I’ve Got To Say — I’ve Got A Problem With What Happened To Larry Craig
[Posted by WLS]
Question: If a deaf gay guy used sign language to proposition another deaf gay guy in a gay nightclub, would it be a crime?
If not, then why is a toe tap and a hand gesture under the partition of a men’s room stall a crime?
My question is purely one of legalities — not of politics. I think he should and must resign simply due to his inability to control his impulses.
But, he’s being driven from office upon the canard that he “pled guilty” — but I can’t find the elements of a crime in the taped interview.
When did the solicitation of consensual sexual encounter — not for financial renumeration — become a crime?
No sex act in public took place. Maybe Craig would have only exchanged telephone numbers with a willing paramour for the purpose of making a later rendevous.
Or maybe he wanted to have sex in the men’s room stall.
WE DON’T KNOW. The ”crime” to the extent its defined here is in the mind of the cop. A guy touches the cop foot to foot and makes a hand gesture, and the cop slides him a card that says “Police” and he’s under arrest.
Wow – since I wrote the part above the jump, I found the police report online. I’m stunned. The cop placed Craig under arrest when the only “act” committed by Craig was a toe tap and running his hand along the bottom of the stall wall.
In the plea agreement Craig made the following admission:
“That …. I engaged in conduct which I knew or should have known tended to arouse alarm or resentment of others which conduct was physical (versus verbal) in nature.”
But, these facts DO NOT establish the crime with which he was charged and to which the Hennepin County prosecutor and Court accepted a guilty plea.
The statute, 609-72(1)(3) — “Disorderly Conduct”, defines the offense as follows:
“Engag[ing] in offensive, obscene, abusive, boisterous, or noisy conduct or in offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others.”
Here’s my problem:
The language of the statute describes 2 circumstances — one is based on conduct, one is based on language.
The facts set forth supporting the plea supports neither crime as defined in the statute– the plea agreement drafted by Hennepin County prosecutor specifically excludes the language aspect of the statute as it specifically refers to “physical” conduct.
So, to be guilty of the crime with which he was charged, the facts needed to establish that his conduct was “offensive, obscene, boisterous or noisy….”
The prosecutor that drafted the agreement didn’t define a crime with his facts, as its clear that the statute is not meant to reach “all conduct” which might “tend to alarm, anger or disturb others.” Any statute that attempted to define a crime so broadly and vaguely would be facially unconstitutional.
So, a toe tap and a running one’s hand along the bottom of the men’s room stall …..
Offensive? To whom?
Obscene? To whom?
Boisterous? — No.
Noisy? — Obviously not.
Annoying? Yes, but that’s not a crime.
Craig did himself a disservice by pleading guilty without the presence of a lawyer. Any good lawyer would have made this cop choke on his interview and his report.
And this is coming from a prosecutor.
WLS,
Are you also wondering whether we were separated at birth?
Comment by nk — 8/31/2007 @ 6:53 pm
You have some expectation of privacy in a locked bathroom stall and being made to fend off hand signals under the partition or a foot halfway into the space grazing yours has to have consequences.
Comment by steve — 8/31/2007 @ 6:57 pm
nk:
I was there. I didn’t see anyone else.
Comment by WLS — 8/31/2007 @ 6:57 pm
Steven — there are lots of things in life that are offending to the senses. They are not all criems.
And, there is another crime that Craig was charged with, but which was dropped. It involves gazing into a private place where someone might be in a stage of undress.
A good lawyer would have worked the cop over on that one as well.
This is a circumstance where “stings” are not going to provide prosecutable cases. The best approach would be deterence by active presence of recognized uniform officers.
This was an Airport Police officer. Just as easily as he sat in a stall for some period of time waiting to be propositioned, he or another officer in uniform could have simply made their presence obvious and deterred the conduct.
Comment by WLS — 8/31/2007 @ 7:01 pm
the deaf gay proposition in the gay club wouldn’t be a crime, that’s what they go there to do. people go to the men’s room to relieve themselves and they don’t need that kind of stuff happening there.
you know that all the factual issues are merged into the plea. your analysis suggests a way to get the plea set aside due to the insufficiency of the stipulation - if craig didn’t run out his clock to make such an application by trying to keep it all secret. that would depend on minnesota procedure, of which i know nought.
as an outcome-oriented hombre rooting for a veto-proof democratic majority to take over the senate for awhile, i would welcome such an application. if it were successful, we’d get a speedy and public trial with the senator telling the world what a wide stance he has in the john. a crippled craig running for that seat (the senate, not the john) next year would offer greater prospects to my side than a healthy republican with over a year of incumbency under his belt.
there’s enough evidence here to convict him beyond a reasonable doubt of being stupid. he mishandled this situation at every turn. his communication was clunky, i particularly liked “i am not gay, i have never been gay” suggesting one can go back and forth - maybe i shouldn’t have passed up the feather boa at the garage sale this morning.
Comment by assistant devil's advocate — 8/31/2007 @ 7:04 pm
I’ve seen it explained (Beldar?? not sure at the moment) that peeking into the next stall was enough. Checking out another man’s equipment can be certainly be obscene and offensive. If you want to concentrate on his conduct in the stall, the place and manner of the signals would significantly differentiate it from the deaf man in the night club.
Comment by kishnevi — 8/31/2007 @ 7:11 pm
This is a circumstance where “stings” are not going to provide prosecutable cases.
Really?
The arresting officer made 12 other arrests in the same bathroom. Is there a report the cases were all tossed?
Comment by steve — 8/31/2007 @ 7:15 pm
Ditto. I’ve made this same point very, very vigorously at Hot Air.
It’s just a travesty.
Now on the subject of Craig’s resignation, Craig should resign, more than for anything else, for being so mind numbingly stupid as to not consult a lawyer for two months (according to his public statement) before pleading guilty to something he says is the police act inappropriately to entrap him.
Regardless of the facts of the case, a U.S. Senator who doesn’t know to see a lawyer at some point is an idiot.
But a criminal?
What a joke. If I buy the officer’s account verbatim, then Craig looked through the stall (which local news crews who went there said they couldn’t see through the tight cracks) with his blue eyes that the officer saw several times… okay, let’s allow that.
Then, Craig sat down. He allegedly put his hand under the the level of the stall’s divider and tapped his foot giving the officer what he felt was a signal Craig wanted sex.
Fine. I don’t necessarily believe it. But let’s accept it.
Then the officer instead of withdrawing his foot, doing nothing, or doing something else to express his displeasure, starting raising and lowering his foot, according to his statement, in what could only be interpreted by Craig, if cruising, as a positive signal.
Then Craig allegedly touched the officer’s foot and was promptly arrested.
Absolutely disgusting. I hate that cop.
Comment by Christoph — 8/31/2007 @ 7:16 pm
But is it a crime to ascertain whether someone is in the stall in question?
Comment by Barney15e — 8/31/2007 @ 7:18 pm
To clarify, they couldn’t see the toilet, but obviously could see parts of the stall. In any event, I’ll take the officer, the slimy bastard, at his word that he could see Craig’s eyes.
He still arrested a man for allegedly touching his foot after he says he started moving his foot up and down in response to Craig’s alleged tapping (have I ever tapped my foot while dropping the kids off at the pool? Hope not. I was an inch away from getting arrested, had I been in Minnesota or another crazy American state) giving him the o.k.
Comment by Christoph — 8/31/2007 @ 7:24 pm
WLS, I am amused to see you share my opinion of the ridiculous interview that was released.
Comment by Robin Roberts — 8/31/2007 @ 7:28 pm
There’s a real problem in some public restrooms; they are taken over, really, by gay men seeking anonymous encounters there on the spot. It’s not a pick-up line, to go somewhere else, it’s an invitation to engage in sexual conduct right there, on the spot.
It seems vaguely silly when it’s pinned down to one guy getting busted, but if that particular bathroom has become known as a spot for such behavior, then the cops need to crack down on it, or else eventually it won’t be usable by decent, normal people anymore.
In other words, it’s not a crime against the officer or whomever might be in the next stall. It’s a crime against the rest of us who would like to be able to use the restroom “for its intended purpose” (in the words of the officer), perhaps taking young children in their to answer the call of nature, without having to worry about seeing 4 feet in a single stall, or even a queue of people waiting to become the next 4 feet in a stall.
From a purely legal standpoint, it’s very simple based on the law of attempt. It would be against the law to have sex there in the stall. It is therefore also against the law to attempt to have sex there in the stall. It’s just like if you pull up in your car to a particular corner on the wrong side of the tracks and ask the nice lady how much it’ll cost for her to show you a good time. You’re guilty even without having had the sex.
Comment by PatHMV — 8/31/2007 @ 7:30 pm
Tony Orlando (who may have had a pretty wide stance his own self) said it all when he sang the following lyrics
“Knock three times on the ceiling if you want me, twice on the pipe, and the answer is no.”
I wonder where this “code” got started.
Comment by Mike Myers — 8/31/2007 @ 7:31 pm
It would be nice if the people who are so outraged at Sen. Craig being arrested “for tapping his foot” would at least acknowledge that there is a problem in some communities in some public bathrooms where this sort of behavior goes on quite regularly until it is stopped by the police. The police here every few years have to run some high-profile busts of the bathrooms at a couple of the more outlying public parks. It doesn’t take many instances of such behavior for the ordinary people who aren’t compulsive sex addicts to vote with their feet and avoid such places. They shouldn’t have to do that.
