Senator Larry Craig Adopts Local Attorney’s Defense

By Lavender April 10, 2008

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In a written interview, Minneapolis attorney Jeff Dean answered Lavender’s questions about the recent acquittal of his client, a gay man caught up in last summer’s sting operation at Minneapolis-St. Paul’s Lindbergh Airport that brought Idaho Senator Larry Craig such unwanted national and worldwide notoriety.Your client was arrested during the same sting operation that caught Senator Larry Craig. Give our readers a short background and time frame for those events.Last summer, the police conducted a sting operation at the MSP airport in response to claims of inappropriate conduct occurring in a restroom. The police modus operandi was for an undercover officer to sit in a bathroom stall, and send signals of sexual interest to other men in adjacent stalls. When a man responded to the officer’s advances, in most cases by looking in at the officer, or putting his hand in the officer’s stall, the man would be arrested, and charged with one count of interfering with the officer’s privacy and with one count of disorderly conduct. Forty-one men were charged during the four-month sting.Explain your defense strategy in your client’s case.The defense strategy was that it is not a crime to flirt with a person who has invited it or consented to it—even when that flirtation occurs in a restroom. In a nutshell, the legal argument was that the officer could not have been alarmed or disturbed by the defendant’s conduct, because the officer invited that conduct.Clarify the difference between an “entrapment” defense and your “invitation/consent” defense.There is a big difference between the two—a difference that heretofore has been overlooked by the press.When entrapment is pled, the defendant admits that he committed the crime (by looking in at the officer)—but argues that the crime should be excused, because it was the police action (foot-tapping, etc.) that made him do it.Our invitation/consent defense is that there is no crime to begin with, because it is not a crime to look at and flirt with a person who has invited you to do so.Almost all of the other men arrested pled guilty. Why did your client decide to fight the charges?First, because he is innocent. All that my client did was respond to a person who pretended to be interested in him. There was no allegation of exposure or of any sexual activity. It was simply flirtation. My client was just using the bathroom when out of nowhere, undercover officers in the stalls on both sides of him started making overtures. Finally, he did what the officers invited him to do—returned the overtures—and then was arrested for accepting that invitation.Also, my client hopes that word of this verdict will protect other similarly situated people by deterring such stings in the future.Describe the police actions during their approach to your client. Were they more aggressive than the press heretofore has indicated?The police actions were much more aggressive than the press has indicated. My client was in the stall minding his own business when one of the officers starting moving his foot in and out of my client’s stall. The officer in the other stall was pretending to masturbate. This was not just a case of foot-tapping.Might one infer that because the police initiated the encounters, they may have approached numerous other men? Others who did not respond? Might they themselves be open to a “disturbing the peace” charge? Might some of the original complaints from passengers have been about undercover police, not gays?Given the officers’ simulated masturbation acts and uninvited intrusions into my client’s private stall, it is certainly possible that in other situations, the officers disturbed the peace, and interfered with the privacy of nonconsenting passengers.Is it true that now, on appeal, Craig’s attorneys are using your arguments? When did Craig’s attorneys first assert the invitation defense? Provide a time frame.Yes, Craig’s attorneys have adopted our legal strategy in their appeal. The time frame was as follows:(1) On September 26, 2007, Craig’s case is heard in district court. The invitation defense is not raised by Craig’s attorneys, nor considered by the court.(2) From October through December 2007, we filed numerous pretrial motions asserting an invitation defense to both the charges of disorderly conduct and interference with privacy.  Ours is the first known case where it is argued that the undercover officer’s invitation/consent in a “public sex” sting negates the crime charged.(3) On January 8, 2008, Craig’s attorneys file a brief with the Court of Appeals asserting for the first time in the Craig case the same invitation defense we previously had developed.What success will Craig have introducing that argument for the first time on appeal?Lawyers will tell you that generally, a legal argument cannot be raised for the first time on appeal. Craig’s attorneys did not raise the invitation legal argument in the trial court to Judge Porter.Even if the Court of Appeals were to consider the argument, the state will argue that it should not work for Craig, because he never has maintained that his actions were a response to the officer’s invitation.My response and defense of Craig would be that it does not matter what he said about his actions. The issue is whether the officer could be disturbed by Craig doing what the officer invited and expected him to do. Clearly, the answer is no, and Craig is innocent.How do you feel an accused person who has actually pressed his attentions upon an unwilling (civilian) subject should be treated?I understand the need for the police to put a stop to this problem. But the way to do this is not by creating a situation where there was none. Most of the men charged in this sting were simply responding to the officer’s invitation. It would be an entirely different situation if an accused looked in on the undercover officer who was just pretending to use the toilet. But this is not what happened. In fact, in almost every case, the officer had to invite the conduct to get a response.Do you think that your client’s acquittal will encourage other men so accused to fight the charges in court? Is this the way to begin to end such enticement techniques? It seems that any civil progress requires a first individual to stand up in public, and declare, “No. This is not right.”This case should affect the legal analysis in every indecent conduct/exposure, disorderly conduct, and criminal sexual conduct case where the accused’s actions were a response to an officer’s invitation.There are actually cases where the undercover officer pretends to be a gay man (i.e., in a park) desiring sexual contact, and then, when that contact occurs, issues a charge (of criminal sexual conduct) alleging nonconsensual sexual contact. The police theory is that the officer was only pretending to want to the contact.There are, of course, some cases where the officer’s consent/invitation does not make the accused’s conduct legal. For example, it is illegal to offer to pay a police decoy posing as a willing prostitute for sex, because the underlying act of prostitution is illegal.However, in cases such as the airport sting, an accused should not plead guilty where the officer’s consent/invitation makes the underlying act noncriminal.And, for all of the above reasons, this case should affect how the police conduct these stings in the first place. Police and prosecutors now know that a jury has said this is not a crime.

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