"Damning" is how one legal expert described Sen. Larry Craig's taped interview with a Minneapolis police officer.
But others say the tape could have helped defend the Idaho Republican had he not pleaded guilty to a charge of disorderly conduct after being investigated for lewd conduct at the Minneapolis airport in June.
"It would have been eminently defensible," said David Leroy, a Boise defense lawyer and former Idaho attorney general.
In the taped interview released Thursday, St. Paul International Airport Police Sgt. Dave Karsnia repeatedly accused Craig of lying about what he did in an airport bathroom June 11.
Sign Up and Save
Get six months of free digital access to The Idaho Statesman
Karsnia said Craig used signals — tapping his foot, sliding his foot over to touch Karsnia's foot, and sliding his hand under the stall — to indicate he wanted a sexual encounter. Craig repeatedly denied the claims and at one point suggested the officer was trying to entrap him.
Despite the denials, Steve Simon, a University of Minnesota law professor, said Craig would not want to have such a tape played before a jury.
"There is an extremely damning statement on that tape. If you listen to the tape, at the very beginning there is an explanation of what's going to happen," Simon said. "Then, totally out of the blue, Craig said, ‘You solicited me.'"
Simon said a prosecutor could argue that Craig interpreted the officer's behavior with the feet as soliciting, and that would raise this question: Why would a proclaimed straight person like Craig recognize that?
"It's an extremely powerful piece of evidence," Simon said.
But Leroy said none of the signals described by the officer in the police report constitute a crime when taken individually.
"It requires a leap of faith as to what would have been done — what was the consequence of a minor act," Leroy said. "Without an expert witness to tell (the jury) why all the signals constituted criminal solicitation, the prosecutor's case would fail."
Simon said the officer could be that expert, since the department has reported arresting more than 40 people on charges like those leveled at Craig.
Craig's denials were weak, and a jury would likely pick up on that, he said. "At one point he said he was picking up a piece of paper in the stall," Simon said. "When is the last time you've picked up paper in a stall? That would raise a lot of eyebrows."
Craig has said he made a mistake pleading guilty. But Simon said it wouldn't be wise for Craig to try to overturn the guilty plea, because that would reopen a second charge, intrusion of privacy, that was dropped for Craig's guilty plea to disorderly conduct.
That charge carries a $3,000 fine and up to a year in jail. Craig was fined $1,000 and 10 days in jail, which were stayed, and a year's probation.
The officer said Craig looked at him through the crack of the bathroom stall door, an event that would make the privacy-intrusion charge hard to refute, Simon said. "Normally you rattle the door," he said. If it is occupied, "You keep your distance. It's a tough charge to get an acquittal."
Hailey lawyer Keith Roark said Craig fared better than most people in police interviews. "It appeared he maintained his position throughout the interview in his denial of what the officer was claiming," Roark said.
Simon said Craig's decision to forego consulting a lawyer is not uncommon in situations that can prove embarrassing — even after suspects have been read their Miranda rights, which say suspects have the rights to remain silent and obtain legal counsel.
"There is a fascinating psychological dynamic that when people are Mirandized, they throw up on themselves," Simon said. "When freedom is deprived, people cooperate with their captor out of fear and think if they cooperate, fewer bad things will happen."
Ken Dey: 672-6757