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Storm builds around Idaho senator's arrest
Breaking Legal News | 2007/08/29 06:30

Idaho Sen. Larry Craig isn't sticking to the script about how sex scandals play out in the nation's capital. In fact, he's following it backward. The rich history of powerful figures accused of misbehavior shows they tend to deny it indignantly, try to ride out the storm with tortured explanations, then give in to contrition if cornered. Not Craig. First, an admission of guilt; now, a defiant protestation of innocence.

Seeking to salvage his reputation and quell a media storm stirred by his guilty plea to disorderly conduct charges, the Republican senator Tuesday denied making a sexual advance to an undercover officer in a Minneapolis airport men's room two months ago.

"I am not gay and never have been," Craig declared at a Boise news conference with his wife, Suzanne, at his side.

But even as he denied making an advance, the case sent shock waves through Republican circles. Senate Republican leaders called for an ethics investigation and vowed to consider other sanctions.

Former Massachusetts Gov. Mitt Romney, whose Idaho presidential campaign was headed by Craig until the charges came to light, compared the senator's behavior to former President Clinton's encounter with a White House intern and to former Rep. Mark Foley, R-Fla., who resigned last year in a scandal involving male House pages.

The charge grew out of a June 11 incident at Minneapolis-St. Paul International Airport in which an officer investigating lewd-conduct complaints about activity in the restroom arrested Craig for allegedly making a sexual advance. The arrest and the senator's Aug. 1 guilty plea became public Monday, when they were reported by the Capitol Hill newspaper Roll Call.

Craig, 62, was ordered to pay $575 in fines and fees and given one year's probation. A sentence of 10 days in the county workhouse was stayed.

At the news conference, Craig, a leading voice on issues affecting the West and a consistent opponent of gay-rights legislation, apologized for his handling of the incident, saying he regretted his guilty plea.

He said he had retained a lawyer to review the plea, although he signed court papers declaring he had read the police report and understood the nature of the crime and paid the fine โ€” which defense experts said would make a challenge difficult.

Craig said he pleaded guilty because his hometown newspaper, The Idaho Statesman, had been conducting an eight-month investigation into his sexual orientation. He said he hoped that resolving the case quietly โ€” without telling his family, friends, staff or colleagues โ€” would settle the matter without bringing it to light for what he called the newspaper's "witch hunt."

"I overreacted in Minneapolis, because of the stress of The Idaho Statesman investigation and the rumors it has fueled around Idaho," said Craig, who took no questions.

Craig has confronted sexually related accusations before. In 1982, he denied involvement in a congressional-page sex scandal.

The Statesman on Tuesday reported on rumors that Craig had engaged in restroom sexual encounters with other men. The newspaper began its inquiry after a gay activist blogger, Mike Rogers, published a claim that Craig had sex with men. Rogers cited anonymous sources.

The Statesman quoted an anonymous man who claimed he had sex with Craig in a restroom at Union Station in Washington, D.C. The newspaper, which interviewed 300 people, described other allegations but did not name those who made them.

In a May interview that the newspaper published Tuesday, Craig denied having had gay sexual encounters and specifically denied restroom encounters.

"I'm going to have to leave it up to other people to weigh the care we took. I'm a bit disappointed" with Craig's complaints, said Vicki Gowler, the newspaper's top editor. "We were quite responsible, and we took great care with the story."

Craig already was under pressure from Republicans to give up the seat he has held since 1991 rather than risk handing Democrats what has been a safe seat. He said he'll announce next month whether he will seek re-election.

Pressure accelerated Tuesday. The mug shot from Craig's arrest was broadcast on CNN accompanied by a headline: "Senator's Bathroom Bust." The Drudge Report went with the headline "Brokeback Bathroom." And the detailed arrest report was available on the Internet.

Greg Smith, an Idaho pollster who has worked for Craig, said it was "almost certain" the senator would not seek re-election.

David Adler, a political-science professor at Idaho State University, noted that GOP leaders would be unlikely to support any interest Craig might have in trying to hold his seat "since they would fear losing a seat that has been safe for so long."

Adler said Craig's swift resignation as co-chair of Romney's presidential campaign in Idaho provides a "good measure of the fever that has been inflicted."

Patrick Sammon, president of the Log Cabin Republicans, the largest organization for gays in the GOP, said Craig's ability to continue serving is "in serious doubt."

If Craig resigns, Republican Gov. C.L. "Butch" Otter will appoint a successor, most likely a Republican, to serve the remainder of the term.

A former Democratic congressman, Larry LaRocco, is campaigning to replace Craig. LaRocco was elected to the House in 1990 but lost the seat in the 1994 GOP takeover.

LaRocco said he believes a Democrat can win even though none has been elected to the Senate from Idaho since Frank Church, who lost the seat in 1980. "People are in a plate-throwing mood out here, regardless of what happened with Larry Craig," LaRocco said.

