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Toobin: Entrapment defense rarely works in case like Craig's

  • Story Highlights
  • "You shouldn't be out to entrap people," Sen. Larry Craig told arresting officer
  • Entrapment defense possible, but juries don't often believe it, says CNN analyst
  • Idaho Republican pleaded guilty to disorderly conduct after arrest in men's room
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NEW YORK (CNN) -- Embattled Sen. Larry Craig accused police after his June arrest of trying to entrap him, but CNN legal analyst Jeffrey Toobin says he puts little faith in such a defense.

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A police mug shot of Sen. Larry Craig after he was arrested at the Minneapolis-St. Paul airport in June.

In a police recording released Thursday, the Idaho Republican denied that he was trying to engage in lewd behavior in a men's bathroom at a Minnesota airport. He later pleaded guilty to a misdemeanor disorderly conduct charge.

"You shouldn't be out to entrap people," Craig said on the tape.

The arresting officer denied Craig's accusation of entrapment. Listen to police interview Craig »

CNN.com asked Toobin about how an entrapment defense might work in court.

CNN.com: What's the legal definition of entrapment?

TOOBIN: The key concept with entrapment is the idea of predisposition. A person is entrapped if they are lured into committing a crime that they are not otherwise predisposed to commit.

Basically an entrapment defense shifts the burden of proof to the prosecution to prove that the defendant was not predisposed to commit the crime.

The question is, did the police entice you to do something that you didn't want to do in the first place? And the important point to raise about entrapment defenses is that they're rarely successful. And most juries tend to think that if you commit a crime, you did it of your own volition.

CNN.com: What tactics do police employ to protect their sting operations from the entrapment defense?

TOOBIN: Well, what they often do, which was not done here, is use tape recordings or video so the jury can see how anxious the defendant was to commit the crime. Tape and video is the best refutation of an entrapment defense.

I think Craig had the possibility of raising an entrapment defense in this case. Now, I don't know if it would have been successful. What you have to remember about that tape is the officer's report says that Craig did a heck of a lot more than just pick up a piece of paper in the stall. Video Watch how fellow Republicans are pressuring Craig to quit »

He rubbed his hand along the side of the stall, and he lingered outside and looked through the crack and rubbed his fingers together. I mean there were a whole series of signals. And the jury might very well have believed the officer rather than Craig.

I don't mean to suggest that entrapment defense would have necessarily been successful, but it was not an implausible defense given the facts.

The whole issue is moot because he pled. I don't take seriously his protestations of entrapment because he pled guilty. You know, he's not innocent until proven guilty. He's guilty.

He's an intelligent, sophisticated man with access to lawyers, and he actually told the authorities that he'd consulted a lawyer. He had weeks to reflect on whether to plead guilty.

It would have been one thing if the day of the offense, he signed a paper pleading guilty. He could have made the argument that he just panicked on the day of the offense. But there were weeks between the offense and the guilty plea.

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CNN.com: Is there any way that Craig could use entrapment as a defense to improve his case -- to work backward legally toward vindication?

TOOBIN: Out of the question. No way. E-mail to a friend E-mail to a friend

All About Larry Craig

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