Some thoughts on Senator Craig's motion to withdraw the guilty plea.

I've mostly been watching this spectacle unfold, with some comments here and there.  I have come around to think this is a case where an unbiased judge will almost certainly grant the defendant's application to withdraw the guilty plea.  It doesn't happen all that often that defendants seek to withdraw their pleas and succeed in the attempt.  This is one of the cases.

The plea withdrawal motion is here.    You can read along, if you want.

I will not seek to tear apart the whole application as many might do.  It strikes me as, overall, a highly competent piece of lawyering and, more importantly, one which does not try to do too much.  "Don't try to do too much, or prove too much" is one of the lessons younger lawyers have to be taught by older lawyers.  That lesson is important because proving more than you have to, to win, is a prescription for trouble.  It gives your adversary additional places to divert your argument away from success into the Land of Distraction and Ridicule, where you end up in the Valley of Defeat.  The Senator's lawyers follow this lesson.  I'll just make a few comments and move on, noting the pages of the Senator's application as appropriate.

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.

At 10

"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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    The motion with all the exhibits (none / 0) (#1)
    by Jeralyn on Mon Sep 10, 2007 at 03:12:14 PM EST
    is now available here. (pdf). The CNN version only included some of the exhibits to the motion.  24 vs 39 pages.

    Thanks, (none / 0) (#2)
    by scribe on Mon Sep 10, 2007 at 03:36:12 PM EST
    though (1) opening it seems to do strange things in my browser and (2) it really doesn't change what I said - I spent more time looking at the brief than anything else.

    what browser are you using (none / 0) (#3)
    by Jeralyn on Mon Sep 10, 2007 at 04:26:43 PM EST
    this is a new feature at TL and if there's a bug it would help to know so we can fix it. It works fine for me in firefox and IE on my PC and in Safari on my Mac.

    I think it's IE without firefox (none / 0) (#4)
    by scribe on Mon Sep 10, 2007 at 04:55:55 PM EST
    in a circa 2003 Windows environment.

    Weird window (none / 0) (#6)
    by NMvoiceofreason on Tue Sep 11, 2007 at 01:04:39 AM EST
    PDF in browser (FireFox little, scrunched. Saved file to disk and reopened.

    Works fine (none / 0) (#8)
    by NMvoiceofreason on Tue Sep 11, 2007 at 01:17:42 AM EST
    in IE7 on an XP box.

    Get a plug-in error (none / 0) (#11)
    by 1980Ford on Tue Sep 11, 2007 at 02:51:39 AM EST
    It wants me to install Adobe Reader 8.1, though it is already installed. Using FireFox, XP and can view PDFs just fine otherwise.

    Try this link (none / 0) (#12)
    by Beldar on Tue Sep 11, 2007 at 05:14:12 AM EST
    This link is to the same .pdf file that Jeralyn posted, just cross-posted from another server.

    It works for me in (none / 0) (#16)
    by Jeralyn on Wed Sep 12, 2007 at 12:33:53 AM EST
    Firefox and IE on my PC and in Safari on my Mac. It won't open in Firefox on my Mac and Adobe has instructions but I can't make head or tail of them.

    As for the size of the document, you should have a toolbar on your adobe screen that lets you increase the document size. If you increase it to 75 or 80%, you can read the whole thing in one window in a decent print size.

    I'll have Colin of Scoophost check on the template again though. It involves embedding the pdf document within a TalkLeft template.


    Wouldn't the withdrawal of his plea ... (none / 0) (#5)
    by Ellie on Mon Sep 10, 2007 at 06:17:29 PM EST
    ... mean the return to the sequence of events his actions beyond foot tapping that were left off the record to save him embarassment?

    There was (alleged) peeping through the door crack and a hand under the divider, reaching into the next stall, included in the original charge and left out of Craig's plea. (Craig claimed he was reaching into the next stall to pick up a piece of toilet paper.*)

    If he withdraws this plea and, as his lawyer claims, returns the situation to [paraphrasing] before his rights were violated, then whatever the arresting officer agreed to give Craig the wrist slap and let him go are back on the table.

    IANAL and *ewww.

    Arrest was barred (none / 0) (#7)
    by NMvoiceofreason on Tue Sep 11, 2007 at 01:07:34 AM EST
    Under the Speech or Debate Clause, as expressed in Article I, Section 6, clause 1 of the U.S. Constitution, members of the U.S. Senate and the U.S. House of Representatives "shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place."


    The entire arrest was barred by the Constitution, the plea was unconstitutional, and it all must go away. Duh.


    Helps to read the cases (none / 0) (#9)
    by Beldar on Tue Sep 11, 2007 at 02:02:06 AM EST
    Important though it be, the Constitution is not in all things self-executing and automatic. The constitutional privilege in Article I, Section 6, that Congressmen have against "arrest" going to and from sessions would constitute an affirmative defense that Craig would have to have pleaded. He didn't; instead he pleaded guilty.

    Even if he had pleaded it, it wouldn't have mattered. In Gravel v. United States, 408 U.S. 606, 614-15 (1972) (citations omitted; and yes, it's that Mike Gravel from Alaska), the Supreme Court held:

    History reveals, and prior cases so hold, that this part of the Clause exempts Members from arrest in civil cases only.... It is, therefore, sufficiently plain that the constitutional freedom from arrest does not exempt Members of Congress from the operation of the ordinary criminal laws, even though imprisonment may prevent or interfere with the performance of their duties as Members.

    Best case for Sen. Craig, even if there weren't this caselaw, he could have gotten the arrest quashed, and possibly any statements made or evidence seized in connection with it (as fruits of a poisoned tree). It would not have prevented the State of Minnesota from re-charging him, though.

