The answer to the "Why was this a crime?" crowd on the Craig matter

Ed Morrissey, Garrance Franke-Ruta, James Joyner, Dale Carpenter, Jack Shafer, and Radley Balko, among many others, all question whether Sen. Larry Craig actually committed any crime. As Mr. Balko writes,

Craig didn't actually engage in the lewd behavior. Didn't get that far.  Aside from the peeping charge, which was thrown out, the only thing I can see that he's guilty of is looking for a willing sex partner. And I can't see how that is or should be a crime.

Mr. Balko's confusion comes from his assumption that the peeping charge was "thrown out." It wasn't. Instead, the peeping charge was pleaded out — and that's a very, very big difference in this context. In fact, it's the peeping charge that almost certainly explains and makes justifiable Craig's plea to disorderly conduct (even if the latter crime was less obvious or more questionable on these facts).

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Prof. Ann Althouse links, quotes, and examines the two statutes under which Craig was charged. Here's the peeping statute:

(c) A person is guilty of a gross misdemeanor who:

(1) 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, 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.

The intent requirement is obviously key, since it is what separates criminal peeping from a casual glance to see if a stall is occupied. Was Craig just casually glancing? The prosecution, I'm sure, felt that with testimony at trial which would be consistent with this paragraph from the police report, and with all of the other circumstances, the State could prove beyond a reasonable doubt that Craig intended to "intrude upon or interfere" with the undercover cop's privacy (emphasis mine):

At 1213 hours, I could see an older white male with grey hair standing outside my stall. He was standing about three feet away and had a roller back with him. The male was later identified by Idaho driver's license as Larry Edwin Craig [redacted]. I could see Craig look through the crack in the door from his position. Craig would look down at his hands, "fidget" with his fingers, and then look through the crack into my stall again. Craig would repeat this cycle for about two minutes. I was able to see Craig's blue eyes as he looked into my stall.

Prof. Althouse correctly notes that the peeping statute much more closely tracks the facts alleged in the police report than the disorderly conduct statute, but she goes on to write, also correctly: "I have to suspect that he decided to plead guilty to disorderly conduct to resolve the matter and that if he hadn't agreed to that, he would have faced the peeping charge."

I would take that a step further with considerable confidence: The dismissal of the peeping charge was not because it was improper or because it would be shown to lack evidentiary support. Instead, the peeping charge was dismissed without objection from the prosecution because that was what the State gave up as its key part of the plea agreement. Thus, Sen. Craig was almost certainly given an accommodation here by the prosecution and the court in being allowed to plead guilty to the crime that, of the two charged, has by far less social stigma attached to a conviction.

Yes, disorderly conduct is a broad and vague charge — one that doesn't much seem to fit the facts alleged. And Craig’s presumably intended but uncompleted conduct (some sort of sex in a public men’s room) would certainly have been considerably more disorderly than anything he actually did before he was arrested. But disorderly conduct's very vagueness — encompassing "offensive, obscene, abusive, boisterous, or noisy conduct or in offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others" — makes it stretchy enough to cover, if barely (and if only for purposes of a plea bargain) what Craig actually did do. Indeed, it's entirely possible that it was charged in the first place as an obvious, attractive basis for compromise, i.e., a charge with at least some factual correspondence to what happened, and upon which a more attractive plea could therefore be negotiated (especially for someone with no criminal record or other indications of dangerousness).

I am not in the least suggesting, either, that the prosecution or the court gave Sen. Craig a better deal than they would have given any non-famous non-senator average citizen. There's no reason to think that Sen. Craig was treated anything but routinely. This sort of plea happens every day in criminal courts around the country, and so long as there's at least some factual basis for the plea, there's nothing exceptional or remotely wrong with it. It's altogether possible that the prosecution would have declined to pursue the disorderly conduct charge if the case had gone to trial; or they might have left it in, figuring that it would give the judge or jury an alternative basis to punish, but less severely. From the prosecution's standpoint too, the peeping charge would have required proof of intent — making it, appropriately, a harder crime on which to secure a conviction. And if the prosecution's case had been objectively less strong, then perhaps the alternate charge (and the resulting plea) would have ended up being, say, "loitering" instead. But since the stigma would have been vastly greater from a peeping conviction, then dropping it — as opposed to dropping the disorderly conduct charge — was a much greater boon to the defendant.

