Alex Blaze

Larry Craig's lawyers to appear in court tomorrow

Filed By Alex Blaze | September 25, 2007 4:55 PM | comments

Filed in: Politics
Tags: Christopher Renz, Frank Rich, Karsnia, Larry Craig, Minnesota, police entrapment

His day in court is the 26th of September. That's tomorrow. Consider this an open thread to speculate as to what will happen, if you're as interested in this case as I am.

You can read Craig's motion to retract his plea agreement here. You can read the prosecution's response here. Supplemental documents submitted by the prosecutor are here.

There are a few interesting things going on here. First, in the motion filed by the defense, the argument outlined by Jeralyn at TalkLeft earlier is barely mentioned (that Craig wasn't advised of his right to counsel by the court on the form used to file the guilty plea, which is required by Minnesota law). The defense raises it to show that there was a different "manifest injustice", specifically that the plea was not made knowingly and understandably because Craig did not have an opportunity to have the plea agreement explained in open court. Instead of the wording of the agreement being on its face insufficient according to state law, the defense simply says that it's part of a different manifest injustice of not having a judge explain the full consequences of the plea to him and the rights he's accorded with.

But the issue of the plea form is raised, and barely responded to by the prosecutor, who says that talked to Craig on the phone about the whole thing and told him he should get a lawyer. The case that the prosecutor attached to his memorandum says (last page of the third link above):

The postconviction court observed that respondent was unrepresented at the plea hearing and not informed of his possible self-defense claim. Minn. R.Crim. P. 15.02 governs the acceptance of misdemeanor pleas. The rule does not require the court to advise defendants of their possible defenses, but it does require the court to inform the defendants of their right to assistance of counsel. Defendants must make a knowing and intelligent waiver of their right to counsel on the record. State v. Nordstrom, 331 N.Q.2d 901, 904 (Minn.1983).

Jeralyn notes:

Second, it's the Court's job, not the prosecutor's, to advise Craig of his right to counsel. That the prosecutor suggested to Craig he seek legal advice or that Craig indicated in the plea agreement that he is proceeding without counsel is not the same thing as being advised that he has a right to counsel and waiving it. Even the case Renz attached to his memorandum on a different issue says so (see page 3.) But, since Craig's lawyers didn't raise the failure of the mail-in plea document to advise him of his right to counsel, it's a non-issue.

She decides that the mention of the rule and the violation that the defense gives is just not enough to make that argument. I'd have to say that the defense does a pretty good job of outlining all the places where a lawyer would have helped Craig make better decisions that would have ultimately ended with him walking away without any punishment (like challenging the fact that statements made before he was read his Miranda rights were used against him, specifically his "No!" in the stall, and the cop's implication that a guilty plea would keep this out of the public eye), but I don't know if that allows the defense to "go there" in court tomorrow as a separate violation. Everything they need to make the argument that it's a manifest injustice on its own is right there in the motion.

In fact, the prosecutor's response goes into some length about how the mail-in plea deal outlined the rights Criag knew he was signing away in paragraph 9 and uses it to justify the other charges of manifest injustice made by the defense. If that paragraph is so important, even to the prosecution, in showing that the rights Craig waived were waived intelligently and understandably, then wouldn't the fact that the biggest one was omitted from the document prove that there was a manifest injustice? (Real lawyers, not fake ones like me, can tell me if/that I'm wrong there in the comments.)

The defense is also saying that there's not enough evidence to support the guilty plea, and that there's substantial case law in Minnesota to allow him to withdraw if the evidence doesn't support the plea. They argue that since disorderly conduct doesn't include annoyances or hand gestures, the police report isn't enough evidence to meet the burden of "disorderly conduct". They even cite a case where a Jehovah's Witness went into an apartment building, knocked on doors, and handed out literature, even after being asked not to by the building manager, and still the court found that it was not "disorderly conduct" under Minnesota law.

Renz replies that the conduct was disorderly because touching another person can "tend to arouse anger", which is one of the standards for deeming conduct "disorderly." Although, on a personal level, I'd have to disagree here, since I doubt if someone tapped his shoes in the next stall to me that I'd get mad. And if I gave a motion for him to touch my foot, then I wouldn't be mad that he did so either. And if he waved his hands under the stall divider, I don't think I'd even notice. More importantly, I don't think I'd be in the stall as long as Karsnia was to see all of this happening.

Overall, though, this is still an uphill battle and it's not likely that he'll get to withdraw, in my opinion.


Now, when it comes to his job in the Senate, we all remember how he said that he didn't say that he'd resign on the 30th of September, but that he was merely expressing his intention to resign, and that intention can change and will change if he gets the plea withdrawn. I wonder what people will think about this man staying in Congress, specifically the Senate GOP leadership. Mitch McConnell threw him under the proverbial bus here, stripping him of his committee assignments and saying that he thought resignation was a good idea. It's doubtful that he'll stay and become the first openly gay Senator after this experience and coming out.

