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Craig's guilty plea in sex sting to stand

Betsy Z. Russell
Staff writer
December 10, 2008

Minnesota’s Court of Appeals has denied Idaho Sen. Larry Craig’s appeal in a restroom sex-solicitation case, rejecting every one of the senator’s arguments for overturning his guilty plea to disorderly conduct charges.

Craig, who was arrested in a men’s room at the Minneapolis-St. Paul International Airport in June of 2007 for soliciting an undercover officer with foot taps and hand gestures under the stall wall, said he was “extremely disappointed” in the high court’s decision and remained “steadfast in my belief that nothing criminal or improper occurred at the Minneapolis airport.”

The longtime GOP senator said in a statement Tuesday, “Currently my attorneys and I are reviewing the decision and looking into the possibility of appealing.”

Craig could appeal the Court of Appeals ruling to the Minnesota Supreme Court, but he’d have to petition the court to hear his case. “Review is not automatic, and the court grants relatively few petitions,” said Steve Simon, a law professor at the University of Minnesota.

Plus, he noted that the Court of Appeals ruling in Craig’s case was issued as an “unpublished” opinion, which means it has no value as a legal precedent. “The Minnesota Supreme Court grants review of very few unpublished opinions,” Simon said.

In his appeal, Craig argued that his mailed-in guilty plea contained insufficient facts to prove the crime; that the Minnesota law required “others” to be offended by Craig’s actions and that only one undercover officer in the next stall was affected; that the undercover operation in the men’s room constituted entrapment in that the officer “invited” Craig’s conduct; and that the Minnesota disorderly conduct statute is unconstitutionally overbroad and infringes on 1st Amendment rights to free speech.

The court, in a unanimous opinion written by Edward Toussaint Jr., chief judge of the Minnesota Court of Appeals, wrote, “Appellant’s argument is unsupported by the record.” The plea was legal and adequate, the court ruled, and the requirement that “others” are affected by the criminal conduct is met by just one person being affected. The appeals court cited a Minnesota statute that states, “The singular includes the plural, the plural, the singular.”

The court rejected any notion of entrapment, writing, “Here, the complaint clearly indicates that the criminal intent originated in the mind of appellant, not in the officer.”

And the appellate judges upheld the constitutionality of Minnesota’s disorderly conduct law. Although the statute “is not directed particularly at public-restroom behavior, here it is the place in which the conduct occurred, as much as or more than the nature of the conduct, that determines its offensive nature,” the court found. “The conduct charged here occurred in a place in which the ordinary citizen might feel most eager to ‘avoid unwanted communication.’ … Even if appellant’s foot-tapping and the movement of his foot towards the undercover officer’s stall are considered ‘speech,’ they would be intrusive speech directed at a captive audience, and the government may prohibit them.”

Craig pleaded guilty Aug. 8, 2007 to a reduced charge of disorderly conduct, paying more than $500 in fines and receiving a year’s probation and a stayed 10-day jail term. An undercover officer, who was in the bathroom stall next to Craig, said the senator used a foot-tapping, hand-gesturing ritual to solicit sex. Craig was one of 40 men snared in the undercover investigation over several months, according to police reports, and most used near-identical signals. Some of the suspects admitted soliciting sex, while others denied it. The investigation was launched after complaints of lewd conduct in the busy airport restroom.

After news of his arrest and guilty plea became public, Craig strenuously denied being gay and began working to overturn his guilty plea. He initially said he’d resign from the Senate, but then changed his mind and is serving out his term, which ends after this month. He didn’t seek re-election.

Betsy Z. Russell can be reached toll-free at (866) 336-2854 or bzrussell@gmail.com. For more news from Boise go to www.spokesmanreview.com/boise.

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