Wednesday, February 13, 2013

Oral Argument in the Mark Strong Zumba Prostitution Case

I just listened to the State of Maine v. Mark Strong oral argument at the Maine Supreme Court. They do a live stream of the arguments now which is pretty great. The State appealed the Justice Nancy Mills' order granting the defense motion to dismiss 46 counts of "Violation of Privacy" and the Law Court took the case on an extremely expedited basis. Attorney Dan Lilley argued for the defense and Patrick Gordon for the State, each did a nice job. I was kind of shocked to learn that it was Gordon's first oral argument. He is a really smart and pretty hilarious guy, great work by him.

In opposing the dismissal, Gordon was forced to argue that the patrons of prostitutes have a community accepted, reasonable expectation of privacy in their prostitute visits. Therefor, Strong can be prosecuted for invading that privacy by surreptitiously filming the sex acts. I have written before about how this line of reasoning rings false and I know that some on the defense team share my thinking on this issue. I was surprised then, that Lilley failed to raise the most vexing issue of the whole case: That while the prosecution agues the johns have a community recognized right to privacy they don't actually believe it.
Alexis Wright in a promotional picture before she was charged with prostitution
Mark Strong is charged as Alexis Wright's business
partner who helped secretly film her having sex

See, the prosecution represents the people of the State of Maine and, Maine's community standards are defined by the criminal code. That code says that the people will not tollerate prostitution. If you are caught paying for sex, the State will publicly charge, try, convict and sentence you. That is exactly what they have done here and the video evidence is the key to those prosecutions. To prosecute Strong and Wright for invading privacy, they need to make this "right to privacy" argument, but they do it only to create the legal hook, not because they believe that the Johns should be protected.

What Might Happen?

The obvious out for the law court it to say that the issue of privacy is a factual determination for the jury to make at trial. Since the jury decides facts and the judge decides the law, the judge should not usurpe the jury's role by substituting her own factual analysis for theirs. The justice's questions hinted that they might reverse Mills' order on these grounds and allow the 46 counts to be tried. 

Predictions are pretty silly, but here's mine: The Law Court reverses Mills, finding that the issue of privacy is a matter of fact to be determined by the jury. The case proceeds on all 59 counts and after 2.5 weeks of trial, the State rests. The defense moves for a judgment of acquittal as to the violation of privacy counts, reiterating their legal arguments and applying them to the facts developed at trial. Mills, who already granted the motion to dismiss, grants the motion to acquit. Now only 13 counts are left and a mistrial must be declared since the jury has been irreparably prejudiced against the defendant by hearing days of testimony about nasty conduct irrelevant to the remaining counts.

I hope I'm wrong. Maybe the Law Court will just let the trial judge's ruling stand, that would be the conservative thing to do. Then again, why would they take the appeal if they wanted to do that?