PORTLAND — A prosecutor in the Kennebunk prostitution case told the state’s highest court Wednesday that prostitutes’ customers are like secret lovers engaging in their activities behind closed doors.
York County Assistant District Attorney Patrick Gordon argued before the Maine Supreme Judicial Court that those customers have a legal expectation of privacy, and that it could be considered a crime to videotape their sex acts.
Gordon was seeking to reverse a trial judge’s decision last month to dismiss 46 counts against Mark Strong Sr., all related to violation of privacy
Strong, 57, of Thomaston, is one of the two key defendants in the high-profile case. He is accused of conspiring with Alexis Wright to run a one-woman prostitution business from her Zumba studio in Kennebunk and helping her to make video recordings of her encounters with customers.
He was set to stand trial when Justice Nancy Mills decided on Jan. 25 to grant a motion by Strong’s attorneys to dismiss the 46 counts of violation of privacy on the grounds that prostitution customers cannot have a legal expectation of privacy while committing the crime.
Prosecutors immediately called for a halt to the trial to appeal the decision to the high court.
Thirteen charges still are pending against Strong: 12 counts of promotion of prostitution and a single count of conspiracy to promote prostitution.
Wright, 30, of Wells, is scheduled to stand trial on 106 counts in May. She has pleaded not guilty to violation of privacy, promotion of prostitution, engaging in prostitution, conspiracy, tax offenses and receiving welfare benefits when ineligible.
The case has drawn attention in part because Wright is suspected of keeping a meticulous list of her customers, including prominent figures. At least 66 have been charged, and at least 18 have pleaded guilty to engaging a prostitute.
Gordon only briefly described his secret-lover scenario before the seven justices Wednesday before they began peppering him with questions for the 15 minutes allowed for oral arguments.
“They engage in sexual relations, the most private, intimate thing people can do,” Gordon said. “He didn’t know that she had hidden a camera beneath some lingerie he didn’t know was there.”
Gordon added details from allegations in the case, that the woman had a “partner” who was watching the sex over an Internet connection, unbeknownst to the customer, while it was being recorded.
“No one would argue for a minute that this person didn’t expect privacy,” he said. “Why would it be any different if money was exchanged?”
Chief Justice Leigh Saufley interrupted Gordon as he began his next sentence, asking: “Isn’t that a world of difference?”
The other justices then questioned Gordon on specifics, some cutting him off mid-sentence with more questions.
Justices asked why Gordon didn’t file an objection when Strong’s attorneys filed the motion to dismiss the 46 charges as the trial was about to begin.
Strong’s attorney, Daniel Lilley, also made a brief presentation before the justices asked him questions.
“We submit that the Superior Court correctly determined that patrons of prostitution have no expectation of privacy,” Lilley said.
Justice Jon Levy asked Lilley whether that is a question for a jury to decide.
“Those people were there for the sole purpose of engaging in sex for money,” Lilley said. “All of those johns, or patrons of prostitution, have been convicted.”
The prosecution’s list of witnesses for Strong’s trial includes 18 men who have been convicted of engaging a prostitute in the case.
Justice Ellen Gorman asked Lilley about the timing of his motion to dismiss the 46 counts, as jury selection was about to begin.
“Why was it you took this motion literally on the eve of the trial?” Gorman asked.
Lilley said he had filed many other unsuccessful motions before the jury selection phase that he hadn’t expected to be denied.
“As soon as we really got into the case, it became clear that these charges did not apply,” he said.
Wright’s attorney, Sarah Churchill, has filed a brief with the Supreme Court as an interested party, because Wright also is charged with 46 counts of violation of privacy.
Churchill attended the oral arguments but was not asked to speak.
The high court took no action after the hearing and set no time table for when it might rule.