Comment by PatHMV — 8/31/2007 @ 7:33 pm
They don’t “need” to crack down on it to the point of arresting someone for the behavior as described, which is non-criminal.
You don’t have any idea what the hell you’re talking about.
1. He wasn’t charged with attempting to have sex.
2. There’s no such statute.
Comment by Christoph — 8/31/2007 @ 7:37 pm
PatHMV, far be it for me to refrain from calling you dumb.
Comment by Christoph — 8/31/2007 @ 7:38 pm
Does his conduct fit “disorderly conduct” as opposed to the other charge filed against Craig, which was dismissed in return for his guilty plea? Probably not. But that’s his fault, not the cop’s, and not the prosecutors.
It’s like we did in the DA’s office here in Louisiana. Our prostitution statute defines it as “indiscriminate sexual intercourse” in return for money. “Sexual intercourse” of course means actual sex. Every now and then, a wise guy defendant would point this out, as a defense against his misdemeanor charge, since all he agreed to buy was a bj. When they do this we give them an option: they can plead guilty to the misdemeanor charge of soliciting a prostitute, or we can go to trial on attempted crime against nature, a felony, which under our law includes oral sex (scary, I know, but that’s not the issue here). They inevitably agree to plead guilty to the charge that may not be technically applicable, because doing so is very much in their best interests.
Comment by PatHMV — 8/31/2007 @ 7:38 pm
Is there such a thing as indecent exposure in a men’s room?
I think there is if it occurs not adjacent to anything porcelain and especially with paired individuals. Lewd conduct need not involve genital contact. If a man gestures with a cupped hand simulating fellatio to a young boy, would you not have a prosecutable case?
Craig’s initial offense was “gross misdemeanor interference to privacy.” He overtly and deliberately bothered someone by intruding into a locked stall.
Comment by steve — 8/31/2007 @ 7:38 pm
Can’t argue the point without ad hominem attacks, Christoph? Rarely the sign of having the better of the argument.
Comment by PatHMV — 8/31/2007 @ 7:39 pm
I don’t think you’re being stupid has anything to do with the facts of the case or rightness of this prosecution. I think it’s independent of all that.
Comment by Christoph — 8/31/2007 @ 7:41 pm
And on that note, I’m out of here. I’ve got better things to do with my life than participate in a conversation with someone who wants to hurl gratuitous insults.
Comment by PatHMV — 8/31/2007 @ 7:41 pm
See you, Pat.
Comment by Christoph — 8/31/2007 @ 7:42 pm
Thank you. I share that view.
Comment by clarice — 8/31/2007 @ 7:56 pm
Hah, Clarice, you’re funny.
Aren’t you the person who frequents A.J. Strata’s loony political-and-military fantasy-blog?
When you’re not writing vastly better articles for American Thinker?
Comment by Christoph — 8/31/2007 @ 8:01 pm
I’ve thought it over, and I apologize for the personal attacks.
I am angry, I admit, over this issue and to me it is outrageous he should be charged and intimidated by the police over this.
I’m not a gay man and I dislike anonymous toilet sex as much as the next person… but if I can flirt with a woman, and I should have every right to do so, including using sexual innuendo (in hopefully a humorous way), and I often do, sometimes effectively, more often not, then by friggin’ God if a gay man wants to wave his hand and tap his foot and that means something to other gays, then that should be their right.
They shouldn’t have to worry about the police ruining their lives.
And I STRONGLY disagree with people who feel otherwise.
Comment by Christoph — 8/31/2007 @ 8:23 pm
Shoot, I would have asked wasn’t she the one always being quoted by Rush Limbaugh. But then, I’m star struck by having her as a cyber friend, so what would I know? Rush sure isn’t quoting me or you? ::grin::
Comment by Sue — 8/31/2007 @ 8:40 pm
Sue, Clarice is smart, but she’s vastly nicer than I am, and I don’t mean that as a compliment.
Comment by Christoph — 8/31/2007 @ 8:47 pm
If Craig is being forced from the Senate by anyone, it’s the Republican leadership.
Note that Diaper Dave Vitter retains his seat in the Senate, even though he most probably committed actual sex crimes.
Social Conservatism at its finest.
Comment by alphie — 8/31/2007 @ 9:12 pm
christoph, you don’t have the right to flirt with a woman when she’s relieving herself in a public restroom. maybe your attitude comes from living out in the boonies somewhere and just not having some of the experience commonly found in big cities these days. when i lived in san francisco 1977-1982 there were some restrooms so notorious for gay trysting, straight guys just wouldn’t go in there. how would you like it if you had a young son go in there and right in the next stall, adam was giving steve a blumpkin? that’s why we have laws against it, and i support those laws.
Comment by assistant devil's advocate — 8/31/2007 @ 9:13 pm
While I have little doubt that Craig wasn’t cruising the men’s room for sex, the story is too bizarre, I do have some questions as to the enforcement agenda of the agency in question. But in my version of America little doubt shouldn’t amount to branding a person as a men’s room pervert for life and casting him out of office.
The toe tapping and hand gesture thing is vague, maybe Craig thought he supposed to meet some moneyman from the ShAmnesty cartel in that men’s room for a payoff? We’ll never know because this officer decided that vague hand signals and toe tapping branded Craig so totally as a devient that he didn’t even have to ask “your stall or mine” or anything else that would have clarified the situation to the point where nobody would have any doubt. I suppose that the officer’s training and experience didn’t include taking that extra step. Why?
Strangely too I think that the only folks that should have something to say about Craig resigning his office would be the voters he represents.
Comment by Buzzy — 8/31/2007 @ 9:21 pm
ADA - no one wants what you describe, but what you describe is NOT what happened in the Craig case. If the cop had let it play out, maybe it would have come close to that, but we’ll never know because for some reason he decided that toe tapping was enough. That’s why I say this is a money-making scheme similar to small town speed traps. Why didn’t the cop wait for a proposition at the very least. So far I have not seen any men here or on many other blogs saying they’ve ever heard of this toe tapping code, so what other signals don’t you know about that could also have innocent explanations but get you busted in a vice sting?
Comment by Pal2Pal — 8/31/2007 @ 9:25 pm
No, because I don’t have the right to be in a woman’s public restroom.
But anywhere that I am, I have the right to flirt as a matter of freedom of expression.
One of the least appropriate places to flirt I can think of would be a funeral. Well, I’ve never done this and I don’t think I ever will.
Another example, I could be at a wetting and flirt with the bride to be. Totally inappropriate. Negative consequences are predictable. But it should not be illegal; we don’t need government to tell us everything.
But we don’t need laws to tell us this, public opprobrium is enough. Not everything that is offensive should be illegal, certainly not waving your hand below a toilet divider or tapping someone’s foot who says they recognize this is a sexual signal, but choose to give you one back anyway.
Comment by Christoph — 8/31/2007 @ 9:32 pm
No sh-t.
I like to tap my toes. I move a lot.
Some people, have restless leg syndrome. It’s a proper medical condition, not everyone realizes it’s a neurological problem and it can go undiagnosed. It’s more common in the aged.
But in any event, by all means, a police officer’s opinion that your body language indicates you want to f— him (or her) should be enough to give you a criminal record, ruin your career, and destroy your family.
In America.
Comment by Christoph — 8/31/2007 @ 9:35 pm
You ultimately made some good points, Christoph, but I think there’s more to this. Simply put, Craig should have contested the charges. He’s mature and knowledgeable enough to know he had a right to counsel or, if not, I assume he received Miranda warnings that advised him of that right. It’s logical to assume he chose not to get counsel and decided to handle this himself.
I have sympathy for Craig because I think he could have successfully contested these charges but he didn’t, and I have no problem insisting that he live with the consequences of his decision.
The way society reins in the police is by challenging them in court. It’s time-consuming and expensive (just ask the Duke lacrosse players) but that’s the way things work. Craig took a chance he could make this go away without public scrutiny. He guessed wrong. He doesn’t get a do-over.
Comment by DRJ — 8/31/2007 @ 10:01 pm
DRJ, maybe that’s why I said...
Comment by Christoph — 8/31/2007 @ 10:07 pm
I don’t disagree with you DRJ, but this was bad police work, bad prosecutorial work, and bad court work.
The cop didn’t find a crime, the prosecutor didn’t spell out facts equaling a crime, and the court didn’t require that there be facts supporting each element of the crime.
They all just held Craig over the proverbial barrel and took their turns.
Comment by wls — 8/31/2007 @ 10:07 pm
alphie: Note that Diaper Dave Vitter retains his seat in the Senate, even though he most probably committed actual sex crimes.
Social Conservatism at its finest.
We’ve all seen Craig’s mugshot, police report, and interrogation video. Show me Vitter’s, and I’ll concur. Until then, quit talking out your raspberries.
Comment by L.N. Smithee — 8/31/2007 @ 10:07 pm
Exactly. Which is why people need to see a lawyer.
Awful work. They should be ashamed.
As far as that police Sergeant spending his days sitting on the crapper, that works for me. That’s where he belongs.
Comment by Christoph — 8/31/2007 @ 10:12 pm
WLS,
If it is bad work at every level, and you certainly might be right that it is, that’s all the more reason for Craig to contest the charges. He had the power and resources to so unlike most other people.
As lawyers, we’ve all seen unfair prosecutions at some point, but it doesn’t help to enter a guilty plea and try to hush things up. He should have fought back through the courts. Do we really want to encourage people to opt out of the court system and use the media to right wrongs? Because I think that’s what we’re doing here.
