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Lawyers say prostitution sting was entrapment

BROOKSVILLE — Ten men, all defaced by a sordid accusation built on questionable evidence, will stand before juries this week in a series of cases that will test a murky legal standard and a police department's integrity.

The men were ensnared in the Brooksville Police Department's much-publicized prostitution sting in September.

In the course of six days, 32 men were arrested on charges of soliciting sex acts from an undercover female officer posing as a prostitute.

But now attorneys for nearly all of the men are challenging the arrests, pointing to shaky evidence and arguing entrapment by the police.

"The police were very, very aggressive in the pursuit," said defense attorney Robert Whittel, who is representing two of those arrested. "In their zeal to arrest as many people as possible, they ended up pursuing the men who really don't belong being arrested for those crimes."

The validity of the bust gets its first legal test starting Monday when Assistant Public Defender Laura Drake takes 10 cases to trial.

The outcome will serve as an indicator for the credibility of all the cases and reflect considerably on Brooksville Police Chief George Turner, who oversaw the operation — the highest profile event in his first year leading the department.

Prosecutors concede some of the cases are problematic, but they refuse to compromise.

"There might be some issues in some cases, but for the most part it seems like a good case," said misdemeanor prosecutor Matthew Pila. "If we lose, we lose. But at least we stuck to the charges."

Behavior of decoy in sting is a central issue

Dubbed "Operation Working Woman," the sting took place from Sept. 10-15 and targeted the intersection of Jefferson Street and Ponce De Leon Boulevard, west of downtown Brooksville, and Dr. M.L. King Jr. Boulevard in south Brooksville.

It came in response to numerous complaints, Turner said, and mirrored a similar operation in 2006 that netted eight arrests in two days.

The legal issues in these undercover operations are complex and varied. At the crux of the legal challenge is the behavior of the decoy, in this case Officer Krystal Nix.

Dressed in plain but suggestive clothes, Nix stood behind a BP gas station at a major city intersection looking for potential clients.

She wore a hidden microphone that allowed a fellow officer and supervisor to monitor from an unmarked police vehicle.

At a certain point, after the conversation crossed the criminal threshold, the officers waiting nearby came to make the arrest.

Top Hernando prosecutor Don Barbee helped guide the sting by advising Brooksville Lt. Rick Hankins about the legal standard and how to avoid an entrapment situation.

"The undercover shouldn't approach the john," Barbee explained. "It should be the other way around."

But according to the men and their attorneys, it didn't happen that way.

Robert Perry, one of the men arrested, said the officer approached his van at the gas station and steered the conversation toward sex.

In a recent interview, the 64-year-old business owner said the woman offered to give oral sex for $30. He said he never consented, but police arrested him as he left the parking lot.

"Thirty-two at a gas station? Something's wrong here," said attorney Kirk Campbell, who represents two of the men. "The stories are all consistent: She came to them."

The content of the conversations that led to the arrests — and more importantly, how the contact was initiated — is difficult to discern because the evidence isn't clear.

The first problem is the arrest reports, which are supposed to describe the legal basis for the arrest and how the crime occurred.

The affidavits were prewritten with four blanks where officers could fill in the location of the solicitation, the method of travel, dollar value offered and the type of sex act requested. In most cases, no further details on what happened were written down.

Furthermore, investigators didn't take pictures and didn't videotape the meetings. "There's no surveillance video, which I'm sure was done deliberately, so you can't see who approached whom," Campbell said.

Turner said he never thought to use video because it's not common practice.

The only independent evidence detailing the crimes are the secret audio recordings. But they, too, are inconclusive.

A tape reviewed by the Times sounded like pure static, the wind and traffic noise making it virtually worthless. Only a few sporadic words in a minute-long conversation were audible. They came from the undercover officer; nothing is heard from the man who was arrested.

Pila, the prosecutor, admitted the audio quality doesn't help his cases. But in combination with the testimony of Nix and the other officers who were monitoring the sting, he feels the cases "all look pretty good."

"The audio's a problem, but it's old equipment," he said. "It's not by any malfeasance by the BPD; it's just where they were" located.

That explanation didn't work for prosecutors during a trial in April when a jury acquitted a teacher charged with exposing his penis in a Brooksville bathroom. In that case, the audio equipment malfunctioned and the recollection of the officers — the same ones involved in these cases — crumbled during defense questioning. In the end, the jury didn't believe the officers' testimony.

Turner defended his officer's work in this most recent sting. He noted that four of those arrested already pleaded no contest before a trial and received probationary sentences.

"I'm pretty confident that the cases were all done properly," he said, refusing to answer direct questions about the problems highlighted by defense attorneys. "I think the trials will speak for themselves."

Defense attorneys to challenge the arrests

Even with the evidence problems, negotiating the entrapment standard is difficult.

A number of private defense attorneys, most of whom postponed their cases until December, plan to file motions to dismiss, challenging the arrests on due process grounds and questioning the motives and planning of the bust.

Clearwater attorney Jawdet Rubaii, who represents Scott Larkin, filed a motion to suppress the evidence against Larkin, saying the undercover officer conducted an illegal stop by standing in front of his client's vehicle and an illegal search when she opened the passenger door. The officer "made statements to the defendant intended to elicit a particular response," he wrote in the motion.

To prove entrapment, the attorneys must demonstrate that the officer "induced or encouraged" their clients to commit a crime that they were not predisposed to commit, according to state law.

But it qualifies as an "affirmative defense," meaning the men must first admit they solicited the officer.

The alternative — taking a plea deal — is no option, said Drake, the public defender who will go to trial with two cases a day this week.

She said the ramifications of the crime are too great not to challenge it. Soliciting prostitution is a first-degree misdemeanor, and those found guilty are labeled as sex offenders. They don't have to register, but future arrests and convictions could subject the men to expensive satellite monitoring and involuntary commitment.

Prosecutors said they will fight an entrapment defense by arguing that the defendants were predisposed to solicit a prostitute, invoking their behavior and past criminal histories.

Barbee, the local supervisor for the State Attorney's Office, acknowledged this is difficult, especially when many of the men have no previous criminal history.

Still, taking all this into account, Barbee said he made the decision not to let the men plead to lesser charges, as is typical with misdemeanor cases and defendants without criminal pasts.

He said prostitution is a major problem in Brooksville and "we need to help them solve the problem."

John Frank can be reached at jfrank@sptimes.com or (352) 754-6114.

Lawyers say prostitution sting was entrapment 11/15/08 [Last modified: Saturday, November 22, 2008 1:08am]

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