Judge denies Alexander brothers bail, criticizes attorney claim that a woman isn't incapacitated if she can stand up

• A judge in Manhattan denied the Alexander brothers bail in their sex-trafficking case on Wednesday.
• The denial followed a contentious hearing over whether the three brothers are dangerous or a flight risk.
• The judge criticized a lawyer who argued a woman can't be incapacitated if she can still stand up.

A judge in Manhattan denied bail on Wednesday for the Alexander brothers in their federal sex trafficking case, meaning they will remain jailed in Miami pending trial.

Oren and Tal Alexander were luxury real-estate agents in Miami Beach and Manhattan before they and Oren's twin, Alon, were indicted in December. The three have denied wrongdoing and have pleaded not guilty to federal sex trafficking charges.

The bail denial by US District Judge Valerie E. Caproni followed a contentious three-hour hearing, during which one defense lawyer argued that the brothers were no longer "orgying" and another said a woman can't be incapacitated if she can still stand up.

That latter claim sparked a harsh retort from the judge.

"That is nonsense," Caproni told a lawyer for Oren Alexander, interrupting his attack on a key piece of evidence — a 2009 video showing either Oren or his twin, Alon, having sex with a woman that the government alleges was incapacitated.

"I'm just telling you, if that's your argument, you lose," the judge told the lawyer.

The testy exchange was begun by Deanna Paul, a defense lawyer for the twins' older brother, Tal, who told the judge that the sex-trafficking indictment is based on weak evidence.

The indictment alleges that for 10 years starting in 2010, the siblings conspired to use their wealth and prominence in the luxury real estate world to rape or assault more than 40 women, mostly in Manhattan and Miami and often through the use of the drug GHB.

Halfway through Wednesday's hearing, which the brothers did not attend, Paul mentioned that key prosecution evidence — the 2009 video. She criticized its probative value, telling the judge it "shows the lack of force" during a consensual sexual encounter.

"In my view, having sex with a woman who is physically incapacitated is basically rape," the judge responded, citing the prosecution's description of the video.

The judge asked prosecutor Andrew Jones to describe the video more fully, which he then did publicly for the first time. He called it a "trophy" tape that the government had seized as evidence, and said it depicts one of the twins having sex with a woman he said the government has not spoken to.

Jones said he wasn't sure if the video shows Oren or Alon, but that as it begins, "one of these very stone-cold sober defendants sets up a tripod."

"There's a woman on the bed. She's naked," Jones continued. "When she tries to speak, it's incoherent. She is mumbling," and she appears unable to move, he told the judge.

After the alleged rape, "she manages to stand on the floor, but then collapses back on the bed," the prosecutor said the video shows.

Later in the hearing, the video was mentioned again by a lawyer for Oren Alexander, Richard Klugh.

He referred to the woman in the video as "the sexual partner" of either of the twins and "the woman who stood up immediately after having sex."

He said prosecutors are misrepresenting evidence when they say the woman was unable to speak, given that "she was mumbling."

"You cannot call someone incapacitated who is able to stand up," he added — at which point the judge called his assessment "nonsense."

At the end of the hearing, Caproni rejected defense arguments that the siblings were neither a danger to the community nor a flight risk, and that, as Klugh put it, "there's been no more orgying. They're married."

She also turned down a $115 million bail package and a promise that the three would live together in Florida on home confinement. The home would have an in-house security team, window sensors, and an alarm system, the defense lawyers had said.

Caproni said her denial was based in large part on federal appellate case law from New York's Second Circuit that bars judges from accepting a two-tiered bail system where only wealthy defendants can spend money for 24-hour monitoring by an in-house security team.

"I have real problems with that," she said. "In the Second Circuit, if the only way I can mitigate danger to the community is to create a private jail, then I can't do that."

Caproni set the trio's next court date for January 29.