An attorney for the Idaho Republican senator sought to have the disorderly conduct conviction dismissed for lack of evidence. The three-judge panel will rule within 90 days.
U.S. Sen. Larry Craig's attorney argued to have his disorderly conduct conviction thrown out for lack of evidence during arguments Wednesday before the state Court of Appeals.
Craig, an Idaho Republican who did not attend, is not seeking reelection in large part because of his arrest in a men's public restroom at the Minneapolis-St. Paul International Airport during a sex sting last summer.
His attorney, Billy Martin, told the three-judge panel that Craig's conduct doesn't constitute criminal behavior. The panel -- Judges Natalie Hudson and Thomas Kalitowski, and Chief Judge Ed Toussaint -- vigorously questioned Martin, who had 15 minutes to make his case.
After he was arrested in June, Craig mailed in a guilty plea, which was approved by Hennepin County District Court Judge Gary Larson. Martin, in a news conference after the arguments, said Craig was in a hurry and signed off an a plea because "he was told if you pay a fine this will go away."
Craig sought to withdraw the plea when his case became public. But Hennepin County District Court Judge Charles Porter declined Craig's request and the senator appealed. The three-judge panel that heard the arguments has 90 days to issue a ruling.
Craig was arrested by undercover police Sgt. Dave Karsnia in a sting operation at the 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 Craig's blue eyes. 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.
But Martin said Craig was responding to Karsnia's hand swiping and that the senator's behavior was "invited conduct." Also, Martin said, Craig was merely standing in front of a door waiting for a stall to open. That behavior, he said, "has not tipped the balance to guilt beyond a reasonable doubt."
Hudson, however, noted that Karsnia said Craig was peering into the stall. "That's a little different than standing back" waiting for one to open, Hudson said.
Martin said the judges "shouldn't have to guess" what was happening and called the case record inadequate.
When Martin talked about how the senator used a mail-in plea form rather than appear in person, losing a chance for an on-the-record discussion before the court about the charge against him, Kalitowski asked, "Didn't [Craig] waive the right to a colloquy when he signed the form?"
Martin said he did but that Craig did not waive the legal right that the complaint against him be adequate. He also argued that Craig's behavior didn't meet the standard for disorderly conduct because the law requires behavior to affect others.
The judges seemed skeptical of that, noting several times that Martin himself said Craig was looking into a bathroom stall because all the stalls were occupied -- meaning others were present in the facility.
In his 15-minute argument, prosecutor Chris Renz said the plea should stand because Craig failed to show a "lack of adequate judicial review" of his mail-in plea. He argued that by using the mail-in plea, Craig waived his rights to appear and question the evidence.
The judges questioned Renz much less than Martin, who at times appeared to fumble for answers and needed to use his five-minute rebuttal period to respond after consulting with colleagues.
Metropolitan Airports Commission spokesman Patrick Hogan and Renz declined to comment as they left.
Rochelle Olson • 612-673-1747