Senator Larry Craig and the Men's Room - PART I

Let me state at the outset that I have few political viewpoints that correspond to those of Idaho Senator Larry Craig. He has been a vocal opponent of laws that would protect gays from discrimination in the workplace and elsewhere, has opposed marriage or even civil unions for homosexuals and, on non-sexual issues, has been on the far Right of political thought in this country.

Recent news stories have painted Senator Craig as a hypocrite, posing as a homophobe but, in reality, gay. In 1982, then Congressman Craig's name came up in an investigation of misconduct involving young pages. At that time, Craig made this statement: "persons who are unmarried as I am, by choice or by circumstance, have always been the subject of innuendos, gossip, and false accusations. I think this is despicable."

For the purposes of this post, Senator Craig's sexual proclivities are irrelevant. I think he is being treated poorly.

On June 11^th, 2007, Senator Craig was arrested on 'peeping' and disorderly conduct charges based on allegations from an undercover police officer who was "investigating allegations of sexual conduct in the public bathroom" at the Minneapolis St. Paul International Airport. According to the charges, Senator Craig initially stood outside a bathroom stall occupied by the officer, and then looked "through the crack between the stall door and its frame into the stall that Sergeant Karsnia was occupying," repeatedly "gazing into the stall" over a period of roughly two minutes. Craig allegedly "peered long enough" that the officer could "observe that the Defendant had blue eyes." After entering a bathroom stall next to the undercover officer, Craig allegedly moved his right foot from his own stall into the officer's stall where he allegedly "touched Sergeant Karsnia's left foot" Next, the Idaho Senator was accused of swiping his hand under the bathroom stall divider three times with his palm up, moving it back and forth. The officer alleged that he "observed a gold ring" on the ring finder of Craig's left hand.

After a few minutes, the police officer identified himself and placed Senator Craig, not for soliciting sexual acts, which would violate Minnesota law only if it involved prostitution or a juvenile, but for two misdemeanors, one involving privacy and the other disorderly conduct.

609.746 INTERFERENCE WITH PRIVACY.
(1) (c) A person is guilty of a gross misdemeanor who:
(1) surreptitiously gazes, stares, or peeps in the window or other aperture of place where a reasonable person would have an expectation of privacy and has exposed or is likely to
expose their intimate parts, and
(2) does so with intent to intrude upon or interfere with the privacy of the occupant.

609.72 DISORDERLY CONDUCT.
(1) Whoever does any of the following in a public or private place, knowing, or having reasonable grounds to know that it will, or will tend to, alarm, anger or disturb others. . .(3) Engages in offensive, obscene, abusive, boisterous, or noisy conduct..."

Senator Craig pled guilty, paid a fine and went home. He has now moved for an order allowing his withdrawal of that guilty plea and a hearing is scheduled for next week. One of the first things an attorney learns is never to guess what a judge or jury will decide -- but in this case, I would hope that the guilty plea be withdrawn. The purpose of the plea no longer exists.

Senator Craig's legal maneuvering is based on what might best be called the "panic defense." When pleading guilty, Craig signed the usual disclaimers: He declared that he was not claiming innocence of the crime, and that he was entering his plea voluntarily, knowingly, and intelligently.

Senator Craig now says that was not true, he made these statements to the court not because he had done anything wrong, but rather because he was terrified of the consequences of fighting the charge. One of his home-state newspapers was already hounding him with an investigation into whether he was gay -- and the Senator claims that he pleaded guilty, despite his actual innocence, in the desperate hope that no one would find out about the incident and assume the newspaper was correct.

It is not hard to imagine that his "panic" scenario could be credible and to sympathize, at least a bit, with his desire for a "do-over." Regardless of Craig's actual orientation or culpability, it must have been clear to him that fighting the charge would have a high political cost.

Craig has already been about as publicly humiliated as any one person can be. Fighting his case can't add much to Craig's misery. And perhaps a miracle will happen. Perhaps the judge will let him withdraw his plea and perhaps, after that, Craig might win acquittal by successfully claiming that the police entrapped him. Even a remote prospect of such vindication must be alluring to Craig.

In reading the police report and the statute, I cannot but feel that the police officer acted in haste. Nothing is alleged to have been by the Senator that was an unambiguous solicitation of illegal behavior. Under � 609.746(1) (c) (2) specific intent must be proven and I cannot imagine how the police intend to establish that intent. Under the Disorderly Conduct statute, Senator Craig may have later been "offensive, obscene, abusive, boisterous, or noisy" but he hadn't yet!

Plea deals are commonplace; without them the criminal justice system would collapse. But there are real dangers.

In our legal system, the overwhelming majority of criminal cases are resolved though guilty pleas, rather than trials. And in a host of these cases, the defendants plead guilty for reasons other than a reasoned analysis of whether they have a winnable case. Such reasons often include the very ones Senator Craig has cited: Panic.

Many defendants face the unenviable choice between, on one hand, risking a harsh sentence by taking a borderline case to trial and, on the other hand, guaranteeing themselves relative leniency by pleading guilty to a few of the charges against them. These are the everyday trade-offs that allow the system to (barely) function. Prosecutors manage their caseloads by cutting the best deals they can. And defendants, with the guidance of often-overwhelmed defense counsel, manage their risks just the same way.

For this reason, lots of defendants could reasonably invoke Senator Craig's "panic defense." Many of them plead guilty despite a genuine possibility of defeating the prosecution's case based on either a lack of proof beyond a reasonable doubt, or a potentially viable defense (such as, in Craig's case, entrapment) simply because they fear the consequences of not pleading guilty. In Craig's case, this fear was of public humiliation (enhanced by the prospect of facing an additional "peeping" charge that was dropped in exchange for his plea).

The system does build in some checks on the behind-the-scenes deal-making. Guilty pleas have to be approved by a court. And defendants are required to "allocute" - that is, to admit to a factual basis for the crime to which they are pleading guilty, and to state that their pleas are knowing and voluntary. This is always a dramatic part of Law and Order; but these requirements are often nothing more than a formality, a pro forma approval of the result of a negotiation between prosecutor and defendant that is far more pragmatic than legal.

I do not pretend to know how this will all end, whether the Senator was, in truth soliciting the police officer, what would have happened in the officer had not been so unwilling to wait. I also cannot wonder what this officer, a sergeant, did to his superiors to be assigned potty patrol and, even why, we devote police resources to this kind of "crime" not involving children.

Senator Craig has been punished severely by the very humiliation he pled guilty to avoid. He says he wants his day in court. Let him have it.