Larry Craig to McConnell: I'm Staying if My Plea is Withdrawn

Sen. Larry Craig told Sen. Mitch McConnell today he will finish out his term in the Senate if he's successful at getting his plea withdrawn.

Senate Minority Leader Mitch McConnell (R-Ky.) told reporters that he spoke with Craig this morning. Craig told him that if he could "dispose" of the guilty plea he made last month after being accused of soliciting sex in a Minnesota airport men's room, "it would be his intention to come back to the Senate and deal with the Ethics Committee case . . . and to try to finish his term."

"He is going to try to get the case in Minneapolis dismissed," McConnell added.

I'm sticking by my earlier comments that his guilty plea was defective for failing to advise him of his right to counsel and contain an acknowledgment by him that he understood the right and was waiving it. Minnesota law is very clear on that. His guilty plea form is here.

It shouldn't even require a hearing. A Judge could grant the motion based on the paperwork. I won't be surprised if the prosecutor confesses the motion. I also think Craig's statement to McConnell is based on Billy Martin thinking there's a good chance the Judge will rule on his motion to withdraw the plea within the next three weeks.


Once again, 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/span> 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.

Rule 15.05, the Minnesota rule on plea withdrawal states:

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.

MN law holds a manifest injustice occurs when a plea is not accurate, voluntary or intelligent. The intelligent requirement is the operative one here -- it insures that the defendant understands the charges, the consequences and his rights under the law. One of those rights is the right to be represented by counsel. Without a finding he understood that right and was waiving it, the plea fails to meet the "intelligent" requirement.

That he waited two months to sign the plea form, negotiated it himself or stated he was not factually innocent don't cure the defect.

MN Rule 15.02 requires the Court, prior to accepting a guilty plea, to ask a misdemeanor defendant whether he knows there is a right to assistance of counsel and that counsel will be appointed if he can't afford counsel. That wasn't done here.

MN has forms to use for the purpose of advising pro se defendants and for pleading guilty. No one has reported Craig signed one and sent it back by mail with his guilty plea.

It appears that the prosecutor drafted the guilty plea form and that a critical advisement was omitted. If this is the case, Craig should be allowed to withdraw his plea.

Update: This AP report quotes law professor Steve Simon saying the same thing. Prof. Simon and I were on the Abrams his and Dan's attention. (Video here, see 3 minutes in.)Simon agrees now:

....in Craig's case "there are some very serious problems with the validity of that plea" because of the possibility that Craig may not have specifically waived his right to an attorney. The police officer's Miranda warning to Craig covers only the police interrogation not the later court process. In his plea agreement Craig waived five specific rights, including the right to a trial, but not his right to an attorney. Hennepin County's standard plea petition includes a waiver of a right to an attorney but that wasn't used in Craig's case, Simon said. ...Minnesota's judicial rules require a defendant who doesn't use an attorney to waive that right, and such an omission has been the basis for withdrawing other guilty pleas, Simon said. He added that because Craig did not use an attorney, the prosecutor has the burden of showing the plea was valid. If Craig had had a lawyer, the burden would have been on the senator to show the plea was invalid.
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    MN Rule 15.05 (none / 0) (#1)
    by anesting on Wed Sep 05, 2007 at 05:47:18 PM EST

    Thanks for your trustworthy analysis, which we have learned to expect from the Libby affair and the Duke case!

    You suggest in your earlier comment on Craig's guilty plea by mail that MN rule 15.05 requires that a defendant be advised of his right to counsel and waive that right. But in your previous comment's citation  of rule 15.05, one of the key passages you cite apparently applies only to pleas involving incarceration.

    "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."

    Since Craig was charged with a misdemeanor crime, the penalty for which does not involve incarceration, does MN rule 15.05 still apply to the charge against him?


    It did involve incarceration (none / 0) (#2)
    by Jeralyn on Wed Sep 05, 2007 at 05:48:34 PM EST
    He got a ten day suspended sentence. The offense was punishable by jail time as well as a fine.

    and the statutory language (none / 0) (#3)
    by scribe on Wed Sep 05, 2007 at 06:24:09 PM EST
    is that the offense be "punishable by incarceration" which means, in plain language, that if you can go to jail for it (not that the judge gives you jail), then the rights Craig was denied do attach.

