Lawsuits Over Robert Kraft, Orchids of Asia Day Spa Surveillance Video

By Christopher Coble, Esq. on April 24, 2019

The Sunshine State is notorious for its Sunshine Laws, which guarantee that "all state, county, and municipal records are open for personal inspection and copying by any person." That -- along with the siren song of easy money coupled with malarial, blazing heat -- is one reason you read so many astounding "Florida man" stories.

But balancing those laws with privacy interests can be challenging, as the recent case of New England Patriots owner Robert Kraft has shown. Kraft was videotaped engaging in sex acts at the Orchids of Asia Day Spa in Jupiter, Florida, and charged with two counts of misdemeanor soliciting prostitution. Now he, and an innocent man also taped during the weeks-long investigation, are trying to block the release of that video. Will they be successful?

Criminal Defendants

So far, yes. Kraft, who pleaded not guilty yet issued a public apology regarding the incident, obtained a temporary protection order from a circuit judge in Florida, who determined that releasing the surveillance video publicly might taint the jury pool in Kraft's criminal case. County Court Judge Leonard Hanser weighed the competing interests at play:

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.

In the end, Hanser balanced the two by blocking the release of the video only until one of four things happens:

  1. Trial juries being sworn in each case;
  2. The cases resolving by plea agreement;
  3. The State no longer pursuing the charges against Defendant; or
  4. 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.

So it's less of matter of if surveillance footage of Kraft's visit to the spa will be released, and more matter of when.

Civil Plaintiffs

But not all visitors to Orchids of Asia were engaged in criminal behavior. One man, identified only as John Doe, was just getting a normal massage when he was videotaped during the prostitution sting. Doe is suing Jupiter Police Department Detective Andrew Sharp and the Palm Beach County State Attorney, claiming he "did not engage in any sexual or illegal activity at any time while receiving his massage," and expected a reasonable level of privacy in the massage room.

That fact might distinguish Doe's case from other instances of surveillance recording like in-store cameras and police dash cams. And whether his case is successful may depend on what police did with footage of innocent bystanders once they determined no crime was committed.

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