[Vision2020] Senator Larry Craig Challenges Guilty Plea

[Ted Moffett]

Sunil et. al.

This is depressing... But I do not doubt you state the truth in your comment
below:

Ted wrote:

'And even if not, there is no doubt that law enforcement will sometimes
slant their accounts dealing with suspects placed under arrest to ensure the
arrest appears as justified as possible, even if they have no "bias" against
the accused.'

Sunil replied:

In my view, the police are trained to ALWAYS do this in their reports, not
just 'sometimes.'  It is exceedingly rare to find something in the written
report that is helpful for one's client.  If there's a recording, you can
dig it out.  Without a recording...
----------
Anyway, about Craig's case...

I bet the police officer gave some sort of signal that he was interested in
an encounter in that Minnesota airport bathroom, that prompted Craig to
respond.  To raise this issue in a defense, as you point out, would present
other major problems for Craig, given it is a sort of admission he is gay,
something he has explicitly denied.

I doubt the court will allow Craig to withdraw his guilty plea.  If they do,
however, this case gets very interesting.  One question I an unclear about,
is whether the ACLU will offer any sort of actual defense for Craig if the
guilty plea can be withdrawn and the case proceeds... Perhaps this is not an
advantage, given that Craig probably can afford a team of the best lawyers
to argue in his defense.  But to have the ACLU putting the conduct of the
police in this bathroom sex sting operation under the constitutional
microscope might be a discouragement to proceeding with prosecution,
especially if others arrested in this sting operation come forward to
challenge the police conduct.

