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The right to privacy and to be left alone is "very strong" in a public restroom stall, the state Court of Appeals said Tuesday in rejecting U.S. Sen. Larry Craig's attempt to withdraw his 2007 guilty plea to disorderly conduct in an airport men's bathroom sex sting.
In a statement, Craig, R-Idaho, said he is innocent, disappointed and might appeal.
A three-judge panel of the court issued a crisply worded opinion denying the senator's attempt to withdraw his mail-in plea. The decision allowed a ruling from Hennepin County District Judge Charles Porter to stand. Porter rejected Craig's attempt to rescind the plea he sent to District Judge Gary Larson.
Craig was arrested in June 2007 by undercover police Sgt. Dave Karsnia in a sting operation at the Minneapolis-St. Paul International Airport. Karsnia, who was in a stall, said Craig peered in for more than two minutes from 3 feet away -- so close, Karsnia said, that the officer could see the senator's blue eyes. Prosecutors described Craig as peering into the stall with a "prehensile stare."
When the next stall opened, Craig went in and then tapped his foot and waved his hand under the stall, behavior indicative of an interest in a sexual encounter, the complaint said.
Once his conviction became public, the senator tried to rescind his plea. He did not seek reelection last fall in large part because of the fallout from the arrest and published reports raising questions about his sex life.
The court dismissed Craig's arguments that the disorderly conduct statute was too broad and that the mail-in plea was insufficient to sustain a conviction.
Craig said he disagrees with its findings. "I maintain my innocence, and currently my attorneys and I are reviewing the decision and looking into the possibility of appealing," he said in a statement on his Senate website.
The senator's lawyer, Billy Martin, argued that Craig's conduct was protected speech.
But the court said even if Craig's "foot-tapping and the movement of his foot toward the undercover officer's stall are considered speech, they would be intrusive speech directed at a captive audience and the government may prohibit them." Chief Judge Ed Toussaint wrote the 10-page decision signed by Judges Natalie Hudson and Thomas Kalitowski.
The court said Minnesota law is not unfairly overbroad. "Because it is directed at any language or conduct that tends to arouse alarm, anger or resentment in others, it necessarily does not specify or describe such language or conduct," the opinion said.
The court also rejected Craig's argument that his petition be withdrawn, saying that to be valid, a plea must be "accurate, voluntary and intelligent." That means it must be supported by facts -- something Craig disputed.
The court cited the plea agreement signed by Craig in which he acknowledged that he: "Engaged in conduct which I knew or should have known tended to arouse alarm or resentment or [sic] others, which conduct was physical [vs. verbal] in nature."
The court noted the specification of physical rather than verbal conduct. The court also rejected Craig's contention that Karsnia at least "partially invited" the behavior.
A spokesman for the Metropolitan Airports Commission, which runs the airport, said the agency is pleased with the decision and hopes to finally be able to put the matter behind it.
Rochelle Olson • 612-673-1747