Fighting Crime by Publicizing, Prosecuting and Victimizing Victims: The Mark Strong Prostitution Case

Author's Note & Update 4/25/13: This post was originally published 1/31/13, several weeks before the Mark Strong trial was resolved. It has been the source of some controversy, probably because I come of sounding like a jerk who is accusing the prosecution of a grand scheme to unfairly punish the johns. That's not what they were trying to do and to the extent that the post serves to attack those people, that is not fair of me. I know the prosecutors involved and respect them as professionals who have never treated me or my clients unfairly. With the benefit of hindsight, several things are worth pointing out:

1. Prosecutors do not make the law, that is the legislature's job. The law as drafted put all parties in a difficult position and created a unique issue that the Maine Supreme Court ultimately resolved in favor of the defense. That does not mean that the prosecutors were being unfair. Often times, reasonable people disagree about the proper interpretation of the law.
2. The prosecution did not go seeking out this case, they simply reviewed evidence brought to them by law enforcement. They can't just ignore that kind of thing and must charge the crimes that the evidence supports.
3. Mark Strong went to trial and was convicted of the 13 remaining counts. He served a 20 day jail sentence.
4. The prosecution never called the 18 johns they listed as witnesses at the Strong trial. Probably because, after the invasion of privacy counts were dismissed, that evidence was not needed.

After learning of the post's reception, I considered simply deleting it, but that didn't seem right. I still think it says something of value and I don't want to pretend like I never said these things. Still, I want to acknowledge that reaction to the post has been a real lesson for me. Though some might cringe to read it now, the original text appears below unedited:

As has been widely reported, Justice Nancy Mills dismissed all 46 violation of privacy counts against Mark Strong. He is charged as business partner to Alexis Wright, the now famous Zumba Madam. Strong faced a total of 59 counts and the State charged violation of privacy claiming that he and Alexis video recorded her sexual encounters with prostitution patrons.

Many outlets have reported that the Judge granted the motion finding that the patrons "had no reasonable expectation of privacy in their illegal acts." That is true, but also kind of misses the whole point. As I see it, the biggest news is that the dismissal calls out the prosecution on the inherent duplicity of their strategy. Here's what I mean:

renaissancechambara Via flickr

The Johns are Dirty Criminals

With great fanfare, the State charged the Johns with engaging a prostitute. They announced the names of the patrons in several waves which helped maximize press exposure. They extracted guilty pleas from Johns by explaining that the alternative was a public trial where the key evidence would be the video of them having sex with a hooker.

The tactic worked and many plead guilty to defensible cases to keep things quiet. This really helped the prosecution because, once the men plead, they extinguished their fifth amendment right to remain silent and can be forced to testify. 18 of the Johns were subpoenaed against Strong and without their testimony, the case is probably impossible to prove. They will take the stand and say stuff like, "yes that is me on that video" and, "yes, the whore I was screwing is sitting over there just past the CNN cameras." Sounds like fun.

Dirty Criminals Victimized the Johns

On the other hand, the state has the audacity to charge Alexis Wright and Mark Strong with "violation of privacy" for creating the very videotapes that they threatened to publicly use against the Johns in order to extract the guilty pleas they need to prove the cases against Wright and Strong. The johns were victimized by Wright and Strong who recorded them without permission, but they never published the recordings and no one would have ever known about them. It took the Prosecution to truly create victims by publicizing the names, and the videos, and soon the testimony of Wright's customers.

Stomping on Crime one Victim at a Time

So congratulations State of Maine, you stood up for justice! By prosecuting the victims of a crime for engaging in a victimless crime, you have outdone the real perpetrators and truly victimized the actual victims. Oh, and by doing that, you probably made it impossible to prosecute the people that you claim are the worst criminals. Nice work.