At least, if the prosecutor is correct in saying that withdrawing his plea agreement would get a whole bunch of other people similarly prosecuted to withdraw theirs (do we need any more proof that these people are railroaded by the prosecution into pleading guilty?), then maybe he'd have started a movement and raised some awareness in the powers-that-be about the real intent of these sting operations.

The NY Times's Frank Rich argued against such sting operations yesterday and asked for us all to pardon Larry Craig. And the editorial board of the Washington Post said that they want him to be able to withdraw his plea, even though they think it's unlikely, because the Craig case outlines exactly what prosecutors are banking on to get these pleas for cases they know can't stand: humiliation and homophobia. And, as Sean pointed out, the ACLU released one of the boldest statements on the Constitutionality of these sorts of stings they ever have, in the form of a friend of court brief in the Craig case.

Well, if that isn't awareness building, then I don't know what is.

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Alex, are you a lawyer or do you just play one on Bilerico? *grins* I'm glad you're following this - I would never have the patience to wade thru all the legaleze...

Do you think he'll win his case?

I will restrict my comments on the legal aspect. Please note I am not addressing the issue of whether it is right to conduct this sting.

"(like challenging the fact that statements made before he was read his Miranda rights were used against him, specifically his "No!" in the stall, and the cop's implication that a guilty plea would keep this out of the public eye)"

Miranda not needed. The "no" took place when the officer flashed his badge after the incident occured. This was a spontaneous blurt and it was impossible to give Miranda at this point.

As for what the officer said, Miranda only applies to statements made by the ACCUSED. The officer can say whatever he wants (well, not exactly, but for purposes of this case, he is fine) without triggering Miranda. If Craig has confessed to everything before the rights could be read, we would have a problem, but a one way conversation by the officer does not implicate Miranda.

It is also well-settled case law that an officer is given wide latitude to say things to a defendant being interogated, even if those statement are not true, in order to procure a confession. Examples include saying the other person arrested already confessed and told us everything, we have two witnesses who saw the entire event and can pick you out a lineup, or we have your fingerprints or DNA at the scene of the crime. It is accepted (giving the general opinion, please don't bring up a case where so and so confessed because he was afraid and then someone found out he was innocent) that people don't generally confess unless they are guilty.

As for the fact the plea is lacking in sufficient factual basis, I would chalk this up to the fact that the story has changed now that this plea has been made public. Before, when he agreed with the judge the charges were true, he was willing to admit to everything, but once people found out, the story changed.

I think the prosecutor did make one mistake-he pled him to the lesser charge. This is a case of a nice deed coming back to haunt the prosecutor. The prosecutor surely did this in light of the lack of criminal history and so as not to further taint the Senator's reputation. The other count is much stronger, but it is a more severe charge. However, it is common practice to plea someone to a lesser charge, even if the elements don't quite fit. This is done as a compromise to get the guilty party to plea to something that he can live with and avoid a conviction to something that he can't.

I also find it preposterous that Craig is pulling the "I didn't know what I was doing" card. I don't practice in Minnesota, but in most states, a person's education and experience can be taken into account when determining if a defendant entered into a plea knowingly and voluntarily. This man is highly educated, and has written, read, and voted on laws that effect the entire country for thirty years. He can't really claim he had no idea it might be a good idea to talk to a lawyer. You have a constitutional right to counsel, but you also a constitutional right to represent yourself. Unless Craig can show he didn't understand this, he will probably lose.

Do you have some stats to show people are railroaded into taking pleas? In my experience, and this case is the perfect example of this, people only tend to regret their plea agreements if it comes back to bite them. If this was kept quiet, Craig would not be filing his motion. Likewise, criminals really start to regret their earlier plea agreements when they pick up a few more felonies, and are now looking at increased jail time or habitual offender counts. Then, the old, "I didn't really understand when I told you I understood" comes into play.

Let us not forget (and again this case is the perfect example) that plea agreements are a two way street. The defendant also receives a benefit with a plea. The State avoids having to incur the costs and expense of a trial, but the defendant is given lesser terms that reduce his exposure to criminal liability. If Craig was so worried about his innocence, he could have fought the charges. Instead, he choose not to risk the probability he would be convicted of the lead charge. Instead, he was more worried about double life not being revealed.


On the officer's statement, that was a separate issue from Miranda in the defendant's motion. It was used to show that not being advised of his right to counsel hurt his case, because a lawyer would have told him that the charge wouldn't go away. That's not to say that the officer couldn't have said that or was wrong in saying that - the motion just brings that up to show how a (possible) violation of Minnesota law on the part of the state resulted in an injustice for Craig.

