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Judge throws out lewdness / prostitution case 

Involving Broward swingers club 


Dave comments: The same arguments should apply to unconstitutional Phoenix law outlawing swing clubs (to somehow protect children). As I understand it, the clubs defeat in their attempt to get a restraining order is now on appeal to the 9th Cir Court of Appeals. When and if Phoenix actually issues any citations under the new law swing clubs will have a very strong First Amendment case. But like in Florida, the city seems very willing to waste taxpayer dollars to please the religious agenda which seeks to control the lives of consenting adults. Too bad justice in America can be very expensive to fight these religious agenda's against citizens.

By PAULA McMAHON Sun-Sentinel 
Web-posted: 12:33 a.m. June 15, 2000

A Broward County judge threw out the case against the co-owner of a local swingers club Wednesday, ruling that prosecutors did not prove the case against him.

County Judge Robert W. Lee ruled that prosecutors presented no evidence that Dennis Freeland, 46, operated the Trapeze II for the purpose of lewdness, assignation or prostitution. 

"I think the court reaffirmed the rights of consenting adults to take part in activities they deem appropriate in private," Freeland said outside court.
Freeland was one of about 50 people, including teachers and law enforcement officers, arrested in early 1999 during Broward Sheriff's Office stings on two clubs, Trapeze II and Athena's Forum. Members join the private clubs to watch or take part in consensual group sex or partner swapping.

Most of the people arrested were married or committed couples who the judge said took part in legal sexual activities with each other.

The evidence in the case showed that Freeland and his business partner, Alan Mostow,were above board when they set up the club. They got a certificate of use from the county, applied to the Internal Revenue Service for tax-exempt status as a private club, and allowed code enforcement officers to inspect the building.

Lee said that to sustain the charges, prosecutors would have had to prove the club owners sat down and decided "we're going to run a business to offend people."

To prove lewdness, prosecutors would need evidence that someone present in the club, other than the arresting police officers, was offended by the activities there.

There was no evidence or testimony that anyone else was offended. The defense pointed out that only one officer, Detective Steve Drum, testified he was offended by the sexual activity and that one other officer, Detective Lisa McElhaney, said she was embarrassed by it.

Prosecutors are appealing the issue of whether they could file criminal charges if the only people offended were police officers who entered the club willingly and disregarded large signs warning people not to go in if they were offended by nudity or sexual activity.

Lee also said there was no evidence of prostitution or assignation, which is making an appointment for prostitution, at the Trapeze II.

The judge's decision in this case raises questions about whether the Broward State Attorney's Office should or will prosecute other people arrested in the stings, said Freeland's attorneys, Daniel Aaronson and Jamie Benjamin.

About half of the almost 50 cases were either dropped or the people involved pleaded guilty in exchange for community service. Cases are pending against Mostow and another 17 or so people accused of lewdness. Those trials have not yet been scheduled.

"I think it was very courageous of the judge to dismiss the case before it went to the jury," Aaronson said. "I hope the State Attorney's Office will now re-evaluate whether they should continue with these prosecutions."

Prosecutors Catalina Avalos and Kristin Kanner said it was too soon to say whether the decision will affect the pending cases.

Jurors who heard the prosecution's evidence in the case and would have had to reach a verdict if the judge had not acquitted Freeland, said they agreed with Lee's ruling. "They never proved their case," juror Mark Sachs said.

Another juror, Magdalen O'Meara, said the legal definition of lewdness convinced her that Freeland and club members were not breaking the law.

During jury selection, several potential jurors said they thought the government should not interfere with private, consensual sexual acts between adults. 

Other potential jurors said they could not ignore their own moral or ethical objections to the activity, regardless of the law. None of the people who expressed those opinions were put on the jury.

Freeland and Mostow said they hope the judge's ruling will encourage Broward Sheriff Ken Jenne and State Attorney Mike Satz to devote the resources of their offices to prosecuting what they said are "real crimes" that affect people's lives.

"The taxpayers should be absolutely astounded that this is how their money is being spent," Freeland said. At least 23 police officers took part in the sting on his club, he said, and prosecutors have spent hours researching and arguing the case in numerous court hearings and an appeal.

Jenne declined to comment on the case, but sheriff's spokesman Jim Leljedal rejected suggestions by the defense that the stings were a publicity stunt or designed to win votes for Jenne.

"Any time you take an action against an adult club like this, the accusation is made that it's for politics or for elections, but that isn't fair, because we take action in election and non-election years," Leljedal said.

Freeland said he was extremely relieved by his acquittal. If he had been convicted of the three misdemeanors, he would have faced up to 180 days in jail and $1,500 in fines. But he said there has been one advantage to the otherwise stressful experience of being prosecuted.

"Business is up," Freeland said with a grin. "You know what they say, there's no such thing as bad publicity."

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