Larry Craig Files Motion to Withdraw Guilty Plea

Update: Sen. Craig's motion to withdraw his guilty plea is available here.


The Idaho Statesman reports Larry Craig's motion to vacate his guilty plea have now been filed. CNN has more. I'm waiting to find a copy and will post them when available.

Some reported quotes:

“While in this state of intense anxiety, Senator Craig felt compelled to grasp the lifeline offered to him by the police officer; namely, that if he were to submit to an interview and plead guilty, then none of the officer’s allegations would be made public,” said the documents filed in Hennepin County District Court.

“Thus, rather than seek legal advice from an attorney to assist him in publicly fighting these charges and potentially protract the issue, Senator Craig’s panic drove him to accept a guilty plea, the terms of which offered him what he thought was a private, expeditious resolution of this matter,” the papers said.

Craig’s filing argued that his guilty plea was not “knowingly and understandingly made.” It also argued that the evidence was insufficient to support the plea as a matter of law.”

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    Give 'em hell Larry! (5.00 / 1) (#5)
    by kdog on Mon Sep 10, 2007 at 01:02:08 PM EST
    Nobody deserves to be entrapped and blackmailed.

    hold on with the "entrapment" defense (none / 0) (#13)
    by Deconstructionist on Mon Sep 10, 2007 at 02:53:11 PM EST
      I'm guessing (actually, I'll bet)  he won't raise entrapment because if you raise entrapment as an affirmative defense you open the door for the prosection to admit evidence tending to show predisposition to commit the crime. Evidence that would never be admitted under Rule 404 (b) is clearly admissible to refute claims of entrapment.

      He can get the notion of a "set-up"in front of the jury by cross-examining the officer as to bias and credibility but he won't raise entrapment unless he's nuts.


    Agreed (none / 0) (#14)
    by Jeralyn on Mon Sep 10, 2007 at 03:00:04 PM EST
    And to raise entrapment, you have to admit doing the crime. That's why it's an affirmative defense, like self-defense. Think of a drug case. You can't raise entrapment if you're denying you sold the drugs. An affirmative defense means you committed the charged act but have a legal defense for doing so.

    Craig isn't admitting his acts constituted a crime.


    Good point (none / 0) (#17)
    by Deconstructionist on Mon Sep 10, 2007 at 03:24:12 PM EST
      I should have made clear what "affirmative defense" means. Because it appears clear acquittal is not Craig's primary goal even if he did not apparently have a history, he would likely not plead entrapment when his overriding goal is "I'm not gay" as opposed to "I'm not guilty."

      I do think a good lawyer can get him acquitted by pointing out that the cop's whole raison d'être was to invite communication and then claim it was sexually motivated. That's not an "entrapment" defense but merely casting doubt on both the officer's veracity as to the facts and the reliability of the officer's interpretation of those facts. In doing so though you do give any juror so inclined reason to think about the police tactics and reject them.

    The "peeping" charge might be a closer call but, I'd say the cop's claiming it was 2 minutes is not particularly believable and it doesn't take long to notice eye color even if the cop did not have the entire interview to study his eyes.

       It's certainly not beyond belief that someone would peer into the crack because he didn't want to bend down to see if he could see feet under the door. If the cops really want to do this "right" they need two cops in the room. one in the stall and one outside both to be the party who might reasonably be expected to be alarmed and to corroborate the toilet boy's version. Also, that cop could testift to important facts such as whether any of the other stalls were unoccupied while Craig was standing waiting, etc.


    Not very familiar with vice prosecutions? (none / 0) (#24)
    by Beldar on Mon Sep 10, 2007 at 07:57:10 PM EST
    Deconstructionist, essentially ALL vice prosecutions and all vice convictions are based on officers who "invite communication and then claim it was sexually motivated."

    The vice cop dressed up as a hooker who propositions you doesn't really want to have sex with you for money. Neither did the vice cop pretending to be a john who approaches a streetwalker. That will be cold comfort for either the john or the prostitute as they sit in jail.

    Similarly, whether this particular vice officer was subjectively "alarmed" or not isn't the standard. The conduct should be viewed — notwithstanding that news report of the California appellate decision you cited, Jeralyn, which I think is wrong if it holds what the press account says it did — from a hypothetical objective outsider's standard.  Otherwise, someone's extreme homophobia may become the basis for a disorderly conduct conviction just because someone else entered the bathroom, and no vice officer (who had, after all, a hidden Glock 9mm) could ever prove up much of any disorderly conduct violation.

