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Why Robert Kraft’s Legal Team Could Have Trouble Preventing Release of Day Spa Videos

The longer Robert Kraft is willing to fight the solicitation charges, the greater the likelihood will be that the day spa videos will be released through authorized or unauthorized channels.

Whether Robert Kraft is guilty of solicitation may soon become a secondary issue in the legal controversy surrounding videos of the New England Patriots owner in the Orchids of Asia Day Spa in Jupiter, Fla. on Jan. 19 and Jan. 20. Recent developments suggest it is only a matter of time before the videos are released through lawful or unlawful means. If the videos go online, there is no practical way they can be permanently removed from the Internet. Once they are up, they are there for good.

From the day Kraft was charged with two low-level misdemeanor offenses, the most damaging threat to his legacy—and, by extension, of potential harm to the NFL’s relationship with important constituencies—has been that the videos go “viral” and millions of curious onlookers watch them. According to video narratives authored by Jupiter police officers, Kraft is shown engaged in sexual acts with women purportedly employed by the spa. He is also shown paying them cash. The release of the videos, particularly unedited versions, would be embarrassing to the 77-year-old billionaire and would make it more likely that NFL commissioner Roger Goodell punishes him.

Kraft and his legal team are trying to thread a needle. While they attempt to defeat the charges and accept that such a goal could take weeks or months, they simultaneously seek to prevent disclosure of the videos. As explained below, these strategies are not entirely congruous: The longer Kraft is willing to fight the charges, the greater the risk will be that the videos will be released through authorized or unauthorized channels.

Kraft takes on Florida law enforcement and prosecutors . . .

Kraft insists that police officers violated his Fourth Amendment right against unreasonable searches when they covertly recorded him in the spa. Kraft’s attorneys offer a number of arguments to support this position. For instance, they contend the search warrant was largely premised on suspicions of a human sex trafficking ring. No such ring was found. Kraft’s attorneys also depict the warrant as defective since it failed to expressly indicate when the recordings were supposed to start and stop. Further, the attorneys insist the police officers did shoddy work that led them to hastily and crudely videotape Kraft and other unclothed men. Those officers, Kraft’s lawyers maintain, “did no undercover work,” failed to speak with spa employees or former spa employees to assess their (erroneous) suspicion of human sex trafficking and used a fake bomb threat as a ruse for spa employees to leave the building, thereby allowing the police to install hidden cameras.

The prosecution is armed with a number of counterarguments. For one, “sneak-and-peek” warrants—which involve law enforcement creating a ruse to install cameras—are generally authorized by the 2001 USA Patriot Act. This law, which was passed in the aftermath of the Sept. 11 terrorist attacks, provides law enforcement with substantial discretion to engage in surveillance and recordings. The fact that the Patriot Act wasn’t intended for the surveillance of prostitution doesn’t preclude its use in that context.

Also, affidavits indicate that law enforcement utilized human surveillance before resorting to installing hidden cameras. Such intelligence included visual observations of men who had entered the spa, searches of dumpsters behind the spa and an interview with at least one “John” who had visited the spa. The search warrant, moreover, was not entirely premised on a finding of human sex trafficking. Other stated rationales were suspicions of widespread prostitution and money laundering. These suspicions appear to have been confirmed at least in part. Numerous men have been charged with solicitation and felony charges have been brought against the spa owners.

. . . but the controversy extends as a result

While Kraft and prosecutors argue over the legality of the recordings, the controversy remains in the court system. An embarrassing story thus lingers in the news cycle and continues to follow Kraft.

Even if Kraft’s attorneys ultimately prevail in having the case dismissed, Kraft himself would not necessarily be vindicated in the court of public opinion—particularly if the videos are released. Kraft has already apologized for partaking in the sexual incidents at the spa and his legal filings confirm that he was in the spa. This isn’t a situation where the defendant insists the prosecution has accused the wrong person. Kraft acknowledges he is that person. His defense is that the recordings were illegally obtained and constituted an unlawful invasion of privacy. No matter how the case is resolved, many will opine that he is “guilty” of the underlying sexual acts. Along those lines, critics would insist that the case ending reflected law enforcement errors and constitutional safeguards, not that the acts didn’t occur.

