Craig's Plea Was Mistake, Legal Experts Say

Sen. Larry Craig has good reason to regret his guilty plea to a count of disorderly conduct in a Minneapolis airport bathroom — according to legal experts, a good lawyer could have made it go away. 

But the Idaho Republican didn’t tell anyone and copped a plea after his now-famous encounter in June with an undercover cop investigating reports of sexual activity in the men’s restroom. 

According to the police report of the incident, “At 1216 hours, Craig tapped his right foot. I recognized this as a signal used by persons wishing to engage in lewd conduct. Craig tapped his toes several times and moves his foot closer to my foot. ... Craig then proceeded to swipe his hand under the stall divider several times.” 

Minnesota Statutes Section 609.72, Subdivision (3) says it is a crime for an individual to engage in conduct that “will tend to, alarm, anger or disturb others or provoke an assault or breach of the peace.” 

Sen. Craig later said he has a “wide stance” when using the toilet and he was trying to pick up a piece of paper on the floor. Whether or not those explanations are believable, there’s little reason to believe that Craig alarmed, angered or disturbed his stall neighbor, said University of Minnesota law professor Dale Carpenter. 

After Craig tapped his toes, the undercover officer wrote in the report that “I moved my foot up and down slowly.” According to Carpenter, that signaled a response or acceptance of Craig’s actions. 

“There’s a basis, but only a weak basis, for a disorderly conduct charge,” Carpenter said. Craig’s actions might be construed as unwelcome behavior, as opposed to extremely belligerent behavior, as the Minnesota statute envisions, Carpenter said. “The things that Craig is alleged to have done might be bothersome or annoying, but not necessarily criminal.” 

The bottom line, Carpenter said, is that Craig could have hired a lawyer and successfully fought the charges and gotten them dismissed. A sensible prosecutor might very well have concluded, “We have much bigger fish to fry.” 

Carpenter noted that a second charge, Interference with Privacy, was dropped during proceedings at the Hennepin County District Court. That charge related to Craig’s actions before entering the bathroom stall. According to the police report the senator had peered through the crack and would “fidget” with his fingers. 

Of course, fighting the charges in court would have made the issue public, which Craig seemed desperate to avoid. 

But Steve Simon, another University of Minnesota law professor, said prosecutors might have won their case in court if they were intent on pressing it.

“It is a fairly innocuous form of disorderly conduct,” he said. Disorderly conduct usually involves “much more overt, much more physical activity,” such as rowdy behavior that precipitates a bar fight. “This is right on the edge of what would be criminal.”

If anything, Simon said, Craig’s alleged peering through the stall door provided greater grounds for the disorderly conduct charge, because it invades a person’s reasonable expectation of privacy.

Most importantly, had the senator consulted a Minnesota lawyer he would have soon learned there are at least three different ways of resolving a criminal case to avoid having a conviction on record, according to Simon.

The judge could have granted a continuance of dismissal, which usually goes to first offenders, like shoplifters. Such cases are kept pending (open) for a year. If a defendant demonstrates good behavior, it disappears.

Another option would have been a stay of adjudication, Simon said. Under that scenario Craig would have admitted to the facts alleged by prosecutors and pled guilty. But the judge ould have kept the plea in pending status. With probation and good behavior, the plea would have stayed pending, and would have been dismissed after a year.

Finally, Craig could have proffered an Alford plea, in which he wouldn’t admit to doing anything wrong, but would agree that sufficient evidence exists with which the prosecution could likely convince a judge or jury to find him guilty. Upon receiving an Alford plea from a defendant, the court may immediately pronounce the defendant guilty and impose a sentence as if the defendant had otherwise been convicted of the crime; however, in many states, including Minnesota, a plea which "admits sufficient facts" more typically results in the case being continued without a finding and later dismissed.

“Had he talked to a lawyer, the attorney would have explored those options,” Simon said. But again, that would have involved making the case public, which Craig was loath to do. More than two months after the fact, the story blew wide open, and certainly not on the terms sought by the senator.

On Tuesday, Craig held a press conference in Boise: “While I was not involved in any inappropriate conduct at the Minneapolis airport or anywhere else, I chose to plead guilty to a lesser charge in the hope of making it go away. I did not seek any counsel, either from an attorney, staff, friends, or family. That was a mistake, and I deeply regret it.”