High court debates if johns in Kennebunk Zumba prostitution case should expect privacy

Daniel Lilley, attorney for Mark W. Strong Sr. (seated) complains about evidence provided to him by the prosecution on an internal hard drive in Cumberland County Superior Court in Portland in October 2012.
Daniel Lilley, attorney for Mark W. Strong Sr. (seated) complains about evidence provided to him by the prosecution on an internal hard drive in Cumberland County Superior Court in Portland in October 2012. Buy Photo
Posted Feb. 13, 2013, at 11 a.m.
Last modified Feb. 13, 2013, at 3:44 p.m.

PORTLAND, Maine — Maine Supreme Judicial Court justices must decide whether individuals illegally paying for sex — or committing other crimes — are entitled to privacy protections while in the act.

The question is uncharted territory in Maine law. It is also central to the trial of Mark Strong, who may face 46 counts of privacy invasion for the alleged secret videotaping of johns having sex with accused prostitute Alexis Wright at her Kennebunk fitness studio.

“[The act of prostitution] colors the place where the action was taking place and it colors the people involved,” state supreme court Justice Jon D. Levy said during a Wednesday afternoon hearing on the subject. “We have to ask whether this is a person who is entitled to privacy.”

Strong will still face 13 counts of promotion of prostitution for his alleged partnership with Wright regardless of what the law court decides, but the defense would likely consider dismissal of more than two-thirds of the charges a major pretrial victory.

Attorneys in the high-profile Kennebunk prostitution case on Wednesday likely got their last chance to square off on whether the majority of charges against Strong should be thrown out.

Oral arguments before the justices of the Maine Supreme Judicial Court took place Wednesday afternoon, representing one of the last steps before the case can be returned to the Superior Court level to ultimately determine Strong’s guilt or innocence.

Up for the state’s highest court to decide is whether he will be tried on all 59 charges originally brought by prosecutors or just 13 counts of promotion of prostitution.

In a pretrial hearing on Jan. 25, Superior Court Justice Nancy Mills granted a defense motion to dismiss all 46 privacy invasion charges against Strong.

Since then, the trial of Strong has been on hold for more than two weeks as a prosecution appeal of that decision has worked its way through the Maine Supreme Judicial Court. The Thomaston insurance broker has been accused of conspiring with fitness instructor Wright to run a prostitution business out of her Kennebunk Zumba studio.

York County Assistant District Attorney Patrick Gordon, arguing his first case before the law court Wednesday, described before the justices a scene in which “a man makes a date to meet with his secret lover,” going behind locked doors to a second-floor office.

“Eventually, after massaging each other, they engage in sexual intercourse,” Gordon told the court. “The most private, intimate thing people can do.”

He then added to the scenario a hidden camera, underneath a pile of lingerie, transmitting live footage of the encounter to a man offsite, who was recording it in the form of both video and still screenshots. Strong is accused of being that offsite man.

“No one could argue for a minute that that person [engaged in sexual activity] does not reasonably expect privacy,” Gordon said. “Why would it be any different if money changed hands?”

Chief Justice Leigh I. Saufley suggested the exchange of money — making the encounter an engagement with a prostitute, an illegal business relationship instead of a legal social one — may, indeed, alter the “reasonable” expectations for the man in Gordon’s scenario.

“Isn’t that a world of difference under the statute?” she said.

Defense attorney Daniel Lilley argued before the court individuals going to a “commercial establishment for the sole purpose of engaging in illegal activities” cannot expect legal privacy protections under Maine law.

“I’m not sure you can trust a prostitute. You’re talking about someone who makes their living through crime?” he told the court, adding, “I would think, as human nature goes, that at a crack house or any criminal enterprise, people would have some realization that a police raid could transpire at any time.”

Justice Joseph M. Jabar responded, asking, “There’s no honor among criminals, is what you’re saying?”

Lilley reminded the court that his client, Strong, is not accused of prostitution or engaging a prostitute, removing him from the sexual encounters being discussed, honorably or not.

But some on the high court suggested that the question of whether an alleged prostitute and her client deserve privacy is more of a societal one than a legal one — in which case, it could be returned to the Superior Court level to be answered there.

“Isn’t that a community standard? Where does the judge get off — or where do we get off — telling the community what they should accept?” Justice Andrew M. Mead said. “Shouldn’t that be something for the community, in the form of the jury, to decide?”

The high court hearing lasted approximately 45 minutes Wednesday afternoon. The Maine Supreme Judicial Court is considering the appeal at an expedited pace, but has no deadline before which it must rule.

The scandal has attracted global media coverage and has involved law enforcement agencies at the local, county, state and federal levels. Nearly 70 individuals have been charged with paying for sex with Wright, including 18 who have since pleaded guilty, paid fines and now are listed as potential witnesses in the Strong trial.

Wright faces a separate trial in May.

Regarding the disputed 46 privacy invasion charges, Strong’s attorney, Daniel Lilley, argued that Maine privacy laws are meant to cover bathrooms, locker rooms and private homes, not to protect individuals engaged in illegal activity such as prostitution. Prosecutors from the York County district attorney’s office have countered that an individual committing a crime is not exempted from simultaneously being a victim of another crime.

Wright’s attorney, Sarah Churchill, filed an amicus brief with the state supreme court supporting Strong’s argument against the appeal.

After the law court issues its ruling on the appeal, Strong will return to trial at the Superior Court level on either 13 or 59 charges, depending on whether the higher court upholds or overturns the dismissal of the 46 privacy invasion counts.

Among the first orders of business at the Superior Court will be completion of jury selection, the early stages of which were time-consuming as attorneys struggled to settle on jurors who were not influenced by the intense media coverage or who did not know anyone involved in the sprawling case.

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