Swingers case ruling reaffirmed

A second judge hearing some of the scores of cases against Broward swingers said this week the state must present more than undercover officers offended by alleged lewd behavior in order to have a case.

Circuit Court Judge Fred J. Berman, who was a member of a three-judge panel that heard testimony in September from officers disguised in hoods, said, ``Officers who participate in like behavior cannot testify that said behavior is offensive,'' in an order issued Wednesday in response to a motion by Sam Halpern, a lawyer for defendant Allen Silvers. The judge was referring to the fact that the officers stripped naked to observe sexual activity last year among patrons at Fort Lauderdale's Club Trapeze II, and Athena's Forum in Pompano Beach.

``It appears to this court that  . . . an individual, other than an officer, must be presented in order for the state to prevail,'' Berman said in his order.

Last week, Judge Gary Cowart, issued a similar opinion. On Tuesday, the state said it intended to appeal Cowart's ruling. Several other judges are considering the same defense motion, but have yet to be heard from.