Comment by DRJ — 8/31/2007 @ 10:30 pm
By the way, I understand virtually everyone agrees Craig should have done more legally to contest the charges. My point is largely philosophical about how we should deal with the police’s behavior.
Comment by DRJ — 8/31/2007 @ 10:33 pm
Yes, sure, it’s a lot cheaper and not everyone can afford to fight in court.
A good lawyer fights for his client in the media and in the courts.
How much do you wanna bet Craig has a good lawyer now?
Besides — Craig did what he could, however inept, to keep this out of the media and he was willing to lose in court to do so.
Now that someone, probably the slimy little bastard officer, Craig has nothing to lose and everything to gain — to wit, the respect of his wife and children — by fighting as hard as he can for his reputation.
So, yes, your tendency to go toward the theoretical and the ideal is off base here.
Comment by Christoph — 8/31/2007 @ 10:48 pm
Smithee,
Are you really trying to say Diaper Dave didn’t visit a string of prostitutes while he was pushing Republican Family Values down everyone else’s throats?
I think you may be the only person in America who believes that.
Comment by alphie — 8/31/2007 @ 11:02 pm
As one who spent a portion of hos 30 year police career, I want to clear up a few things.
Working these kinds of crimes in a public restroom is one of the worst assignments there is. It is done, usually, in response to complaints from the public regarding public sex taking place, usually after someone kids walked in on two guys getting it on. Thats why the police have to work this & why they were there.
There are websites where these guys seek other out for anonymous meetings for sex. If you have a really strong stomach, check cruisingforsex.com & squirt.org. I would not be surprised if there were posting regarding the restroom in question. People who engage in this kind of behavior use these sites to “network.” If Sen Craig’s computers were examined, I strongly suspect evidence would be found he has viewed the websites I mentioned. He did not end up in this restroom by chance.
Now, the things Sen Craig did, the foot tapping, the touching feet, hands under the stall, peeking through the crack in the door, are not in themselves alone a crime. However, this is very clearly, based on my training & experience, what is known as “cruisey behavior.” He was cruising for sex. All the things he did are what these guys do when cruising for sex. Due to the nature of my assignment, I saw this kind of behavior & unfortunately much much more hundreds upon hundreds of times.
Had the person in the next stall not been a cop, but a person with the same desires as Craig, there is no doubt in my mind, they would have had sex. High risk anonymous sex.
Obviously the officer is not going to have sex with Craig so they arrested him on a “disorderly conduct” under existing MN law.
I know of no department that allows officers to expose themselves to get a violation. Frankly, in my experience, that is totally unnecessary. In most cases eye contact or a simple smile & the other party would begin openly masturbating with an expectation that you would do the same. The extent of the problem & how blatant these guys are is simply shocking.
There has been a lot of discussion whether or not Craig is gay. This type of conduct has really nothing to do with being gay. My gay people do not engage in this kind of high risk behavior. Simply put, this is deviate sexual behavior. Half the men I arrested asked if there wife was going to find out.
Reading the arrest report, it is so clear to me what Craig was doing. It was clear that he had done this before.
As far as prosecuting these cases, my unit had an excellent record. We very rarely lost a case that went to trial.
Should Craig be able to hold office? While it is only a misdemeanor, it is a crime involving moral turpitude. In many cases a conviction for this type of crime can be disqualifying.
I thing what he did & was attempting to do in that restroom was absolutely disgusting. It has nothing to do with his political affiliation & everything to do with his conduct. based on that alone, I feel he should resign.
Comment by Retired Vice Cop — 8/31/2007 @ 11:54 pm
Its late & Im tired. I meant to say I spent a portion of my career assigned to vice.
Comment by Retired Vice Cop — 8/31/2007 @ 11:56 pm
“If a deaf gay guy used sign language to proposition another deaf gay guy in a gay nightclub, would it be a crime?”
Yeah.
Problem solved!
Comment by Kevin — 9/1/2007 @ 12:21 am
Retired Vice Cop,
I sincerely appreciate your coming here to share your opinion and experience.
I agree with you about the disgusting high risk behaviour that is unprotected anonymous sex. I’ve been propositioned by gay men before in both appropriate and highly inappropriate ways as a teenager (solved, on my part, through the immediate and credible threat of lethal armed violence I was willing and able to imminently inflict).
But I don’t agree with vice law in most cases and would like to see the units you worked for disbanded.
I’m a libertarian when it comes to sexuality. If someone someone wants to pay someone I wouldn’t sleep with for free good money, so be it.
It’s a matter of freedom. The majority of negative consequences are of the sin itself rather than law enforcement.
Toe tapping and such simply should not be punishable in a free country. I think your actions in enforcing such laws were immoral.
Public sex isn’t permissible… but he didn’t do that and the fact you feel certain he wanted to isn’t enough to saddle him with a criminal record.
Comment by Christoph — 9/1/2007 @ 2:34 am
WLS: You’re missing the context, which is that the disorderly conduct conviction was the result of a plea bargain through which the more serious peeping charge was dismissed.
(I have to make this comment without all the links I’d otherwise include because I’m trying to sneak past Patterico’s spam filter. But they’re all linked from my own post on this subject.)
The allegations in the police report did indeed very carefully make out a specific factual case satisfying every element of the peeping statute: two minutes of Craig staring at the undercover officer through the gap between stall door and door-frame, during which Craig intermittently tried to conceal what he was doing by glancing back down to his fidgeting hands, but during which Craig made and maintained direct eye contact. Craig claims in the post-arrest tape, and doubtless would have claimed at trial, that he was waiting for a stall to become empty, but the officer’s version is that there was at least one other stall open for at least some of the time that Craig was standing there staring instead at him. The peeping statute requires that the peeping be done “with intent to intrude upon or interfere with the privacy of the occupant.” The prosecution would doubtless argue that the remainder of Craig’s conduct, including his conduct while in the adjacent stall, fit a pattern known to the police to match the communication techniques employed by men seeking sexual encounters in public restrooms, circumstantially confirming Craig’s intent to use his peeping as part of initiating one such encounter.
Let’s assume (although I don’t think it’s a lead-pipe certainty) that Craig would have been willing to repeat under oath in court his statements at his press conference — that he wasn’t engaged in a pick-up attempt and had no intent to solicit a sexual encounter. If so, then the result of a trial on the peeping charge would probably have ultimately come down to a credibility contest between the undercover officer and the citizen. That’s the classic situation of a high-risk case for both prosecution and defense, isn’t it? And that made the peeping charge the obvious candidate for dismissal as part of a plea bargain — which is what happened.
Craig’s written motion to enter his guilty plea was prepared by the prosecution, and it directly tracked the statutory language by which “disorderly conduct” is defined in Minnesota:
To begin with, I don’t know how you can possibly fault the judge for accepting this as an entirely adequate basis for a guilty plea to a simple misdemeanor. It’s conclusory in and of itself, but it incorporates by reference the Complaint, which in turn has the arresting officer’s entire, very detailed written report. Whatever else, I think you owe this judge an apology.
Like similar statutes everywhere else in the country, this disorderly conduct statute is awfully broad, but such statutes have repeatedly survived constitutional challenges based on their purported failure to give adequate notice. What conduct is sufficient to violate them is very much in the eye of the beholding jury, and as with the peeping charge, there would have been no shortage of points for Craig’s lawyer to argue if Craig had chosen to plead “not guilty.”
But he didn’t. Whether it was because he couldn’t bring himself to take the witness stand to lie under oath about his intentions — and I think that’s an altogether possible explanation — or whether he made a colossal misjudgment about the likelihood that no one would ever discover his public-record guilty plea to disorderly conduct, Sen. Larry Craig freely, knowingly, and voluntarily chose to plead guilty. Nothing that the officer or the prosecution did “abused” him or “coerced” him or “compelled” him; to the contrary, there were no leaks or threats of leaks from them to put the pressure of public scrutiny on Craig (and even if there had been, that wouldn’t have made his plea “involuntary,” as you well know).
I think it’s pretty much impossible for you or me or any other lawyer to read the police report without putting ourselves into the hypothetical role of Craig’s lawyer, in which any of us would immediately say, “Hey, Senator, you might can beat both of these charges!” And he very well might could have. But to do that, he had to enter a plea of not guilty and go to trial.
Guilty pleas are, and should be, solemn things, not easily disturbed. The senator made his bed here, and he must lie in it.
Comment by Beldar — 9/1/2007 @ 3:21 am
The Texas disorderly conduct counterpart, equally as broad as Minnesota’s (or arguably broader) is Texas Penal Code § 42.01. It’s survived numerous constitutional challenges for vagueness in both state and federal courts. See, e.g., Kew v. Senter, 416 F. Supp. 1101 (N.D. Tex. 1976); Locke v. Vance, 307 F. Supp. 439 (S.D. Tex. 1969); Ex parte Slawson, 141 S.W.2d 609 (Tex. Crim. App. 1940); Coggin v. State, 123 S.W.3d 82 (Tex. App. — Austin 2003, pet. ref’d). If my Westlaw plan included Minnesota or I was more patient in using the free databases, I’m reasonably sure I could come up with caselaw upholding the Minnesota statute too.
Comment by Beldar — 9/1/2007 @ 3:39 am
After re-reading my post (#47) above, I’ve decided to amplify on it a bit — for those who may not already have the familiarity with judicial obligations that I know WLS has — to explain why I think it’s particularly inappropriate to fault the judge who accepted Craig’s guilty plea.