    I said it a week-plus ago - this is a defensible case and he shouldn't have been cowed into pleading.  

    Even though I was wrong initially in rejecting his claims.


    "Cowed into pleading." (none / 0) (#4)
    by oculus on Wed Sep 05, 2007 at 06:26:34 PM EST
    By whom? His fear the press would discover the arrest and hope the press would not discover the change of plea? Have to assume he exercised free will in filling out the form(s) and mailing to the court in Minnesota.

    Here's what I don't get (none / 0) (#5)
    by pontificator on Wed Sep 05, 2007 at 06:54:48 PM EST
    He says he won't resign if his guilty plea is overturned by September 30.  However, even if he had an ironclad clase, as long as the government opposes him there is no way such a decision would be rendered by September 30, especially since he hasn't even filed papers yet.  At best the parties will still be briefing the issue.

    So what does he have in mind?

    Does he plan to file a dramatic brief later in September, and then say that he won't resign until the judge rules?  In other words, yet another flip-flop (since as of now he's promising to resign if the matter is not resolved by 9/30)?

    The action is plea withdrawal (none / 0) (#7)
    by cboldt on Wed Sep 05, 2007 at 07:17:10 PM EST
    Senator Craig isn't saying he has to be "found" not guilty. Only that the plea bargain be reversed, and he be facing the charge. He's not saying a decision on the charge will be rendered by the end of the month.

    I think this is pretty funny on the "able to make a decision and stick by it" level. Just another point of proof that the word of a Senator is worth little -- or that it requires close construction and answers to many questions before it can be considered "definite."

    I'm looking forward to continued jokes -- seeing as how the punching bag just signed up for another round.


    Maybe he'll switch parties and (none / 0) (#8)
    by oculus on Wed Sep 05, 2007 at 07:18:59 PM EST
    lobby for support from gays and lestians and progressives.  

    I dare him to try to withdraw the plea (none / 0) (#6)
    by eric on Wed Sep 05, 2007 at 07:10:26 PM EST
    I posted this elsewhere, but here it is.

    Craig's plea came before Judge Larson in the Fourth District.  I know Judge Larson. He is very fair. However, I do not think that he or any other Judge likes being lied to. Which is what Craig is going to be doing if he says that he didn't take that plea willfully and with full knowledge of his rights.

    In any case, I say let him out of his plea. Let's see what a jury says about these charges. Not just the disorderly conduct, but also the gross misdemeanor peeping charge. I don't think Craig has the guts to take a gross misdemeanor to trial, and I think the prosecutor is done giving this guy any deals.

    Will Craig have to lie to get his plea withdrawn? (none / 0) (#12)
    by Beldar on Wed Sep 05, 2007 at 09:27:17 PM EST
    Your characterization of Judge Larson may be absolutely correct — and I've never met a judge yet, in 27 years of practice, who doesn't hate being lied to!

    I can't tell for sure, however, but your comment seems to presume that there was an in-person appearance by Craig when he agreed to the plea. There wasn't. And there's no statement in the written plea agreement that says anything about Craig's right to, or waiver of, his right to counsel. So there's nothing yet that could be characterized as Craig having "lied" other than his statement that in the motion that he was not then claiming to be "innocent." That's a legal conclusion, though, and while it's definitely problematic for Craig and his team, it's not necessarily fatal to their efforts.

    In crafting the motion to withdraw, I would agree that Craig and his counsel need to be careful not to over-promise. It would be ludicrous on its face to assert, for example, that Craig was absolutely unaware that he had any rights to counsel.

    But he and his lawyers can probably create a truthful statement that he didn't appreciate the full range of options that representation by an attorney might offer.  If (as I suspect is likely) there is a local history of some guilty pleas involving deferred adjudication (by which he could have deferred his trial date until successful completion of a probationary period without incident, after which the charges would have been dismissed with no finding of guilt), he might well be able to say, entirely truthfully, that without the advice of an attorney, he didn't appreciate that that was a possible basis for a plea negotiation.

