In fighting to overturn his conviction in an airport sex sting, U.S. Sen. Larry Craig is trying to protect the rights of people who plead guilty to misdemeanors by mail, his lawyer said Wednesday.
The mailed guilty pleas sent in by thousands of small-time defendants in Minnesota each year don’t contain sufficient evidence to allow a higher court to find that a crime was committed, Washington, D.C.-based lawyer Billy Martin argued before the Minnesota Court of Appeals.
Craig mailed his guilty plea to a charge of disorderly conduct after an undercover police officer arrested him in June 2007, saying Craig had tapped his foot to solicit gay sex in a men’s room of the Minneapolis-St. Paul International Airport.
“The record is devoid of sufficient evidence to allow a judge to find guilt beyond a reasonable doubt,” Martin told the three-judge panel hearing Craig’s appeal. “There’s no evidence in the record to support the contention that the defendant was in the bathroom for anything other than the legitimate reason of using the bathroom.”
But Christopher Renz, a lawyer for the Metropolitan Airports Commission, in whose restroom the incident occurred, disagreed. He argued that a state district judge didn’t abuse his discretion last year when he refused to let the Idaho Republican withdraw his plea.
“There’s no manifest injustice in not allowing Craig’s plea to be undone,” Renz told the judges. He said Craig’s own guilty plea, coupled with details in the police report of the incident, “is sufficient factual basis for accepting the guilty plea.”
Craig, 63, who is married and a grandfather, was one of 41 men who were issued misdemeanor citations last year during a sting operation. Police posed as gay men soliciting sex in a restroom in the Lindbergh Terminal.
Craig never consulted a lawyer and disposed of the case by mailing in his guilty plea and a check to cover $575 in fines and court costs. But a couple of months later, when the first articles about the incident were published, he publicly said he wasn’t gay, denied any wrongdoing and began his legal efforts to withdraw his plea.
Ruling in 90 days
The panel of Judge Thomas J. Kalitowski, Judge Natalie E. Hudson and Chief Judge Edward Toussaint Jr. peppered both Martin and Renz with questions. In fact, Martin was barely a couple of minutes into his 15-minute presentation when Hudson interrupted to ask him whether he was arguing that the Minnesota Rules of Criminal Procedure didn’t allow for mail-in guilty pleas.
Martin replied that Craig wasn’t challenging the mail-in procedure, but rather was challenging the inability to withdraw a plea that had been made in that manner. The law says a judge has to find a person guilty beyond a reasonable doubt, and there’s no indication in the court record of enough evidence to do that, he said.
In pleas in felony cases, such findings of guilt are usually accomplished through a colloquy between the judge or an attorney and the defendant. Standing before the judge, the defendant is asked questions and admits to the crime.
But there is no such colloquy in a guilty plea by mail. Martin argued that without a judge’s signature there is no way to demonstrate that a court had found enough evidence to prove guilt beyond a reasonable doubt, even if the person voluntarily enters the guilty plea.
In Craig’s case, the only other evidence pointing to his possible guilt is a police report’s description of his alleged behavior in the bathroom. There’s no indication from the court record that a judge read the report before entering Craig’s plea in the record.
Renz told the judges that he disagreed. Martin’s argument, he said, “assumes that the lack of signature is a lack of review. It assumes that if the appellant had shown up for a colloquy with a judge, the plea would’ve been different.”
Under questioning by one judge, Renz conceded that the plea petition, by itself, was not sufficient evidence of guilt. But the police complaint “fairly sets out the crime of disorderly conduct,” he said.
The appeals court has 90 days to rule in what has become perhaps the state’s highest-profile misdemeanor case. A ruling within 90 days will come before Craig leaves the Senate.
Craig’s 'intelligence’ at issue
The senator’s journey to the court began June 11, 2007, when he was on a layover between flights. The month before, airport police had begun an undercover sting operation aimed at stopping gay men from soliciting sex in airport restrooms.
The police report says Craig entered a men’s room and that, unbeknownst to him, airport police Sgt. Dave Karsnia was in a stall, working undercover.
Karsnia claimed Craig spent time looking into the policeman’s stall through the crack between the door and the frame. When an adjacent stall opened up, Craig entered it. The cop said the senator engaged in foot and hand motions routinely used by men soliciting gay sex. The lawmaker moved his foot over and touched the officer’s foot.
Karsnia responded by showing Craig his badge.
Craig was charged with “interference with privacy,” a gross misdemeanor, as well as a misdemeanor charge of disorderly conduct. In proceedings conducted through phone calls and the mail, the state dropped the privacy charge and Craig pleaded guilty to disorderly conduct and paid a fine.
After the details of his plea were published, Craig responded by saying he wasn’t gay. He claimed he had “overreacted and made a poor decision” by pleading guilty only because he was under stress from the Idaho Statesman’s investigation into his sex life.
In December, the Statesman published statements from five men -- four of them named -- who claimed they had homosexual encounters with Craig. The senator said the statements were “completely false.”
Since then, Craig has sought to withdraw his plea. In a hearing last fall before Hennepin County District Judge Charles A. Porter, the senator’s lawyers argued that he didn’t “intelligently” enter the plea because he wasn’t sure what he was signing.
Porter rejected the senator’s contentions last October, writing that Craig was “a career politician with a college education” who “is of, at least, above-average intelligence. He knew what he was saying, reading and signing.”
Martin also argued before the appeals court that Craig’s behavior in the restroom didn’t constitute the crime of disorderly conduct as Minnesota law defines it. He said the law requires a person’s actions be intended to disturb others, and Craig’s actions were only directed at the undercover officer ‹ who had invited Craig’s foot tapping by tapping his own foot.
Craig, a member of the powerful Senate Appropriations Committee, was first elected to the Senate in 1990 and has won re-election since, but chose not to run for a fourth term this year after his guilty plea became known. He was not present for Wednesday’s oral arguments, which lasted 35 minutes.
David Hanners: (612) 338-6516