Among the judge’s responsibilities in accepting a guilty plea is to ensure that there is a factual basis for the plea. For example, Federal Rule of Criminal Procedure 11(b)(3) requires: “Before entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea.” Since this was in state court and wasn’t a felony charge, there was no requirement for the Minnesota judge to do this through an in-person colloquy or conversation with Craig. Instead, the basis for the state judge’s doing so was the written motion to enter a guilty plea that the prosecution prepared, and that Craig then signed and mailed in. (Craig has not claimed, and could not credibly claim, that he didn’t read the motion.)
WLS presumably would have had the judge read the motion, and read the police officer’s report as included in the cross-referenced complaint, and then reject the plea for lack of a factual basis, and then presumably dismiss the complaint altogether. But that effectively would have made the judge into Craig’s lawyer (obliged to spot arguable weaknesses in the prosecution’s case) and then into the factfinder without benefit of a trial (drawing conclusions from those weaknesses to the effect that the prosecution could never prevail).
Instead — and I’m sure WLS deals with this every day in his federal practice, and that Patterico does too, using the California state-court analog — as the Supreme Court in McCarthy v. United States explained:
394 U.S. 459, 467 (1969) (quoting Fed. R. Crim. P. 11, Notes of Advisory Committee on Criminal Rules). The judge emphatically does not have to decide whether the defendant probably would or would not have been convicted. Instead, the inquiry as to factual basis need be only “precise enough and sufficiently specific to determine that the defendant’s conduct was within the ambit of that defined as criminal.” E.g., United States v. Montoya-Camacho, 644 F.2d 480 (5th Cir. 1981).
One can argue with a straight face (although I’d disagree) that the police ought not have been conducting this undercover operation, or that they and the prosecution ought not have pressed charges without some higher quantum of unambiguous and overt conduct by Craig. But this statute has a deliberately huge “ambit of that defined as criminal.” And when the prosecution and the defendant are both telling the Court, “The defendant admits he “engaged in conduct which [he] knew or should have known tended to arouse alarm or resentment [in] others,” and that conduct included staring for two minutes through the stall door crack, plus physical intrusion of Craig’s hand and foot into the officer’s stall, then I think it would be the very, very rare judge who would insist that such conduct couldn’t have tended to arouse alarm or resentment.
I damn sure would have been alarmed and resentful by the time Craig was rubbing his foot against mine — wouldn’t you?
Comment by Beldar — 9/1/2007 @ 4:51 am
Web Reconnaissance 09/01/2007…
A short recon of whats out there that might draw your attention updated throughout the day so check back often. This is a weekend edition so updates are as time and family permits….
Trackback by The Thunder Run — 9/1/2007 @ 5:05 am
The problem is the officer said he was perfectly aware Craig’s toe tapping was a sexual invitation, and instead of moving away, doing nothing, or doing something else, the officer chose to slowly move his foot up and down thus knowingly egging Craig on.
If I was looking at a woman’s chest and gesturing — crude, but not unheard of in certain circles — and she looked away, did nothing, or objected in some fashion, I’ve got a problem if I put my arm on her shoulder.
But if she slowly gestures toward her breast or smiles invitingly and I put my arm on her shoulder and she turns out to be a cop I shouldn’t be on my way to jail.
Do you not understand that?
Comment by Christoph — 9/1/2007 @ 5:05 am
A follow-up point, in response to one of WLS’ arguments in his original post: You’re correct that the plea doesn’t include “offensive” among its express recitals. But there’s still an adequate factual basis in the complaint, which the plea incorporates by reference, from which a court could have found a factual basis for the “offensive” element of the disorderly conduct crime too. In other words, a jury could well have found the requisite “offensiveness” from the facts recited in the complaint.
Cristoph (#51): I understand your point, but disagree with it.
First: Blithe analogies to signals sent and received in other settings simply don’t work. That Craig’s actions involved a physical setting which includes a reasonable expectation of privacy is absolutely key to making out a criminal offense for the disorderly conduct charge, just like it would have been for the peeping charge.
Second: The officer slowly raising and lowering his foot in response to Craig’s foot-tapping isn’t entrapment, even if it was intended by the officer to be viewed by Craig as an invitation to illegal conduct. (Vice officers working undercover as prostitutes routinely are much more overt in their encouragement.)
Third: You apparently think that someone’s failure to keep his or her feet flat on the floor translates into an invitation for people in adjacent stalls to intrude into one’s own stall, such that the intrusion becomes consensual and thus can’t tend to cause alarm. I’m reasonably confident that most of us citizens who don’t invite anonymous public bathroom sex and who may nevertheless, from time to time, slowly raise and lower a foot inside our bathroom stalls, will be alarmed and resentful when someone like Sen. Craig puts his hand and foot into our stalls and presses his foot against one of ours.
Finally and most importantly: Your pitch is one that Craig’s lawyer could have made to the jury if Craig had not pleaded guilty. Craig pleaded guilty, though, and thereby forever waived all benefits of the doubt as to whether his conduct was offensive and as to whether it tended to cause alarm and resentment. Do you not understand that? Because it appears that the Senator (scheduled to resign this morning, if press accounts are accurate) certainly does.
Comment by Beldar — 9/1/2007 @ 6:03 am
“Stupidity cannot be cured with money, or through education, or by legislation. Stupidity is not a sin, the victim can’t help being stupid. But stupidity is the only universal capital crime: the sentence is death, there is no appeal, and execution is carried out automatically and without pity.” –Robert A. Heinlein, Time Enough For Love
“You Are Stuck On Stupid” –Lt. General Russell Honoré
“Stupid is as stupid does” –Forrest Gump
“Here’s your sign” –Bill Engvall
Comment by Horatio — 9/1/2007 @ 6:10 am
The answer to the “Why was this a crime?” crowd on the Craig matter…
Ed Morrissey, Garrance Franke-Ruta, James Joyner, Dale Carpenter, Jack Shafer, and Radley Balko, among many others, all question whether Sen. Larry Craig actually committed any crime. As Mr. Balko writes, Craig didn’t actually engage in the lewd behav…
Trackback by BeldarBlog — 9/1/2007 @ 6:12 am
Beldar, you’re a bright person, but not only wrong, you’re 180° wrong here.
According to the cop as no less of an authority, this is a common place for gay men to meet. Apparently, and unknown to me or most heterosexual males, these are the signals gay men use and this is the basis, the whole reason why the cop is there. It’s the basis for his arrest.
So it’s not “blithe”. If, in response to Craig’s foot tapping, the cop was giving an agreeable signal in a common meeting place for men, using signals which are apparently well known and certainly known to the cop, then he’s forfeited his right to a reasonable expectation of privacy.
While this could be a misunderstanding on Craig’s part and maybe he does not have acquiescence from the other person, he has a reasonable basis to believe he does or the whole case of the cop falls apart right there.
It is not entrapment.
However, what it does is make Craig’s alleged subsequent action, his touching his foot to the officer’s, reasonable and therefore not offensive, obscene, abusive or boisterous according to the statute.
And therein again lies the problem with your reasoning.
Yes, I slowly move my foot up and down. I also tap it. And I reach down below the level of a toilet divider.
I can’t remember every time I’ve done this. But you may assume it is several.
All of these can be interpreted innocently. In my case, they certainly were.
But in Craig’s case, his foot tapping is a signal he wants to have sex.
The cop, who acknowledged he is very aware of all the details of this sexual meeting code, well, his foot movements immediately after receiving an alleged sexual invitation from Craig’s don’t count.
You’re simply giving inadequate weight to freedom and anyone, even gays’ who are strangers to each other in public, freedom to communicate in non-obscene ways.
Whatever Craig did, it wasn’t obscene and as established in two, was not, beyond a reasonable doubt, offensive, abusive or boisterous because of the cop’s reply to Craig’s alleged signal.
Or if the cop’s reply is innocent, then Craig as the defendant should be given a similar benefit of the doubt for his hand gesture and foot tapping.
Comment by Christoph — 9/1/2007 @ 6:22 am
Cristoph (#55): You put your hands and feet into others’ stalls? After staring through the crack from outside for two minutes, making eye contact, when there were empty stalls available? If you’ve done those things and it’s been interpreted innocently, then you hang around in much rougher places than I do. If I were to bop over to Houston Hobby Airport and do those things, I’m pretty sure I’d either be arrested, or get into a fistfight, or both, in less than a half hour.
The statute doesn’t define “offensive” or tendency to “alarm, anger, or disturb others” in terms of the mental state of an undercover policeman or of a gay man who’s deliberately invited sex. If the jurors think it’s “offensive,” and if the jurors think he knew or should have known it would tend to “alarm, anger, or disturb others,” then that’s all that’s required. They’re likely to analyze the situation from the viewpoint of the hypothetical average person, not from a specialty point of view.
And I repeat what you continue to ignore: One forfeits all benefits of the doubt when one pleads guilty.
Comment by Beldar — 9/1/2007 @ 6:48 am
Are you really trying to say Diaper Dave didn’t visit a string of prostitutes while he was pushing Republican Family Values down everyone else’s throats?
Juanita Broaddrick.
Comment by Darleen — 9/1/2007 @ 6:48 am
I’ve never ignored that. That’s a plainly untrue statement. If you read my comments on this thread, which you obviously haven’t, you’ll see I addressed that and that Craig was foolish for not at least getting the advice of a lawyer.