    Some defendants also assert — at least some of them truthfully — that while they understood they had a right to an attorney if they went to trial, they didn't know they had a right to an attorney to advise and represent them in pretrial proceedings (including plea negotiations). For a long-time lawmaker, though, that might stretch credibility.

    Alleging a causal connection between the absence of the required language and Craig taking the plea, in other words, is going to be difficult. But it's not impossible.


    A consideration (none / 0) (#9)
    by brianj52 on Wed Sep 05, 2007 at 07:28:55 PM EST
    Considering your argument, how would you respond to these two comments at TPM from MN Defense attorneys.

    Re the TPM commenters (none / 0) (#11)
    by Beldar on Wed Sep 05, 2007 at 09:12:25 PM EST
    The first commenter at TPM says: "The form provides a place where Craig waived his right to counsel." That's just wrong. It should have. It didn't. He also writes that the dismissal of the peeping charge indicates a negotiation of some sort, and that that's "not consistent with Craig's characterization of the sequence of events." But that's wrong too — at his initial press conference, Craig stated (accurately) that he had pleaded to a lesser charge to try to make this thing go away.

    The second commenter admits he hasn't read the form Craig actually signed, and "guesses" that it contains "an extensive and detailed explanation of his rights." But again, with respect to Craig's right to counsel at every crucial stage of the proceedings, there is no such explanation — contrary to the requirement of Rule 15.02 (as made applicable to mail-in pleas under Rule 15.03).

    I dunno how Jeralyn would respond, but with due respect to them and Dr. Marshall, I'd say these two commenters don't know what they're talking about.


    I agree with you (none / 0) (#13)
    by Jeralyn on Wed Sep 05, 2007 at 09:28:27 PM EST
    those commenters are wrong. Everyone can read the form for themselves. It's not rocket science.

    There is no advisement of his right to counsel, no acknowledgeent by Craig of the right and no waiver of the right.

    This is like crim pro 101, it's really obvious.


    IANOL (none / 0) (#14)
    by squeaky on Wed Sep 05, 2007 at 09:30:19 PM EST
    but from all I have read I have to agree. I thought that maybe I had missed something, but it is true. The 2 commenters are misinformed.

    Regarding the degree of Craig's delay (none / 0) (#10)
    by Beldar on Wed Sep 05, 2007 at 09:04:48 PM EST
    Jeralyn, you wrote above:

    That he waited two months to sign the plea form, negotiated it himself or stated he was not factually innocent don't cure the defect.

    But much of the original delay between the arrest and the entry of the plea is actually attributable to Sgt. Karsnia, the prosecutors, and/or the courts.

    Craig was arrested, booked, and "released pending complaint" was on June 11th. But Sgt. Karsnia didn't finish preparing the paperwork that went into the complaint for several weeks. According to Sgt. Karsnia's and another officer's supplemental reports, Craig returned to the airport police station on June 22, complaining that he hadn't heard anything yet and asking for a "contact person." Karsnia told Craig that he had spoken with their city attorney on the previous day, and that his "next group of criminal complaints would be completed next week and that [Craig's] case should be included in that group."

    Karsnia finished revising his reports and signed and swore to the complaint form on June 26. It appears (as best I can make this out) to have been processed by the prosecutors and filed with the clerk on July 2. Then the combined complaint and summons form presumably was mailed to Craig (at his Washington home address), with a specified appearance date of July 25 at 9:30 a.m.

    The form motion to plead guilty was signed by Craig on August 1st. My inference is that some time in early- to mid-July, he spoke with someone in the prosecutor's office, possibly prosecuting attorney Christopher Renz (whose name is on the complaint), and that resulted — perhaps through active negotiation, or perhaps it was the prosecution's take it or leave it offer — in the prosecution sending him the motion to enter his guilty plea. Presumably the July 25th appearance date was continued by agreement so that he could review and sign the motion.