Craig now is fighting a multifront battle, first and foremost a longshot bid to undo his guilty plea and the likely ethics probe, while also trying to shore up support among constituents should he decide to seek a fourth six-year term.

In his guilty plea, according to court records, Craig acknowledged engaging in physical "conduct which I knew or should have known tended to arouse alarm or resentment of others." Criminal-defense lawyers said it would be difficult for the senator to have the case reopened.

Successful motions to withdraw guilty pleas usually meet a high threshold, such as showing the person was misled into entering the plea, his constitutional rights were violated or there was wrongdoing by prosecutors, Minneapolis criminal-defense lawyer Peter Wold said.

But Craig's written plea specified the charges related to the airport incident, that he knew the judge couldn't accept a guilty plea from a person who felt he was innocent and that he was making no claim of innocence.

If he's successful in overturning his plea, Craig likely will have to face a public trial, Wold said.



McGraw Hill's Bahash Faces Purported Suit
Legal Business | 2007/08/29 05:42

O'Rourke Katten & Moody said it filed a lawsuit against McGraw-Hill Cos.'s chief financial officer Robert J. Bahash on behalf of shareholders who bought the company's common stock between July 25, 2006 and Aug. 15. The law firm alleged that Bahash violated federal securities laws and that his misleading statements or omissions concerning the company's business and operations, particularly that its Standard & Poor's unit assigned "excessively high" ratings to bonds backed by subprime mortgages, artificially inflated its stock.

McGraw-Hill is a New York-based financial and education information services company. McGraw-Hill had no immediate comment because it said it wasn't aware of the suit.



Teacher pleads guilty to having sex with student
Criminal Law | 2007/08/29 05:36
A former Cyprus High School teacher admitted Tuesday to having sex with one of her students. Christy Brown, 33, pleaded guilty as charged to three counts of forcible sexual abuse, all second-degree felonies. Brown faces up to 30 years in prison when she is sentenced Oct. 19 by 3rd District Judge Stephen Henriod. She had sexual relations with the boy - who was 17 and one of her English students - on at least three occasions between April 8 and July 8, according to charging documents.

Brown was arrested early on July 8 after a West Valley City police officer found her and the student parked near 2900 South and 5600 West.

Brown, who taught for two years at the school, quit her job on June 1 because she planned on moving to Houston for a new teaching job, according to school officials.


Judge Blocks Hawaii Superferry Sailings to Maui
Law Center | 2007/08/28 07:15
A Maui judge today granted a temporary restraining order halting Hawaii Superferry service from Honolulu to the island of Maui until the court can hear evidence Wednesday to determine whether the company can continue sailing without an environmental assessment by the state. Judge Joseph Cardoza is permitting the ferry to sail back to Maui to pick up stranded passengers and transport them to their port of origin.

The ferry is in only its second day of commercial voyages between Honolulu, Maui and Kauai. The Superferry was originally scheduled to start sailings on Tuesday, but the company moved the start date to Sunday and issued $5 one-way tickets to launch the service in advance of a legal challenge by environmentalists.

More than 90 percent of the available space was filled as passengers rushed to experience Hawaii's first modern interisland ferry service at bargain basement prices.

A Superferry spokeswoman said today's Maui and Kauai trips were sold out. The 350-foot vessel can carry more than 850 people and 250 vehicles, but the company projects an average load of 400 passengers and 110 vehicles.

The first day of Hawaii Superferry service to the island of Kauai on Sunday was disrupted by hundreds of protesters on surfboards, swimming in the path of the vessel and lining the docks at Nawiliwilil Harbor, in advance of the courtroom battle over environmental issues today. The U.S. Coast Guard intervened after two hours to clear a path for the Superferry to enter the harbor.

On Thursday, the Hawaii Supreme Court decided that the state was wrong to have exempted ferry-related improvements at Maui's Kahului Harbor from the state's environmental review law.

The Supreme Court ruled on an appeal of an earlier decision by Cardoza dismissing a complaint filed against the Hawaii Department of Transportation by three citizens' groups - the Maui Tomorrow Foundation, the Sierra Club and the Kahului Harbor Coalition. Cardoza had ruled the groups did not have standing to bring the complaint.

The Supreme court ruled that they do have standing and in addition ordered an environmental assessment of the harbor improvements.

Isaac Hall, the attorney for the groups, hopes to expand the case to involve the Kauai sailings as well.

In September 2005, Judge Helen Gillmor dismissed the suit brought by the three groups seeking to require the Superferry to prepare a full Environmental Impact Study, EIS.

The groups filed suit after several months of meetings with Superferry head John Garibaldi produced no agreement for an EIS. Other groups, Kauai County and Maui's Mayor and County Council have called for an EIS review as well, but are not parties to the lawsuit.