I think Craig should have resigned and may well have done what he’s accused of doing. And I don’t believe Craig’s guilty plea should be reopened. That’s what he gets for being an idiot.
The question to my mind is was this a fair arrest and prosecution?
It wasn’t. It was abusive and the cop is a jerk.
You’re ignoring, to use your own word, but in this case you’re actually ignoring it, the supposed clear signal Craig sent the cop that the cop replied to.
THEN and only then would touching the cop’s foot be reasonable or certainly not unreasonable beyond a reasonable doubt.
Or it could have been a friggin’ accident because I don’t trust this a-hole cop as far as I can throw him and it wouldn’t surprise me in the least if this was a set-up.
Comment by Christoph — 9/1/2007 @ 6:56 am
Christoph (#58): With due respect, I’ve re-read all of your comments here, and you haven’t addressed at all the fact that he pleaded guilty.
Craig was duly advised — as the tape conclusively shows, and as his motion to enter his guilty plea again confirms — of his right to counsel.
He knowingly waived that right, at least insofar as he didn’t have a lawyer appear to represent him in court. (We have only his say-so that he didn’t consult a lawyer privately, but it really doesn’t affect the analysis of his rights in court.)
You seem to assume that if he had secured counsel, he definitely would have fought both charges instead of pleading out. And you seem to assume that he would have won at trial. Both of those are plausible projections, but they are far from certain. It’s entirely possible that he would have done the same plea bargain with a lawyer’s assistance, perhaps out of the very same hope (which he’s already explained) that without a trial, no one would notice the conviction.
Regardless, whether he was wise or foolish not to have had a lawyer appear for him, and whether he might or might not have pleaded out anyway, and whether he might or might not have been convicted if he’d gone to trial, the fact is that he pleaded guilty. Go read the two sentences by the red arrows, at numbered paragraphs 4 and 5 in the plain-English guilty plea he voluntarily signed: “I understand that the court will not accept a plea of guilty from anyone who claims to be innocent.” And: “I now make no claim that I am innocent of the charge to which I am entering a plea of guilty.”
Whether or not you have a lawyer, pleading guilty does, as a matter of law, conclusively resolve all doubts about one’s guilt against you for so long as the conviction based on that guilty plea stands.
This is not a legal proposition that’s in doubt; it’s not a close question. It’s as close to an absolute as you’ll ever find in criminal law. Ask any lawyer about that; ask our hosts here, Patterico (when he returns) or guest-posters WLS or DRJ.
(Apologies for my repeated misspelling of your chat handle, btw.)
Comment by Beldar — 9/1/2007 @ 7:15 am
Christoph’s clearly taken too many pucks to the head and it’s just plain he doesn’t like the law in our “crazy American” states. Boo hoo.
What evidence is there that Craig did not consult with a lawyer to consent to a plea a few months later? Does anyone believe him even if he says he did not? I don’t.
Comment by daleyrocks — 9/1/2007 @ 7:16 am
I don’t necessarily either and have made the point elsewhere. It goes into my reasons Craig should resign. I question his honesty and am not exactly unconvinced that he was indeed trolling for sex.
But the facts, as the cop outlined, do not warrant a prosecution. And yes, your American vice laws are crazy. This would never happen in my country, ever.
Being arrested for touching a foot.
Okay. For assault, maybe, but not for alleged sexual impropriety of any type.
Comment by Christoph — 9/1/2007 @ 7:20 am
Christoph,
Craig was not arrested for simply toe tapping. It was his entire pattern of conduct or the totality of the circumstances surrounding his behavior that got him arrested. Its simply not acceptable to have people boinking each other in a public toilet.
You say sex for money should be legalized, & vice units disbanded. This case is not about sex for money but I thank you for sharing your personal agenda.
Agreed vice crime are for the most part low on the hierarchy of crimes. Without vice units, you will have even more street prostitution, people like crag will act out more frequently exposing the public to this unacceptable behavior & bars will be free to serve alcohol to minors.
I urge you to consider the big picture before making such rash statement. And remember, Craig was not just arrested for toe tapping.
Comment by Retired Vice Cop — 9/1/2007 @ 7:30 am
I said above (#59):
My syntax was a bit off, but I should also make clear the viewpoint from which that statement is made, so let me rephrase that slightly:
Whether or not you have a lawyer, your guilty plea does, as a matter of law, and for all purposes in the eyes of the law, conclusively resolve all doubts about your guilt against you for so long as your conviction based on that guilty plea stands.
Not having had a lawyer because you were unaware of your right to one might be a ground to have a guilty plea set aside. That clearly cannot be a ground upon which Craig could rely, however.
We’re fortunately free to be able to have, and express, disagreement with the law. So Christoph or WLS or anyone else is entitled to believe, and argue, that in their eyes, Craig isn’t really guilty, or that his arrest and prosecution were fatally flawed. That’s all well and good; there are still people around who believe Alger Hiss was set up, too. But for all purposes within the legal system, Craig’s guilty plea — unless set aside, and for reasons I’ve blogged about at my own shop I don’t believe it will be — does indeed mean he forfeited all benefits of the doubt.
Comment by Beldar — 9/1/2007 @ 7:36 am
Well duh. You’re not saying anything.
Obviously within the legal system he’s been convicted.
Our problem was the use of the legal system was inappropriate. I can find you all sorts of examples where it was used inappropriately, including extreme examples as recently as the 90s where a man, in this case a naval Captain, was sentenced to 5-years for the felonious crime of performing oral sex on his wife in private, which in addition to his prison term, cost him his military career.
I can agree with you that he was in fact convicted of oral sex with his wife and that the facts of his having done so are forever established.
It does leave the serious question, however, whether such prosecution, law (since struck down), or application of law is warranted.
No one is saying this is the equivalent of Algier Hiss and it is either ignorant or disingenuous of you to say so.
What we’re saying is it was an abusive arrest and prosecution given the trivial facts that existed.
Comment by Christoph — 9/1/2007 @ 7:47 am
You mean the whole monogamous relationship with a woman in another country as we talk daily, work toward seeing each other again, and plan a family sans prostitutes? That’s my personal agenda. But thanks for the implied insult.
I believe in freedom. I believe prostitution is an awful thing that carries enormous spiritual, mental, and physical consequences.
There are also studies done that show people getting tattoos are more likely to engage in risky sexual behaviour so, for that reason, I literally and actually oppose tattoos, which I believe have spiritual effects, and piercings of various kinds.
I also oppose Fords.
And I oppose infidelity, threesomes, swinging, sado-masochism, and think anal sex is risky from a physiological point of view.
The question is why should someone else care what I oppose?
If someone wants to engage in any of these risky behaviours behind closed doors in a free country that’s their privilege.
And, if they want, they can touch toes in public.
You, however, are opposed to freedom if it means individual freedom.
Text messaging service that allows you to set up random meetings for sex? Happens every day. Women participate big time. Aggressively. Internet? Same thing.
But pay for it? You will take away their freedom. I consider your past work in that regard to be immoral.
Just as I consider there work to be ill-advised.
Comment by Christoph — 9/1/2007 @ 7:58 am
PatHMV-
If you pull up your car and ask the nice lady how she’s doing, you shouldn’t be arrested. Even if you tell her you sure would like to have sex with her, you shouldn’t be arrested, right? It isn’t until you discuss the money that you’ve become guilty without having had the sex. If I’m not mistaken, if you do have sex (not in public) and don’t ever discuss or exchange money- even if she is a professional prostitute- you’ve committed no crime.
So in your example, discussion of a plan to engage in a crime has been committed. In Craig’s, it had not.
Comment by MayBee — 9/1/2007 @ 8:09 am
Christoph,
Your comments on prostitution are another topic for another day. Please try to stay on topic.
You want freedom & rights? Great, we all do. I think one of the freedoms people want is that when they have to take their children to use a public toilet, they will not encounter people getting it on. Consider the big picture.
Comment by Retired Vice Cop — 9/1/2007 @ 8:09 am
So, Christoph, what became of the twelve other cases the same officer brought against men in the same bathroom? All tossed?
If a man gestures with a cupped hand simulating fellatio to a young boy, would you not have a prosecutable case?
Isn’t it “indecent exposure” to position to show yourself, so to speak, away from a porcelain fixture?
Craig’s initial offense was “gross misdemeanor interference to privacy.” He overtly and deliberately bothered someone by intruding into a locked stall.
Comment by steve — 9/1/2007 @ 8:19 am
MayBee,
In the scenario you describe, under California law, I see a potential violation of 653.22 PC.
653.22. (a) It is unlawful for any person to loiter in any public
place with the intent to commit prostitution. This intent is
evidenced by acting in a manner and under circumstances which openly
demonstrate the purpose of inducing, enticing, or soliciting
prostitution, or procuring another to commit prostitution.
(b) Among the circumstances that may be considered in determining
whether a person loiters with the intent to commit prostitution are
that the person:
(1) Repeatedly beckons to, stops, engages in conversations with,
or attempts to stop or engage in conversations with passersby,
indicative of soliciting for prostitution.
(2) Repeatedly stops or attempts to stop motor vehicles by hailing
the drivers, waving arms, or making any other bodily gestures, or
engages or attempts to engage the drivers or passengers of the motor
vehicles in conversation, indicative of soliciting for prostitution.
(3) Has been convicted of violating this section, subdivision (a)
or (b) of Section 647, or any other offense relating to or involving
prostitution, within five years of the arrest under this section.
