Minnesota Weenies

Normally I stay away from water-cooler topics, but, having represented numerous alleged weenie-wagglers in Texas, I was naturally curious about the facts and the law in Senator Larry Craig's Minneapolis-St. Paul Airport case. Here, as the arresting officer describes them, are the facts: Sergeant Karsnia is investigating lewd conduct in the men's restroom at the airport. He occupies a stall in the restroom, sitting in there for 13 minutes. The stall on either side is occupied. Senator Craig stands outside Sergeant Karsnia's stall and looks in through the crack in the door. There is no mention of what he sees, but we can surmise that eye contact is made. The senator looks down at his hands, fidgets with his fingers, and looks in on Sergeant Karsnia again. He repeats this cycle for about two minutes, until the stall to the sergeant's left is vacated, and the senator occupies it. The senator taps his foot, which the sergeant recognizes as "a signal used by persons wishing to engage in lewd conduct," and moves his foot closer to the sergeant's foot. The sergeant moves his foot up and down slowly, which we can only surmise is the countersign to the "tapping foot" signal. The senator touched the sergeant's shoe with his own, and then swipes his left hand from front to back under the stall divider several times. Then, about six minutes after the encounter began, the sergeant identifies himself as a cop. Senator Craig was charged with Disorderly Conduct and Interference with Privacy. He pled guilty to the former. In Minnesota, a person commits the offense of interference with privacy if he:

surreptitiously gazes, stares, or peeps in the window or other aperture of a . . . place where a reasonable person would have an expectation of privacy and has exposed or is likely to expose their intimate parts . . . or the clothing covering the immediate area of the intimate parts; and does so with intent to intrude upon or interfere with the privacy of the occupant.

He commits the offense of disorderly conduct if:

in a public or private place, . . knowing, or having reasonable grounds to know that it will, or will tend to, alarm, anger or disturb others or provoke an assault or breach of the peace . . . [engages] in offensive, obscene, abusive, boisterous, or noisy conduct or in offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others.

Imagine my disappointment to learn that, unlike in Texas, a cop in Minnesota doesn't have to get a senator to waggle his weenie in order to arrest him for a jailable misdemeanor. I guess people in Minnesota have more delicate sensitivities than Texans. Compare Senator Craig's Minneapolis bathroom behavior with what the cop did in the case I described in this post. If the Houston Police Department cop had simulated masturbation in the Minneapolis-St. Paul airport, he could have been arrested by Sergeant Karsnia (I picture him flashing his badge, saying "well, what do you think about this?"). Experienced criminal lawyers are masters of the game of "what really happened here?" We have to be -- often we have to rise to cross-examine a lying witness with no more ammunition than our knowledge of human nature. Prosecuting a criminal case is about shoring up the State's version of "what really happened" and showing that it is the only explanation for the evidence. Defending a criminal case is about demolishing the state's version of "what really happened" and showing that there is another explanation. The tools we have to work with are plausibility and verisimilitude So what really happened in Senator Craig's case? One additional piece of information we have to include in our account this article from the Idao Statesman, in which the paper claims:

In an interview [four weeks before his Minnesota arrest], Craig told the Idaho Statesman he'd never engaged in sex with a man or solicited sex with a man. The Craig interview was the culmination of a Statesman investigation that began after a blogger accused Craig of homosexual sex in October. Over five months, the Statesman examined rumors about Craig dating to his college days and his 1982 pre-emptive denial that he had sex with underage congressional pages.

Given the limited information we have, one possible defense is that the cop is lying and the senator didn't do anything untoward. People want to believe cops. Most people are shocked when they finally realize (usually because they are affected by the lies) how often police officers lie. So this defense requires a plausible explanation for why Sergent Karsnia would lie. Cops lie for many reasons. I don't know Sergeant Karsnia, and I don't know why he would lie, or if he would. But the Statesman article raises the specter of a successful political hatchet job. If we could convince a jury that it is plausible that Sergeant Karsnia was a Democratic goon in league with those who made false accusations of homosexual sex against the senator in October, we might win the case. In favor of the conspiracy theory is the fact that the senator was busted in an airport in Minnesota for conduct that probably wouldn't be grounds for arrest in most states. While the grand conspiracy theory has a lot of entertainment value, it's short on verisimilitude. There has got to be a simpler defense, right? Right. There is. The simplest defense that I see to this case -- a defense that may comply with Bennett's Chainsaw -- is this:

Senator Craig is gay. He has been gay for years. He has hooked up with lots of anonymous gay men in restrooms across the U.S. Senator Craig, having been a closeted gay man and a public figure for years, is not about to proposition someone who is not showing interest in him. Because he has done it so many times, Senator Craig knows how to find anonymous gay men interested in hooking up in restrooms. He knows the difference between a gay man showing interest in him and someone just minding his own business. Sergeant Karsnia, likewise, knows the difference between looking like someone minding his own business and looking like a gay man showing interest in a senator. He knows that he is more likely to catch his prey (gay men being lewd in the restroom) if he shows interest than if he acts like he's minding his own business. In the main public men's restroom of the Northstar Crossing in the Lindbergh Terminal of Minneapolis-St. Paul Airport on June 11, 2007, Sergeant Karsnia was acting like a gay man looking for a hookup. The senator may have observed the scene for some minutes before making the first move. If he did, he saw the officer sitting in the stall for 13 minutes. He may have observed that the officer was sitting on the toilet with his pants up. When the senator looked through the crack in the door the first time, he didn't violate the law. He didn't "surreptitiously gaze, stare, or peep"; he openly glanced, as though checking whether the stall was occupied. Sergeant Karsnia made eye contact with him, however, and gave him whatever indicators of interest the sergeant thought would get a gay man to continue showing interest. After this first contact, the game was on. The senator gave the signs and the sergeant gave the countersigns. The senator had no reason to think that he was interfering with or intruding on the sergeant's privacy. He had no reasonable grounds, when playing footsie with the sergeant, to believe that it would "alarm, anger or disturb others or provoke an assault or breach of the peace." Because the senator did not have the mental state required to commit either of the crimes he is charged with, he is not guilty.

This defense might not do the senator's political career any good, but coming out of the closet wouldn't hurt his mental health. Also, this defense arguably violates Bennett's Chainsaw because it is not the second simplest explanation for the State's evidence, but rather the simplest. Such is often the case when no crime was committed.