likely ridicule the idea that he didn’t ask for a sexual act when video evidence allegedly shows such acts occurring two days in a row. As Kraft contemplates how Goodell could potentially suspend or fine him and how his legacy is impacted by this controversy, Kraft may be leery of pursuing a hyper-technical legal strategy that could cause him and the NFL further embarrassment.

Some have also noted that the women who allegedly committed sexual acts with Kraft were not victims of human trafficking but rather employees of the spa. This is an important contextual point in terms of the social reaction to the story. Commentators have taken the logical leap to associate Kraft with human trafficking when no publicly available evidence supports such a leap. Indeed, Kraft is not accused of any involvement or knowledge of human trafficking. If he were, he would be facing felonies, rather than low-level offenses. However, that point is not a defense to the misdemeanor charges. Whether or not the women with whom Kraft is accused of having sexual relations are spa employees doesn’t disprove solicitation. Also, police secured a warrant to conduct the video surveillance within the spa, meaning video supposedly of Kraft was likely obtained lawfully.

As noted above and in our other stories on this controversy, it is unlikely that Kraft will go to trial over the charges. The trial itself would likely cause him—and the NFL—awkwardness. While Kraft would not be compelled to testify in a trial where he is the defendant (pursuant to the Fifth Amendment), the trial would concern intimate matters about the 77-year-old billionaire. It would also be months before any trial occurred. Kraft likely wants to resolve this matter as soon as possible and return his focus to the Patriots and other topics.

Yet if Kraft does go to trial, he has requested that there be no jury. Instead, the trial would be a bench trial where the presiding judge would rule on whether he is guilty or not guilty. Kraft’s reasoning for avoiding a jury could, at least in part, reflect the fact that jurors would be drawn from a judicial district that contains many Miami Dolphins fans. The Dolphins and Patriots have long been rivals in the AFC East and Kraft might want to avoid a jury pool of citizens who may be inclined to dislike him. While the voir dire process, where prospective jurors are questioned by the attorneys, would be used by Kraft’s legal team to rule out certain possible jurors, that process is not always predictable or foolproof.

In addition to the misdemeanor charges, Kraft is likely also concerned about the possibility that the videos are released to the public. There is the persistent risk that a person in custody of physical or digital copies could illegally sell them to a tabloid publication. Once the videos go on the Internet, they will, for all intents and purposes, be there forever.

Beyond the risk of an unlawful disclosure, there is the possibility that law enforcement will legally release the videos. An official release would probably blur any sexual acts but any video in which Kraft is in the spa room would likely be distressing for Kraft and his family. Media companies could demand that the videos be released on account of the First Amendment and its guarantee of public access to newsworthy information. Kraft, in contrast, would portray any such a release as constituting an invasion of his privacy and one intended to humiliate and shame him. It’s fair to infer that Goodell would be more likely to suspend Kraft if any of the videos go public. Goodell could reason that the league’s image suffers greater harm by the public seeing the videos.

The MMQB will keep you updated on the Kraft situation.

Michael McCann is SI’s legal analyst. He is also Associate Dean of the University of New Hampshire School of Law. In 2004, McCann authored “Illegal Defense: The Irrational Economics of Banning High School Players from the NBA Draft.”

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