    Sgt. Karsnia's report is detailed quite literally down to the minute.  I would expect him to testify, for example, that when he wrote in the report that Craig stood three feet from his stall gazing intermittently into it, making eye contact with Karsnia, for about two minutes, that that was based on Karsnia checking his wristwatch, and that the margin of error is something like 5 seconds.  There's no particular reason a jury would not believe that.  I haven't seen him in person, but I can infer from the way his report is written that he has considerable experience both in the field and from the witness stand. The stuff about Craig glancing down at his fingers intermittently, for example, is the sort of detail written by an officer who knows that the peeping statute requires that the peeping be done "surreptitiously," and who expects to be cross-examined on that point among many others.

    I'm not saying that the case is a slam-dunk winner for the prosecution if it's tried. I am saying that all you armchair defense lawyers ought to re-read LNILR's post  here at TalkLeft about his/her real-life experience in defending similar cases.  Real world judges and juries don't necessarily see things the way libertarian-leaning blog commenters do. They're inclined, for example, to be entirely unamused by snark like calling the officer "toilet boy."


    Well, I've never defended a (none / 0) (#42)
    by Deconstructionist on Tue Sep 11, 2007 at 07:15:07 AM EST
     bathroom hook-up case such as alleged here, but early in my career  I defended in a number of prostitution stings (both alleged hookers and johns)  and about 90% of the time the State or City chose not to prosecute once it became aware the defendant would be represented and demand a trial. The 2 cases that went to trial (both alleged prostitutes)  resulted in acquittals-- even though those cases did not require the state to prove conduct which the defendant reasonably anticipated would offend or alarm others or invade a reasonable expectation privacy.

      The prosecution success rates in these undercover vice operations is mostly due to the fact that most people, like Craig, take the easy and cheap way out and plead and not because the state has a strong case.

      As for this case, you are correct, I believe, that the standard is not whether the cop was alarmed or offended, etc. It's whether the defendant engaged in certain conduct which the defendant reasonably understood would alarm or offend, etc. anyone present. It's the lack of anyone any other than the cop to be offended AND the likely reality that a person who sits on the john for a very long period of time not defecating or urinating TRYING to attract attention is someone whom a defendant should not be found to have reasonably thought would be alarmed, offended, etc.


    Inconsistent Defenses (none / 0) (#25)
    by Peter G on Mon Sep 10, 2007 at 08:12:30 PM EST
    Jerri:  Whether you can legally plead entrapment and also deny committing the offense is a question which varies by jurisdiction.  What you say may be the law in Colorado, but it is not, for example, the law in federal court, as the Supreme Court ruled in US v. Mathews, 485 US 58 (1988) (decided as a matter of federal common law, not constitutional law). I have no idea if it's allowed in Minnesota or not, do you?   Whether you can pull off a defense of "I didn't do it, but if I did I was entrapped" in front of jury, as a practical matter, of course, is a different story.

    Minn. Law (none / 0) (#30)
    by Jeralyn on Mon Sep 10, 2007 at 10:34:45 PM EST
    As you surmised, in state court in Colorado, you cannot use entrapment without admitting the crime. Colo. has refused to adopt the Sup. Ct. Matthews case  and says it is not obligated to.  People v. Grizzle, 140 P.3d 224, 225-226 (Colo. Ct. App. 2006):

    Entrapment is an affirmative defense. An affirmative defense is one in which a defendant admits doing the criminal act but seeks to justify, excuse, or mitigate the act. It is not available to a defendant who denies any wrongdoing. A defendant must admit to having engaged in the proscribed conduct to be entitled to an entrapment instruction, however, he or she need not plead guilty in order to assert an entrapment defense.

    In MN, I didn't find any cases regarding Matthews, but I did find State v. Hage, 595 N.W.2d 200, 206 (Minn. 1999) and State v. Niska, 514 N.W.2d 260, 264 (Minn. 1994, both decided after Matthews:

    When raising the "justification defenses" of self-defense, entrapment, and duress, a defendant is required to make a prima facie showing of the defense, with the burden of persuasion then shifting to the state to prove beyond a reasonable doubt the lack of the defense.

    Specifically, we stated that "with all these defenses, the defendant admits an intent to do the prohibited act, but inextricably bound up with that intent is a justificatory motive.

