Defending Sen. Larry Craig I

There are few sentient human beings in America who have been unaware of the drama unfolding in Washington DC and Boise ID regarding the pressure put on US Sen. Larry Craig (R-ID) to resign his seat in the wake of pleading guilty of a disorderly conduct misdemeanor in a Hennepin County (MN) court. What I will do in this essay is what lawyers should have been doing all along as this drama unfolded in the past week--to clarify the law/s that he may or may not have broken and analyze the actual legal effect of his conduct.

Craig was arrested June 11 at the Minneapolis airport and pled guilty on August 8 in MN to a misdemeanor charge of disorderly conduct. He represented himself (pro se in legal jargon) and, probably because of the embarrassment of it all and the (obviously mistaken) belief that his arrest would go unnoticed, decided to enter the guilty plea and pay a fine of $575. A copy of the plea agreement is here. But let's go through the arrest, the charges and the plea one at a time.

Criminal Law Basics

When you are arrested, you are charged either with one or more felonies, misdemeanors or offenses/violations/infractions. Misdemeanors as well as felonies are crimes, because they carry with them the possibility of a jail sentence. Being arrested and charged with a crime will not generally hurt you from jobs/college or grad school, but pleading guilty to crimes will. That is why it is crucial when you are defending yourself, or you have a lawyer helping you out, to try to reduce crimes to violations or to get them dismissed altogether. A violation has the severity of a parking or speeding ticket; hardly anyone holds that against you. Generally a prosecuting attorney will reduce charges if it is a first crime committed and the particular offense wasn't a "flagrant" example of the crime. Thus, it really isn't too hard to get reduced charges, but you have to be intelligent on how you do it. You simply don't want a crime on your record (felony or misdemeanor) if you can help it.

Senator Craig's "Crimes"

Arresting officers and the prosecuting attorneys have a lot of discretion in charging people. The same illegal conduct, for example, can either be charged as a misdemeanor or an offense (such as disturbing the peace). In addition, many arresting officers try to charge at least two crimes or offenses so that it is easier for at least one to "stick." It is a bit of a game, but if you know the rules, you know how to play.

Well, true to form, when Sen. Craig was arrested on June 11 for playing footsie or soliciting sex or whatever we think he might have been doing, he was charged with two crimes. But we have to look at the language of the crimes charged to see if his conduct fit the statutory language. My point here is that he may have been wrongly charged--i.e., the basis of the charge against him was a disorderly conduct theory rather than a possible trespass theory. This is getting a bit "legal," so let me go through the statutes.

He was arrested and charged with two crimes. The first was "peeping." Apparently Senator Craig is alleged to have looked into the officer's stall repeatedly for a period of few minutes. The arresting officer even said that he could see that Craig's eyes were blue. [How would you like to be such an officer with this kind of duty? Sort of could make one jaded about people and life pretty quickly, don't you think?] Here is what the Minnestoa statutes say peeping is:

"a) A person is guilty of a gross misdemeanor who:
(1) enters upon another's property;
(2) surreptitiously gazes, stares, or peeps in the window or any other aperture of a house or
place of dwelling of another; and
(3) does so with intent to intrude upon or interfere with the privacy of a member of the household."

This is MN Statutes 609.746 Interference with Privacy. Well, this definition of peeping in no way seems to work because unless the officer called the stall his home, the words wouldn't apply. But there is one other section of the statute that may apply:

"c) A person is guilty of a gross misdemeanor who:
(1) surreptitiously gazes, stares, or peeps in the window or other aperture of a sleeping room in a hotel, as defined in section 327.70, subdivision 3, a tanning booth, or other place where a reasonable person would have an expectation of privacy and has exposed or is likely to expose their intimate parts, as defined in section 609.341, subdivision 5, or the clothing covering the immediate area of the intimate parts; and
(2) does so with intent to intrude upon or interfere with the privacy of the occupant."

Well, what can we say? The only way that this statute would apply is that he was surreptitiously "peeping" in a place where a reasonable person has an expectation of privacy and does so with the intent to intrude upon or interfere with the privacy of the occupant. The only way that this statute would apply is if Craig not only "looked in," which the officer said he did, but where he intended to enter/intrude on the person.

But this language of intending to enter or intrude is designed to help the defendant, because in order to be guilty of the crime, the person's mental state must be limned. Now, in criminal law a person's conduct is often used to infer mental state, but if the prosecutor did that here, s/he would definitely lose the case. There isn't any indication in the police report or Craig's words that he intended to intrude upon the officer.

Well, it is perhaps because of the flimsiness of the "peeping" charge that it was eventually dismissed. Indeed, Craig's conduct doesn't seem to fit the language at all. And, since these are crimes that are alleged, the proof must be beyond a reasonable doubt. No wonder this charge was dropped.

The next essay will review the charge that actually stuck--disorderly conduct.

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