(4) Circles an area in a motor vehicle and repeatedly beckons to,
contacts, or attempts to contact or stop pedestrians or other
motorists, indicative of soliciting for prostitution.
(5) Has engaged, within six months prior to the arrest under this
section, in any behavior described in this subdivision, with the
exception of paragraph (3), or in any other behavior indicative of
prostitution activity.
(c) The list of circumstances set forth in subdivision (b) is not
exclusive. The circumstances set forth in subdivision (b) should be
considered particularly salient if they occur in an area that is
known for prostitution activity. Any other relevant circumstances
may be considered in determining whether a person has the requisite
intent. Moreover, no one circumstance or combination of
circumstances is in itself determinative of intent. Intent must be
determined based on an evaluation of the particular circumstances of
each case.
Of course we can debate the merits of the case but the bottom line is a stay in jail regardless of conviction.
We dont need hookers working the street & then doing car dates in residential neighborhoods. I used to get complaints about that all the time. Nothing like going out for the morning paper & finding a used condom on your lawn. I attended a lot of public meetings in areas plagued with street prostitution. People dont want legalized street prostitution.
Yeah, they have legal brothels way out in the desert in Nevada. The street walkers I saw could never get a job in a place like a Nevada brothel.
Comment by Retired Vice Cop — 9/1/2007 @ 8:23 am
Beldar, Vice Cop, the problem you will have with me is that after listening to the tape, not with the ears of a cop or a judge, but with the ears of a mother and grandmother who has raised boys and knows lying when she hears it, there is no question, absolutely no question, in my mind that the cop in this case was lying through his teeth. Listen to the tape, listen to the defensiveness, followed by the arrogance and threats and then more defensiveness.
The cop wasn’t there because he cared about a crime, afterall he was trying to make a crime happen. He was there to make an arrest and put more money in the coffers. If they really cared about stopping some crime, they would not have put a guy in a stall who sat there all day on the off chance that another someone would just happen along and sit in the next stall and that other person would know these super secret signals. They would have stationed a visible deterrent in the form of a uniform, police or rent-a-cop, in that bathroom. Someone who would signal any so-called bad guys “not in this bathroom” and also someone everyone would know they could go to should they be bothered by anyone else.
Comment by Pal2Pal — 9/1/2007 @ 9:16 am
Pal2Pal,
I disagree. It was clearly Craig who was lying. You forget, Craig waived his Miranda rights. This was an interrogation, not a friendly chat.
This has nothing to do with making money, it is preventing this kind of behavior. The deal with using uniform cops is not practical as the activity stats as soon as the uniform cops leaves. Its all been done before.
Lastly, the cop was there because the public was complaining, not because he wanted to be there.
Comment by Retired Vice Cop — 9/1/2007 @ 9:33 am
The cop’s an a-hole and more likely than not a liar.
Comment by Christoph — 9/1/2007 @ 9:36 am
Beldar @ 47:
I don’t think I’m missing the context at all. I know they dismissed a more serious violation (a gross misdemeanor) to take the plea to the less serious violation.
My beef is that 1) Craig denied the more serious violation in the interview and 2) the facts alleged in the plea agreement do not establish each element of the crime to which he was made/allowed to plead guilty.
The plea was coerced by the circumstances — and I’m not saying that doesn’t happen regularly, or even that I haven’t been involved in doing the same. But, when its done right the defendant is made to plead guilty to a crime he actually committed with threat of the more serious crime being the coercive element. But the facts in the plea agreement — facts the defendant must admit to — should actually define that lesser crime. Here the facts do not.
The plea agreement only refers to his “conduct”, whereas the statute requires “offensive, obscene, boisterous or noisy” conduct.
Those terms can be defined, and its a factual question as to whether the conduct at issue meets the definition.
As written, the plea agreement says that any “conduct” — however generic or nondescript –is a crime if it would “arouse alarm, anger, or resentment in others.”
This an “objective” test. The cop in the stall knows what he knows about the “code” Craig is engaging in from his training and experience. A stranger sitting in the stall next to Craig probably would have no idea that Craig is soliciting a sex act.
If a “reasonable person” — not a “trained law enforcement officer” — would not have recognized the “offensive or obscene” nature of Craig’s conduct, then how do you get to the conclusion that the facts admitted to establish each and every element of the crime beyond a reasonable doubt?
My complaint is they extorted him to plead guilty but then failed to define a crime with the facts they had him admit. Who knows if he would have admitted more extensive facts that were necessary to define the crime at issue?
The allegations in the police report re the “Peeping Tom” charge are irrelevant because we’re talking about the facts which Craig was made to admit to in the plea agreement.
I’m sympathetic to the view of Retired Vice Cop a few posts above yours, but I’m saying that while Craig’s intentions upon entering the men’s room might have been transparent to a trained officer, that’s not the threshold from criminal activity.
Craig shouldn’t have been arrested because he thought about committing a crime, or because he intended to commit a crime, or because he wanted to commit a crime. For a legit arrest the cop should have waited for Craig to take the encounter further.
Analogy — vice cop pulls up and askes a hooker if she’s working tonight. Hooker says yes, and gets in the car.
Is that a crime? Doesn’t the cop usually have to wait for the hooker to actually suggest a sex act for money?
The cop in the bathroom with Craig didn’t wait for an “objectively reasonable” act that could be described as “offensive or obsence” to take place. He could have, but he didn’t.
No crime.
Craig was railroaded by virtue of fear of exposure.
Comment by wls — 9/1/2007 @ 9:47 am
I’m a layman, you’re a trained legal mind, and I have to say you put that very well.
That very succinctly describes my problem with this whole thing.
Comment by Christoph — 9/1/2007 @ 9:58 am
Beldar @ 49 — I’m much more inclined toward your comments in this post than in 47. I am considering these issues here through the prism of my experiences, which are limited to federal felonies. Frankly, I have no idea if there are lower standards of procedural protections afforded defendants in misdemeanor cases in state court such as here.
You have hit right on the head my concern about the court’s conduct — accepting a factual basis for a plea that does not establish the elements of a crime as defined in the statute. The rememdy for the judge would not have been to dismiss the case or play the defendant’s lawyer. The role of the judge is to ensure that the due process afforded the defendant is fair under the Bill of Rights. The judge could have simply rejected the plea agreement and informed the parties that there will be trial or a new plea agreement that passes scrutiny.
I’m also a little uncomfortable with incorporating by reference the factual recitals in a police report. The agreement doesn’t even mention whether the police report is attached or if Craig ever saw the police report. Someone will have to fill me if it is the practice or if it is required that the police report be mailed to the defendant along with the plea agreement.
But if Craig never saw it, the plea agreement prepared by the prosecutor’s office asked him to admit “facts” that were unknown to him — what the Sgt wrote down.
As for the Montoya-Camacho decision you site — I’m going to have to defer for now, but that seems a bit of a radical interpretation to me, and its a little bit dated. I’m not saying its not good law, but it sure sounds like something that might be the basis to reject a 2255, as opposed to sustaining a plea on direct challenge.
Notwithstanding that — I greatly appreciate you thoughts. I love this stuff even though I’m neck deep in it everyday.
And, I really like your blog. Every time I respond to one of your posts I do so with wutg a sense of regret for having insulted you the first time I engaged you here.
Comment by wls — 9/1/2007 @ 10:00 am
I never regret insulting people. The way I look at it, I’m following in good footsteps.
Benjamin Franklin insulted people bitingly until he decided not to anymore and to speak more circumspect.
I’m emulating his younger years so in my older years I’m prepared to follow the path as he did.
Of course, you two gentlemen are probably already there. Anyway, WLS, in # 75 you’re giving evidence you’re nearing that time.
Comment by Christoph — 9/1/2007 @ 10:08 am
Beldar @ 63:
Don’t mistake my concern for the process followed here with a belief that Craig is not “guilty” having duly entered a plea and waived certain rights.
But, I don’t like the police tactics, the execution of the tactics, and the response of the prosecutor and judiciary to what the police brought them.
There are certain minimum levels of conduct that must underlie criminality, and I don’t see it here — at least not for the crime the defendant pled to.
The idea that a defendant should be allowed to plead guilty to a crime he didn’t commit, to avoid being punished for a more serious crime he did commit, is the kind of “devil’s bargain” that gives plea bargaining a bad name.
But, I posted in a comment elsewhere — and I can’t find the link right now — that Craig has been judged guilty, and there is not a basis in my view for him to withdraw that guilty plea.
That doesn’t mean I have to agree with the due process that was afforded along the way.
Comment by wls — 9/1/2007 @ 10:14 am
Of course you disagree Retired Vice Cop, no one thought you would do otherwise. Your reasoning on having a uniform is faulty too. With that reasoning, cops are wasting their time and my tax dollars setting up speed traps or radar traps and stores are wasting their money having security details, etc, etc. If the word on that bathroom is that it is patrolled, just like having a sign that there is a burglar alarm, the potential perps move on. And obviously, they thought it was cost effective to have one of their own sit in a stall 8 hours a day for several months and arrest 40. Big deal. How ’bout having a uniform there for the same several months and preventing the crime in the first place. Crime prevention, now there is a novel idea, instead of crime instigation. It is all about the money and the quotas and getting that fine money into the coffers and justifying their own existence and bamboozling the public into thinking they are really really really doing something, when it fact, they accomplish nothing in the end.