It’s not as if Kraft’s freedom is on the line. He is accused of relatively minor offenses that, while in theory could carry a jail sentence, in reality would not. To be sure, Kraft is angered—rightfully—by initial insinuations by law enforcement that he was somehow connected to a human sex trafficking plot. He wasn’t, and there was no such plot. Kraft surely distrusts Florida officials and may not be willing to strike a deal with them.

But a deal would provide Kraft with closure and potentially make disclosure of the videos less likely to occur. Kraft has already been offered a pretrial diversion arrangement where the charges would be dropped if he completed an education course, paid a small fine and performed community service. It’s possible that Kraft’s attorneys could successfully demand in any plea deal what he would probably value the most: a reduced chance that the videos go public. Prosecutors could agree to not release the videos even if they are permitted by law to do so. They could also recommend to the court that the videos be sealed.

As Kraft fights in court, the videos are limbo and could be unlawfully leaked at any time

By continuing his legal fight rather than accepting a plea deal, Kraft ensures the videos remain in legal purgatory—with disclosure possible at any moment. The videos could be disclosed through authorized or unauthorized channels. While Kraft uses the legal process to prevent or at least slow any authorized disclosure, he has much less control over the possibility of unauthorized disclosure. And it may already be too late for him to stop that from occurring.

As previously discussed on The MMQB, many people who work in some capacity for the town of Jupiter or the state of Florida probably have had access to the videos. The videos are digital files, meaning they can be shared easily by email or text. They can also be copied and stored on computers that host them. The number of copies in existence could already be numerous.

The videos’ values are likely considerable, perhaps seven figures. While watching a video of someone at a spa engaged in a sexual act is probably unappealing to most, the video would nonetheless attract watchers. Potential viewers include those with voyeuristic interests and those who want to see Kraft humiliated and ridiculed.

“Sex tapes” involving famous people typically have no shortage of viewers and they offer opportunities for others to make money by selling access and ads. A sex tape from 2006 of a then-53-year-old Hulk Hogan was watched by more than 2.5 million people and became the subject of a successful $140 million lawsuit brought by Hogan against Gawker. A sex tape from 2009 of a then-58-year-old Gene Simmons was supposedly one that “no one wanted to see” yet a company sold access to it for $10. Both videos depicted famous adults who are older than 50 engaged in sexual acts, and both videos were of interest to many people.

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It appears that at least one of the Kraft videos has already leaked or is being illegally shopped by someone in their possession. Gary Trock and Mike Walters of The Blastreport that their publication has been offered a video by an unnamed party. The Blast viewed the footage and confirmed that it is indeed of Kraft. Trock and Walters write that “in the video, the 77-year-old is already undressed and laying on the massage table with his hands placed behind his head. The camera angle is an overhead shot, and it’s believed the camera was placed in the ceiling.”

If an unauthorized video is released, it’s not clear how much reputational value Kraft would gain by having the “official” video suppressed on account of the Fourth Amendment. He might defeat the criminal charges, but the videos would already be online.

Media companies demand authorized releases of the videos while Kraft seeks protective order

The persistent interest of media companies in the spa videos of Kraft is also reflective of those videos’ high value. A group of media companies, including the Associated Press, ESPN, the New York Times and The Boston Globe, have intervened in Kraft’s legal matter. They are attempting to block Kraft from obtaining a protective order. If granted by Judge Leonard Hanser of the Palm Beach County Court, the order would prohibit media companies from obtaining authorized copies of the videos. The fact that media companies, including mainstream and traditional publications, want the videos highlights their appeal.

In pursuit of the protective order, Kraft’s attorneys reiterate arguments that the recordings violate Kraft’s constitutional rights. They also contend the videos would cause Kraft severe humiliation. Further, since many people who watch the video would draw adverse conclusions about Kraft’s guilt from that viewing, Kraft’s Sixth Amendment right to a fair trial would theoretically be jeopardized.

