Larry Craig to File Motion to Withraw Plea Monday

By Jeralyn, Section Other Politics
Posted on Sun Sep 09, 2007 at 08:03:58 PM EST
Tags: Larry Craig (all tags)

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Larry Craig's lawyer Billy Martin said today he will file papers with the court in Minnesota tomorrow seeking to withdraw Craig's guilty plea.

Martin would not disclose the grounds, but said he was not concerned about Craig's political survival.

My job is to get him back to where he was before his rights were taken away," Martin said.

I'm still thinking, as I've been since August 30th, that the principal ground will be that the plea form (pdf)Craig mailed in did not advise him of his right to counsel. (Video here, about 3 minutes in.)

As other grounds, there's the argument that the facts he admitted to don't constitute a crime and in my view, a much weaker argument that he was illegally arrested because he was on his way to vote in DC and the Constitution prevents lawmakers from being arrested on their way to a vote.

Update: CNN has more, including statements from a source hinting at the grounds. All grounds will go to his plea not being made intelligently and knowingly because of his rights' violations.

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Larry Craig to File Motion to Withraw Plea Monday | 23 comments (23 topical)

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Fine (none / 0) (#1)
by Che's Lounge on Sun Sep 09, 2007 at 08:09:10 PM EST

Then charge him with perjury for lying to a judge about his guilt.

: Great idea! (none / 0) (#2)
by 1980Ford on Sun Sep 09, 2007 at 08:11:58 PM EST

Then Bush can commute his sentence and let him off the hook.

: they can't use an uncounseled statement (none / 0) (#3)
by Jeralyn on Sun Sep 09, 2007 at 08:24:09 PM EST

that was contained on the form if the judge finds the form violated his constitutional right to be apprised of his right to counsel. The statement will be thrown out along with the plea. No chance of perjury.

If I ever need a lawyer how do I get (none / 0) (#4)
by seabos84 on Sun Sep 09, 2007 at 08:37:38 PM EST

you?

interesting ... strategies

of which I know nada.

BTW, I know 2 wrongs don't make a right

(my Irish Catholic grandmother was a kindergarten teacher !!)

BUT, I don't care how Craig is flushed. I've lost a couple of jobs to crap bosses / NO money to fight for my rights ...

although, for 35 and 50 grand a year jobs, the 250k or more you'd need (years of trial, laywers fees AND paying the bills while saving the world) hardly seems worth it - just get another 35 or 50 job.

rmm.

so, (none / 0) (#5)
by cpinva on Sun Sep 09, 2007 at 08:48:38 PM EST

the good, conservative, law n order senator will get off on a technical ground?

i think this might actually qualify as true irony. certainly more so than rain on your wedding day.

che', i believe that would be the "fruit of the poisonous tree" theory. for the same reason evidence gathered in violation of the 4th amendment can't (hopefully) be used against you.

frankly, the statute describing the sen.'s purported crime seems kind of ambiguous, at best. who decides when a "regular person" would be offended or frightened? i think the prosecutor may just have opened a can of worms that the legislature would have preferred stay closed.

as for the undercover officer, he best pray he doesn't get called as a witness, which he has to be, if the case goes to trial. being subject to cross-examination may well prove a career and personal killer for him, in the hands of the right attorney.

geez, i hope they video it for youtube. you just can't buy entertainment like that!

there's nothing technical (5.00 / 3) (#6)
by Jeralyn on Sun Sep 09, 2007 at 08:56:45 PM EST

about a failure to be advised of your right to counsel when pleading to a crime that carries a possible jail sentence. It's about as substantive and important a right as there is.


: That was my take... (none / 0) (#16)
by NMvoiceofreason on Mon Sep 10, 2007 at 12:18:59 AM EST

He's a Senator (none / 0) (#26)
by NMvoiceofreason on Wed Aug 29, 2007 at 12:20:36 PM EST
First, he should be brought before the ethics cmmtte.
Second, his motion to withdraw "absent the benefit of counsel" will be granted by the court. Wouldn't happen for Jose Padilla (or Juan Padilla for that matter) but it will for him.
Ethics cmmtte. will postpone review until court case is concluded.
Trial will come and testimony will show he did nothing except ignite the perverted imaginings of a gay undercover cop's lurid imagination. He will still be convicted.
Ethics cmmte. will move to censure and ask he give up his cmmte. assignments.
GOP will have gone into meltdown , approval near 10%
I say GO FOR IT!
Many disagreed:

[new] No way he gets a trial (none / 0) (#39)
by txpublicdefender on Wed Aug 29, 2007 at 02:19:39 PM EST
By his own admission, he chose to plead guilty without talking to a lawyer because he didn't want it to get out in the press or to his family. How is that possibly a basis for withdrawing a guilty plea? Thousands of people plead guilty under a much greater amount of coercion than that--they are sitting in jail and, without the funds to post bail, can only get out by pleading guilty. They don't get to withdraw their guilty pleas. Neither will he.
On the issue of a trial, if he had a jury trial, and he were an ordinary Joe, I think chances of acquittal would be good, actually. When I worked in Dallas, we won a lot of these cases, and that is a very conservative county. The behaviors described are vague enough that jurors can be reluctant to convict beyond a reasonable doubt. Of course, a lot of the vice cops in Dallas were skeezy, and didn't often make good witnesses. I'm not sure how his celebrity would affect the outcome, though. One thing that I think would not play well against him at all would be the stuff about him essentially pulling the "I'm a U.S. Senator, buddy. What do you think about that?" routine. That, I think, would be pretty damaging.

: jeralyn (none / 0) (#19)
by cpinva on Mon Sep 10, 2007 at 05:59:58 AM EST

i was being fascetious. i thought the italics were kind of a dead giveaway. apparently, i was wrong.
it still qualifies as irony.

And... (none / 0) (#13)
by Patrick on Sun Sep 09, 2007 at 11:22:38 PM EST

He's not getting off. Just withdrawing a plea means the DA can still proceed with charges if that is their desire.


Regular Person (none / 0) (#18)
by NMvoiceofreason on Mon Sep 10, 2007 at 12:41:46 AM EST

Regular person and common man standards are used throughout most statutory codes. They are shorthand for "juror".

(Snarky comment that in the legal profession, the shorthand for anything is three pages long).


This (none / 0) (#23)
by scribe on Mon Sep 10, 2007 at 09:53:48 AM EST

So, the good, conservative, law 'n' order senator will get off on a technical ground?
i think this might actually qualify as true irony. certainly more so than rain on your wedding day.

will make a liberal out of him, yet.

I'd suspect he'a already starting to see the wisdom of liberal positions on things like, um, constitutional rights for the accused. Wait until he starts getting into things like liberal positions on procedural due process and (shudder) substantive due process.

Just a question to toss out there: do any other lawyers take the time, in counseling clients, to explain to the client what the rights are and why they are important and, moreover, how they came to be enforceable? Things like saying "the Warren court decided in 1967 that ..." Particularly when it's a client who's ranted about conservatism in the past?


Now that he withdraws his plea (none / 0) (#7)
by Maryb2004 on Sun Sep 09, 2007 at 08:57:32 PM EST

I assume that they prosecute him on both of the original charges? As I recall they dropped the other charge in return for him pleading to the lesser charge. I just looked through the Larry Craig posts here and I didn't see anyone analyze the elements of the other charge.

Here's the statute (none / 0) (#9)
by Jeralyn on Sun Sep 09, 2007 at 10:23:33 PM EST

It's Minn. Stat. § 609.746. The pertinent section says (my emphasis in paragraph 1 to get you past the multiple choice legalese):

(c) A person is guilty of a gross misdemeanor who:
(1) surreptitiously gazes, stares, or peeps in the window or other aperture of a sleeping room in a hotel, as defined in section 327.70, subdivision 3, a tanning booth, or other place where a reasonable person would have an expectation of privacy and has exposed or is likely to expose their intimate parts, as defined in section 609.341, subdivision 5, or the clothing covering the immediate area of the intimate parts; and
(2) does so with intent to intrude upon or interfere with the privacy of the occupant.

I'd also note (none / 0) (#10)
by Jeralyn on Sun Sep 09, 2007 at 10:25:52 PM EST

that Craig said all the stalls were full and he was looking through the crack in the door to see if the occupant was almost done. In other words, he didn't have the intent to intrude, he just had to go and was trying to find the stall most likely to empty first.