Thus did this plea, like countless others every day, aptly reflect the litigants' well-informed judgments as to their respective risks and benefits from going to trial. This defendant pleading guilty to disorderly conduct, in exchange for the prosecution dropping the peeping charge, made sense for both sides, even if disorderly conduct was not the crime whose elements most obviously and more closely fit the facts. For these reasons, no libertarian ought to be concerned about whether Sen. Craig's been abused by the system, or whether some terrible precedent has been set.

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That said: Once Sen. Craig voluntarily pleaded guilty, he became guilty of disorderly conduct — conclusively and irrebuttably — under the Rule of Law as it speaks for our society. Our system of law emphasizes "the particular importance of the finality of guilty pleas, which usually rest on a defendant's profession of guilt in open court, and are indispensable in the modern criminal justice system's operation," United States v. Dominguez Benitez, 542 U.S. 74, 75 (2004). At the moment Sen. Craig's plea was accepted by the court, then, whether he mighta, could, shoulda won if he'd fought all the way through trial became forever irrelevant. It's unproductive even to speculate about. Sen. Craig has deliberately forfeited his right to even hint — ever, to anyone, for any purpose — that he was "really not guilty" of disorderly conduct in that airport men's room.

My sympathies are with his family and with the people of Idaho who find this whole thing terribly embarrassing, and I can even dredge up sympathy for Sen. Craig to the limited extent that he suffers from inner demons that have caused him to engage in such self-destructive behavior (i.e., committing a crime in an airport toilet), regardless of whether he's straight or gay or bi or whatever.

But I have absolutely no sympathy or patience whatsoever with him attempting to weasel out of the fact of his conviction or the consequences for it. His attempts to do so are gutless and pathetic and offensive, completely without regard to whether he really is or isn't gay. Indeed, I know plenty of openly homosexual men who, when under pressure, have displayed vastly more of the so-called (and it's an admittedly sexist construction) "manly attributes" of character and virtue than Sen. Craig has in his attempts to defend and justify himself. His are the sort of arguments that can only be made a scoundrel who thinks he's arguing to fools — arguments that are insulting to us, and only further degrading to himself.

He should simply resign — immediately and without further ado — and then set about salvaging his personal life in such privacy and dignity as he can find.

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UPDATE (Fri Aug 31 @ 11:00am): In an update with a gracious link to this post, Prof. Althouse tweaked me for being overbroad in my arguments about the conclusiveness of Sen. Craig's guilty plea, as have several of my commenters here.

I'm not licensed in Minnesota, but my quick skim of that state's law leads me to conclude that before all this went public, Sen. Craig had already missed his fifteen-day deadline to file a motion for new trial, as well as his ten-day deadline (disorderly conduct being an ordinary instead of a "gross" misdemeanor) to file a notice of direct appeal as of right. My strong hunch, then, is that his conviction is already considered "final." I did not say, and do not wish to be read to suggest, that there are no legal procedures for challenging a conviction after it has become final. But such "collateral attacks" are highly disfavored and rarely successful. Nothing I've heard or read suggests that Sen. Craig has even alleged facts that could possibly support a successful collateral attack.

I therefore reemphasize that unless and until his conviction is overturned — and that's a possibility that now seems very, very remote — he is guilty in the eyes of the law, and he should be so viewed by every element of society that believes in the law.

Of course he can still call press conferences and pound the table and insist that he's "really innocent." Prisons are full of people who express that opinion about their own convictions. Legally, such assertions are absolutely meaningless; legally, while their convictions are still in place, they are conclusively estopped (i.e., forbidden by the law) from disputing their guilt for any purpose. Thus, for example, Sen. Craig can't sue anyone for defamation for saying he is guilty of the misdemeanor crime of disorderly conduct. Every court would treat the truth of that assertion is having been conclusively established; they will not entertain any contrary proposition for any purpose.

Some of my commenters assert that innocent people sometimes plead guilty. That's a logically and linguistically flawed assertion. Everyone who pleads guilty has, until the moment they've entered their plea, been "innocent" in the eyes of the law. And once their guilty plea is accepted, then unless and until it is set aside, they are guilty in the eyes of the law.

What my commenters presumably mean is, "Well, I'm really sure that if the defendant had gone to trial on Charge X, he would have been acquitted." Fine, then. Go to trial; once the defendant is acquitted, he can say that the state has failed to prove him guilty and that his constitutional presumption of innocence remains intact. Otherwise you're just guessing, no matter how confident you say you are, and you're talking about a species of "innocence" in which that word means something different than what it does in our criminal justice system.