    Bad thing about entrapment (none / 0) (#49)
    by txpublicdefender on Tue Sep 11, 2007 at 01:09:39 PM EST
    Even if he can use the entrapment defense without admitting the offense, he still faces a major obstacle in pursuing it.  It opens the door to evidence of his predisposition to commit the crime, which means having the prosecutor subpoena and put under oath the guy who had sex with him in the bathroom in DC (assuming they could find him and he would agree to do so).  I don't think that's a door Craig wants to open.

    State of anxiety . . . (5.00 / 1) (#6)
    by txpublicdefender on Mon Sep 10, 2007 at 01:11:56 PM EST
    I guess I have to go back and file motions to withdraw all those guilty pleas my clients entered only because they couldn't post bond, and pleading guilty was the only way to get out of jail.  

    Give me a break!

    Defendants face WAY more anxiety and duress every day, and they can't undo their guilty pleas because of it.  The fact that he moronically thought that a guilty plea in a court of record wouldn't be discovered when it involved a United States Senator doesn't mean crap.

    I think he had an excellent chance at trial, but he chose to plead guilty because he was under pressure, and that is, sadly, what defendants do around this country every day.

    If you don't mind educating a knucklehead.... (none / 0) (#9)
    by kdog on Mon Sep 10, 2007 at 01:21:23 PM EST
    if Craig is successful in getting his plea withdrawn, doesn't that set a precedent for all us poor unconnected slobs out there to do the same when we plea under undue pressure?

    Yes, (none / 0) (#11)
    by Deconstructionist on Mon Sep 10, 2007 at 01:27:10 PM EST
    if you plead in Minnesota under similar circumstances.

    I think the key words (none / 0) (#12)
    by Deconstructionist on Mon Sep 10, 2007 at 02:42:15 PM EST
    in your post are:

    "my clients"


    Not sure I understand (none / 0) (#19)
    by txpublicdefender on Mon Sep 10, 2007 at 04:28:41 PM EST
    Yes, they were represented by counsel, but they were also under just as much, if not more, pressure than Sen. Craig was to plead guilty.  They were sitting in jail, many of them living on the financial edge where missing just a few days of work could result in them losing their job and their housing.  That is pressure.  And they don't get to withdraw their plea after they get out by saying that they only pled guilty because they were under duress.  Everyone facing a criminal charge is under duress in the common sense meaning of the word.  That doesn't make it a good legal argument to withdraw your guilty plea.

    I think this is a weak case and he had a damn good chance at winning at trial if he had chosen to fight it.  When I practiced in Dallas, Texas, our office tried these cases and won quite often.  The ones in public bathrooms in the park or the mall, with little kids coming in and out when the stuff was going on, were losers, but a lot of them involved no one in the bathroom but the defendant and the cop, and the cop was showing interest, so it was pretty hard to argue that he would be offended by it; not to mention the fact that the vice cops in Dallas didn't usually make great witnesses--they often seemed skeezy.  But all that said, withdrawing a guilty plea is pretty tough, and I don't think this motion gets him there.  If he wasn't so damn paranoid about people finding out, if he had just talked to a lawyer (which would have been confidential, so it still baffles me that he didn't), this could have turned out very differently.


    you understand (none / 0) (#43)
    by Deconstructionist on Tue Sep 11, 2007 at 07:33:35 AM EST
      Your clients were all represented by counsel which makes it (rightly or wrongly) a much more difficult proposition to persuade a court to allow a post-sentencing withdrawal pf a guilty plea.

      As you state, EVERYONE is "coerced" in the colloquial sense of the word to plead guilty. Even if the defendant is out on bond and has an appointed lawyer for whome he does not have to pay, the decision to plead guilty is always the result of "coercion in the form of the threat of a harsher punishment if convicted at trial. In the absence of such "coercion" why would anyone ever plead guilty.

       The recognition of that reality is ONE of the reasons why the right to counsel should be sacrosanct. It is univerally agreed that if a defendant is DENIED counsel his conviction for a jailable offense cannot stand. The question then becomes what constitutes a denial of counsel.

      We should all support the position that counsel is effectively denied unless a defendant is expressly advised on the record of his right to counsel and then executes a knowing, intelligent and voluntary waiver of that right on the record.


    i hope that isn't the entire basis (none / 0) (#1)
    by cpinva on Mon Sep 10, 2007 at 11:54:56 AM EST
    for his motion. if so, good luck with that.