I guess we'll find out if he's credible to a jury (none / 0) (#12)
by Maryb2004 on Sun Sep 09, 2007 at 10:48:27 PM EST

with respect to intent.

But ... to see if the guy was almost done and find the stall most likely to be empty first? I'd like to see him testify to the creepy idea that he could evaluate how far along someone was by looking at them.

I don't know much about men's room protocol but in the ladies room if someone was standing outside the stall peeking through the crack so I could see the color of the person's eyes it would be annoying to say the least. Because everyone knows that you look under the door - you don't look through the crack. There's not even a question - I've never seen anyone walk up and peek through a crack, they all look under the door for feet.

If the person did it more than once I'd be in favor of having them arrested.

The police report doesn't say how many times Craig did this but he did it for 2 minutes. That's a long time.


He did say that, (none / 0) (#14)
by Patrick on Sun Sep 09, 2007 at 11:27:22 PM EST

But you and I know that's BS. In order to get to this particular restroom he had to leave the secure area, passing who knows how many other restrooms, go back through security to return to catch his connecting flight, all while he was also entitled to use the VIP loung which was located near his gate, had private bathrooms and courtesy food and beverages. He went there full knowing why, and that's how it will appear to any jury of they hear the case. He did have the intent, and it is clear if you look at the totality.


: Great points about (none / 0) (#20)
by ding7777 on Mon Sep 10, 2007 at 06:59:32 AM EST

leaving the secure area (and passing mutiple restrooms on the way) but how do you know he was entitled to the VIP lounge?

Not in a restroom (none / 0) (#8)
by livesimply on Sun Sep 09, 2007 at 09:00:25 PM EST

OK. I understand that gay folks look for sex/love connections like others. I have been "hit" on by lesbians several times and I have considered it a compliment, however; a restroom is different. One should be able to expect privacy to do their "business." It is an invasion of privacy to be hit on in a restroom. A bar, even o the street, OK, but NOT a restroom. It is invasive under any circumstances.

General question (none / 0) (#11)
by joejoejoe on Sun Sep 09, 2007 at 10:47:33 PM EST

Do defense lawyers see a lot of these poorly designed forms or glitches in the plea process that lack legal requirements?

Because Jeralyn and others were on this pretty quick.

Yes (5.00 / 1) (#15)
by Jeralyn on Sun Sep 09, 2007 at 11:39:49 PM EST

we see it in forms and also when we order plea hearing transcripts. I vacated my first plea in 1980 for a client who had gotten life as a third strike for breaking into an empty warehouse to sleep. He was an addict. It was some years after his plea and when I ordered the transcript, I found that the judge had failed to inform him of the elements of the offense to which he plead. The plea got vacated. The client died of cancer in jail right before the decision vacating the plea came down.

In federal cases, prior convictions increase the criminal history score and the final sentencing range. We always look for uncounseled pleas to try and set them aside, even if entered years before and in state courts, so that they come off the criminal history score.

So, yes, we're trained to do that.


Technical defects (none / 0) (#17)
by NMvoiceofreason on Mon Sep 10, 2007 at 12:33:02 AM EST

...in warrants, pleas, etc. are often "glossed over" by the courts. There is an entire line of cases on this that I will not bore you with.

In most cases, it comes down to the judge. Hanging judges never find defects substantive, bleeding heart judges rarely find them constitutional.

Since he is under probation, he is still under the sentence. If he had completed all of the sentence, and had no consequences following from it, it would be very hard to get most judges to overturn it.

Another ground for withdrawal is the simple unconstitutionality of the arrest itself due to the speech and debate clause, http://en.wikipedia.org/wiki/Larry_Craig ("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.")


Why doesn't the (none / 0) (#21)
by ding7777 on Mon Sep 10, 2007 at 07:02:26 AM EST

Miranda warning (which he aknowleged) cover this?


: Miranda (none / 0) (#22)
by Deconstructionist on Mon Sep 10, 2007 at 08:51:18 AM EST

warnings pertain to the right to remain silent and to consult with an attorney prior to police questioning. The warnings are not intended to and do not advise people of their rights as pertain to the trial process and the waiver of those rights (including, notably, in this case, the right to counsel).