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Larry Craig Post-Arrest Statement : Listen and Read Along

MSNBC has obtained Sen. Larry Craig's post arrest interview. You can listen to the audio and read the transcript(pdf).

Shorter version: He never confessed.

I'll be discussing whether he can withdraw his guilty plea and other issues in the case on Dan Abrams' MSNBC show tonight, 9pm ET. [Update: video of the segment on plea withdrawal is here.]

Update: Sen. Craig pleaded guilty by mail, not in person. So there is no oral advisement. Check out his petition to plead guilty he submitted by mail. It seems to me to be missing a very important component: advisement of the right to counsel.

More...

It's not enough for the defendant to say he is proceeding without counsel. He must be advised of his right to counsel and waive that right. (State v. Vieburg, 404 N.W.2d 312, 314 (Minn. App. 1987.)
An accused has the right to withdraw his plea of guilty upon establishing a denial of his right to counsel. McMann v. Richardson, 397 U.S. 759, 767, 25 L. Ed. 2d 763, 90 S. Ct. 1441 (1970); State v. Waldron, 273 Minn. 57, 139 N.W.2d 785 (1966); see State v. Seebold, 280 Minn. 241, 246, 158 N.W.2d 854, 857 (1968); Reiff v. State, 41 Wis.2d 369, 164 N.W.2d 249 (1969). This conforms with A.B.A. standards. See ABA Standards Relating to Pleas of Guilty (Approved Draft, 1968), 2.1. There is no indication on the record that Vieburg was ever advised of his right to counsel. Not only must a defendant be informed of his right to counsel before pleading guilty, he must make a knowing and intelligent waiver of that right on the record. Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1973). We cannot presume that Vieburg was adequately advised and understood his rights. See State v. Nordstrom, 331 N.W.2d 901, 904 (Minn. 1983).
Being advised of Miranda rights after an arrest is not the same thing as being advised of the right to counsel before pleading guilty. The former can't substitute for the latter. Also, Rule 15.01 of the MN Rules of Criminal Procedure, applicable to misdemeanor pleas, provides :
Before the court accepts a plea of guilty to any offense punishable upon conviction by incarceration, any plea agreement shall be explained in open court. The defendant shall then be questioned by the court or counsel in substance as follows: ....3. Whether the defendant knows there is a right to the assistance of counsel at every stage of the proceedings and that counsel will be appointed for a defendant unable to afford counsel.
The rule on whether he can withdraw a guilty plea is 15.05:
The court shall allow a defendant to withdraw a plea of guilty upon a timely motion and proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice. Such a motion is not barred solely because it is made after sentence. If a defendant is allowed to withdraw a plea after sentence, the court shall set aside the judgment and the plea. Subd. 2. Before Sentence. In its discretion the court may also allow the defendant to withdraw a plea at any time before sentence if it is fair and just to do so, giving due consideration to the reasons advanced by the defendant in support of the motion and any prejudice the granting of the motion would cause the prosecution by reason of actions taken in reliance upon the defendant's plea. Subd. 3. Withdrawal of Guilty Plea Without Asserting Innocence. The defendant may move to withdraw a plea of guilty without an assertion of not guilty of the charge to which the plea was entered.
Based on the failure of the plea petition to advise him of his right to counsel, I'd say Craig should be able to withdraw his guilty plea. Then, the issue, as LNILR wrote, is would he want to? Given that we've already heard all the details of what happened in the bathroom, and that Sen. Craig denies the officer's account and interpretation as to everything but the foot bump, I don't see what he has to lose -- unless there's some way that the prosecution can convince the court to allow similar incidents into evidence (if they have witnesses to it) to show "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident," or to challenge Craig's credibility if he takes the stand at trial and insists he would never do such a thing because he isn't gay.
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    I was thinking (5.00 / 1) (#28)
    by Jeralyn on Thu Aug 30, 2007 at 09:09:02 PM EST
    as I drove to the studio about how this case is becoming like one of those missing white girl cases.  It has bumped Iraq and Gonzales' resignation, far more important stories, off the networks.  Just goes to show how sex and guilt sells in America. I wonder what people in other countries are thinking of our media, that we go 24/7 on an apparent bathroom tryst while glossing over the substantive issues.

    excellent appearance , TL! (none / 0) (#33)
    by scribe on Thu Aug 30, 2007 at 10:55:10 PM EST
    The whole point of this case being revealed when it was, was to knock Gonzo and Iraq and new FISA off the networks.  That's what I wrote elsewhere on the site this afternoon.

