Second judge questions sex club cases; issue may never get to jury

By TERRI SOMERS Sun-Sentinel      
Web-posted: 12:05 a.m. Jan. 21, 2000

A second Broward County judge has questioned the strength of cases against dozens of people arrested at two Broward County private sex clubs during raids last year.

   About 50 people, including two teachers and a police officer, were picked up in the raids.

   Sam Halpern, attorney for several of the defendants, on Wednesday asked Judge Fred Berman to instruct jurors in the upcoming trials of four of them that convictions could not be based solely on the testimony of Broward sheriff's officers. Others in the community must have been offended by the openly sexual activities, and the only other people present at the clubs were patrons and employees.

   Last week, another county judge, Gary Cowart, issued just such an order in a case against several others arrested at the sex clubs and charged with lewd and lascivious behavior.

   Berman turned down Halpern's request for a similar jury instruction. But he went a step further, indicating the case might not even make it to a jury because the arrests were questionable.

   Before the raid, the officers were briefed that they were supposed to arrest anyone they saw engaging in sexual acts, Halpern said. And so they did.

   But in order for actions to be lewd and lascivious, they must offend someone, Halpern said.

   The arresting officers cannot go into a club and be "retroactively offended" at what they saw happening there, the judge ruled. "Individuals other than the officers must be present in order for the state to prevail," Berman said.

   That ruling, said Halpern, indicates the judge would offer a directed verdict, throwing out the case before it could be sent to a jury.

   In last week's ruling, Cowart said he would instruct the jury that in order to convict, they would have to determine that someone other than law enforcement officers was offended by what they saw at the clubs.

   The State Attorney's Office said it plans to appeal that ruling.

   Prosecutors have not determined whether they will also appeal Berman's ruling, said Catalina Avalos, the assistant state attorney handling the sex club cases.

   Everyone who was in the sex clubs -- Trapeze II on West Commercial Boulevard, near Tamarac, and Athena's Forum, in Pompano Beach -- at the time of the raids last year, was a willing participant in activities there, Halpern said.

   Terri Somers can be reached at tsomers@sun-sentinel.com or 954-356-4849.