JONATHAN TURLEY

Sen. Craig’s suggestion that he is considering re-visiting his plea with the assistance of counsel is not without merit — it is only fatally delayed. There is much to challenge in this arrest. The officer was relying on highly interpretive conclusions about his actions. Had he challenged the arrest, he could have argued that the evidence did not establish the allegations beyond a reasonable doubt.

The charges on violation of privacy were dropped. Under Minn. Stat. § 609.72, subd. 1(3) (2004), disorderly conduct involves anyone who “[e]ngages 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.” We should all be uncomfortable with police charging people on such highly interpretive or subjective views of such conduct. Craig did not expressly ask for sex or engage in sexual contact. Indeed, he was not even charged with soliciting sex. What Craig allegedly did in the bathroom may indeed have been signaling. However, all of these described acts could also be innocent. The officer said he looked through the crack of the door while he could claim that he paused outside the door. The space under the divide of a stall is hardly inviolate space — it is part of a public bathroom and subject to the movement of bags and people.

None of this means that Craig did not engage in this conduct with the intent alleged by the officer. However, I would be astonished if such a charge would have survived challenge in court. The problem for Craig is that he sought to bury the matter with a quick plea. It is now likely too late. Courts do not like to revisit such matters due to buyer’s regret on the morning or, in this case, month after.