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 tomisdemeanors by mail, his lawyer said Wednesday.
The mailed guilty pleas sent in by thousands of small-time defendants inMinnesota each year don’t contain sufficient evidence to allow a highercourt to find that a crime was committed, Washington, D.C.-based lawyerBilly Martin argued before the Minnesota Court of Appeals.
Craig mailed his guilty plea to a charge of disorderly conduct after anundercover police officer arrested him in June 2007, saying Craig had tappedhis foot to solicit gay sex in a men’s room of the Minneapolis-St. PaulInternational Airport.
“The record is devoid of sufficient evidence to allow a judge to find guiltbeyond a reasonable doubt,” Martin told the three-judge panel hearingCraig’s appeal. “There’s no evidence in the record to support the contentionthat the defendant was in the bathroom for anything other than thelegitimate reason of using the bathroom.”
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But Christopher Renz, a lawyer for the Metropolitan Airports Commission, inwhose restroom the incident occurred, disagreed. He argued that a statedistrict judge didn’t abuse his discretion last year when he refused to letthe 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 detailsin the police report of the incident, “is sufficient factual basis foraccepting the guilty plea.”
Craig, 63, who is married and a grandfather, was one of 41 men who wereissued misdemeanor citations last year during a sting operation. Policeposed 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 hisguilty plea and a check to cover $575 in fines and court costs. But a coupleof months later, when the first articles about the incident were published,he publicly said he wasn’t gay, denied any wrongdoing and began his legalefforts to withdraw his plea.
Ruling in 90 days
The panel of Judge Thomas J. Kalitowski, Judge Natalie E. Hudson and ChiefJudge Edward Toussaint Jr. peppered both Martin and Renz with questions. Infact, Martin was barely a couple of minutes into his 15-minute presentationwhen Hudson interrupted to ask him whether he was arguing that the MinnesotaRules of Criminal Procedure didn’t allow for mail-in guilty pleas.
Martin replied that Craig wasn’t challenging the mail-in procedure, butrather was challenging the inability to withdraw a plea that had been madein that manner. The law says a judge has to find a person guilty beyond areasonable doubt, and there’s no indication in the court record of enoughevidence to do that, he said.
In pleas in felony cases, such findings of guilt are usually accomplishedthrough a colloquy between the judge or an attorney and the defendant.Standing before the judge, the defendant is asked questions and admits tothe crime.
But there is no such colloquy in a guilty plea by mail. Martin argued thatwithout a judge’s signature there is no way to demonstrate that a court hadfound enough evidence to prove guilt beyond a reasonable doubt, even if theperson voluntarily enters the guilty plea.
In Craig’s case, the only other evidence pointing to his possible guilt is apolice report’s description of his alleged behavior in the bathroom. There’sno indication from the court record that a judge read the report beforeentering Craig’s plea in the record.
Renz told the judges that he disagreed. Martin’s argument, he said, “assumesthat the lack of signature is a lack of review. It assumes that if theappellant had shown up for a colloquy with a judge, the plea would’ve beendifferent.”
Under questioning by one judge, Renz conceded that the plea petition, byitself, 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’shighest-profile misdemeanor case. A ruling within 90 days will come beforeCraig leaves the Senate.
Craig’s 'intelligence’ at issue
The senator’s journey to the court began June 11, 2007, when he was on alayover between flights. The month before, airport police had begun anundercover sting operation aimed at stopping gay men from soliciting sex inairport restrooms.
The police report says Craig entered a men’s room and that, unbeknownst tohim, airport police Sgt. Dave Karsnia was in a stall, working undercover.
Karsnia claimed Craig spent time looking into the policeman’s stall throughthe 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 motionsroutinely used by men soliciting gay sex. The lawmaker moved his foot overand touched the officer’s foot.
Karsnia responded by showing Craig his badge.
Craig was charged with “interference with privacy,” a gross misdemeanor, aswell as a misdemeanor charge of disorderly conduct. In proceedings conductedthrough phone calls and the mail, the state dropped the privacy charge andCraig pleaded guilty to disorderly conduct and paid a fine.
After the details of his plea were published, Craig responded by saying hewasn’t gay. He claimed he had “overreacted and made a poor decision” bypleading guilty only because he was under stress from the Idaho Statesman’sinvestigation into his sex life.
In December, the Statesman published statements from five men -- four of themnamed -- who claimed they had homosexual encounters with Craig. The senatorsaid the statements were “completely false.”
Since then, Craig has sought to withdraw his plea. In a hearing last fallbefore Hennepin County District Judge Charles A. Porter, the senator’slawyers argued that he didn’t “intelligently” enter the plea because hewasn’t sure what he was signing.
Porter rejected the senator’s contentions last October, writing that Craigwas “a career politician with a college education” who “is of, at least,above-average intelligence. He knew what he was saying, reading andsigning.”
Martin also argued before the appeals court that Craig’s behavior in therestroom didn’t constitute the crime of disorderly conduct as Minnesota lawdefines it. He said the law requires a person’s actions be intended todisturb others, and Craig’s actions were only directed at the undercoverofficer ‹ who had invited Craig’s foot tapping by tapping his own foot.
Craig, a member of the powerful Senate Appropriations Committee, was firstelected to the Senate in 1990 and has won re-election since, but chose notto run for a fourth term this year after his guilty plea became known. Hewas not present for Wednesday’s oral arguments, which lasted 35 minutes.
David Hanners: (612) 338-6516