Tuesday, August 28, 2007

The Lewd Conduct of Senator Larry Craig

It takes a juicy arrest like this of a prominent gay bashing Republican to drag me out of my torpor and get me posting again. The arrest and conviction of US Senator Larry Craig, a Republican from conservative South Dakota (didn't they just pass a law criminalizing all abortions?) is one of those crystallizing moments that happens with increasing frequency in society - usually the moments are crystallized by Republicans, because they have gained much of their political power by riding moral crusades and against crime. Of course, I love these cases because what they do is force normally "tough on crime" Republicans, those who have held as a general philosophy "lock 'em up, let God sort them out" to confront real issues of guilt and innocence, the fairness of the system, harshness of punishment, and whether they really live up the codes of morality they seek to impose on others.

The Scooter Libby case was a perfect example of Republicans being forced to admit that a punishment did not fit the crime. In that case, it was perjury and obstruction of justice receiving lengthy prison sentences (they seem to have gotten beyond that whole thing - they just thought this one, solitary prison sentence was too much - if given to minorities, poor people or Democrats, then it would've been too lenient). The fact remained, though, that defense lawyers are now able to present the President's statement about the harshness of prison for a first time offender like Libby in their own cases.

The Larry Craig case brings up a few issues near and dear to my heart. I'll talk about one of them today, and follow up with the others in the next couple of days.

The issues that I see are as follows: 1) absurdly defined crimes that result in criminal convictions for behavior that cannot otherwise be defined as criminal, 2) people pleading guilty to things they didn't do so as to avoid the spectacle or trouble or risk of going to trial, and 3) absolutely ridiculous "opinion" testimony of police officers which generally amounts to "my opinion as a police officer is that he's guilty, so the jury should find him guilty."

Regarding people pleading guilty to things that they may not have done, Larry Craig is a perfect example. He obviously wanted to plead so as to avoid a spectacle in which he would've been held up to major ridicule. The cost of trial such as this would've been enormous for him, and by all signs of the police report I've seen, there's a very good chance that he could've beat the charge (I have to admit, I haven't read the statute, but I'm guessing it's somewhat similar to California's lewd conduct law in Penal Code Section 647(a), of which I did a couple of trials ages ago when I did misdemeanors).

Craig indicates that he was innocent, but pled to take care of it. The fact is that he was given a great sweetheart deal, which is usually given in cases like this, which encourage people to plead to things they may not have done. I don't have an easy solution for this, of course. It sounds easy to ridicule, but I realize that we don't want people getting very harsh punishments small charges that are first offenses just because we want to encourage them to go to trial and assert their rights. On the other hand, criminalizing such minor behavior such as this, and insisting on pushing it to a filing, really stretches what is necessary. I don't know, maybe there really is an epidemic of all of these solicitations taking place in the bathroom in this airport, but I have to think that with conduct like that alleged by Craig, they could use their discretion and not file on it.

The cases that I saw so frequently usually had someone making an unambiguous action indicating intent - usually masturbation and asking the person to do something, not just brushing of a hand or foot. I have to think they could've waited for a little more unambiguous action on Craig's part before arresting him and filing the case (these points obviously bleed over to my other points on the subject).

Back to pleading, though, Craig makes it clear that people actually do take deals when they are not guilty, and, as Craig said, without the assistance of a lawyer (which he said he wished he had taken, but obviously wanted to get it over as quickly and quietly as possible that he didn't avail himself of this option). Other people don't have lawyers for other reasons, though. Some jurisdictions have crappy PDs or appointed lawyers. Some courts encourage people to plead without lawyers, making them wait a long time if they want a lawyer, and getting them out more quickly if they say they'll waive their right to a lawyer. Other courts even suggest that the offer could go up if people insist on a lawyer (believe me, they always manage to say this in a cagey manner that doesn't say it directly, but gives the person in the position of hearing the statement come away with that unmistakable impression).

So, when Craig said that he pled to something that he didn't do, this is an area where tough on crime Republicans would normally scoff and say "yeah, right." But, as Craig shows us, this does happen, and people do have reasons to plead to things that they didn't' do. So, the next time you hear someone say "I took a deal, but I didn't do it," remember that he may actually be telling the truth. Don't accept that guilty plea as the gospel truth.


Boy, did I blow it with calling Craig a senator from South Dakota. As Skelly correctly pointed out, he is from Idaho. I could blame it on some factor that deflects blame from me, but I'll stand up and take this blame.

Also, TPM has more, including the actual tape of the conversation between Craig and the officer who arrested him, as well as his plea agreement and swearing that he has no claim as to innocence.

It certainly makes it look as if he would have a more difficult time withdrawing is plea.

Thank you Skelly for the correction and update.


Skelly said...

Dude, I-D-A-H-O. Idaho, not South Dakota. Just north and a bit east of you. That's where Larry and I are from.

The Smoking Gun has a copy of the plea form which Craig signed. As Idaho journalist Randy Stapilus writes, "...his guilty plea seems to have sealed the deal for almost everyone. (As a matter of formality, the legal plea document which he signed says, “I now make no claim that I am innocent of the charge to which I am entering a plea of guilty.”)"

Like Josh Marshall at TPM, I'm persuaded that Craig did consult with an attorney, but chose to handle this in such a way that it might fly under the radar.

John S. said...

