Craig lawyers argue case to appeals court

A year to the day after U.S. Sen. Larry Craig started fighting to withdraw his guilty plea in a men’s room sex sting, his lawyers were back in Minneapolis on Wednesday pressing their arguments, saying in part that an undercover officer “invited” Craig’s actions.

Meanwhile, at the Minneapolis-St. Paul International Airport, the fuss around the restroom where Craig was arrested finally has died down, an airport spokesman said, and airport officials have decided against making costly restroom renovations. They had planned to spend tens of thousands of dollars to extend bathroom stall walls closer to the floor to prevent movements or signals below the walls.

Complaints of lewd conduct in two men’s rooms – which prompted the undercover investigation that ensnared Craig and about 40 other men in four months – dropped after Craig’s highly publicized case.

“Over the course of the last year, there’s been a great reduction in complaints regarding behaviors in the restrooms,” said airport spokesman Patrick Hogan. “If there’s anything good that came out of the Craig case, it’s that people know now that we are policing the restrooms just as we do other parts of the airport, and that this is not a good place to engage in activity that’s inappropriate for a public restroom.”

An undercover officer, Sgt. Dave Karsnia, has said Craig peered at him repeatedly through a gap between the stall door and wall, entered the adjacent stall, tapped his foot, and – after the officer tapped back – slid his over to touch the officer’s foot and made hand gestures under the stall wall, all of which the officer said were known signals of sex solicitation. He arrested Craig, who later signed and mailed in a plea deal in which he pleaded guilty to a reduced misdemeanor charge of disorderly conduct. He paid $575 in fines and received a year’s probation; a more serious gross misdemeanor charge of interference with privacy was dismissed.

After news of the incident surfaced in late August 2007, Craig said the officer had misconstrued his actions and began fighting to withdraw his guilty plea, filing his first motion Sept. 10, 2007. In two public appearances in Boise last fall, Craig denied being gay and said he intended to resign from the Senate. He later decided to serve out his term.

Craig didn’t attend his Minnesota Court of Appeals hearing Wednesday, which was webcast; he was scheduled to attend several committee hearings and meetings in Washington, D.C. His term runs through the end of the year, and he’s not seeking re-election.

Craig’s attorney Billy Martin told a three-judge panel of the court that Craig’s guilty plea should be withdrawn because there were insufficient facts to support it.

Because the officer tapped back to Craig’s initial foot-tap, Martin said, “That was invited conduct.” Craig couldn’t have thought he was offending the officer, so he couldn’t have been disorderly, Martin argued. “He’s invited that conversation.”

Martin said: “Your honor, what we think happened here is that Sgt. Karsnia thought something was about to happen.”

Martin also argued that the disorderly conduct statute requires “others” to be present for the conduct and that only the officer could see the conduct in the stall.

But Minnesota Prosecutor Christopher Renz told the court, “Others were actually present and therefore it’s a nonissue and more of a red herring than anything else.” Craig had testified that the stalls were full, prompting him to look through the gap into Karsnia’s stall before entering the adjacent stall. However, Renz noted, one look would have answered that question; the senator looked “multiple times.”

While Martin argued that the agreement Craig signed lacked sufficient facts to prove disorderly conduct – merely outlining the legal basis of what constitutes the crime and admitting to that – Renz said the attached complaint included all the details of the incident.

“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 mostly queried Martin. When he argued that a mail-in plea should require more information about the facts of the case, 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: “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 argued that Craig’s peering at Karsnia through the gap in the stall wall was “as consistent with innocence as it is with guilt” and said Craig’s actions inside the stall didn’t qualify as disorderly conduct. Overall, he said, there just wasn’t evidence Craig had committed a crime.

“The backbone of our judicial system is that a person should not be entitled to go into a courtroom and plead guilty if there are not sufficient facts to support that plea of guilty,” Martin told the court. He 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.”

Stephen Simon, a law professor at the University of Minnesota, said the type of appeal Craig is pressing is difficult to win. A Minnesota district court judge already rejected the same arguments in Craig’s case, and the appeals court generally defers to the discretion of the trial court unless the lower court has abused its discretion. “These are high hurdles to meet,” Simon said.

The appeals court has 90 days to issue its decision.