    Fine (none / 0) (#2)
    by Che's Lounge on Mon Sep 10, 2007 at 12:22:35 PM EST
    Then charge him with perjury for lying to a judge about his guilt.

    BTW this is the second time I've posted this comment.  I'm quite sure I posted as usual. Am I banned?

    Not banned, just at a disadvantage (none / 0) (#37)
    by NMvoiceofreason on Tue Sep 11, 2007 at 12:52:02 AM EST
    Most of us have the benefit of legal training and experience. For others, the separation that occurs for what is admissible and what isn't can be confusing.

    In general, what Craig said in taking the plea of guilty cannot be used against him, unless he goes back on some material fact (for instance says he never talked to the officer), then the previous statement can be used.

    You can argue different positions on an issue without encountering perjury. Arguing that you are not guilty when you previously argued you were guilty must have some legal reason behind it, absence of counsel, insufficient evidence, misrepresentation by the prosecution, bad faith, etc. Simply being afraid of bad press about being gay probably doesn't meet the standard.

    I still prefer the argument the arrest was unconstitutional because he's a Senator. That's a valid reason to withdraw the plea. The motion that was submitted was pretty poor quality, like a junior staffer at the public defender wrote it. It often raises standards for withdrawing pleas, then never demonstrates that the standard was met. Just shoddy workmanship.


    It's simpler (none / 0) (#39)
    by Beldar on Tue Sep 11, 2007 at 01:19:21 AM EST
    His statements in the motion to enter a guilty plea weren't made under oath.

    Of course you aren't banned (none / 0) (#3)
    by Jeralyn on Mon Sep 10, 2007 at 12:35:35 PM EST
    I answered your perjury suggestion on an earlier thread.

    Out of toilet paper, I was just asking... (none / 0) (#4)
    by LimaBN on Mon Sep 10, 2007 at 12:58:58 PM EST
    "Your Honor, I'm just asking you and every other judge, and all your staff members, to quadruple your work load for the next three to five years, dealing with everyone else who ever filed a guilty plea and who would now like to get a better deal than the one they took in the first place."

    "Yeah, right."

    "No, seriously, your Honor."

    "Denied.  Go ahead and appeal."

    "But your Honor, that will take another six months."

    "Yup.  Tough luck, that."

    The man is obviously (none / 0) (#7)
    by jondee on Mon Sep 10, 2007 at 01:17:46 PM EST
    having a difficult time adjusting to the harsh reality of having to give up his former life of anonymous foot-tapping and public chastisment of Gays in the Lord's (and GOP's) service.

    It's not easy giving up a whole way of life.

    Assuming (none / 0) (#10)
    by Deconstructionist on Mon Sep 10, 2007 at 01:26:06 PM EST
     the entire record is included with the exhibits, there is no affirmative advisement of the right to counsel or a waiver thereof. It appears the petition to enter guilty plea was the only document filed.

      From a legal standpoint I'm not overly impressed with the motion as I would have focused more of the counsel issue and less on lack of a factual basis but I imagine the PR concerns dictated that tactic.

    Same here, but (none / 0) (#16)
    by Jeralyn on Mon Sep 10, 2007 at 03:09:49 PM EST
    I'm wondering now if he didn't also sign and submit a form acknowledging his right to counsel and that he was waiving it.  They wouldn't have had to submit it as an exhibit in today's filing since they aren't challenging it. I wish someone would check the court file.

    I have the same gut hunch (none / 0) (#21)
    by Beldar on Mon Sep 10, 2007 at 05:54:53 PM EST
    Thanks for posting this, Jeralyn.

    The motion is way lighter on the Rule 15.02 violation with respect to waiver of counsel than I would have expected.  And the statement in paragraph 12 of Craig's affidavit (page 20 of your .pdf) — "... I did not seek the advice of an attorney on the date of my arrest, and I made the decision on that date to seek a guilty plea to whatever charge would be lodged against me" — is just extraordinarily hard to take at face value. It's also hard to square with the police reports of his later return to the airport police statement asking for a contact person to put his lawyer in touch with.

    Craig's lawyers have asked for oral argument, but not an evidentiary hearing.  Yet by submitting Craig's affidavit, they're asking the court to consider evidence outside the existing record.  I don't know Minnesota state-court procedure, but I doubt they can have their cake and eat it here.  Were I the prosecution, I'd make a hearsay objection to the affidavit and insist on an evidentiary hearing, or else that the affidavit be stricken.  And there is lots in Craig's affidavit and in the motion that would be fertile grounds for cross-examination — and lots that's not in either that would certainly be fun for the prosecution to try to get into.