Craig understood what was going on in that interview. He was smart enough to realize that he wasn’t going to win a pissing contest with the cop because the cop would just up the ante and there would be nothing Craig or any member of the public can do when cops threaten to up the ante if you don’t take a meek attitude. Had Craig said, “who the eff do you think you are, you lying piece of sh!t,” do you seriously believe that would have helped him or that he would have made his waiting flight. I don’t. I think had Craig taken an aggressive attitude in his own defense, he would have spent the next few days in jail with more serious charges piled on.
Comment by Pal2Pal — 9/1/2007 @ 10:20 am
If you’re saying this cop in particular would have abused his power, I agree.
Thank God for checks and balances in the legal system and the media. WLS, Patterico in all likelihood, do the job right. So do most cops.
But not all. Not all, my grandmotherly friend.
Comment by Christoph — 9/1/2007 @ 10:36 am
Just a note on the effects of a guilty plea. A conviction, whether by guilty plea or finding, operates as an acquittal of any other crime which could have been charged from the same transaction. The effect in Craig’s case is regardless of whether the more serious charges were “pleaded out” as opposed to being thrown out, he is conclusively presumed innocent of them. (There is also question whether they could even be brought again should his plea be vacated but that would require about 12 pages of a brief.)
Comment by nk — 9/1/2007 @ 10:40 am
WLS:
I suspect some are more willing than others to view Craig’s insertion of his foot and hand into the adjoining stall as an objective act. Craig likely insisted he has a “wide stance” and was “picking up a piece of paper” to explain those acts, and we can be fairly certain he did those acts since he tried to explain them. As a juror, I might have given Craig the benefit of the doubt at trial but, as we all know, it never got that far.
WLS and others, I applaud your desire to preserve the integrity of the law by making sure people are properly charged and convicted but do you really want to open the Pandora’s box of close scrutiny on intent crimes where an informed defendant has admitted guilt?
Comment by DRJ — 9/1/2007 @ 10:47 am
Everything changed the instant Craig flashed a business card and said, “What do you think of that?” The cop retaliated and the arrest report novella that became a pulp page-turner was born.
Power plays backfire. Attitude matters.
Craig could have been given a lecture and let go w/o charge had he shown some contrition, respect or situational awareness. An officer who thinks someone has learned their lesson has wide discretion to resist a collar.
No doubt this one had witnessed and made cases on much worse activity.
Comment by steve — 9/1/2007 @ 10:50 am
Which of the other people caught in this sting were let go with just warnings according to your profound knowledge?
Comment by Christoph — 9/1/2007 @ 10:55 am
How many cases made in the sting were tossed, according to your profound knowledge?
Confront reality.
Comment by steve — 9/1/2007 @ 10:58 am
Answer the question, dimwit.
You can’t, can you? Because you were getting your facts out of Uranus.
Comment by Christoph — 9/1/2007 @ 11:01 am
What “facts” would those be?
It was a theory.
A-hole.
Comment by steve — 9/1/2007 @ 11:04 am
Craig could have been given a lecture and let go w/o charge had he shown some contrition
You definitely presented it as a theory. I apologize for calling you on it.
Because cops are ALWAYS letting people go after they pay money for a sting operation if only the people are nice to them.
On TV. When they bust John’s about to sleep with hookers? The part you miss is where the nice officers let the friendly men go without charges.</sarcasm>
Comment by Christoph — 9/1/2007 @ 11:48 am
The business card business was how the cop described it and that is questionable and based on his perceptions as a man with an agenda. Since the cop had played gotcha with his own business card, I think it entirely natural that when exiting the stall, Craig would offer his own. Let’s imagine for just a minute that Craig actually did nothing wrong or anything that he knew to be an overt invitation to a sexual encounter. Now, with that in mind, would it not be natural for the man to say, “you may be a cop with a job to arrest bad guys, but I’m not a bad guy, I’m a commuting U.S. Senator. Here is my card.”
Comment by Pal2Pal — 9/1/2007 @ 11:51 am
Could this actually be a red state/blue state (and Canada) divide? I wonder if traditional areas are more likely to favor vice prosecutions than more urban/liberal locations.
By the way, Appalachian State just upset Michigan and Chad Henne in the first game of his senior year. I feel for Henne but that was an awesome game.
Comment by DRJ — 9/1/2007 @ 11:51 am
Oops! Sounds like somebody discovered a friend was monitoring the blog. After reserving the right to flirt and hit on women anywhere at anytime, Christoph offers this little clarification:
“You mean the whole monogamous relationship with a woman in another country as we talk daily, work toward seeing each other again, and plan a family sans prostitutes? That’s my personal agenda. But thanks for the implied insult.”
We believe you Christoph. Does she? If that’s your story after all the BS you were spewing about being a libertarian about sex and flirting, good luck.
Comment by daleyrocks — 9/1/2007 @ 11:56 am
Good piece. One of the few (on the ‘right’) that I’ve seen that actually agree with my interpretation of what happened (or should have)
My post
Comment by Lord Nazh© — 9/1/2007 @ 12:06 pm
Good post, Lord Nazh. (But you may be confusing copyright with trademark. Or are you making fun of some litigious felon?
)
Comment by nk — 9/1/2007 @ 12:14 pm
Excerpt from post:
He was caught ‘proposing’ to have sex, something that happens every minute of every day from schools to bars to public transportation. When that becomes illegal, this country truly will die.
Comment by Lord Nazh© — 9/1/2007 @ 12:06 pm
I agree. Totally.
Comment by Christoph — 9/1/2007 @ 12:20 pm
If I am going to arrest someone under these circumstances & that person is a United States Senator, the LAST thing I’m going to do is trump up a case against him. What is the motivation to put a case on him? Talk about asking for trouble.
First of all, it’s a felony to file a false police report. It makes no sense an officer would risk, prison, his home, his family, his career & his retirement just to put a low grade misdemeanor case on a a United States Senator. The fact the officer went forward with the case tells me he felt he was on very firm legal ground. I am sure he did not undertake this case lightly. I would suggest going to http://www.thesmokinggun.com & reading the forms Craig signed admitting guilt.
All the cops I worked with were moral, decent & honest people. We never put cases on people. Yeah, I know it has happened but those kind of cops get caught & end up in prison. No thank you.
I can say with absolute good faith that based on my training & experience Craig was cruising for sex & would have had sex in that bathroom if not for the actions of the police.
If someone tried to put a case like this on me, no way I’m going to waive my Miranda rights & speak with the investigating officer. I’m going to shut up & lawyer up. Craig waived his Miranda rights & thought he could out smart the officers. His interview is full of tacit admissions.
My next call is going to be to Internal Affairs to complain against the officers.
Next I will be contacting the Civil Rights Division of the Justice Department to initiate an investigation.
Next I will be filing a lawsuit alleging federal civil rights violations in Federal Court.
I will fight the criminal chargers to the end. I sure as hell would not resign.
Craig did none of this. Craig knew he was guilty & told no one. He just plead guilty & wanted it to quietly go away. Now he has resigned. Hardly the actions of an innocent man.
Comment by Retired Vice Cop — 9/1/2007 @ 12:28 pm
If people in bathroom stalls have a right to privacy(WLS), how can having sex in one be considered “public” sex?
Comment by alphie — 9/1/2007 @ 12:29 pm
Alphie,
Yes they have the right to privacy in stalls that have doors as these did. The problem is Craig was taking his “business” to the next stall where a vice cop happened to be. Do you really think Craig’s conduct was acceptable?
Comment by Retired Vice Cop — 9/1/2007 @ 12:31 pm
Sadly, Retired Vice Cop’s Comment #94 is right on the money. Up to and including the legal strategy Craig should have pursued. Craig cut his own throat with his guilty plea.
Comment by nk — 9/1/2007 @ 12:36 pm
And …
“Hi, I like you. Do you like me? Would you like to have sex with me?” definitely should not be illegal in America.
Comment by nk — 9/1/2007 @ 12:40 pm
I don’t think it’s illegal.
I think if I want to approach any mentally competent adult in the entire world and proposition them for sex using non-obscene gestures or language, that should be legal. Maybe totally inappropriate. But legal.
If I do this with the same person to the point where it becomes harassing, that’s another story.
But, yes, in a free country, a person should be able to tap their toes whether that means I’m bored, taking a dump, got lots on my mind or… hey, he looks cute! I wonder if I can get some sex.
Comment by Christoph — 9/1/2007 @ 12:44 pm
I have gone around the circle and the only crime I can see is the crime Craig committed with his guilty plea.
Comment by nk — 9/1/2007 @ 12:44 pm
I seriously do not want to hear that in a stall at a major metropolitan airport.
Comment by DRJ — 9/1/2007 @ 12:44 pm
I agree but isn’t that enough? Unless he’s incompetent, shouldn’t we take his word for it that he committed a crime?
Comment by DRJ — 9/1/2007 @ 12:46 pm
Retired,
Considering some of the things I’ve heard(and smelt) going on next to me in public restroom, I can’t really say that two guys playing hide the salami would bother me that much.
But vice is a community issue, isn’t it?
It doesn’t really matter what I think.
I’m sure the people who get ticketed for speeding in front of my kid’s school feel they’re being targeted, but I’m always happy to see the police motorcycle tucked into the bushes there.
Comment by alphie — 9/1/2007 @ 12:48 pm
WLS, my respected friend, this is a good-natured discussion in the best of good faith, and I thank you for your thorough responses to my points. I hope other commenters will keep their disagreement as civil, and I join in DRJ’s praise for your concerns (#81).
