Florida prosecutors offered Robert Kraft a deferred prosecution agreement, but beginning a defense might be in the Patriots owner's best interest.

By Michael McCann
March 19, 2019

As first reported by Andrew Beaton of The Wall Street Journal, prosecutors in Florida have offered New England Patriots owner Robert Kraft a deferred prosecution agreement to resolve the two misdemeanor solicitation charges filed against him last month. If the 77-year-old billionaire accepts the agreement, prosecutors would—pending Kraft’s fulfillment of the agreement’s terms—drop the charges.

The deal would guarantee Kraft that he dodges a criminal record. It would also ensure that he avoids a jail sentence. Although the possibility of Kraft, an elderly person without a criminal record, being sentenced to jail would be low even if he goes to trial and loses, any defendant convicted of violating the relevant Florida law, Statute 796.07, can be sentenced to up to one year in jail.

The other end of the proposed deferred prosecution agreement, which is also called a pretrial diversion agreement, is much less appealing for Kraft. Kraft would be required to admit that had he gone to trial, he would have been proven guilty. This admission would likely be made in writing. Kraft would also be required to undergo screening of sexually transmitted diseases, partake in 100 hours of community service and complete an education course about prostitution. Kraft, then, would need to appear in various public forums that could be captured by bystanders’ cell phones. Unflattering videos and photos could then be posted on social media, thereby causing Kraft ridicule and prolonging the public controversy.

The same deal has been offered to other men who were, like Kraft, recently charged with solicitation in Florida and who lack any criminal record. Florida State Attorney Dave Aronberg notes that such an offer is “standard in cases like this.” As reported in previous The MMQB legal stories, Florida has a pretrial diversion program for first-time, non-violent offenders. Kraft has been deemed eligible for the program.

The type of arrangement offered to Kraft partly resembles an “Alford plea,” which stems from the U.S. Supreme Court case North Carolina v. Alford. An Alford plea involves a defendant maintaining his or her innocence. However, as part of a plea deal, the defendant acknowledges that he or she would have been found guilty in a trial.

The difference here is that should Kraft take the deferred prosecution deal, he would not enter into any plea. The charges would be dropped altogether. However, Kraft would have to admit that the case against him was sufficient for proving guilt beyond a reasonable doubt. With an eye towards a potential NFL punishment, Kraft might value not having to admit that he engaged in solicitation (though, conversely, he would have to admit that he would have been convicted of solicitation).

To that point, a deferred prosecution agreement is not the equivalent of a plea deal as Kraft would not be offering a plea. In a plea deal, Kraft would be subject to the conditions of the Florida Department of corrections’ probation services. With a deferred prosecution agreement, Kraft would not be convicted of any crime and would not be subject to probation.

If Kraft accepts the deferred prosecution agreement and fails to adhere to its requirements, the prosecution against him would be reinstituted.

Kraft and his legal “dream team” have reason to reject the first deal offered

The proposed deferred prosecution agreement contains several appealing qualities for Kraft. Most importantly, it would provide closure with respect to the charges and supply assurance that he will not become a “convicted criminal.”

However, Kraft has assembled a formidable legal team, which includes well-known attorneys Jack Goldberger, William Burck and Alex Spiro. This approach suggests that Kraft is “sending a message” to prosecutors that he’ll spend any amount of money to maximize his odds of being found not guilty. He thus may be inclined to contest the charges, at least for the time being.

Kraft and his legal also recognize that he is a high-value defendant. Prosecutors want to get the most famous man among the many men charged with solicitation to take a deal. No matter how it’s spun, a deal where Kraft acknowledges he would have been convicted would be reported by media as a big “win” for the government. To some extent, such a development would validate the entire prosecution. 

Kraft, then, has some leverage with prosecutors. There’s a good chance he’ll reject the first offer made to him and instead begin a defense—perhaps in hopes of striking a more favorable deal later.

A defense would be consistent with Kraft’s current disposition towards the case. Last month, Kraft, through Goldberger, pleaded not guilty. Kraft’s spokesperson has also issued a statement in which Kraft “categorically denied” any illegal activity. Kraft is scheduled to appear in Palm Beach Gardens’ North County Courthouse for his arraignment on March 28. However, one or more of his attorneys can appear on his behalf.