The media companies see it differently. They stress that they have a right under both the First Amendment and Florida law to report on illegal prostitution and thus require access to the videos for newsgathering purposes. Florida also has a long tradition of revealing information about criminal proceedings, including the legal precedent that once evidence is shared with the defendants, it loses its protective quality and can be released to the public. Further, the fact that the videos might cause Kraft embarrassment is a not a legal justification, the media companies contend, for those videos to be withheld. If the media companies prevail, and absent any court order to the contrary, Florida authorities would be able to lawfully release the videos of Kraft.

Hua Zhang’s case could lead to the videos being released

The lawful release appeared to be on the verge of occurring last week. In a filing last Wednesday in the case of Hua Zhang—who faces 26 charges, including felonies, for allegedly masterminding the multi-spa prostitution ring—prosecutors revealed to the judge overseeing Zhang’s case, Judge Joseph Marx of the Palm Beach County Court, that they intend to release requested spa videos of Kraft and the other men. Attorneys for Kraft immediately objected, saying that the prosecutors were attempting to conduct an “end run” around Judge Hasner, who hasn’t yet determined if the media can access the videos.

If Judge Marx had permitted the videos’ release, Kraft’s motion for a protective order from Judge Hasner would have become moot: the videos would already be online. Judge Marx instead issued a temporary protective order prohibiting the release of the videos. He will hold a hearing next Monday, April 29, to assess whether to lift the order and allow the release of the videos or issue a more lasting order. It’s possible, then, that the videos could be released on April 29 or, if Judge Marx stipulates the videos be edited prior to release, not long thereafter.

If the videos are released in authorized form, they will need to comply with limitations found under Chapter 119 of Florida Statutes. Chapter 119 is the state’s public records law. Portions of videos could be deleted, blurred or partially concealed by a dot. Still, there would likely be enough indication that Kraft is the person in those videos.

Friday’s hearing in Kraft’s case is crucial but not necessarily determinative

Before next Monday’s hearing, Kraft’s attorneys will have an opportunity to argue before Judge Hasner for the suppression of the videos. Judge Hasner has scheduled a hearing for this Friday at 9:30 a.m. Competing arguments by Kraft and prosecutors are detailed above. If granted, a motion to suppress would mean that the videos are no longer admissible evidence. Prosecutors would then be barred from using the videos to prosecute Kraft. Although prosecutors could still rely on any testimony of the spa employees with whom Kraft allegedly had sexual contact, it’s unknown if such testimony exists and, regardless, the videos would have been more powerful evidence. If Kraft wins on the motion to suppress, there is a chance the case would be dismissed.

There are at least four caveats for Kraft, however.

First, Judge Hasner might not issue a ruling on Friday. Judges often hear oral arguments and then take days or weeks (or months) to review those arguments, in conjunction with written filings. While timing is of the essence to Kraft, Judge Hasner will likely not treat the case differently because of Kraft’s preferences. Cases that don’t end early with plea deals can take some time, particularly with judges who have busy dockets. To that point, Judge Hasner heard oral arguments on Kraft’s motion for a protective order on April 12 and has not yet issued an accompanying ruling.

Second, Judge Hasner is not the only judge with decision-making authority on the videos. As noted above, Judge Marx is overseeing the Zhang case and can determine the videos’ release.

Third, even if the legal process leads to Florida courts permanently sealing the videos, the risk of unauthorized disclosure would remain.

Fourth, Roger Goodell could still punish Kraft even if the case against the Patriots owner is dismissed. Under both the league’s personal conduct policy and the league’s constitution, no crime or other legal offense is required to trigger a sanction. Goodell can punish Kraft for any “conduct detrimental to the integrity of, or public confidence in, the game of professional football.” Goodell has previously punished owners for inappropriate conduct (Jerry Richardson—workplace misconduct in treatment of female employees) and unlawful conduct (Jim Irsay—pleaded guilty to a misdemeanor charge for operating a vehicle while under the influence). While Nevada licenses brothels in limited areas, solicitation is an illegal act in 49 states and is often associated with degradation of women. If the videos are released, Goodell could reason the league’s image is adversely impacted and thus justifies a fine or suspension.

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.