12 Flush the Johns trials possible as DA sting wraps up

More than 50 of the 104 men caught in the Flush the Johns anti-prostitution sting in Nassau County last year have taken advantage of an offer to plead guilty to a reduced charge.

The 57 men pleaded guilty to disorderly conduct in First District Court after June 4, when District Attorney Kathleen Rice dropped her year-old demand that all the defendants plead guilty to the top count of patronizing a prostitute in the third degree, a misdemeanor.

Rice announced the arrests at a highly publicized news conference on June 3, 2013. Twenty-four men pleaded guilty over the next 12 months.

In addition to the 80 who have pleaded guilty to one charge or another, 12 men await trial. Four have been acquitted at nonjury trials. One was convicted at a nonjury trial. Charges against three were dismissed, but prosecutors are appealing.

One case was dismissed with the consent of prosecutors. One defendant failed to show up in court and an arrest warrant has been issued. Another defendant was 17 years old at the time of his arrest and court records are no longer public in that case.

The men who pleaded guilty earlier and the one man convicted at trial will be allowed to plead guilty to the lesser charge of disorderly conduct, a violation, which falls short of being a crime and does not show up on criminal records. The men will be required to perform community service and complete a two-hour class to "educate" them about the harm caused by prostitution before the charge is reduced.

When Rice disclosed the Flush the Johns initiative at the news conference, she was accompanied by Nassau County's then-police commissioner, Thomas Dale. Standing next to a poster board with 104 mug shots of the defendants, Rice said: "Not only do people have a right to know who their prosecutors and police are arresting and charging with crimes, but we know that the commission of this specific crime is dramatically affected by the perceived risk of getting caught. We are giving fair warning to johns that the risk is growing rapidly."

Nassau County police made the arrests in April and May 2013 after Rice said she suggested that officers for the first time target patrons of prostitutes. The department devised the protocols, including the decision not to tape-record the initial telephone solicitation, she said.

Rice says the effort was a success, although she has had second thoughts about calling the sting Flush the Johns.

"The name, unfortunately, became a distraction, especially when you're talking about an industry where women and men die every day," she said.

Legal back-and-forth

Defense attorneys and the legal establishment criticized Rice's initial refusal to plea bargain and her release of the names and mug shots of all the defendants.

"It was probably not so well thought out and perhaps an attempt to get favorable press," Touro Law Professor Richard Klein said.

Two of the four men acquitted at trials were represented by attorney Brian Griffin of Garden City, who said the cases were weak. "One can logically conclude that repeated losses by the DA's office caused a change in policy and plea posture," Griffin said.

"Unfortunately this decision [to plea bargain] came after every citizen charged in this operation had been throughly and improperly publicly humiliated, and in essence punished before conviction," Griffin said. "That is not how the criminal justice system in this country is supposed to operate."

Rice, a Democrat who is running for Congress in the 4th District, said in an interview that Griffin and other critics of the program failed to acknowledge that about 75 percent of the men had pleaded guilty.

"They said, 'Yes. I'm going to plead guilty.' That's an important aspect to understand," she said.

Rice said the plea bargains were not offered immediately because there was no education program in place. Her office had studied several other programs -- sometimes called "johns schools" -- that had been in place in other jurisdictions for years and found them inadequate, she said.

Hempstead attorney Mitchell Hirsch, co-chair of the District Court Committee of the Nassau County Bar Association, said Rice's initial refusal to plea bargain clogged the court system with contested cases and failed to take note of the lack of criminal records for almost all of the men.

"They would have had a shelf life of one or two court appearances instead of 15. For whatever reason, the district attorney chose to make an example of this category of defendant," Hirsch said.

Hirsch said he represented one defendant who pleaded guilty over Hirsch's objections to a misdemeanor. The client has since received a letter from prosecutors offering the reduced plea, and he plans to accept it, Hirsch said.

Rice said most of the additional court appearances were requested by defense attorneys, but she acknowledged that prosecutors sometimes asked for an adjournment because witnesses were not available for some other reason.

The Flush the Johns sting has drawn praise from women's groups, anti-prostitution advocates and groups fighting human trafficking. Rice has said that prostitution is linked to human trafficking, but several judges stopped assistant district attorneys handling the johns cases from using the words "human trafficking."

Klein, who teaches criminal law and international human rights at Touro, said the term evoked the image of "enslaving young girls."

"It was just inflammatory. . . . It's a way of signaling the judge: You find this person not guilty and you're condoning human trafficking," Klein said.

One expert said the sting, in which so-called johns were directed to hotel rooms with undercover Nassau County police officers, probably snared men who had not frequently gone to prostitutes.

"That's going to catch a guy who's going after someone he's not met before. Many men use regulars, or seek information [on online message boards] from other johns," said Scott Cunningham, an associate professor of economics who specializes in the economics of crime and risky behavior at Baylor University.

Complicating the prosecutions, lawyers for some of the accused men said, was that police never recorded the telephone calls in which the solicitation of sex for money was supposedly made.

One man whose case was dismissed with the consent of prosecutors and one man who was acquitted at trial have filed notices of claim with Nassau County indicating they intend to seek monetary damages, alleging false imprisonment.

Several of the men did not want to speak about the issue when approached or contacted by Newsday.

Sending a message

Hirsch said prosecutors sometimes generate publicity from arrests to send a message to would-be criminals, such as with the federal prosecution in the past few years of Long Island Rail Road workers who defrauded their pension system.

"In that case, it was appropriate because of the amount, the financial impact of what they did," Hirsch said. "In this case, there was zero financial impact."

In 2008, Nassau County Executive Thomas Suozzi created a Wall of Shame on the county website to publicize the names and post photographs of people arrested on drunken driving charges. It was taken down two months later after a legal challenge. Suozzi said he ended the effort because it was becoming a distraction from the county's fiscal problems and other issues.

Rice said publicity was part of her anti-prostitution effort and the defendants were no different from others who broke the law, even if the publicity hurt them in their family or personal lives. "Every person accused of a crime, ostensibly, has a family," she said in announcing the arrests.

Defense attorneys said that not every arrest is highlighted with a news conference, and the county bar association said at the time that Rice's intent was "to publicly stigmatize, shame and embarrass."

Cunningham said that in the age of the Internet, initial publicity about an arrest cannot be wiped away by a plea bargain or an acquittal. "The difference with Flush the Johns is that it's a permanent life sentence, even if you're innocent," he said.