You wrote (#73 & 75):
Working backwards: The allegations re peeping are indeed relevant because they’re part of the overall fact pattern that the jury could consider in deciding whether the intrusions into officer’s stall were “offensive” conduct. The whole pattern is also relevant to show intent. Craig would have argued that the intrusions into the officer’s stall space, the touching, and the gazing were all unintentional and inoffensive, and a jury might have agreed, or might not have. But most judges would certainly leave that up to the jury to decide.
I don’t know whether it’s the routine practice of the Hennepin County D.A.’s office to send a copy of the complaint along with the proposed plea, but I would readily agree that they ought to. Even if they didn’t, however, there’s no question but that Craig could and should have asked for a copy. He went back to the airport police station asking for the name of someone to whom “his lawyer” could speak (although perhaps he hadn’t yet consulted one); he spoke again by phone with the arresting officer then. Certainly his lawyer would have asked for a copy of the complaint, if Craig had availed himself of a lawyer; and if Craig didn’t ask, then more the fool he, and I’m not inclined to attribute his foolishness to Hennepin County.
How many different proposed revisions to Title 18 of the U.S. Code — the title on Crimes and Criminal Procedures, of which I suspect that you, WLS, have substantial portions committed to memory — do you think Craig has voted on over the last couple of decades, fer pete’s sake?
I believe the facts alleged in the complaint were ample, under a reasonable person standard, to establish the offensive nature of the conduct — adequate to support a plea, and if so testified to by the officer at trial, adequate to support a conviction. You’re seriously suggesting that no reasonable jury could have found this to be offensive conduct? You’re suggesting that factual pattern was so obviously inoffensive that, as a matter of law, these allegations didn’t plead all the required elements and the complaint ought to have been dismissed as a matter of law?
Note that to be objectively offensive, it didn’t have to be part of a homosexual hook-up pattern, and it didn’t have to be an invitation for any kind of sexual conduct. It’s offensive just because it’s an intrusion into personal privacy in a place where someone has a reasonable expectation of that.
Before this story broke, I had no idea that there were gazing, foot-tapping, foot-rubbing, or waving under the stall protocols for gay cruising in mens rooms, but I certainly would have been offended if it had been little old me in the stall, even if I had no clue what Craig subjectively intended. I’m not particularly homophobic; I had an openly gay man as my secretary for three years and enjoyed both his and his partner’s company on more than one social occasion. But I wouldn’t have particularly cared what Craig or anyone else rubbing my foot while I was on the toilet intended; and I probably would have stomped the hell out of his foot. (And if that had gotten me arrested, I’ll bet I could have secured an acquittal; I damn sure would have taken it to trial!)
You also wrote (#77):
We agree on this, and that’s the basis for the due process requirement that the court ascertain that there’s a factual basis for the plea. I believe that (i) the complaint duly made out a potential offense under the disorderly conduct statute, however; (ii) it would have survived a motion to dismiss; (iii) the charge would have survived a directed verdict motion if the officer’s trial testimony tracked it; (iv) a conviction would have survived a j.n.o.v. motion; and (v) it would have been affirmed against any factual insufficiency challenge on appeal. Via his plea, Craig didn’t make the required motion for (i), and forfeited his right to take advantage of (ii) through (v).
Re the officer, generally, consider this press report: “Officer who arrested Craig has solid reputation; Sgt. Dave Karsnia was named Officer of the Year in 2003.” Of course, that’s from the newspaper that Craig claims has a vendetta against him. But I’m curious, WLS: Was there anything in particular in the tape that you thought inappropriate on the officer’s behalf?
Finally, you wrote (#73): “Craig was railroaded by virtue of fear of exposure.” But the fact that Craig was particularly vulnerable to public embarrassment — by virtue, in large part, of being a conservative Republican senator perceived to be “pro-family values” and “anti-gay rights,” and about whom there have been rumors going back to his days as a congressman in 1982 — is hardly the fault of Sgt. Karsnia or the Hennepin County prosecutors or courts. Karsnia even omitted the bit about Craig’s confronting him with his Senate business card and saying, “what do you think about that?” from the recital of facts in the complaint. Roll Call, which first broke the story, got it as an anonymous tip; there’s no indication that Karnsia or anyone else connected with law enforcement had anything to do with that; and indeed, Karsnia gave Craig an assurance that he did not intend to go to the press, and he’s declined press comment since then. So when did these guys really tighten the screws down? Was it … when they let Craig make his scheduled flight? When they declined to cuff him? Or was it when they agreed that he could dispose of the whole thing for a $500 fine and no jail time?
Concern for stigma undoubtedly must have played a part in Craig’s decision, and it arguably loomed larger for him than it would have for most similarly situated defendants. But he got, apparently unsought, an accommodation in being allowed to plead guilty to a vague crime that lacks the same stigma as a peeping conviction would have had. And more to the point, cops and D.A.’s aren’t supposed to go especially easy on people who may be particularly vulnerable to embarrassment. Overall, I think this would be the tiniest “railroad” I’ve ever seen or heard of.
(I do note in passing, though, that whoever gave Roll Call the anonymous tip appears to have waited, perhaps deliberately or perhaps not, until Craig’s deadline for filing a motion for new trial or a notice of direct appeal had passed. That might have been a wicked and subtle bit of malice on someone’s part designed to limit Craig to a far-more-difficult collateral attack on the conviction, but that’s just my speculation, and there’s no hint that it was used to induce the plea to begin with.)
Comment by Beldar — 9/1/2007 @ 12:50 pm
I totally concur, DRJ. I don’t need to hear people “liking each other” when I use a public restroom at the airport, or the train or bus station, or a shopping mall.
And it’s not a red state/blue state thing. I’m an over-the-hill, middle-aged Democrat, and I think it’s a decency thing.
Comment by lc — 9/1/2007 @ 12:50 pm
Christoph,
I see no crime in discussing having sex with another consenting adult. The problem is in the “bathroom sex culture” the sex takes place then & there in public. Its not a crime to discuss sex & then go someplace else for sex nor should it be. You need to look at the big picture here.
Comment by Retired Vice Cop — 9/1/2007 @ 12:51 pm
DRH #102,
Definitely. On many levels. As I have said before, he should have thought of his family. He should have fought the charges. He is a coward and a weakling to be pitied and scorned. In my case, the pity is stronger than the scorn.
Comment by nk — 9/1/2007 @ 12:51 pm
I seriously do not want to hear that in a stall at a major metropolitan airport.
Maybe. But a man should still have the right to say it to you.
And if you understand it is a sexual request, you react favorably, and he gently touches your foot… well… you get where I’m going. He hasn’t broken the law.
You can always say no.
Comment by Christoph — 9/1/2007 @ 12:51 pm
Good Lord, did I call DRJ “DRH”? Ok, I’m seeing a neurologist for carpal tunnel right away..
Comment by nk — 9/1/2007 @ 12:53 pm
nk (#98) wrote:
Most times and places that’s not likely to get you charged. At a bar it won’t. At a supermarket, with only adults in earshot, it probably won’t. At a daycare center, it probably will. And it well might if directed, say, to the bride at a wedding. Conduct that may be “offensive” and that may tend to arouse “alarm, anger, or resentment in others” is indeed situational. There’s the whole “fighting words” set of precedents in which the First Amendment has been held to offer no protection. Instead, your protection, such as it is, is the conscience of the community, as filtered through the community’s police, prosecutors, judges, and — ultimately — jurors.
Comment by Beldar — 9/1/2007 @ 12:56 pm
No. Wrong.
The fact that some OTHER people have sex in a bathroom doesn’t mean I or Craig or anyone else has had sex in a public bathroom until that’s proven.
People have sex in or around night clubs. A lot.
People do it on the street. In bushes. In cars.
It’s all illegal.
I look at the specifics of the case. Not the fact that other do, admittedly, have disgusting sex in a toilet stall.
It’s wrong to convict a defendant based on the “big picture” of crimes others commit based on your firm belief, disagreed with by others, that he intended to have sex.
But I agree. He might be a poofta. The point is he didn’t do anything obscene and the cop gave him encouragement after Craig allegedly started a very non-obscene flirtation sequence.
Look, A LOT of sexual advances cause discomfort, etc., but they’re not against the law. The resulting activity might be.
Is there ANY evidence Craig wouldn’t take no for an answer? Is there any proof CRAIG — as opposed to others who have gone before him — was going to have sex then and there?
I don’t think so. He got railroaded, in large measure due to his stupidity. And, like nk, I do have some sympathy for a man who is so stupid.
Shouldn’t be in the senate. But shouldn’t have pled out to a non-crime.
Comment by Christoph — 9/1/2007 @ 1:02 pm
Christoph #108,
If a man is in the ladies bathroom at a major metropolitan airport, he has more problems than finding a love interest.
Comment by DRJ — 9/1/2007 @ 1:04 pm
Foot tapping as a sexual signal… something most heterosexual males are unaware of… but homosexual males invite… how is that offensive?
Touching the foot of someone who is slowly moving their foot up and down in response to their foot tapping — that the other person admits he knew was a sexual gesture — how is that offensive?
If he took out his Johnson, yes. But he didn’t.
If two gay men want to sit in a stall beside each other and touch feet, they should not get a criminal record.
Comment by Christoph — 9/1/2007 @ 1:05 pm
In the “bathroom sex culture” rarely is there a spoken solicitation. Vice cops are not busting guys for saying, come home