"I just couldn't be bothered to go through with the trial," or "I wanted to be spared the publicity," or "I didn't have confidence in my lawyer," or countless other such motivations may in fact have prompted some defendants to enter guilty pleas in cases in which — from an omniscient point of view — one could opine that had they in fact gone to trial, they would have turned out to have been acquitted. But in the eyes of the law, any statement to the effect of "Oh, I was really innocent" after you've entered a guilty plea, while your conviction is still standing, is simply meaningless nonsense. The law doesn't have a category for "guilty (but really innocent)," and your engaging in that pretense still doesn't make you any less guilty in the eyes of the law, no matter how often you or anyone else says it.

And for other purposes — in our consideration as voters and citizens, for example, of a politician like Craig who makes such a statement — we ought, at a minimum, to be extremely skeptical; we're each entitled to reject such a statement altogether (which is my position here and in almost any similar situation); and we have to acknowledge that the statement may only have any persuasive force if it is offered outside a legal context (i.e., outside "the eyes of the law," to repeat the phrase I've used so often already).

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UPDATE (Sat Sep 1 @ 8:40am): Here is a link to the audio tape of the arresting officer's post-arrest interview with Craig. From an Idaho Statesman article about it:

Despite the denials, Steve Simon, a University of Minnesota law professor, said Craig would not want to have such a tape played before a jury.

"There is an extremely damning statement on that tape. If you listen to the tape, at the very beginning there is an explanation of what's going to happen," Simon said. "Then, totally out of the blue, Craig said, ‘You solicited me.'"

Simon said a prosecutor could argue that Craig interpreted the officer's behavior with the feet as soliciting, and that would raise this question: Why would a proclaimed straight person like Craig recognize that?

"It's an extremely powerful piece of evidence," Simon said.

Whether Craig is gay or straight, and whether or not he was soliciting a sexual encounter or not, his apparent knowledge of the foot-tapping and -rubbing protocols certainly would be relevant to show that he "knew or should have known" his own tapping and rubbing would tend to be offensive and to cause alarm or resentment.

Federal prosecutor WLS, guest-blogging at Patterico's, argues  that the police, prosecutors, and judge all abused Sen. Craig, whose conduct couldn't have been "offensive" to anyone:

Question: If a deaf gay guy used sign language to proposition another deaf gay guy in a gay nightclub, would it be a crime?

If not, then why is a toe tap and a hand gesture under the partition of a men’s room stall a crime?

Answer: Because when a citizen goes into a bathroom stall in a public restroom at an airport, he has a different expectation of privacy than he does standing on the floor of a gay nightclub (or any nightclub). WLS asks (ellipsis his):

So, a toe tap and a running one’s hand along the bottom of the men’s room stall ....

Offensive?  To whom?

Answer: The prosecution was counting on it being offensive to the hypothetical average person who doesn't expect to be stared at while sitting in a public bathroom stall, and then to have the offender's hand and foot intrude into that stall, and then have the offender's foot pressed against the hypothetical average person's. And by pleading guilty, Craig forfeited his right to any benefits of the doubt as to whether his conduct was offensive, and as to whether he knew or should have known that it would tend to arouse alarm or resentment. I respectfully disagree with WLS' analysis, especially insofar as he faults the judge, for reasons expressed both here and in Patterico's comments (so far, here, here, here, and here).

Reports are that Craig is expected to resign this morning.

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UPDATE (Sat Sep 1 @ 11:40am): Craig just announced his intention to resign, effective September 30th, in a short and fairly dignified statement. He apologized "for what I have caused" and for his inability to serve out his term. And he said that "to pursue my legal options as I continued to serve Idaho would be an unwanted and unfair distraction of my job [sic] and for my senate colleagues."

Fox News interprets that as him committing that he will indeed "pursue his legal options," but I am not at all sure he intended to make such a commitment. For reasons I discussed above, I think the chances of his setting aside his conviction via a collateral attack are very small — I'd rate his odds at well under 1%. If he were to succeed, he'd again be subject to the more serious peeping charge, which carries a much stiffer potential penalty. Even trying to set the conviction aside will cause this to linger in the press, with the overwhelmingly likely result simply being to further convince any doubters that his plea was voluntary and binding. And but for its potential political repercussions — which now have played out fully — this was a pretty sweet plea bargain. It will not surprise me if he makes no serious effort to get the plea set aside, and in fact were I his lawyer, I'd advise against it.