What the Supreme Court ordered Thursday is not an EIS, but a less extensive environmental assessment. Even that could take six months to a year to complete.

Concerns range from increased traffic on Maui and Kauai, collisions with whales, impact on campsites and the creation of a new, rapid dispersal method for alien species, the Sierra Club says.

Because the court case involves concerns about impacts only at Kahului Harbor, Judge Cardonza's temporary restraining order does not prevent the Superferry from sailing between Honolulu and Kauai.



Senator Pleads Guilty After Arrest at Airport
Breaking Legal News | 2007/08/28 07:13

Senator Larry E. Craig, Republican of Idaho, pleaded guilty to a disorderly conduct charge earlier this month after his arrest in June by an undercover police officer in a men's bathroom at the Minneapolis-St. Paul International Airport.

A second charge of interference with privacy against the 62-year-old senator was dismissed. Mr. Craig was fined more than $500 at the Aug. 8 proceedings and was placed on unsupervised probation for one year. His 10-day jail sentence was suspended, according to a copy of a court document in the case.

According to a police report obtained by Roll Call, the Capitol Hill newspaper that disclosed the episode and guilty plea today, a plainclothes police officer investigating complaints of sexual activity in the bathroom arrested the senator on June 11 after what the officer described as sexual advances made by Mr. Craig from an adjoining stall.

Roll Call reported that the officer said Mr. Craig tapped his foot as a signal to engage in lewd conduct, brushed his foot against the investigator's and waved his hand under the stall divider several times before the officer showed him his badge. After his arrest, the senator denied any sexual intent and in a statement issued this afternoon he attributed the matter to a misunderstanding.

"At the time of this incident, I complained to the police that they were misconstruing my actions," Mr. Craig said in a statement. "I was not involved in any inappropriate conduct.

"I should have had the advice of counsel in resolving this matter. In hindsight, I should not have pled guilty. I was trying to handle this matter myself quickly and expeditiously."

Mr. Craig, whose seat is up for election next year, is the second Republican senator in recent weeks to find his personal behavior under scrutiny. Senator David Vitter of Louisiana was implicated in a separate case in the Washington area when his phone number turned up in the records of an escort service. He made a public apology for what he described as "a very serious sin in my past," but he has not been charged with any crime.

In the Senate, Mr. Craig, who is married and has three children, is known for his advocacy for the rights of gun owners and has a close association with the National Rifle Association. When Republicans controlled the Senate in the last Congress, Mr. Craig was chairman of the Veterans Affairs Committee. He is a former member of the party's Senate leadership. He represented Idaho in the House before first winning election to an open Senate seat in 1990 and he was easily re-elected in 1996 and 2002.

In 2006, Mr. Craig publicly rejected allegations by a gay rights advocate that he had engaged in a homosexual behavior, calling them "completely ridiculous."



High court: Cities must give workers' records to media
Breaking Legal News | 2007/08/28 06:09
The California Supreme Court on Monday handed two victories to newspapers seeking the salaries of public employees and termination records of police officers throughout the state. The court ruled that Oakland must release the names and salaries of police officers who earned more than $100,000 in 2004. Unions representing the police officers argued unsuccessfully that such government salary information should remain confidential out of privacy concerns.

"Counterbalancing any cognizable interest that public employees may have in avoiding disclosure of their salaries is the strong public interest in knowing how the government spends its money," Chief Justice Ronald George wrote for the majority opinion signed by three other justices. Another three justices each wrote separate opinions essentially agreeing with the majority take, with Justices Marvin Baxter and Ming Chin arguing that police officers' salaries should be exempt from public disclosure.

The ruling Monday was the result of a Contra Costa Times' lawsuit against Oakland and it also should settle an almost identical lawsuit filed by the San Jose Mercury News demanding the names and salaries of every San Jose city worker who earned more than $100,000 annually.

"I think this sets the rule for the state," said media attorney Karl Olson, who represented the Times. "These are landmark cases that serve the public's right to know."

Some of the largest newspapers companies serving California, including the owners of the Los Angeles Times, San Francisco Chronicle, the San Diego Union-Tribune, Sacramento Bee, New York Times and the Orange County Register filed friends of the court briefs in support of the Times.

Duane Reno, who represented the Oakland police officers argued that publicizing the salaries would open the employees to unwanted sales calls.

"Unfortunately the Supreme Court didn't feel that was a big enough invasion of privacy," Reno said.

The court also ruled in a separate 5-2 opinion that police officers' names, hiring and termination dates compiled in a massive state Department of Justice computer database also are fair game.

"It should have been a no brainer," said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. "We are discovering that police departments across the country are increasingly withholding this kind of information."