    The court accepted the plea, dismissed the peeping charge, and entered judgment on the disorderly conduct charge, all on August 8th. So there's no reason for anyone to suggest that Craig was dragging his feet at all at any point until then. Rather, the foot-dragging, if there is any, that could result in his motion to withdraw his plea arguably being "untimely" would have to be between August 8th and now. But in my admittedly non-exhaustive look at the Minnesota cases on Rule 15.05, the shortest time I came across that had been held to make a motion "untimely" was two months, and as you've pointed out, there are other cases in which literally years have passed without the motion being deemed untimely.

    Bizarre footnote: Congressional Quarterly reported on August 29th: "Craig said he did not consult a lawyer before pleading guilty, but this week he hired a local expert: Chris Renz, a former prosecuting attorney for the Metropolitan Airports Commission in Minneapolis." Amazing (and ethically troubling) if true.

    Quite a coincidence (none / 0) (#15)
    by cboldt on Wed Sep 05, 2007 at 09:35:00 PM EST
    That the "local expert" Craig hired is the same person who was prosecuting the case against him.

    Makes him an "expert" both as to the subject in general, and to this very case! Heheheh.

    That says something about BOTH of them.


    July 20 letter from Renz to Craig (none / 0) (#16)
    by Beldar on Wed Sep 05, 2007 at 09:37:51 PM EST
    Just came across this report, but I haven't seen a link yet to the letter:

    A July 20 letter from prosecutor Christopher Renz to Craig laying out the proposed plea agreement made several references to an attorney. "Please review the document and to the extent that you wish, review the same with legal counsel," the letter said. The Metropolitan Airports Commission, which prosecuted the case, declined to make Renz available for comment on Wednesday.

    Do they have conflict of interest in Minnesota? (none / 0) (#17)
    by JSN on Wed Sep 05, 2007 at 09:39:34 PM EST
    of course (none / 0) (#22)
    by eric on Thu Sep 06, 2007 at 03:25:26 PM EST
    Of course we do and I am sure it is just a mistake in the story.  There is no way a prosecutor could be hired to defend the same case he prosecuted.

    why would craig (none / 0) (#18)
    by cpinva on Wed Sep 05, 2007 at 09:51:13 PM EST
    have to lie about anything? if MN law mandates that the accused be officially notified of his/her right to legal counsel, with respect to the guilty plea, and he/she wasn't, whether they were actually aware of this right is moot, as a matter of law.

    as i understand it, sen. craig could be a supreme court justice, one presumably well versed in law, and it would still be moot, if they'd not been officially notified. whether the presiding judge likes it or not is also moot.

    since MN has a standard form specifically for this event, which includes the notification, i expect the prosecutor may have to explain his failure to use it.

    Is a rules violation enough, or is harm required? (none / 0) (#19)
    by Beldar on Wed Sep 05, 2007 at 11:30:05 PM EST
    cpinva, if Craig had brought a motion to withdraw his plea (and vacate the judgment of conviction based on it) within 15 days after the plea was accepted and the judgment was signed, I would agree with you that a mere showing of the violation of the Rule 15.02 (as incorporated for mail-in pleas by Rule 15.03) would be enough. The harm would effectively be presumed.

    In a traditional collateral attack by habeas corpus, though, brought after the time for a direct challenge in the trial and appellate courts has passed, the petitioner has to show not only the violation of a fundamental constitutional right, but also that he was prejudiced by it. The classic holding on that was the Supreme Court's blockbuster ineffective assistance case, Strickland v. Washington. That's why I originally thought Craig had no chance.

    The Minnesota cases under Rule 15.05 though, as Jeralyn first pointed out and I independently confirmed, have been very flexible, both in deciding what's an "untimely" motion, and in how strict a showing of harm they've required (in addition to showing a violation of rights). I don't think the prosecutors are going to be foreclosed from arguing that even if there was a violation of Rule 15.02 — which there patently was — it may have been harmless.

    In that respect, it may indeed turn out to be important whether there's any shifting of the burden of proof — which is normally on the petitioner — based on the fact that Craig had no counsel of record. If that does indeed shift the burden onto the State, then they may have to negate the idea of harm, which I think would be practically impossible without stronger admissions from Craig than anything we've yet seen.


    ineffective assistance of counsel (none / 0) (#21)
    by Deconstructionist on Thu Sep 06, 2007 at 07:13:17 AM EST
     is judged entirely differently than lack of counsel.