    Listening to the cop saying "I don't do media" and "this is embarrassing" and all the rest tells me not that the cop is a decent guy, but rather that he was arm-twisting the Senator by threatening to do just that.  Anyone who says that interrogation (actually, the setup for it) wasn't coercive doesn't know anything about coercion.  

    And this story was too good to stay secret for long.  Anyone who's spent half a minute around cops knows they're probably the second-worst bunch of gossips in the world (a lot of lawyers I know say judges are the worst, though their gossip is more about who's moving up or down, etc.), and that Sgt. So and so nailed a United States Senator while trolling the mens' room would not (could not) stay secret.

    So, the Rethugs held this story in a thin folder in someone's man-sized safe for a time when they really needed it.  Like within a few hours of Gonzo flaming out.  They get rid of the Gonzo story and an electoral liability next year at the same time, if this works out the way everyone thinks.

    I think the professor agreed with TL rather strongly on the right-to-counsel issue.  It just seems odd to me that a court, any court, would allow a defendant to plead to other than a non-moving traffic violation (i.e., a parking ticket) by mail.  The use of such a plea form and the importunings to plead (how easy it is, how it will all go away) even before the Miranda-izing strikes me as a shakedown racket by the airport police....

    Parent

    That is well said (none / 0) (#34)
    by glanton on Thu Aug 30, 2007 at 10:55:58 PM EST
    Jeralyn.  But in the end, the blame for this (bathroom) wall-to-wall exposure has to fall, not on the media or even the media consumer, but on the politician himself.

    This case in itself (Craig getting caught with his pants down) on the (naked) surface may be no more substantive than the Cult of the Missing White Female stories.  But the difference is, Craig's fiasco points up something very substantive.  

    After all, if he and his compatriots didn't get on television every two years and do everything possible to stoke homophobic sensibilities, then maybe it wouldn't be this HUGE sensation when he gets caught (drumroll) with his pants down.

    The relentless attacks homosexuals have been weathering at the hands of the GOP every two years is a substantive thing to talk about, in my opinion.  


    Parent

    Of course, it not only the MSM (none / 0) (#37)
    by oculus on Fri Aug 31, 2007 at 02:20:45 AM EST
    that has focused on Craig's arrest and plea; the blogs have given this plenty of attention too.

    Parent
    Crusing and resignation (1.00 / 1) (#32)
    by diogenes on Thu Aug 30, 2007 at 09:41:39 PM EST
    If being convicted for cruising is a sufficient cause for politicians to resign, then I suspect a lot more Democrats would be vulnerable (although I suppose the San Francisco police force doesn't enforce such a law).

    I can't believe it's a crime..... (none / 0) (#38)
    by kdog on Fri Aug 31, 2007 at 09:30:48 AM EST
    to make a pass at somebody....but then again I'm the knucklehead who wonders why lots of things are illegal.

    Parent
    Not Just Somebody (none / 0) (#39)
    by squeaky on Fri Aug 31, 2007 at 10:38:24 AM EST
    I guess it is illegal to make a pass at a policeman. Their discretion if and when to arrest. Evidentially there is quite a bit of histoty around the practice:

    Such scandalous behavior has been uncovered at YMCAs (originally built as boarding houses for World War I soldiers), park restrooms, and transit station restrooms since the early 20th century. Typically, men who had sex with each other in these restrooms were caught by plainclothes investigators who pretended to accept their suitors' advances (and, in some cases, were quite passionate about their ... investigations) before booking them.

    TPM H/T Molly Bloom


    Parent

    Is there a transcript of the change of plea? (none / 0) (#1)
    by oculus on Thu Aug 30, 2007 at 04:54:58 PM EST
    Have you seen the plea form? Best lines of interview: DK: Okay. I don't want to get into a pissing match here. LC: We're not going to.

    He plead by mail (none / 0) (#15)
    by Jeralyn on Thu Aug 30, 2007 at 06:07:24 PM EST
    the form is here. I've also updated the post based on this form.

    Parent
    Thanks. Your update on no advisal of (none / 0) (#19)
    by oculus on Thu Aug 30, 2007 at 07:02:21 PM EST
    right to counsel is crucial.  Any cases interpreting "reasonable" as to time to request setting aside the plea?

