Eye On Boise

Craig’s attorney: ‘That was invited conduct’

Attorneys for Idaho Sen. Larry Craig have just finished urging a three-judge panel of the Minnesota Court of Appeals to let Craig withdraw his guilty plea to disorderly conduct charges in a 2007 airport men’s room sex sting. “He looked in the crack. … He fidgeted with his hands. … Within a few minutes, according to the evidence in this case, he tapped his foot,” Craig attorney Billy Martin told the court. “We are challenging the insufficiency of the facts.”

The Republican senator is trying to withdraw his guilty plea to a reduced charge in the 2007 incident, but a lower court judge already has rejected the bid. Today, he took his case to the Court of Appeals, which will issue its ruling in the coming weeks. Craig wasn’t present for the arguments; he was scheduled to be in Washington for several official hearings and meetings.

Martin told the appellate justices, “Your honor, what we think happened here is that Sgt. Karsnia thought something was about to happen. … The tapping of the foot and moving of the hand … there is no indication in this record that anybody saw that other than the police officer.” And, he told the court, “That was invited conduct.” After Craig tapped his foot under the restroom stall wall, the officer tapped back, prompting Craig’s subsequent tapping and gestures. That shows Craig couldn’t have thought he was offending the officer, which is part of disorderly conduct, Martin argued. “He’s invited that conversation.” He also argued that the disorderly conduct statute requires “others” to be present for the conduct, and that only the officer could see it.

Minnesota Prosecutor Christopher Renz told the court, “Others were actually present and therefore it’s a non-issue and more of a red herring than anything else.” Craig himself testified that the stalls were full, and said that’s why he looked through the gap into Sgt. Dave Karsnia’s stall before entering the adjacent stall – to see if the stall was occupied. However, Renz noted, one look would have answered that question; the senator looked “multiple times.”

While Martin argued that the plea agreement Craig signed didn’t provide sufficient facts to prove the disorderly conduct crime, merely outlining the legal basis of what constitutes the crime and admitting that, Renz said the complaint, which was attached, gave full detail of all the facts. “I think the complaint clearly sets out a crime of disorderly conduct,” he told the court. The crime doesn’t require the conduct to be of a sexual nature, he noted. “All we’re talking about is the conduct of multiple intrusions into an occupied stall space.”

The justices questioned attorneys on both sides, but all three hit Martin with most of their queries. When he argued that a mail-in plea should require more information about the facts of the case, such as would occur if the defendant were present and queried by the judge, a Judge Natalie Hudson asked Martin “what if any effect that would have on the district courts here in Minnesota, in terms of workload, caseload – I mean, these are just some practical implications.” Martin responded that he’s a former city prosecutor, and “I don’t think that would be any more work. … It would protect a citizen who may be innocent of a crime before a judge.” Martin said he’s asking for “a recognition by this court that a trial court has an obligation to ensure there’s sufficient facts. … Every now and then you have to find a way to correct a flaw in a procedure.”

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