Ted Moffett

On 9/30/07, Sunil Ramalingam <sunilramalingam at hotmail.com> wrote:
>
> Ted,
>
> You ask a lot of good questions here, and make some good points.  But I
> must
> take issue with this statement.
>
> 'And even if not, there is no doubt that law enforcement will sometimes
> slant their accounts dealing with suspects placed under arrest to ensure
> the
> arrest appears as justified as possible, even if they have no "bias"
> against
> the accused.'
>
> In my view, the police are trained to ALWAYS do this in their reports, not
> just 'sometimes.'  It is exceedingly rare to find something in the written
> report that is helpful for one's client.  If there's a recording, you can
> dig it out.  Without a recording...
>
> With regard to the rest of your email, the problem for Craig is how he
> goes
> about using possible defenses you raise; his innocence is only part of the
> equation, with his political career being the balance.  How can he go
> about
> claiming he recognized signals from the officer when he has claimed so
> long
> and so hard that he is not gay and does not participate in restroom sex?
> For another defendant, that might work, but I don't think it will for this
> one.
>
> Sunil
>
>
> >From: "Ted Moffett" <starbliss at gmail.com>
> >To: "Sunil Ramalingam" <sunilramalingam at hotmail.com>
> >CC: vision2020 at moscow.com
> >Subject: Re: [Vision2020] Senator Larry Craig Challenges Guilty Plea
> >Date: Sat, 29 Sep 2007 15:50:32 -0700
> >
> >All-
> >
> >In the following comments, I am not stating what I think is proper
> conduct
> >in these sorts of situations.  I personally do not think public bathrooms
> >should be used as "pick-up" places, nor as places for any other conduct
> (no
> >second hand tobacco smoke please!) beyond the usual utility.
> >
> >I am not claiming to know exactly what the law in Minnesota states, nor
> >what
> >Craig's conduct exactly was, nor what he exactly intended by that
> conduct,
> >nor exactly what behavior the police officer involved did or did not
> engage
> >in that may have "invited" Craig to make contact, nor exactly how well or
> >not the officer documented exactly what Craig did.  I offer these
> comments
> >to raise points that it seems, from my layman's perspective (no law
> >degree),
> >should be fully addressed to explore all the legal and ethical
> complexities
> >of this case, apart from the emotional biases, partisanship and
> assumptions
> >of "guilty till proven innocent" that have run rampant.  Yes, Craig pled
> >guilty, but there are various situations where those facing charges will
> >plead guilty when their guilt is still open to question, and even in
> cases
> >where the accused knows they are innocent.  This is well known.
> >
> >The account of Craig's conduct in the bathroom, as far as I know, is
> based
> >on Craig's or the officers account.  There are no other witnesses that
> are
> >cited.  There are no video or audio documents of the encounter.  How long
> >did Craig stare into the stall?  There is no objective record of this
> time
> >period, like a video with a clock would offer.  Is it beyond the realm of
> >possibility that the officer dislikes politicians of Craig's persuasion,
> >and
> >is thus inclined to slant his account of Craig's conduct against Craig?
> >And
> >even if not, there is no doubt that law enforcement will sometimes slant
> >their accounts dealing with suspects placed under arrest to ensure the
> >arrest appears as justified as possible, even if they have no "bias"
> >against
> >the accused.
> >
> >Assuming Craig was open to the possibility of a "meeting" of some sort in
> >the bathroom, was the officer giving any signals well known to be
> >"interpreted" as an invitation?  If so, the officer was inviting Craig to
> >make some sort of contact. Thus Craig's intention in this context may not
> >have been to invade anyones privacy who was not inviting such an
> invasion.
> >
> >Consider that Craig never touched the officer beyond bumping feet, nor
> said
> >a word to him, till the officer identified himself.  Furthermore, how far
> >do
> >assumptions of privacy extend in a public bathroom?  We all know that men
> >stand next to each other in a rather "exposed" condition in bathrooms,
> and
> >if someone glances the "wrong" way, assumptions of various intentions may
> >arise.  In a stall, of course, there is more of an assumption of privacy,
> >but stalls are usually not designed to be so private that no outside view
> >is
> >possible, even for someone not intending to look into the stall.  The
> gaps
> >around the door are often surprisingly large.  I imagine it might be
> >relevant to measure how large these stall door gaps are, to determine how
> >easily someone could innocently glance into a stall.  They also often
> have
> >large open areas on the bottom of the doors and walls, which now that
> >I think about it, seems rather odd.  Why don't bathroom stall doors and
> >walls always extend nearly to the floor, with door jams and wall gaps
> that
> >cannot be easily glanced through, if protecting privacy is a major
> concern?
> >This would render the alleged conduct in this case much more difficult.
> >
> >Anyway, the assumption of total privacy, it seems, is perhaps not
> >reasonable
> >in a public restroom.  Thus the gross misdemeanor charge of invasion of
> >privacy might be challenged on the basis that first, the officer invited
> >his
> >privacy to be invaded by giving well known signals that he was inviting a
> >meeting (entrapment?), and that a public restroom offers limited
> >assumptions
> >of total privacy in the first place.
> >
> >Also, is inquiring in a bathroom if someone is interested in consensual
> >adult conduct somewhere else illegal?  There are many laws on the books
> >regarding sexual conduct of various kinds that are no longer enforced,
> and
> >are thus viewed as de facto no longer applicable.  It might be a moot
> point
> >whether Craig or the officer specifically asked,  verbally or otherwise,
> >after the stall gazing and foot bumping, whether the other wanted to get
> a
> >room somewhere for consensual adult contact.  The alleged unlawful
> conduct
> >Craig engaged in, invasion of privacy and disorderly conduct, had already
> >occurred.  However, if actual explicit conduct was agreed upon to occur
> in
> >the bathroom, this would rise to a much clearer expression of intention
> to
> >commit "disorderly conduct," or sex in a public place.  This did not
> occur.
> >
> >This case has been portrayed in the media that Craig was caught in a
> >bathroom sex sting operation.  Then why do the charges against Craig
> >explicitly have nothing to do with sex?  The exact charges against Craig
> >could be leveled against a prankster who was peering through the stall
> door
> >cracks, laughing, and throwing spit wads at the stall occupant under the
> >door, with sex the last thing on their minds!  It seems if a bathroom sex
> >sting operation was the intent, explicit intent to have sex in the
> bathroom
> >should have been the standard the officer applied to make an arrest.
> >
> >As the ACLU case defending Craig points out, it is protected speech for
> >adults to discuss the possibility of consensual meetings, even in
> >bathrooms.  The non verbal "signals" exchanged regarding the possibility
> of
> >meetings might thus be protected speech, an interpretation that no doubt
> >will not be met with equanimity by all.  However, if they engage in sex
> in
> >the bathroom, charges of having sex in a public place, or disturbing the
> >peace, or disorderly conduct apply, not laws against discussing the
> >possibility of consensual adult contact that may occur somewhere private,
> >if
> >such laws exist, which would be or are unconstitutional, if you take the
> >ACLU's view.
> >
>
>
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