    I am not particularly impressed by the quality of the motion.  I frankly think that you, I, and some of your commenters have made better arguments here and elsewhere on the internet, Jeralyn. :-)  

    But I still think there's a pretty good chance he can get his plea withdrawn.  And I still think there's a very large possibility that he'll end up, as a result, being convicted again of disorderly conduct, and this time of peeping too, after a trial that will even further trash his reputation.


    Right to counsel (none / 0) (#26)
    by Peter G on Mon Sep 10, 2007 at 08:19:45 PM EST
    No one denied the good Senator a right to counsel.  The "right to counsel" for someone who can afford counsel is the right to be represented by the lawyer of your choice whom you bring to court with you.  Craig couldn't suggest, could he, that he didn't know he had that right?  He had no federal constitutional right to be advised of the right to court-appointed counsel, both because he isn't eligible and because he wasn't facing any risk of significant imprisonment and wasn't in fact sentenced to jail.  Perhaps Minnesota law grants some more extensive right than the U.S. Supreme Court says is required by the Sixth and Fourteenth Amendments, or perhaps Minnesota bars guilty pleas without some colloquy on this subject, but even if so, I can't see where that omission wouldn't be harmless in this case, for the reasons just stated.

    The Right to Counsel (Not Indigency Related) (none / 0) (#28)
    by Jeralyn on Mon Sep 10, 2007 at 09:54:21 PM EST
    Peter, we're talking about that the plea form did not advise him of his right to counsel and that by pleading guilty he was waiving that right. It's not an issue of appointed or retained counsel. Minn. law is clear, as I've written many times, that for misdemeanors that carry possible jail time, the judge must ensure that the person knows he has the right to be represented by counsel.

    The prosecutor, who drafted the mail-in plea agreement, forgot to include that right. Craig never says, I understand I have the right to be represented by counsel and I waive that right.

    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....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).

    It may be that Craig submitted another form, like Minn. Form 11, that advised him of the right and included a waiver. But, no one has reported that.

    Also see Rule 15.05:

    Rule 15.01 of the MN Rules of Criminal Procedure, applicable to misdemeanor pleas:

       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.

    For whatever strategic reason, Craig's lawyers want to proceed foremost on the ground that his actions didn't constitute a crime. If they can get that ruling from the court via the plea withdrawal motion, they won't have to worry about a trial.  If the court just grants the motion on the failure to advise of right to counsel, they are back at square one, looking at a trial on both counts.


    Very well explained ... (none / 0) (#29)
    by Peter G on Mon Sep 10, 2007 at 10:31:07 PM EST
    and thanks.  Got it.  
    I do think that under federal standards, which is what I'm familiar with, Craig would have a burden to prove that the failure to give the required advice "prejudiced" him -- that is, that it had some effect on his decision whether to plead guilty or request a trial.  If Minnesota requires anything like the showing that would be demanded in federal court in equivalent circumstances I frankly couldn't see him prevailing on the right to counsel issue.  Was the Vieburg or Nordstrom case a post-conviction attack, as opposed to an appeal from the denial of a pre-sentence motion?  And are the requirements still the same in Minnesota now, 20 to 25 years later than when those precedents were set?  

    Vieburg (none / 0) (#31)
    by Jeralyn on Mon Sep 10, 2007 at 10:51:06 PM EST
    was an appeal of a denial of a motion to withdraw a guilty plea to driving with a suspended license. The defendant moved to set the plea aside after he got caught again.

    In his first case, he had no lawyer and wasn't advised of his right to a lawyer and there was no adquequate factual basis. When he got caught driving again, 7 months later, he got a lawyer who promptly moved to set aside the guilty plea in the earlier case. The state objected, saying he waited too lng.

    The court let him set it aside, finding the failure to inform him on the record that he had a right to counsel a fatal defect.

    It's still good law in MN. It's been cited in other cases in 2002 and 2002.


    they wouldn't have to (none / 0) (#44)
    by Deconstructionist on Tue Sep 11, 2007 at 07:38:49 AM EST
     submit it as an exhibit, but tactically it would seem unwise not to submit it if it exists. The prosecution would certainly offer it as an exhibit to the response and then get first shot at framing its significance. It's never a good idea to ignore or try to conceal weaknesses in an argument that you know  are readily available to the opposition.

