Judge's ruling may undermine case against swingers

By RAFAEL A. OLMEDA Sun-Sentinel      
Web-posted: 1:15 a.m. Jan. 15, 2000

Prosecutors are weighing whether to appeal a judge's ruling that may undermine their cases against more than 20 swingers arrested last year at two Broward County sex clubs.

   The State Attorney's Office will review the decision, announced Wednesday by Broward County Judge Gary Cowart, which would instruct juries hearing the cases of two of the swingers. Cowart agreed with the defense that in order to convict, the jury must find someone other than the investigating police officers was offended by the sexual conduct in the Trapeze II club on West Commercial Boulevard near Tamarac.

   "That ruling only affects two cases," said Assistant State Attorney Catalina Avalos. Other judges handling related cases are free to rule differently, according to her. "Each one will rule according to how they see the evidence," she said.

   Defense lawyers hope the other judges will follow Cowart's lead, which they say would cripple the state attorney's ability to prosecute the swingers.

   "The state has insufficient evidence to proceed," said Samuel Halpern, who represents Maryann Silvers, one of the defendants appearing before Cowart. "There is no one other than law enforcement that claims to have been offended by what they observed."

   "The bottom line is there is no one else who was offended," said James Benjamin, the lawyer who represents several patrons and the two owners of Trapeze II.

   Both sides will be back in court on Tuesday.

   The arrests at Athena's Forum in Pompano Beach in January 1999, and Trapeze II in February, touched off a heated debate about private conduct between consenting adults and the definition of public lewdness.

   Among those arrested were veteran Fort Lauderdale police officer Ray Hall, a Sheriff's Office corrections officer, and two public high school teachers.

   The sheriff's office launched an investigation into the two clubs after receiving complaints from neighbors. Undercover investigators bought memberships under false names, sometimes undressed and sat in hot tubs with other patrons, and witnessed explicit sexual conduct, according to court papers. Police made dozens of arrests at the two clubs, charging patrons with lewd and lascivious behavior.

   Defense lawyers have argued that the sexual conduct took place in private clubs and conspicuous signs in the lobbies clearly warned that sexual activity took place on the premises.

   About 26 cases are pending before various judges. Two cases were dismissed, and 10 defendants agreed to perform community service and pay a fine in exchange for dropping the charges. A three-judge panel ruled in November that the remaining defendants must face trial. Their ruling stated that "the State must present evidence that one or more persons were actually offended by the specific conduct in question."

   They also specifically rejected a 1997 appellate decision involving porn star Kathy Willets, which found a police officer could be the person offended to uphold a charge of lewdness.

   Rafael Olmeda can be reached at rolmeda@sun-sentinel.com or 954-356-4207