    Parent
    It's strange that the form (none / 0) (#40)
    by Deconstructionist on Fri Aug 31, 2007 at 11:01:35 AM EST
      informs  of the other rights one  is waiving (P 9)but does not expressly inform of the right to counsel.

      I would not be surprised if some revisions to that form are made. Often such  forms also have a place for people to sign or initial right next to the waivers rather than just a signature line at the bottom.

      I had assumed with it being a jailable offense that he appeared in court to plead and there would be a plea colloquy, but I think you are right that he has a good argument that ON IT'S FACE the only record does not show he was advised of and waived counsel and so he should be allowed to withdraw the plea on the basis it was not knowing, intelligent and voluntary.

      I know some will say "He's a freaking United States Senator and the form mentions "attorney" more than once and that he also contacted the court saying he needed contact information so his attorney could call, so there is no way he didn't know about his right to counsel"  but properly I think the Court should consider only the 4 corners of the documents comprising the record.

    Parent

    You have a good point on (none / 0) (#2)
    by scribe on Thu Aug 30, 2007 at 05:03:35 PM EST
    "he never confessed".  But, withdrawing the guilty plea is an entirely different matter.

    I love the way the cop questioned him -
    "Okay."

    "Um-hum."

    "And."

    "I'd expect something like this from someone out of the hood."

    "You're a respectable guy."

    He let the weight of Craig's own status do all the work of pressuring Craig into talking, for him.  

    Frankly, (and, for all the Republicans out there, you need to start screaming this as loudly as you did for Scooter), Craig was innocent and the victim of overzealous prosecution.  

    He shouldn't have pleaded guilty because this was a defensible case.  Even assuming he did reach down under the divider, with a he said-he said, there's a good chance he could have gotten reasonable doubt at trial out of the conflict between his testimony and the cops.

    and the peeping charge? (none / 0) (#3)
    by Molly Bloom on Thu Aug 30, 2007 at 05:16:05 PM EST
    I admire the trial lawyers who want to try the case, but I am not so sure its all that winnable.

    What were Craig's hands doing underneath the stall divider? Wide stance seems a bit ludicrous to me too?



    Parent

    Did you see this (5.00 / 2) (#5)
    by Maryb2004 on Thu Aug 30, 2007 at 05:28:18 PM EST
    very funny diary about the wide stance?

    Parent
    I did now (5.00 / 1) (#6)
    by Molly Bloom on Thu Aug 30, 2007 at 05:30:43 PM EST
    Thank you.

    Did you see Olbermann's dragnet video last night?



    Parent

    I did now (5.00 / 1) (#20)
    by Maryb2004 on Thu Aug 30, 2007 at 07:11:56 PM EST
    thanks :)

    Parent
    Good One! (none / 0) (#11)
    by squeaky on Thu Aug 30, 2007 at 05:45:57 PM EST
    Craig sd. he had to spread his legs (none / 0) (#8)
    by oculus on Thu Aug 30, 2007 at 05:37:13 PM EST
    wide when he lowered his pants so the pants wouldn't slide. Reasonable, no?

    Parent
    Very Funny (none / 0) (#10)
    by squeaky on Thu Aug 30, 2007 at 05:45:16 PM EST
    And anatomically correct enough to turn Craig's story on its head.

    Parent
    Classic. (none / 0) (#13)
    by sarcastic unnamed one on Thu Aug 30, 2007 at 05:53:12 PM EST
    But I do wonder whether the straightest of straight senators rides sidesaddle on the thunder mug.


    Parent
    Another Uncomfortable (none / 0) (#35)
    by squeaky on Thu Aug 30, 2007 at 11:43:51 PM EST
    Public mens room hangup.

    via digby

    Parent

    "Embarrassing, embarrassing. (none / 0) (#4)
    by oculus on Thu Aug 30, 2007 at 05:27:16 PM EST
    No wonder we're going down the tubes."

    Parent
    Should've used the Gonzales Beauty Contest Defense (none / 0) (#7)
    by jerry on Thu Aug 30, 2007 at 05:35:59 PM EST
    I don't recall what I was doing in the bathroom.

    I am responsible for what happens to me in the bathroom yes, but my cortex just supervises, if my hands and feet were selecting people using in appropriate procedures, I had no way of supervising that.

    I can't recall.

    Officer, I am trying to recall, but I can't recall.