The difficulty and risks for Kraft in pursuing a long-term defense strategy

If Kraft opts to wage a defense, his possible defenses include the following:

  • Kraft did not solicit a sexual act and instead only paid for lawful massages;
  • The videos show that, contrary to the incriminating narratives of police officers, Kraft did not have sexual relations with woman at the Orchids of Asia Day Spa;
  • The search warrants for videos were invalid or misused in ways that ran afoul of the Fourth Amendment; and
  • Kraft was an elderly victim of entrapment.

The challenge for Kraft in waging a vigorous defense is three-fold.

First is the problem of timing. In order to credibly advance defenses through the pretrial discovery process—which involves sharing of evidence and deposing witnesses—Kraft would accept that his case might not be resolved for months. His attorneys would hope to have the case dismissed before a trial, but pretrial dismissals are hard to obtain. Kraft would then be faced with the uncomfortable prospect of a public trial that would center on his alleged sexual acts at the spa and other aspects of his sexual life. While Kraft might relish the prospect of being vindicated with a “not guilty” verdict, it’s unclear if he’s willing to play out such a long game. Also, if Kraft goes to trial and loses, he would be worse off—both legally and reputationally—than if he had accepted a deferred prosecution agreement.

The second problem for Kraft in waging a spirited defense is that the longer the case plays out, the greater the odds that the videos of his alleged sexual activities will be released to the public. According to the narratives of officers who have described the videos, women are seen “manipulating Kraft’s penis and testicles” and engaging in other intimate acts with him. If Kraft goes to trial, the videos would play key roles in determining his guilt or innocence.

Alternatively, if Kraft resolves the case through pretrial diversion, prosecutors may be more willing to support permanently sealing the videos. To be sure, the videos could always leak impermissibly—there are a number of people within state and local government agencies who have, or could have, custody of physical or digital copies of the videos, and tabloid publications might be willing to pay them seven figures. That said, negotiating an arrangement with prosecutors whereby both sides petition a judge to seal any raw or edited videos would be valuable to Kraft and his family.

Third, none of Kraft’s plausible defenses seems like an obvious winner. Take a defense claiming that there was no solicitation. According to law enforcement’s depiction of the Jan. 19 video, Kraft is shown paying for a massage at the spa’s front desk and then, after a sexual act involving Kraft takes place in a private room, Kraft is shown paying a woman a $100 bill and another bill. This sequence makes it difficult to conclude that Kraft did not pay for the sexual act, either directly or as a tip. The description of the Jan. 20 video is even more illuminating. According to law enforcement, Kraft—who was obviously not dissuaded by his experience at the spa on Jan. 19—paid for a service at the front desk but he did not receive a massage. He instead received a sexual act. It logically follows, then, that he paid for a sexual act.

Also, even if Kraft could show that he did not “solicit” sex, that’s not the only vehicle under Florida statute 796.07 through which the prosecution can prevail. If Kraft merely “induced” or “enticed” a sexual act through payment, that too would count as solicitation for purposes of the law.

Kraft would acquire a stronger defense if law enforcement wrote exaggerated or distorted narrations of what occurred on the videos. However, if the narratives prove accurate, then an “I didn’t do it” defense would fail.

As to the legality of the search warrants, Kraft’s lawyers might insist that the warrants were issued upon law enforcement’s distortions and exaggerations of human trafficking. To that point, they would insist that judicial granting of the warrants violated Kraft’s right to reasonable searches and seizures under the Fourth Amendment and thus any incriminating evidence should be rendered inadmissible. Thus far, no one caught in the “sting” operation has been charged with human trafficking. While the spa’s owners face felony-level charges, those charges are related to running an illegal prostitution business. As for Kraft, the women with whom he allegedly had sexual relations appear to have been spa employees. In other words, while law enforcement’s initial press conference left the distinct impression that Kraft was somehow connected to an international human trafficking plot, subsequent findings indicate that Kraft had nothing to do with human trafficking. It’s also unclear if any human trafficking took place.

