I just finished an interview for Good Morning America for Friday on whether Craig has a case for entrapment or denial of the offense. I do believe that Craig should have fought this charge and would have been successful.

Craig’s account captured in the transcript is a perfectly valid and viable defense. The officer was taken actions that could be entirely innocent and reading each action as incriminating. Craig may be gay. He may also be telling the truth. It is impossible to claim that these facts could be proven beyond a reasonable doubt on these facts.

More importantly, Craig was not charged with solicitation. He was charged with violating privacy (which was dropped) and disorderly conduct. The later was based on touching shoes, moving his hand under the stall divider and looking at or through the door of the stall.

On the privacy issue, this is a public bathroom. They would have been hard pressed to argue that such fleeting and highly interpretive acts could have met the definition of this crime. Indeed, even under the lower civil standard, I do not believe that Craig could have been found guilty of the tort of inclusion into seclusion or other common law privacy torts.

On the solicitation issue, any charge would have been thrown out. Craig never orally asked for sex or made physical contact.

Finally, on the disorderly conduct count, this is a notoriously fluid crime that judges are reluctant to deal with absent the clearest facts. Craig has a perfectly good and consistent defense to make.

As for entrapment, there is a basis for such a claim, though courts are historically skeptical of such claims. Usually in entrapment cases, there is more of a record supporting the officer. However, courts are generally hostile to such claims, particularly in vice case. Craig describes a typical entrapment defense, including the suggestion that the officer may have acted first. Officers are generally very careful to make sure that the suspect acts affirmatively without prompting in vice cases.

The transcript of the interview of Craig by the two detectives should be eye-opening for any citizen. For the transcript click here In this case, the officers were on best behavoir. You can imagine how most interview go in the same circumstances for average citizens. This is not a criticism of the two officers who may always be this deferential and decent. However, if people think that this seems harsh, they have no idea how hard people are pressed in most cases. When arrested, people panic in the very way that Craig did. They want it to end and often try to befriend officers. This is precisely why the Supreme Court has required Miranda. It is immediately after an arrest that you are most likely to plead guilty. Even innocent people have been known to plead guilty to lesser offenses in the panic of that moment.

Craig has given everyone a textbook example of why suspects should insist on speaking with counsel and not try to bluff or bargain their way out of these cases.