A Broward judge on Thursday all but ended the state's cases against 17 people who were arrested last year in two controversial raids at Broward sex clubs.
Upholding a lower court, Circuit Judge James I. Cohn ruled that someone other than an investigating police officer has to be offended in order for the crime of lewdness to occur at a swingers' club where notices were posted telling the squeamish to stay out. It was a further indication that the state's case, which attracted national attention, is rapidly collapsing. It came one day after another Broward judge dismissed lewdness charges against the co-owner of one of the most popular of the clubs, Trapeze II.
Prosecutors declined to comment. But defense attorney Daniel Aaronson - who has four Trapeze defendants as clients and another person arrested by the BSO during an earlier raid at the now-defunct Athena's Forum in Pompano Beach - said "This is the nail in the coffin, and this should dismiss all these cases."
A total of 50 people were arrested at the two clubs 18 months ago by armed and masked Broward sheriff's deputies.
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Some defendants have had their charges dropped, others paid misdemeanor fines, but 17 men and women resolved to fight it out.
The arrests derailed the promising careers of two Broward schoolteachers. One quit her job. The other was reassigned to teaching jailed prisoners. A Broward corrections officer was fired.
Other arrested patrons were reprimanded by their employers and have been ostracized by friends and neighbors as a result of publicity in connection with the case.
Word spread quickly coast to coast among members of the estimated three million-strong "Lifestyle" swingers' movement, who reacted joyously to the latest court ruling. They hailed Cohn's admonition against "unfettered discretion to arrest" by law enforcement officers pursuing "their personal predilections."
"Florida is where it is at, man" said a man who uses the pseudonym Bobby Vee at a New York City swingers' club. "The judges have said that consenting adults have the constitutionally protected right to have any kind of sex they want. The court said the police had no right going [into the club] and now the cops know to stay the hell out of America's bedroom."
Melanie Dietrich of Chicago's Loving Couples Club said the Broward case is a landmark. "People in the Lifestyle who were afraid no longer have to live with this fear because now they know that what they love to do is legal. There is no doubt now, as long as they have sex in private and do not bother anyone."
But there were strong critics of the decision.
Barbara Collier, chairman of the Christian Coalition of Broward County, said swingers are "lewd because lewdness means they are preoccupied with sex and outrageous and indecent behavior."
The legal process was at fault, Collier said, because attorneys were able to strike off the list of jurors people with a strong sense of morality. "There were not any moral people on that jury, " she said, reacting to comments made by jurors on Wednesday about what they felt was the state's inability to prove lewd behavior after a judge gave a directed verdict of acquittal in the case against Dennis Freeland, co-owner of Trapeze.
Collier said she felt that an apparent lack of public outrage at swingers' clubs operating in Broward - which has Florida's largest concentration - was reflected in the court's rejection of the state's case.
"It doesn't surprise me, " she said, "because of the many things we are allowed to do in Broward County.
"People here don't want to get involved. They have the sun and the beach, and they have their football and hockey tickets. And the economy is good, so people are just not interested."
Sheriff Ken Jenne, who many Broward swingers say staged the raids on the clubs to gain public favor, was not available to comment on the developments, his spokesman, Jim Leljedal said.
"We'll certainly accept his advice, " he said of Cohn's ruling, "in terms of what we do in the future. But that's about all we are going to say."
Cohn's rejection of the state's appeal backed an earlier ruling in January by Circuit Judge Gary Cowart in the case involving Trapeze patron Ray Hall, a Fort Lauderdale policeman, that the state had to present someone other than an undercover officer to complain about lewd behavior.
"I agree with Judge Cowart that to now allow police officers to prove the element of offensiveness when they did not even consider it at the time of the arrests smacks at fundamental fairness, " Cohn said.
"Their marching orders were to arrest anyone engaged in sexual activity period. Offensiveness was never mentioned nor considered prior to the blanket arrests. This was a misapplication of the law . . ."
"To permit law enforcement officers to decide if a crime was committed, based solely on whether they are personally offended by the acts observed, confers unfettered discretion to arrest."