      My opinion as to his chances for prevailing with the motion  would change 180 degrees if he did execute a written waiver of counsel in proper form.


    It's not an appeal (none / 0) (#33)
    by Jeralyn on Mon Sep 10, 2007 at 11:08:27 PM EST
    so there is no "entire record" submitted as there would be in an appeals court. It's just a post-conviction motion. While it contains exhibits, it's like any other motion, the lawyers include the exhibits they feel bolster their case.

    If the form was signed, I suspect the proseuctors will include it in their response pleading.

    But it's not looking like there was such a form signed by Craig.


    Too bad (none / 0) (#38)
    by NMvoiceofreason on Tue Sep 11, 2007 at 12:59:06 AM EST
    that the Senator gets the benefit of Habeas procedure (asking if custody or conviction is/was legally justified) whilke voting to strip it from the rest of us.

    Hooray for the MCA!


    I called the clerk! (none / 0) (#47)
    by Beldar on Tue Sep 11, 2007 at 11:07:53 AM EST
    Jeralyn, I splurged on a long distance call and waded through the voicemail menus to get a live deputy clerk in the Hennepin County District Courts this morning. Based on her computer records regarding the case, there does not appear to be a "Form 11" or (as she called it) a "pro se form" on file.

    She also said that there's been an oral hearing set on Craig's motion for 1:30pm on September 26, but she said there's no distinction on her computerized calendar from which she can say whether it's merely for oral argument or instead of the taking of testimony and evidence.


    I just put up a diary (none / 0) (#15)
    by scribe on Mon Sep 10, 2007 at 03:02:58 PM EST
    Thank you (none / 0) (#18)
    by Che's Lounge on Mon Sep 10, 2007 at 03:24:28 PM EST
    I must have confused the threads.

    Sen. Gordon Smith Carries on Craig's Legacy (none / 0) (#20)
    by oregon2008 on Mon Sep 10, 2007 at 04:54:43 PM EST
    Sen. Gordon Smith boasted to Oregon media that he will try to handle some of the work vacated by the disgraced Senator, now that Craig is (hopefully) on his way out.

    Craig's legacy as a shill for the timber and resource industries needs to end with his resignation- help us defeat Gordon Smith before he can pick up where Craig left off.

    Please join us at http://stopgordonsmith.com, and let your friends and family in Oregon know about Smith's real record.

    If a sitting United States senator (none / 0) (#22)
    by pete portland on Mon Sep 10, 2007 at 07:19:19 PM EST
    with money, connections and a team of attorneys at his beck and call cannot enter a misdemeanor plea without being under so much pressure that the plea should be withdrawm, then how can any ordinary Joe in America ever be held to a plea?

    ("Your Honor, when I entered that guilty plea to assault, I was too angry to know what I was doing. I just wanted to hit somebody.")

    Anyway, even if Craig had a real basis for an appeal (which he almost certainly doesn't) hasn't the time period for appeal run out here?

    And what about the general principle of finality of case disposition?

    And what about his lawyers? Can you file a frivolous motion in Minnesota without consequences?

    Not frivolous (none / 0) (#23)
    by txpublicdefender on Mon Sep 10, 2007 at 07:49:42 PM EST
    There's a difference between a longshot and frivolous.  I don't think it will be successful, but the fact that lawyers are arguing seriously about the merits of it means pretty clearly that it is NOT frivolous.  

    What he filed is not an "appeal" (none / 0) (#27)
    by Peter G on Mon Sep 10, 2007 at 08:27:05 PM EST
    You are right that the time during which he could initiate an appeal has surely run out.  In criminal cases that varies by jurisdiction, but the time limit is typically in the range of 10 to 30 days after sentencing, sometimes with exceptions allowing extensions or late filings for good cause.  A motion to withdraw a guilty plea is a post-conviction motion that can be filed when and under the conditions provided in the state's particular rules of criminal procedure.  Haven't looked up the limitations posed by Minnesota's rule.  You are right that rules of this kind create exceptions to the principle of finality, but obviously they do so as a matter of public policy because experience teaches that there are miscarriages of justice involving involuntary guilty pleas for various reasons.  Precisely because of the interest in finality, courts are typically very reluctant to grant motions of this kind.  Whether Craig's case qualifies under Minnesota's standards remains to be seen.

    Minn. doesn't set time limits (none / 0) (#32)
    by Jeralyn on Mon Sep 10, 2007 at 10:52:46 PM EST
    Peter's right, this is not an appeal of a conviction, but a post-conviction motion in the same court to set aside the plea. There is no time limit by Minn. rules.