An argument contesting the lawfulness of the evidence could have some traction. However, so long as police can show a reasonable basis for believing that human trafficking occurred, the argument would probably fail. Also, even if human trafficking did not occur, illegal activity in the form of prostitution did occur. Therefore, while the videos might not have captured human trafficking, they still revealed criminal acts. Chances are, the video evidence will be admissible.

Entrapment also seems like a weak defense. There is no reason to believe that Kraft was tricked or duped into entering the spa. It’s also hard to envision that Kraft was seduced into unwanted sexual relations. Even if one wants to believe that Kraft thought he was getting a massage but instead shockingly got something different, there is the conceptual problem of Kraft visiting the spa two days in a row. If Kraft had visited the spa only once, perhaps he could argue he had no idea what was going to happen to him. When he returned the spa for a second time, a mere 17 hours later, that kind of argument became farfetched.

Also, while the circumstances of the Jan. 19 Jupiter Police Department traffic stop of a blue Bentley in which Kraft was a passenger are unknown, it’s not difficult for drivers to give police officers a lawful reason to pull them over. Not fully stopping at a stop sign, running a yellow light or driving too fast in a reduced speed zone are all relatively common violations of traffic laws. While those infractions often don’t lead to being pulled over, they can justify a traffic stop. Further, the Jan. 19 encounter with the police apparently didn’t worry Kraft or seem connected to the spa: he returned to the spa the next day.

What Kraft would want in a deal with prosecutors and why it matters with respect to the NFL

Imagine you are Kraft. Now assume your lawyers advise you that your best legal play is to negotiate a deal with prosecutors. Your lawyers warn you that if you instead direct them to wage a forceful defense, the case could drag out for months. Your lawyers also inform you that pretrial discovery could require you to answer awkward and invasive questions under oath about your sex life, and that such answers could be made public. Then they tell you that a trial could be, among other things, embarrassing for you and your family.

So, what would you most want in a deal? Avoiding jail is obviously at the top of the list. Beyond that, you probably most wish that you don’t have to admit that you paid someone to have sex.

That is the heart the matter. If Kraft admits that he committed illegal solicitation, he knows that NFL commissioner Roger Goodell will almost certainly punish him. Even though known evidence does not link Kraft to human trafficking and even though his alleged offense is a relatively low-level misdemeanor, prostitution is regarded as illegal and immoral act in 49 states (Nevada licenses brothels in certain areas). Prostitution is also linked to sex trafficking and violence against women.

Mistreatment of women is a particularly sensitive topic for the NFL given recent accusations against then-Carolina Panthers owner Jerry Richardson. Richardson was accused of engaging in sexual harassment and inappropriate physical contact with at least four women employed by the team. Last year, Goodell fined Richardson $2.75 million. Richardson was also urged by the NFL and fellow owners to sell the franchise.

Goodell has complete discretion in the type of punishment he could impose on Kraft. It stands to reason that a rational punishment for Kraft would not exceed Goodell’s punishment of Indianapolis Colts owner Jim Irsay. Five years ago, Irsay admitted to driving under the influence of drugs. He pleaded guilty to a misdemeanor charge for operating a vehicle while under the influence. Goodell suspended Irsay for six games and fined him $500,000. One could argue that Irsay’s misdeed was morally “worse” than Kraft’s alleged act since Irsay endangered the lives of other drivers, not to mention his own, by driving under the influence.

Here’s another potential appeal to Kraft of the deferred prosecution, especially if it permits Kraft to describe the plea in a way favorable to him. Technically, he would not be admitting to partaking in solicitation. He would instead be admitting that had he gone to trial, he would have been convicted of solicitation. Kraft could argue there is meaningful daylight between the two types of admissions. In the latter, he could insist that the legal system makes it too risky to go to trial and that he did not want to put himself or his family through it. Therefore, he might say, he took the deferred prosecution deal.

Would Kraft avoid a punishment by Goodell in this scenario? Probably not. But a fine or short suspension would be less interruptive for Kraft and his leadership of the franchise.

Michael McCann is SI’s legal analyst. He is also Associate Dean of the University of New Hampshire School of Law and editor and co-author of The Oxford Handbook of American Sports Law and Court Justice: The Inside Story of My Battle Against the NCAA.

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