I have had a chance to look at the two statutes Sen. Craig was accused of violating. Depite what the media have implied, NEITHER has anything to do with lewd conduct. He was charged with violating Minn stat. 609.746, subd. 1(c), which prohibits surreptitiously gazing into a place where a reasonable person would have an expectation of privacy and has exposed or is likely to expose his or her "intimate parts," with the intent of intruding upon that person's privacy. He was also charged with violating Minn stat. 609.72, subd. (3), which prohibits offensive, boisterous, etc., conduct or language which reasonably tends to arouse anger, alarm, or resentment in others. Obviously, this latter statute is unconstitutional on its face, and has been constitutionalized in Minn, as elsewhere, by being interpreted to require conduct inherently likely to provoke a violent reaction, i.e., "fighting words."

So, all this stuff about foot touching and hand waving is completely irrelevant to the charge. The first charge was clearly based upon his purportedly looking through the crack in the door of the stall. That's it. Was he doing more than checking to see if the stall was occupied? Who knows? He plead guilty to the latter offense, which he obviously did NOT commit, and which was not accurately described in the plea agreement. That says that he "Engaged in conduct which [he] knew or should have known tended to arouse alarm or resentment in others," leaving out the necessary nature of the conduct, and clearly not including the constitutionalizing gloss. He could very well have concluded that what he ADMITTED doing (reaching for paper under the stall wall, allowing his foot to intrude under the wall) could arouse resentment in others and violate the statute.

There are lots of other things wrong with that agreement, including the statement that a person cannot plead guilty and maintain innocence. SCOTUS said you can do so in Alford v. North Carolina.

There is speculation that Sen. Craig spoke to "his lawyer" before pleading. I tend to think he did--and I very much doubt that he has a criminal defense attorney on staff. He probably spoke to an attorney in some big Idaho civil firm, who has absolutely no knowledge of criminal law in general or Minnesota law in particular, and he got the sort of advice you would expect. If he had instead gotten a high profile lawyer who knew the terrain (Gary Spence of Wyoming comes to mind) things might have worked out a lot differently. Of course, he would have to expose how homosexuals in Minnesota are targeted by bogus prosecutions, and that might not have fit his political agenda.

If you read the media, you would conclude that he entered a plea to a lewd conduct charge, when no such charge was even FILED. There are lessons here to be learned about how police behave, how the criminal justice system works, and how the media fails to accurately report either.

Dennis R. Wilkins said...

Great post, Dude. I'm glad, as always, to see you back. I can't disagree with anything you've said.

In response to John S., I don't know if you're a lawyer, but you touched on Alford, so you must know some legal stuff. That being said, the statute in question sounds like a "peeping tom" statute like PC 647(i), which is not registerable on its face. Which means that neither of the "charged" statutes were likely inherently registerable sex offenses (I don't even pretend to know Minnasota law - I'm basing this on California law). Even in California, if Craig had gone to trial and the DA wanted to play hardball (no pun intended), it is unliely that anything the DA charged would have resulted in a PC 290 (sex offense registerable)offense, unless the judge made a special finding, which is really highly unlikely.

All that said, Craig really didn't work out too bad of a deal. He pled guilty to an unrelated and innocuous-sounding charge, which is the essence of plea bargaining. I think that had Craig gone to trial and the facts come out, he would have faced far more shame and derision than he already has thus far. And he would have faced it sooner as well. Even if he had been acquitted.

Here are the questions that come to mind: 1) Why is a U.S. Senator sitting in a bathroom stall and "feeling the edge" of the stall next to him? Cop is going to say, perhaps not as bogusly as PD Dude points out, that this is clear code for a "homosexual encounter." 2) Why does the U.S. Senator tell the cop about his status and say "what do you think of that?" Was he trying to beat the rap, or pull strings? 3) Why is a long-serving U.S. Senator now claiming that he was "fooled" by the clear writing on legal forms and that he was "tricked" into pleading guilty without an attorney? Isn't he a U.S. Senator, one of the 100 men and women who pass our laws in this nation? If he can be so easily "fooled" and tricked" without a lawyer, why isn't he first in line to change the laws so that NO ONE can plead guilty without a lawyer, and that due process and other valued constitutional rights are zealously guarded? Or is it something more like "the guilty are assholes and deserve no justice, but if I'm charged with something then all MY rights must be protected"? I think it's pretty clearly the latter. 4) Why is he so strenuously arguing that he's not gay? How about the outrage that some cop is monitoring the bathroom stalls, rather than fighting terrorists or something? Or how about the outrage that he's being prosecuted for seeking a consensual sexual act from someone else in a nonthreatening manner, that harms no one else? Hey, if I were in the stall next to him and he did such a thing, my first reaction would be: "what the hell are you doing?" And if he then left the bathroom in a hurry, how am I harmed? If he threatened me or something else, then I'd be concerned. But otherwise, who cares - ain't my business. But a cop on duty in another stall, searching for "crime" in the bathroom" - what is all that about? What if I want to make anti-government rants in the stall, or bitch about how fascistic our government is becoming while I wash my hands? I don't want some undercover cop listening in, waiting to "document" whatever I say. I know that I shouldn't expect a lot of privacy in a public stall, but I also shouldn't have to have my tax dollars chasing down people seeking their own sexual rendevous.

The best part about this whole thing is that it exposes the hypocrisy of the gay bashing right wing. That part I love. If it makes a few civil libertarians out of otherwise fascist-leaning right wingers, so much the better. "Free Larry Craig" is a great, great battle cry. I like "run, Larry, run" better - if he runs for re-election in 2008, then a democrat can possibly pick up the seat. Hooray.

Anonymous said...

I thought I read somewhere that the illustrious Senator from Idaho was he, himself, an attorney. Is that correct?