      Where a defendant has counsel, the standard for finding reversible error due to ineffective assistance is VERY difficult to meet. Counsel is presumed to have acted effectively and the defendant must overcome that presumption by showing that counsel acted in a manner which no competent attorney would have done under the circumstances and then only if the defendant meets that very tough standard does the court consider prejudice, meaning that but for ounsel's unprofessional errors the outcome might have been different.

      When we are talking about denial of counsel, the defendant need show no incompetence in the pro se proceeding   and prejudice from the complete lack of counsel is presumed. I'd say to the extent that  presumption is rebuttable-- and in many jurisdictions it is not-- it seems be impossible for the State to carry that burden, because it would have to show there is no reasonable possibility that the outcome would have been different had he had counsel. I think the mere existence of the arguments that Craig had legal or factual defenses he did not raise defeats that argument.

      I will again stress that i think thecourt must look only to the RECORD in the case to determine the two key questions. Whether Craig was advised that he had the righty to be represented by counsel and whether he knowingly waived that right. The plea form linked here last week clearly lacked both those essential components.

      I don't believe any weight should be given in court to  the speculation (however compelling) that a United States Senator would know such things, particularly after reading a form that mentioned "attorney" (but not in the context of right or waiver) several times. Unless there is evidence in the record that he was advised and waived I think he will be allowed to withdraw his plea and the parties are returned to square one.


    Coercion of a Plea (none / 0) (#20)
    by Lacy on Thu Sep 06, 2007 at 06:52:15 AM EST
    I think the issue of coercion is being overlooked regarding a plea like that made by Craig.

    It is obvious that a citizen accused of sexual misconduct in a public rest room, but is then hustled to plea to a different minor charge rather than face a humiliating public trial, is being coerced.

    This cop wrote a deceptive report that(1)Eliminated his own bizarre activity in peeking out through cracks, then claiming those who noticed him were peeking in at him,(2) Fabricating the notion that there were empty stalls at a time he had no such knowledge in order to explain away why Craig had to wait for a stall,(3)Claimed impossible abilities to interpret normal actions like sitting one's luggage by the door of the stall as sexually related,(4) Claimed false ability to interpret moves by strangers as wanting to have sex with him.

    News about this airport rest room has stated that it had been a place a few airport employees used to make contacts.  But after their arrest, police had to get creative to protect their easy and safe assignment, and generate numbers.  It became a sinecure for LE, but a disgrace for society and justice.

    There was no case here prosecutable absent the coercion of humiliation of a target at having to face a public trial.  Everything this cop alleged could be interpreted as meaningless or a reaction to his own bizarre behavior, which he falsely minimizes.  Many people might have been shooting him "birds" under his stall for just sitting there and hustling while others had to wait....Oh but wait! That could magicly become a sign you want sex! "You're busted mister. Oh but here's a plea deal for you."

    Were you there? (none / 0) (#23)
    by eric on Thu Sep 06, 2007 at 03:29:21 PM EST
    This cop wrote a deceptive report that(1)Eliminated his own bizarre activity in peeking out through cracks, then claiming those who noticed him were peeking in at him,(2) Fabricating the notion that there were empty stalls at a time he had no such knowledge in order to explain away why Craig had to wait for a stall,(3)Claimed impossible abilities to interpret normal actions like sitting one's luggage by the door of the stall as sexually related,(4) Claimed false ability to interpret moves by strangers as wanting to have sex with him.

    And you know this how?


    It's in the report (none / 0) (#24)
    by Lacy on Thu Sep 06, 2007 at 03:45:38 PM EST
    The fact the cop entered a stall at 1200 in which he reports he could see just the feet of the two men on either side...that the stalls he could see remained occupied....that Craig approached at 1213 hrs waiting for a stall...and that the two of them left stalls at 1219. The cop made unsubstantiated claims that at 1200 and 1219 the stalls were not all full, but that has no legal bearing on the only relavent time of 1213.

    The rest is right in or readily deducible from the report if you read it objectively.