Unlike last time, there was no media circus for today’s Larry Craig appeal hearing

Sen. Larry Craig attends a White House gathering last November.
REUTERS/Kevin Lamarque
Sen. Larry Craig attends a White House gathering last November.

There was no major media circus this morning when Sen. Larry Craig’s case was heard by the Minnesota Court of Appeals. It was more like a street-corner juggling act.

Last September, something like 100 reporters and a dozen satellite trucks swarmed the Edina courtroom when the Idaho Republican tried to withdraw his guilty plea to disorderly conduct in an airport bathroom sex sting.

Today, though, there were maybe 15 reporters inside the State Judicial Center in St. Paul to hear the appeal. And three live trucks outside.

Demonstrators had carried toilets to Edina to protest Craig’s arrest on charges that he peered into a toilet stall at the Minneapolis-St. Paul International Airport and then apparently fidgeted and tapped his toes to get the attention of the — unbeknownst to him at the time — police officer in the adjoining stall.

No protests Wednesday, except maybe the woman meeting reporters at the front door, who seemed to roll her eyes while directing us to the elevator that leads to Courtroom 300.

The big difference in media presence: No Craig
One reason for the more muted proceedings: Craig wasn’t there.

The media caucus had been obligated to assemble for the hearing in Edina, in case Craig showed up on his own behalf. He didn’t show up then, either, so this time the media cut back, knowing it was going to be just his lawyers. (Or were the correspondents all still in Alaska?)

Craig still represents Idaho in the U.S. Senate but is not seeking re-election in November for a fourth term.

By the way, Craig’s lawyer, William Martin (sometimes called Billy) is a high-profile lawyer based in Washington, D.C. Besides Craig, he’s represented many pro athletes, including NBA stars Jayson Williams and Allen Iverson and boxer Riddick Bowe. He’s also defended film star Wesley Snipes on tax fraud charges. 

And he represented the NFL’s Michael Vick in the recent dog-fighting case.

Three state Appeals Court judges heard the case — Edward Toussaint Jr., Natalie Hudson and Thomas Kalitowski. It was all very orderly, as Hudson explained the row of lights on the lawyers’ podium: green to go, yellow for five minutes left and red to sit down, now.

The gist of the appeal is that Craig — who pleaded guilty in writing, without appearing before a judge — should be able to withdraw his guilty plea. He maintains he did nothing wrong in the bathroom and that his actions were misinterpreted by an overzealous police officer.

He pleaded guilty, Craig argues, because he thought it wouldn’t be publicized if he did so quickly and quietly. Of course, it was publicized, and that’s when Craig changed his mind and tried to revoke his plea. (Martin said after the hearing that Craig didn’t call a lawyer before signing the guilty plea; had he called, Martin said he would have advised that his actions didn’t constitute a crime.)

But that’s hindsight. And when Craig tried last year to withdraw the plea, Hennepin County District Judge Charles Porter said no.

Hence today’s appeal.

In chambers, there was little talk of gay sex and wide stances or senatorial misconduct — some of the issues that dominated media coverage. Instead, Martin’s arguments, during his 15-minute pleading and five-minute rebuttal, were legalistic.

The basic arguments

Here, in a nutshell, were Martin’s basic arguments (or you can watch it with the webcast here):

** The mail-in guilty plea didn’t provide sufficient evidence of guilt. And there’s no indication that the original judge who took the guilty-plea-by-mail ever looked at the complaint to determine if there was sufficient evidence there to sustain the plea.

** And even if the judge did review the complaint — and again, there’s no showing he did — there isn’t sufficient evidence in the complaint, either, to show guilt beyond a reasonable doubt.

Martin said the record doesn’t show the exact size of the crack in the stall that Craig allegedly peered through for two minutes before beginning his in-stall proceedings, or how close Craig was to the stall during the peering. (The officer said it was close enough, and for a long enough time, for him to tell that Craig’s eyes are blue.)

Martin also noted that disorderly conduct requires others — with an “s” — to be present and offended. Apparently, only the officer was offended, although it appears there were others in occupied stalls at some time during the noon-time attempted tryst.

The judges wondered if Craig had waived his legal rights to appear before a judge by signing the mail-in guilty plea. Yes, Martin said, but there still wasn’t sufficient evidence.

Prosecutor Christopher Renz of the attorney general’s office, countered that, indeed, there is plenty of evidence in the complaint to show guilt. And Craig pleaded guilty. End of story.

There was also talk of whether Craig was exercising his First Amendment right to expression, by signaling his intentions to another person. (Martin said afterward that this argument doesn’t imply that Craig was, indeed, soliciting sex, but only that, if what the prosecution says is true occurred — which they deny — it would have been a First Amendment expression.)

Renz pooh-poohed such a defense, saying it was never employed by Craig’s team at the first hearing — only raised by the American Civil Liberties Union in a friend-of-the-court brief — and therefore not something to be considered on appeal.

Bottom line for Renz: Craig waived his right to present evidence by mailing in the guilty plea, and there was plenty of evidence — in addition to the guilty plea — to justify guilt.

The hearing began a few minutes before 9 a.m. By 9:39 the final red light was on and the court recessed. The judges have 90 days to decide if the Hennepin County Court erred in denying the withdrawal of the Craig guilty plea. If they side with Craig, it would presumably be sent back to the court for further review and, possibly, a trial on the actual bathroom incident. If Craig loses … there’s always the Minnesota Supreme Court.

But if he were to appeal, the Supremes would not be obligated to hear the  case, and would do so only if they thought there were larger legal issues to be considered.

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