    What happened to this case? (none / 0) (#34)
    by 1980Ford on Mon Sep 10, 2007 at 11:39:57 PM EST
    Kirby out of Florida. There were Florida Supreme Court oral arguments but I can't find the final opinion.

    He was fighting a prior DUI conviction saying he did have waive or have counsel, but they case was so old the government no longer had any records. He won at the Florida circuit but what happened at the Supremes?


    Oops (none / 0) (#35)
    by 1980Ford on Mon Sep 10, 2007 at 11:41:40 PM EST
    That should be "did not waive or have counsel..."

    This was, like, ya know, over 10 years later.

    It's late! (none / 0) (#36)
    by 1980Ford on Tue Sep 11, 2007 at 12:34:19 AM EST
    Another try:

    State of Florida v. Paul W. Kirby

    If anyone knows what happened with this case, please solve the mystery.

    Hasn't Craig waived his 5th Am rights now? (none / 0) (#40)
    by Beldar on Tue Sep 11, 2007 at 01:37:48 AM EST
    Jeralyn, I mentioned in another comment on this post that Craig's lawyers asked for oral argument, but not for an evidentiary hearing. Yet they submitted Craig's affidavit, and make arguments in their motion relying on the affidavit on both their Rule 15.02 prong and their "no factual basis" prong.

    What's to prevent the State from saying, "Fine, they want to introduce, argue, and rely on evidence that wasn't before the court when it accepted the guilty plea, we'll play along. But we object to the affidavit as substantive evidence (since even though sworn, it's an out-of-court statement made not subject to cross-examination)."

    "Sustained!" says the judge. "If you want that testimony, petitioners will need to adduce it from Sen. Craig live on the witness stand."

    "Moreover," continues the prosecutor, "even if they don't choose to call him, the State will call Sen. Larry Craig to the stand as an adverse witness."

    "Objection!" thunders Craig's lead lawyer at the hearing, "Sen. Craig can't be compelled to testify, that would violate his privilege against self-incrimination under the Fifth Amendment to the U.S. Constitution!"

    "But your honor," responds the prosecutor, "Sen. Craig has already chosen to offer affirmative testimony — by affidavit — not only on whether his waiver of counsel and entry of his guilty plea was a fully informed and voluntary decision by which he should be bound or not, but on the subject of whether there was a sufficient factual determination to support his plea. Having voluntarily tried to use his own testimony as a sword, even though our objection to the affidavit has been sustained, he's now waived his Fifth Amendment privilege, and he can no longer use that as a shield to prevent his testimony from being probed on cross-examination."

    Why wouldn't the judge say, "Proceed, Mr. Prosecutor"?

    The longer I think about it, the more I think it was spectacularly stupid for Craig's team to attach that affidavit, and that unless the prosecution drops the ball badly, he's now in for a very embarrassing hearing.  What he says in it probably can't be used independently at his trial on the merits if the plea withdrawal is successful (other than for impeachment, if he again takes the stand and then tells a different story).  But I think he's fair game now, for any purpose relating to his plea withdrawal motion.  Their argument on causation of harm was weak anyway, and the affidavit didn't really help it; they could have made the Rule 15.02 argument and argued presumed harm.  

    They could have pointed out -- as the NYT has now reported -- that other defendants, arrested in this same sting but represented by counsel, indeed did negotiate deferred prosecution deals, and let the judge take judicial notice of that to more or less bridge the causality gap.  And even if they did submit an affidavit, they could at least have limited it, and their arguments about it in the motion, to the waiver of counsel/entry of plea prong instead of opening up the entire can of worms.

    Unprovable case.... (none / 0) (#41)
    by 1980Ford on Tue Sep 11, 2007 at 03:02:35 AM EST
    Isn't that what his lawyer is really saying? There is not enough in the police report by itself to prove a crime, and what Craig would testify to makes it is all the weaker.

    I think they are going for a dismissal for insufficient evidence. The prosecution is backed into a corner now and will either have to try a case it probably can not prove or drop the charges. The prosecution is probably hoping the judge dismisses, then they can blame it all on activist judges.


    The lack of a factual basis argument, (none / 0) (#45)
    by Deconstructionist on Tue Sep 11, 2007 at 08:05:25 AM EST
     standing alone, is weak in my opinion. In the petition Paragraphs 3-5 set forth the elements and an admission to conduct establishing them.

