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Sen. Larry Craig Lawyers Up

Sen. Larry Craig has retained Washington lawyer Billy Martin to determine his options in his Minnesota disorderly conduct case.

Martin most recently represented NFL player Michael Vick in his dog-fighting case. He also represented Monica Lewinsky's mother in her grand jury appearance.

Martin says:

Martin said, "The arrest of any citizen raises very serious constitutional questions, especially when that citizen says that he is innocent and pled guilty in an attempt to avoid public embarrassment.

Senator Craig, like every other American citizen, deserves the full protection of our laws. He has the right to pursue any and all legal remedies available as he begins the process of trying to clear his good name."

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    Why Bother (none / 0) (#1)
    by LimaBN on Sat Sep 01, 2007 at 09:38:15 PM EST
    Your previous remarks about the deficiency in the form used for Senator Craig's guilty plea (i.e., lack of specific waiver of right to counsel) were well made.

    Now that Senator Craig has agreed to resign, why would he bother with appealing the case?  Wouldn't the prosecutor prefer to go ahead with a trial, rather than cut a deal, thereby encouraging everyone else who has entered similar pleas to come back to court?

    And wouldn't Senator Craig prefer to keep his excuses and prideful self-denial by keeping things as they are?

    the only benefit I can see (none / 0) (#2)
    by Jeralyn on Sat Sep 01, 2007 at 09:54:47 PM EST
    is the hope that if the plea gets vacated, the prosecutor would offer him a deferred prosecution.

    A deferred judgment doesn't help him because he'd have to enter a plea, even though it later would be vacated if he stayed out of trouble for a year or two.

    Under a deferred prosecution, the case gets continued for a year or two without any plea and at the end of the time, if he didn't get in further trouble, the case is dismissed. No plea, no sentence, no record.

    I think it's pretty clear he can withdraw his plea because the plea form didn't advise him of his right to counsel. If lawyers in MN routinely get deferred judgments or prosecutions for first time offenders on these type of misdemeanors, a prosecutor might agree he should as well.

    I suspect Billy Martin will engage in discussions with the prosecutors before filing to withdraw the plea. He'll know if the prosecutor intends to stand firm and insist on a trial if he withdraws the plea, or if he or she is amenable to a deferred prosecution. It's worth the phone call.

    I agree a trial is not in Craig's best interest, but it's certainly worth a try to negotiate for a deferred pros.

    Parent

    MN Does Have Pre-Trial Diversion (none / 0) (#3)
    by Jeralyn on Sat Sep 01, 2007 at 10:17:44 PM EST
    and deferred prosecutions:

    [Rule]30.01 By Prosecuting Attorney

       The prosecuting attorney may in writing or on the record, stating the reasons therefor, including the satisfactory completion of a pretrial diversion program, dismiss a complaint or tab charge without leave of court and an indictment with leave of court. In felony and gross misdemeanor cases, if the dismissal is on the record, it shall be transcribed and filed.



    Parent
    Pre-trial Diversion Statute (none / 0) (#4)
    by Jeralyn on Sat Sep 01, 2007 at 10:26:07 PM EST
    Minn. Stat. § 401.065

    I won't reprint the whole thing but here's the key:

    pretrial diversion" means the decision of a prosecutor to refer an offender to a diversion program on condition that the criminal charges against the offender will be dismissed after a specified period of time, or the case will not be charged, if the offender successfully completes the program.

    Again, the prosecutor would have to agree. If there's a city policy that diversion isn't extended for these kinds of crimes, he's out of luck. From a 1998 case:

    Where city did not recommend diversion programs for patrons of prostitutes, district court's stay of adjudication of defendant's solicitation charge on that basis was an improper interference with prosecutorial discretion


    Parent
    If he can withdraw his plea, (none / 0) (#5)
    by jimakaPPJ on Sat Sep 01, 2007 at 11:20:43 PM EST
    why should he settle for anything less than a trial? He is very much in an all or nothing situation.

    Parent
    Isn't he already limited to collateral attack? (none / 0) (#6)
    by Beldar on Sun Sep 02, 2007 at 12:56:22 PM EST
    Jeralyn, your point about the flaw in the written form by which Craig pleaded guilty is a very technical one, but let's assume that you're right.

    Let's assume that Craig has, consistent with Sen. Specter's advice, decided to face the risk of being re-charged with the more serious peeping count (a "gross misdemeanor," in the double entendre language of the Minnesota law, as opposed to the ordinary misdemeanor of disorderly conduct to which Craig pleaded guilty) and to face the additional risks that a trial would produce publicity and possibly new facts which would be even more embarrassing.

    Let's assume further that a very glib lawyer can find a way to frame the motion to withdraw the plea that sidesteps the whole question of how Craig was possibly prejudiced by the form's failure to repeat what he already had been told when the arresting officer Mirandized him.  (Never mind that he's been voting on revisions to 18 U.S.C. as a senator for twenty years and that every American not in a coma for the last thirty years knows those rights from TV.)

    Let's further assume that based on his claim of factual innocence, a trial judge is willing to find that he's met the "manifest injustice" standard of Rule 15.05.

    The plea was accepted and the conviction entered on August 8th.  But no motion for new trial (or, more properly since this was a plea, to vacate the judgment) was filed within 15 days thereafter, which seems to be what Rule  26.04 requires. Nor was a notice of appeal filed within 10 days, which appears from Rule 28.02 to be the deadline for ordinary misdemeanor convictions (as opposed to a very generous 90 days for gross misdemeanors and felonies).

    Hasn't the trial court lost plenary power already? Hasn't the conviction become final and unappealable as a matter of law just based on the calendar?

    Isn't Craig now restricted to some sort of out-of-time collateral attack?

    Of course, I'm not admitted in Minnesota, and my Westlaw subscription doesn't include their cases. But isn't it likely that Minnesota, like most states, will require an even higher showing than "manifest injustice" for a collateral attack? Isn't it essentially certain that instead of cutting the defendant some slack and letting him dodge the "prejudice" angle (which a sympathetic trial judge might permit for a pro se defendant as part of a direct, timely attack), any trial or appellate court considering a collateral attack is going to insist on Craig's testimony that he was, in fact, unaware of his right to counsel (including court-appointed counsel if he were indigent) at the time he entered his plea?

    I'm not being snarky; I'm just curious if you've considered this already and there's an answer I'm unaware of. Thanks!

    Oh, never mind (none / 0) (#7)
    by Beldar on Sun Sep 02, 2007 at 07:08:57 PM EST
    Did some more hit or miss research, even without Westlaw. Apparently Minnesota is very generous and doesn't have any sort of bright-line deadline for filing under 15.05.

    Parent
    I was just about to point that out (none / 0) (#8)
    by Jeralyn on Mon Sep 03, 2007 at 10:25:34 PM EST
    in answer to your first comment. There is no set time limit on withdrawing pleas. Some have been withdrawn after a year or more.  

    Parent