The Larry Craig Phenomenon Again - This Time in Indiana

There has reportedly been a renewed spate of undercover police arrests of men cruising restrooms and parks since the Larry Craig story hit the news. This is, of course, an old story, a cat-and-mouse game played between law enforcement and men - many closeted, some relatively openly gay - going back many decades. And every now and then an appellate decision surfaces showing how the game may be played. The latest I’ve seen is from the Indiana Court of Appeals, Isom v. State of Indiana, 2007 WL 3287515, an unofficially published decision available on Westlaw that is dated November 8, 2007.

Rejecting various objections to the fairness of the trial, the Court of Appeals affirmed a public indecency conviction and a 120-day prison sentence for a man found by a jury to have exposed himself masturbating to an undercover police officer at a public park.

According to the opinion by Judge Carr L. Darden, the police officer testified that he was engaged in an ongoing investigation of inappropriate sexual activity at Boone Pond. The officer testified that while sitting in his parked car, he observed the defendant sit in his own parked vehicle for some time, then exit and walk in front of the officer’s vehicle "and he looked at me, winked and smiled and then went on into the woods." The officer followed 200 feet into the woods until he observed the defendant, facing away from him with his pants up. "Approaching with a side profile view of [the defendant]," wrote Judge Darden, "[the officer] asked [the defendant] ‘how he was doin’, ‘and [the defendant] "said fine" but kept his body turned away. [The officer] then ‘said it was a nice day, [the defendant] said yes, and at that point [the defendant] turned around, exposed his penis to [the officer], had it in his hand, his right hand and was stroking it up and down.’" The officer testified that in the ensuing conversation the defendant suggested that the officer "give him head," at which point the officer identified himself and arrested the defendant.

During the officer’s testimony at the ensuing trial on the charge of public indecency, which took place in 2006, a juror submitted the question, which the judge posed to the officer, "what were you investigating at Boone’s Pond on September 14^th, [2004], what were you looking for, what was the type of criminal activity?" Defendant’s counsel had objected to the question, but the judge had instructed the officer to respond "inappropriate sexual activity." Defendant preserved an objection to this, based on cases from other jurisdictions holding it was unfairly prejudicial to a defendant to tell the jury that a man was arrested in a "high crime area."

Defendant testified to an entirely different story, indicating he had pulled into the rest area because he became nauseous while driving, that he got out of his car and threw up, got back in his car to settle down, then the officer, who was sitting in another parked car, got out of his car, walked in front of the defendant’s car rubbing his crotch and smiling at the defendant, which the defendant testified "disgusted" him. Feeling again unsettled, the defendant left his car and walked into the woods, where he again saw the officer rubbing his crotch. Defendant testified that he proceeded further into the woods and was leaning against a tree when the officer came up behind him, "said something... like he was trying to be sexy" and then "came right up in my face." The defendant claims not to remember whether he had his penis out of his pants at that time, but said he might have been "trying to pee" and because he was uncut would have to hold his penis to retract his foreskin while peeing. He testified that he had no sexual interest or desire at that time because he was feeling ill.

On cross-examination, the prosecution asked, over objection, whether the defendant recalled stating during his booking process at the jail that he was attracted to members of his own sex. The defendant objected to this question, arguing it was intended to lead the jury to infer that he likely acted as the officer had testified because homosexuals "act that way." The judge rejected this objection, finding the cross-examination a proper response to the defendant's testimony that he was disgusted by the officer's behavior.

During its deliberations, the jury asked to have a copy of the police report, but the judge denied the request without consulting counsel for the parties, on the ground that the police report had not been placed in evidence.  (The court of appeals noted that this was improper, that counsel should normally be consulted whenever the jury sends out an evidentiary request, but that no harm was done as the judge had denied the request.)

On appeal, defendant argued that it was inappropriate for the officer to have suggested in his testimony that defendant was arrested as part of an investigation of improper sexual activity, as this introduced into the case the implication that he was arrested in a suspicious area because of the activities of others there, and that this was compounded by the implication that he was homosexual from the question posed during cross-examination. (The defendant is a middle-aged married father, business-owner, with long-term church and community involvement, according to the evidence introduced to attempt to mitigate the sentence.) The court of appeals rejected these arguments, apparently satisfied that the juror’s question received an innocuous answer that did not mention homosexuality, and that the prosecution’s question on cross-examination was properly responding to the defendant’s testimony that he was disgusted by the officer’s sexually-suggestive actions.  Although anyone objectively reading this account of the case has to at least suspect that the prosecution successfully sent messages to the jury despite the objections and the by-play, the court of appeals did not express any concern that defendant may have been convicted based on stereotypes that jurors may entertain about the conduct of gay men in such areas.

The court of appeals also rejected the defendant’s argument that 120 days in jail was an inappropriate sentence for a person in his circumstances, noting that it was merely a fraction of the statutorily authorized penalty of up to a year in jail.

The opinion reads like a text-book example of wasteful police entrapment activity directed at closeted gay men who go to public rest areas and parks seeking sexual release in wooded areas away from casual public view. Whether one believes the account by the officer or by the defendant, it does not seem that anybody else was around to be alarmed or offended, that the officer worked to elicit an incriminating statement from the defendant, and that no legitimate law enforcement imperative is served by this kind of police activity.