    There's a really good reason, then, that Craig's lawyer's didn't make this argument in their motion to set his plea aside. Actually, there are several really good reasons.


    Statutory Construction (none / 0) (#13)
    by NMvoiceofreason on Tue Sep 11, 2007 at 09:56:31 AM EST
    Belies the tale. Why mention Treason and Felonies, if the clause only applies to civil cases? Because it only covers those "Breaches of the Peace" (i.e. fisticuffs, back before fighting democrats went extinct) where two politicians would get together to debate an issue and fight instead. I'm aware of Gravel, and it was wrongly decided. SCOTUS made mistakes long before it became SCOTRP (Supreme Court of the Republican Party).

    The founders didn't want any executive to "put the pinch" on members of congress, local, state, or federal. That's what the meaning of the clause is, despite Gravel.

    Or do you hold that the 9th Amendment is for decoration only?


    Responding to this thread (none / 0) (#14)
    by scribe on Tue Sep 11, 2007 at 11:32:44 AM EST
    (1)  I'm aware of the Gravel case.  I agree that it may have unduly limited the immunity, though it was from the quaint old days when politicians did not take the position that they were above the law.  The point I was trying to make and suggesting the lawyer could have made would have included a syllogism something like this:
    (a) Senator Craig was on his way to DC for a session of the Senate in which he cast a vote.
    (b) Senator Craig is not a lawyer and was generally aware of his rights to unfettered travel to and from DC, as provided in the Constitution.
    (c) Senator Craig was extremely worried by the delays which the police conduct caused (he ultimately missed his flight because of them), and tried to remind them of his privilege against arrest.
    (d) Not being a lawyer, Senator Craig may not have been aware of all the ins and outs of the privilege against arrest, but he was trying to invoke it not to avoid justice but rather to facilitate his attendance in the Senate.  Given his prominence, there is little chance a United States Senator would be able to become a fugitive or remain one for very long.
    (e) Therefore, you must conclude that the conduct of the police was both intimidating and improper.
    It's a buttress to the main arguments.

    (2) The limitation to civil arrest is one of those artifacts of the law which has very little use these days, though it's still on the books.
    In Founder-times, there were several ways a person could be arrested without having committed a crime.  These included the following (that still survive today):
    (A)  The writs of capias ad respondendum ("ca. re.") and capias ad satisficiendum ("ca. sa.")

    Ca. re. is a form of initial process used instead of a summons, to start a civil lawsuit.  In its basic form, the plaintiff goes to a judge, ex parte, and makes an affidavit alleging (i) the defendant is about to leave the jurisdiction and (ii) the complaint is alleging (a) some flavor of fraud by the defendant and (b) if the defendant is allowed to leave the jurisdiction, it is likely the court's jurisdiction (over the person or property) will be thwarted.  To protect the court's jurisdiction and enable the dispute to be resolved, the Court would then issue the writ of ca. re. which would be accompanied by a warrant to arrest the defendant and hold him until such time as he made bail, the bail being set at the amount in issue in the lawsuit.  So, in other words, without this immunity a political opponent could keep a Congressman/Senator under arrest in any state (and thereby out of DC) by starting a lawsuit against him, and keep him there until he put up a large sum of money.  
    We all remember the hue and cry when "Ted Kennedy" wound up on the no-fly list and, even though his name is "Edward", the Senator from Mass. was not allowed to go back to DC via plane.  Note, too, that making the allegations is all that's needed - the lawsuit does not have to succeed for a ca. re. to issue.

    Ca. sa. is a means for enforcing a judgment for money.  It is, in short, debtor's prison.  If you think the Founders were unaware of this, think again - one of the chief financiers of the Revolution (Robert Morris) ended his days broke and in debtors' prison in Pa.
    (B)  A writ of ne exeat.
    This also arises in a civil case, and prohibits a defendant from leaving a particular jurisdiction.  Think of it as the equivalent of being out on bail.
    (C)  Contempt charges.
    Another way to get arrested is for some local judge to thing you're in contempt of a whack-o ruling.  No trip to DC for you.

    You can see the level of mischief which politicians allied with friends in the judiciary could cause, if there was no immunity against civil arrest.  Imagine the Rutherford Institute suing a Clinton and getting a writ of ca. re.....


    Thank you (none / 0) (#15)
    by NMvoiceofreason on Tue Sep 11, 2007 at 11:59:21 PM EST
    For your detailed treatment of the subject. And concise too.

    I respectfully dissent, scribe (none / 0) (#10)
    by Beldar on Tue Sep 11, 2007 at 02:04:51 AM EST
    For reasons I've expanded upon on my own bandwidth, I think the motion was an average-to-poor piece of work at best, and possibly catastrophic. Craig should have hired Jeralyn.

    One point... (none / 0) (#17)
    by Michael Gass on Wed Sep 12, 2007 at 08:09:39 PM EST
    "(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;"  

    Actually... they are NOT "immune" from arrest... (and yes, I AM a former law enforcement officer who also has a basic comprehension of the law, the constitution and English).

    (from an above comment)

    Under the Speech or Debate Clause, as expressed in Article I, Section 6, clause 1 of the U.S. Constitution, members of the U.S. Senate and the U.S. House of Representatives "shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place."

    Now... it states... "shall in all instances EXCEPT"...


    Felony (meaning crimes that are classed as felony)...


    I am not versed in Minnesota law... I don't CLAIM to be... but, I can tell you, for a FACT, that under SC law, there are laws that are classed under "breach of the peace".

    It is better to argue that the charges did not meet the criteria... instead of claiming that Congressmen are IMMUNE from arrest in transit.