It used to be that foot tapping just meant keeping time to a catchy tune.
But former Senator Craig of Idaho changed the connotation in his infamous 2007 arrest in the airport bathroom and subsequent guilty plea. It was as if the whole world awoke to bathroom subculture and “cruising” rituals. The senator earned the nickname “Wide Stance.”
Attorney Bruce Nickerson of San Carlos, who is openly gay, has been practicing lewd conduct criminal defense and civil cases for his clients for thirty years. Nickerson, for whom I have done investigations, told me that he offered his services to the former Republican senator but that Craig’s office would rather have inferior legal representation than hire an outspoken gay attorney.
Nickerson said that he recently beat a nearly identical case on appeal. He said that a key part of his argument is that if the conduct does not take place in front of a third person, i.e., other than the decoy cop and the subject, than it is “not offensive to the persons present.” He offers a primer on lewd conduct defense on his web site.
What I admire about Nickerson is his courage battling for a traditionally unpopular clientele, gay men charged with sex crimes. He time and again has exposed (the first of many awkard puns) police anti-gay bias, and he has won civil cases against municipalities whose police forces arrest solely on the basis of sexual orientation. My role in many of his cases, from Bakersfield to Gold Country, was to document lewd heterosexual acts in public.
Nickerson outlined many of the issues of these police decoy operations against gays in a classic dust-up with host Bill O’Reilly. He gave it right back to the host when O’Reilly asked him “if he had any proof” of lewd heterosexual conduct in public. (Mr. O’Reilly must not get out of the studio much.) He brought up his “investigators.” And oh yah, I have a shoebox of some steamy tapes that I shot. (I could sell the footage of the Fresno one…..) When you live in the Bay Area you forget that not all places are so tolerant.
So I spent a few weekends hanging out in parks with my video camera. I was a paid pervert, documenting heavy petting. Naturally, Nickerson used the footage to show that police have a double standard. Nickerson also told me that police would base these decoy operations on “public complaints.” Yet when Nickerson suboenaed police for such reports of prior complaints, lo and behold, the law enforcement agencies couldn’t find them. From a practical standpoint, I think police should use resources on more serious matters. I am a man of the world, been in a healthy cross-section of public toilets, yet have never been solicited for sex in a men’s room.
Nickerson said that he must be having an impact on governments, at least in Northern California, because he has not had any sting clients lately and therefore has not had as much need for my services.
One of my all time favorite probes for him was “the case of the replica porno booth.” It all started when his client, a successful software executive, got busted for lewd conduct at the Not Too Naughty Bookstore in conservative Livermore, California. The undercover cop wrote in his report that he had seen the man exposing himself while watching some cinema in a little booth in the store.
So the case went to trial. For the jury we made a booth of the exact dimensions. I testified that with the low light conditions in the store, angle of sight from the officer to our client’s, um, lap area, that there was no way the officer could have seen the defendant exposing himself. The jury agreed and the accused got off.