      Certainly, it is better practice (and common practice) for a plea colloquy to include a "tell me in your own words what you did that makes you guilty of this offense?" query, but the petition does include a statement that he concedes in engaging in (unspecified) conduct which he knew or should have known tended to arouse alarm or resentment in others.

      Essentially, he is now arguing that absent his admission that he engaged in the conduct and knew or should have known it would arouse alarm, etc., the prosecution could not prove those elements beyond a reasonable doubt.  I've said several times I agree with that assertion, but that is not the standard for withdrawing a plea. I believe he would have to show that based on uncontroverted facts viewed in the light most favorable to the prosecution there is NO evidence whatsoever from which a rational fact-finder could reach a finding of proof beyond a reasonable doubt as to at least one element of the offense. Otherwise, he does not have the argument he pleaded guilty to an "offense that does not exist."

      Here we clearly have controverted facts and AT TRIAL the prosecution would not be limited to the evidence of in a police report and complaint which only needed to establish probable cause.

      I thhink the "factual basis" weaknesses help buttress the lack of counsel argument to some extent but if he knowingly waived counsel, I think he's in a tough position.


    Scale vs detail (none / 0) (#46)
    by NMvoiceofreason on Tue Sep 11, 2007 at 09:43:34 AM EST
    You see it all the time. Misdemeanors never get the attention that their big brothers (felonies) do, until one of them involves a sitting US Senator and a sex scandal....

    In most case you pay the fine and move on. Those who fight death penalty cases will turn over rocks from foreign seas, while the elephant in the middle of the courtroom goes un-noticed at the lower levels of the system.

    The court has a big problem if they grant the motion. Essentially every plea in the court is then up in the air - and potentially on the docket.

    It is such a brilliant argument - from a P.R. perspective - to say there isn't enough evidence. You thought Monica and the cigars were discussed at every watercooler? Try "WIDE STANCE" on for size. If he thought his problem would get better by doing this, he really needs to enter an NGRI plea.

    Also great is the arugment that a professional lawmaker has no clue what the law is or what the Constitution says. That will really get the home crowds to stand up and cheer for you.

    Deconstructionist, while I agree with so much of your legal analysis, Senator Craig is missing the big picture here. There are no good results for him, certainly not anything obtainable from a court. True for far too many clients, sad to say.


    I'm NOT (none / 0) (#48)
    by Deconstructionist on Tue Sep 11, 2007 at 11:16:46 AM EST
     in any way trying to imply I think Craig has, at any stage, handled things wisely.

      Engaging in some armchair psychology, it is perhaps unsurprising that someone perhaps living a "double life" would vacillate between: I didn't do anything;  oh, ok, I'll plead and get it over with;  no, I want to take may plea back because I didn't do anything; and also between: I'm not resigning; oK, I'll resign;  No, I only said I intend to resign; OK I'll resign unless ...

      I said when this first started though that just because EVERYONE ELSE sees no outcome that will hekp Craig's standing that doesn't mean there is not some psychic benefit TO HIM in an outcome that allows him to internalize these events as consistent with his not being gay. Human beings are peculiar creatures.


    There might be two layers to the brief.... (none / 0) (#50)
    by 1980Ford on Tue Sep 11, 2007 at 02:28:08 PM EST
    1. The are strong legal reasons to grant the withdrawal of the plea: no waiver of the right to counsel.

    2. Once that is granted, are there grounds to dismiss due to lack of evidence? There could be more testimony at the trial, but how much more? The prosecution will have to decide if it can prove the case and it appears that some of these cases rely on shaming someone into not fighting it even though the evidence is too weak. As the NY Times article made clear, Craig was treated not only more harshly but the evidence is much thinner.

    This could be the strategy. One problem might be prior bad acts if someone is willing to testify that he has engaged in those acts before. That he denied ever doing so might be his downfall. Seems to me other gays who want to out someone are every bit as destructive as the homophobes. Who needs enemies with friends like that?

    Prior bad acts (none / 0) (#51)
    by txpublicdefender on Tue Sep 11, 2007 at 06:54:50 PM EST
    Prior bad acts would probably not be admissible unless he opened the door with his testimony at trial or raised an entrapment defense.  The prosecution might make an argument that prior such encounters would be offered not for character but to show his knowledge of the meaning of the toe-tapping and hand-swiping, but that assumes they can even find someone to swear under oath to such things.