    I don't remember.

    Ya know, I don't even think I could find Minneapolis on a map!

    Plea vs Confession (none / 0) (#9)
    by tnthorpe on Thu Aug 30, 2007 at 05:40:01 PM EST
    may be important from the legal angle, but I'm not a lawyer. Craig's history with the page scandal and this imbroglio aren't going to be erased by a trial that finds him innocent. Playing footsie in the stalls isn't family values and Craig knows that. He looks like a hypocrite now no matter what he pleas or meant to plea or was made to do by a newspaper reporter.

    There's a classic sociological work by Laud Humphreys on cruising in public bathrooms: Tearoom Trade: Impersonal Sex in Public Places, published by Northwestern in 1970. Though this has nothing to do with Craig's actual case, he is fairly typical of guys who do it, and it's surprising how little the codes have changed since then.

    I've already learned more (none / 0) (#12)
    by Molly Bloom on Thu Aug 30, 2007 at 05:53:10 PM EST
    in 2 days about bathroom crusing here and here then I learned in my entire life. It these are true, it does appear that Craig was cruising



    Wow (none / 0) (#14)
    by squeaky on Thu Aug 30, 2007 at 06:07:15 PM EST
    Never would have guessed about that ritual.  This is hilarious:

    In the 1970s, some men frequenting the popular bathrooms at Bloomingdale's in New York would hide their legs by standing in a pair of shopping bags.

    From TPM Reader TB's historial bit it seems that Craid is just plain old fashioned and nostalgic for when that was the only pubic place to have a 'date'.

    Parent

    I'll be watching J. (none / 0) (#16)
    by Big Tent Democrat on Thu Aug 30, 2007 at 06:28:08 PM EST
    halftime of the game.

    Heh.

    Gimme a break (none / 0) (#17)
    by eric on Thu Aug 30, 2007 at 06:45:52 PM EST
    This is a standard Minnesota plea form.  It was probably promelgated by the Minnesota Supreme Court.   To question it is silly.

    Yes, we allow people to plea by mail.  It is silly to think that Craig didn't know he had a right to a lawyer when he read that thing.

    Note:  we record all interrogation here.  No question  about the Miranda here, is there?

    Correcting (none / 0) (#18)
    by eric on Thu Aug 30, 2007 at 06:57:59 PM EST
    I looked at this and compared it to the plea form available from the Minn. Supreme Court.  The standard form does have a "Right to Attorney" section whereas this one does not.

    The Craig form looks very similar to ones used in Hennepin County, but the newer Minnesota form available from the Supreme Court does have this waiver.

    I doubt it makes a big difference, but I thought that I would correct myself.

    Parent

    Scooter redux? (none / 0) (#21)
    by Mimir on Thu Aug 30, 2007 at 07:45:18 PM EST
    What if, in their zeal to bring in evidence of  similar acts, the prosecution opens the door to Craig's demand that the Idaho Statesman reveal its sources, ostensibly to prepare an effective defense?

    Legal is legal, political is political (none / 0) (#22)
    by rdandrea on Thu Aug 30, 2007 at 08:22:39 PM EST
    For all intents and purposes, he's toast.

    If he beats a misdemeanor, so what?  His career is over.  He's a freakin' Republican for Chrissake.  Who's more homophobic than the average Republican?

    yikes (none / 0) (#23)
    by eric on Thu Aug 30, 2007 at 08:25:16 PM EST
    OMG, on MSNBC, the reporter questioned why this was recorded.  Recording is required in Minnesota.  State v. Scales, 518 N.W.2d 587 (Minn. 1994)

    good appearance jeralyn (none / 0) (#24)
    by ksh on Thu Aug 30, 2007 at 08:29:54 PM EST
    I'm not a criminal attorney, but I think it would be difficult to maintain a conviction on this.  I say "maintain" because I imagine, but don't know, that there's some sort of misdemeanor court that routinely finds folks guilty on the DA's recommendation....where would it go from there?  To a court that would consider the underlying facts or no?

    By the way, I did think Craig's "entrapment" remark was interesting. People usually don't say "I was entraped" unless they get caught doing something they wouldn't have done if they weren't lead to doing it.

    I think "entrapment" as it comes out of his mouth was a mistake on his part, it infers he was doing something he shouldn't have and it's just not fair he got caught.