The Arlington, Va.-based nonprofit joined the Los Angeles Times in its legal action against the California DOJ, which refused to turn over a decade's worth of police officer information to the newspaper. Several other news organizations, including The Associated Press, also filed court papers in support of the Times' case.

The newspaper said it planned to use the information to track the movements of police officers from one department to the other while also examining staffing levels.



2nd Circuit Upholds Conviction in Rare Bird Import Case
Practice Focuses | 2007/08/28 05:15

Deciding a "rare bird" of a case, a federal appeals court last week upheld the unusual conviction of an "enigmatic and colorful" exotic bird collector for illegally importing black sparrowhawks from South Africa. Thomas W. Cullen of Goshen, N.Y., was convicted and sentenced to four months in jail under the Wild Bird Conservation Act of 1992, 16 U.S.C. ยง4901 et. seq. His case may have been the first criminal prosecution ever under the act.

Cullen challenged his conviction on the grounds that the act does not apply to captive-bred birds and that its failure to specifically define the term "personal pet" rendered it unconstitutionally vague.

But the 2nd U.S. Circuit Court of Appeals rejected those arguments in United States v. Cullen, 06-0607-cr.

Judges Richard Cardamone and Chester Straub, along with Southern District of New York Judge John Koeltl, sitting by designation, decided the appeal.

Writing for the court, Cardamone noted that judges frequently describe odd legal provisions or ingenious arguments as a "rare bird."

"We have before us as the subject matter literally a rara avis in terris or a rare bird of the earth," he wrote.

The court described Cullen as "an internationally known professional falconer." He was hired at one time by the City of New York to help restore bald eagles to Inwood Hill Park. Cullen once claimed to own one of the largest collections of birds of prey in the country. At the time of his trial, he maintained 47 birds of prey in Goshen.

But Cardamone added that Cullen "also has a history of questionable activity involving exotic birds."

According to the court, Cullen wanted to add the black sparrowhawk to his collection, but he did not meet the criteria for any of the four exceptions to the Act's importation ban: he had not been away from the United States for more than a year, so he did not come within the personal pet exception; he was not conducting scientific research; he was not involved in zoological breeding or display programs; and he was not engaged in cooperative breeding programs.

The government alleged Cullen used an American couple living in London, Joseph and Kristen Kulak, as a front for the importation in 1999 of three black sparrowhawks said to be the couple's personal pets.

One of the birds died in transit, and a Wildlife Service inspector at JFK Airport refused to believe Cullen's claim that he was just picking up the remaining birds for the Kulaks. The officer quarantined the birds pending an investigation.

A second bird died while in quarantine. The lone remaining bird was turned over to Cullen in 2000 with the understanding that he would return it to the Kulaks.

Instead, Cullen made a breeding arrangement with the owner of the only other black sparrowhawk in North America. That failed and the bird was returned to Cullen.

Kulak testified against Cullen, pursuant to a nonprosecution agreement, at a jury trial in 2005 before Southern District Judge Colleen McMahon. Cullen was convicted of knowingly importing exotic birds and making false statements about his activities. However, he was acquitted of illegally importing saker falcons.

WILD VERSUS CAPTIVE

At the 2nd Circuit, Cardamone addressed first Cullen's contention that Congress passed the Wild Bird Conservation Act because it was concerned about protecting birds in the wild -- not captive-bred birds.

"Yet, nothing in the language of the statute itself supports Cullen's assertion," Cardamone said. "Quite the contrary -- the statute provides that any exotic bird listed ... is covered, with no limiting language as to where or how an exotic bird is bred."

The judge added that a "Wild Bird Act provision mandating the Secretary of the Interior to exempt selected captive-bred species from the act's prohibitions on importation ... conclusively demonstrates that Congress aimed to have all other captive-bred species, like the Black Sparrowhawk, covered under the act. Otherwise, this exemption would be meaningless."

Cullen's complaint about the vagueness of the personal pet exception required the court to employ the requirement that a law must give "fair warning" to the accused of exactly what activity it prohibited.

"Although we recognize in many English words there lurk uncertainties ... to meet the fair warning prong an ounce of common sense is worth more than an 800-page dictionary," Cardamone wrote. Here, he said, the words personal and pet are "comprehensible to an ordinary person."

"The common meanings of these words, coupled with the Wild Bird Act's explicit provisions as to who qualifies for the personal pet exception, gave adequate notice to defendant that the activities he was planning did not fit within the pet exception," Cardamone said.

Peter Ginsberg of Crowell & Moring in New York represented Cullen.

"We're obviously disappointed in the circuit's opinion," Ginsberg said. "Tom has dedicated his life to protecting and expanding the bird population and if he made a technical mistake in how he obtained some birds -- and it's clear the jury did think he made mistakes -- it was certainly not out of malice or the desire to break the law."

Assistant U.S. Attorneys Jesse Furman, Stephen Ritchen and John Hillebrecht represented the government.



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