Some thoughts on Senator Craig's motion to withdraw the guilty plea.
The plea withdrawal motion is here. You can read along, if you want.
At 9 This is gonna leave a mark, even though it is wholly correct as a matter of law:
"Senator Craig is not a lawyer, and like any other non-lawyer, should not be expected to understand the intricacies of constitutional law."
As a matter of law (in most states, if not all), lawyers are held to a higher standard of knowledge of the law and of their rights than are non-lawyers. Indeed, the whole "ignorance of the law is no excuse" mindset is a mostly inaccurate statement of the actual rules of law.
In many states for laypeople that slogan "ignorance of the law is no excuse" only applies to the statutory law. But, it does not apply to common law and judicial decisions interpreting either common law, statutory law, or both.
In reality, the slogan actually states an evidentiary presumption, and not a bar to using ignorance of the law (or attempting to) as an excuse. That is to say, there is a (usually rebuttable) presumption that ordinary persons of ordinary knowledge are presumed to know that the statutory law of their state says "Act X is illegal". Thus, if a case is brought alleging a defendant person did the illegal act of "X", if there is a serious showing by the defendant of the Legislature passing and the Governor signing something in the middle of the night and no one publishing anything about it, such that a reasonable person (not just the defendant) wouldn't know about the putative statute, the presumption of knowledge is then rebutted. Otherwise, the defendant is presumed to know "Act X is illegal."
This, by the way, explains those articles you see deep inside in the newspapers at the turn of the year, or the end of June, or on the third of July telling all about all the new laws that are going to go into effect tomorrow or on New Year's Day or the 4th of July. It's part of the public notice.
From what I know, the presumption of knowing the statutory law gets rebutted about once per generation....
On the other hand, even though judicial decisions are published, a large majority of average laypeople couldn't find them to begin with. Reading them is another matter and understanding them still another. When I was in law school learning to read cases, I saw a note that it was "like trying to stir cement with your eyelashes". The note was right.
So, the presumption of knowing what the law is, for laypeople, is often limited (it varies from state to state) to statutes, regulations, and the like.
Lawyers are treated differently. They're presumed to know - actually or constructively - what the law is. And that includes judicial decisions, AG opinions, etc.
The reasoning behind the distinction is that laypeople can read statutes but might not know how to find, let alone research and tease out what the law is from, judicial decisions. Lawyers, on the other hand, because they have received (lots of ) training in that sort of research, are presumed to know the common law and judicial decisions, too. That goes, a fortiori, for constitutional law.
So, as to Senator Craig, his lawyer is absolutely right in making that argument.
Still, I wouldn't have done it, because he's just going to get mocked for it, and for reasons which should be obvious to all. I think the Senator's arguments could have been made easily and without that sentence.
"Further inquiry into the allegations also would have elicited the fact that, as indicated in the transcript, Senator Craig was distracted by the fact that he might miss his flight, and seemingly unaware of the fact that police were contemplating charging him with a misdemeanor rather than with a routine citation, did not exercise his right to counsel."
I would probably have dropped in a footnote here indicating that the Senator's flight schedule was such that he was required to have been in Washington for the business of the Senate that evening, that he did in fact cast a recorded vote (IIRC it was at 5:50 PM ET or thereabouts - about 6 hours post incident) and that his concern for missing his flight was motivated by his Senatorial duties. I would also have worked in something about his business card being an invocation of his Art I sec. 6 privilege against arrest and detention, but that the panic of the arrest and threat of publicity made his invocation seemingly less-than-comprehensible.
Reasonable lawyers can disagree on this point, and the propriety of putting it in. I can see a very strong argument for letting the opposition to the motion raise the whole "He's a Senator, and you say he's not an expert in Constitutional law" argument, to be met with the rejoinders, maybe at oral argument even, of: (a) and your cops - who swore an oath to the Constitution, too - didn't know that Senators are immune from arrest while enroute to a session and didn't bother to ask whether he was so enroute when he presented his card; or (b) and your cops and prosecutor (who drafted the documents in issue) didn't respect the Constitution in their whole conduct of the case.
It could go either way.... So, don't try to prove more than you have to.
At 12-15 a nice comparison-of-precedent argument: Start off with a strong case. A man was not guilty of disorderly conduct under the statute where he photographed a 13 y/o girl in the nude, without parental consent and after misrepresenting his intentions to the girl's mother. And then a lot of other, good, comparisons of precedent. Highlight the lack of loud, boisterous, violent conduct. Highlight the lack of judicial involvement in making sure the facts match (and satisfy the elements of) the statute to which the defendant is pleading.
That's all a very useful argument and a good piece of legal drafting for students to study. If A, B, C, and D - all very egregious conduct - have been determined by the appellate courts of this state to not violate the statute, then the defendant's conduct could not have violated the same statute. It also takes away from the prosecution the potential to need a further hearing or whatever to flesh out their story. Assume everything the cop said is true: under the precedent of this state it's still not violative of the statute.
Said another way, from another context: "if it doesn't fit, you must acquit."
It doesn't fit.
Overall, a very nice, very persuasive piece of work.
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