    Jeralyn Part 2 (none / 0) (#25)
    by Big Tent Democrat on Thu Aug 30, 2007 at 08:36:33 PM EST
    Jeralyn's good.

    Gawd forbid, I need a criminal laywer, she's on my speed dial.

    Thanks , Big Tent (5.00 / 1) (#29)
    by Jeralyn on Thu Aug 30, 2007 at 09:12:37 PM EST
    you just made my night!

    Parent
    Entrapment (none / 0) (#26)
    by BDB on Thu Aug 30, 2007 at 08:38:47 PM EST
    Would be a huge mistake as a defense since it then brings up the issue of "pre-disposition."  I can't believe Craig wants evidence in about that.

    In any event, I don't expect him to actually challenge the plea.  What's the benefit?  The facts are out there, but this won't dominate the news cycle that much longer.  If he actually tries to undo the plea, then that's more to report.  And if he succeeds, then you get trial coverage, which won't happen immediately.  If he wants to run for re-election next year, the last thing he needs is a trial on this next spring or summer.

    I have to think Craig's end game is what it has always been, for this to go away as quickly as possible.  Bringing up possible legal defenses may get folks talking about how he may not have been guilty, which might help it go away or at least lessen the damage to him.  Actually proceeding through the legal system again, will only keep the matter alive.  The longer this is on the front page, the worse it is for him.

    He can't use entrapment (none / 0) (#27)
    by Jeralyn on Thu Aug 30, 2007 at 09:04:42 PM EST
    without admitting the crime. Entrapment requires you to admit you did the deed -- the defense is that but for the cop's provoking conduct, you wouldn't have. Craig is insisting he didn't do the deed, so he can't claim entrapment.

    Parent
    Noble Position (none / 0) (#30)
    by womanwarrior on Thu Aug 30, 2007 at 09:17:46 PM EST
         Jeralyn is true to the profession:  She will fight for even a gigantic hypocrite's constitutional rights.  I am proud to know you, Jeralyn.  
         But if I were the Senator, I would leave it and go live a good life on my campaign fund.  And Ted Haggard will soon be finished with his counseling classes and he can cure Larry.
         I feel sorry for my clients who have to make the choice he made, but somehow, I don't feel sorry for a Republican senator who denies who he is and pulls out his Senator card and says, What do you think of that?  
          Wouldn't it be nice if the Republican homophobes could learn something from this?  They liked Larry and yet he is a homosexual or perhaps bisexual.  But they don't learn, because there is so much fear of sexuality in this country.  Maybe we should send Larry a copy of Angels in America to watch.  Sigh.  
     

    Prof. Steve Simon (none / 0) (#31)
    by eric on Thu Aug 30, 2007 at 09:41:24 PM EST
    from my law school was on.

    They didn't really allow him to say much.  I think that after he said that the officers comments about the resolution of the case and before the Miranda were on "thin ice".

    But, of course, right after that, he was given the Miranda (on tape), and asked if he wanted to talk, and then, he did talk.  It is the reason why we record all of this here.  There can be no question about what was said and when.  All jurisdictions should adopt Scales and require recording of all custodial interogation.

    It helps all involved to avoid allegations of wrongdoing after arrest.

    Should a Lawmaker know about Right to Counsel? (none / 0) (#36)
    by MSS on Fri Aug 31, 2007 at 12:52:30 AM EST
    I know that Craig is screwed, no matter what. And the arrest notice should probably have had a sentence about Right to Counsel.

    But wouldn't you think that a lawmaker should know he has the right to counsel? Not to mention, he asked for time to ask questions of his attorney ... before he decided he had not yet seen an attorney.

    Implicit Notification of Right to Counsel? (none / 0) (#41)
    by AdrianLesher on Fri Aug 31, 2007 at 05:40:42 PM EST
    The form is certainly replete with provisions which make it clear that the defendant could use an attorney. Of course, it doesn't tell Craig that if he can't hire an attorney, one will be provided for him, and it doesn't make it clear that proceeding without an attorney may be to his detriment. However, I wonder if the repeated references to an attorney are sufficient notice of the right to counsel (at least for a non-indigent defendant like Craig).

    not according to (none / 0) (#42)
    by Jeralyn on Fri Aug 31, 2007 at 05:49:15 PM EST
    the MN statute and case law. It's a pretty glaring defect. Maybe he signed another paper acknowledging the right that hasn't been published, but if this is the only document, I think it's invalid.

    Parent