The prosecutor went through Craig's career in his memorandum and submitted his bio from his website as evidence, so, yes, I think that in Minnesota one can argue that he should have known based on his education, etc. Although the defense is saying that no one can be expected to know the law at the level of a lawyer. I'd add that a lot of this is state law, and he's from Idaho and worked for the federal government. Yes, he should have known to get an attorney, but does it often work in court to say that someone should have known to get an attorney as a substitute for advising the defendant to get one?

In my experience, and this case is the perfect example of this, people only tend to regret their plea agreements if it comes back to bite them. If this was kept quiet, Craig would not be filing his motion.

Agreed. But I don't see why his motivations for challenging the plea come into play. But the prosecutor put a lot of that in there anyway. 41 pages for a misdemeanor!

About the stats for people being railroaded, Sean posted earlier a link to a study done in the state of Michigan on that (link in the post, the one that mentions Sean). I would say that it's obvious here that something was up, because Craig didn't even go and get a lawyer. It's easy for those of us not charged to say that he should have known, but it really makes me think about why he didn't do anything. Fear of homophobia and backlash would be my best guess.

I'm interested in what you think about the mail-in plea agreement, since that's what a lot of people are talking about with regards to this case. I posted about it here. Basically, the argument goes, the form he used to plead guilty with didn't advise him of his right to counsel, which Minn. R.Crim. P. 15.02 requires. The courts have also clarified that merely advising a defendant of his right to an attorney when arrested isn't enough, it has to be done at the moment he pleads guilty, and he has to waive that right after being advised of it by the court, not the prosecutor, in writing. The defense mentions it but doesn't really get into that argument.


Doubt it. But you do have a prosecutor pretty much admitting in the narrative he submitted with his affidavit that the law was violated with regards to advising Craig of his right to counsel, as I mentioned above. Who knows. I'm excited to find out, though.

Alex, I think your analysis and understanding of the issues involved is excellent.

Question for you: Do you think the prosecutor will argue that it's not the hand swiping, or the foot tapping alone but the two combined with his staring through the crack in the stall door for (I think it was) two minutes that would tend to alarm most people?


I find the whole argument as to whether Craig knew to seek the advise of counsel absurd. You can betcha he talked to a lawyer when the Idaho Statesmen started sniffing around.

It also doesn't matter what state he was arrested in. Criminal laws are criminal laws. Constitutional rights are constitutional rights. You have a constitutional right to counsel when you are accussed of a crime. To imply that Craig never thought of it is absurd.

Mail in pleas are quite common. They are also often done in cases such as Craig's-minor infractions where the defendant lives far away and the travel would be a hardship. I don't believe the record states this, but often a defendant will request this, and a prosecutor will oblige him. I think that certainly the best practice would be to include this right to counsel and the fact the defendant is waiving it, but I am uncertain as to whether this is fatal to the plea. The case law you cite seems pretty clear, but the prosecutor's response is also persuasive. I would ask the question of whether the lack of advisement trumps the obvious education of the defendant. I would also want to know (I don't think this is case, however) whether the defendant waived his right to counsel at the initial hearing. Not being an expert in Minnesota procedure, I would hesitate to answer the questions. Not exactly the definate answer you were looking for, but like I said, these issues often rest on the finest distinctions.

By the way, the fact that Craig showed his Senate ID can be used against him. It can be argued he presented this ID to get the officer to let him go. This is evidence of his consiousness of guilt-innocent people seek to fight their charges, guilty people try to bribe or intimidate police and witnesses.

You make a big deal out of the fact the prosecutor filed a 41 page response. I don't see that as a big deal. This is a well-document area of the law and the distinctions in the case law are often hair-splitting. The prosecutor is obviously being watched and he wants to make sure every possible argument the defendant is making or could make is being answered. Also, the defense is making statements that imply the prosecutor and officers acted unethically to railroad Craig into taking a plea. If I was dealing with a Senator, I would write down every last scrap of every conversation I had with him in case a sitution like this were to occur. I would be more worried if he didn't go into volumious detail regarding the matter.

Regardless, I am certain the matter will be taken under advisement and we won't get a ruling from the judge for a couple of weeks. I would expect the Judge to ask for briefs to be submitted again to address anything new that might have come up in argument tomorrow.

Your headline's wrong. Craig has already announced that he won't show up, acting on the advice of his counsel.

Talkleft~ Thanks for stopping by TBP!

I think it'll be the staring and the violation of the personal space (the feet touching and the hand in the other stall). Although I just personally don't think that there was anything that would tend to bother others here. I'm thinking the officer (a)knew what to look for and (b)invited Craig's advances). I'm guessing he sat in the stall for a really long time, returned Craig's gaze, kept his pants on, and then tapped his foot when Craig did. Sure, a random person may have done all those things without knowing it, but it's doubtful, and that's why I wouldn't say "tend to anger" others, since there's no tendency to do them with others.

This reminds me a lot of back in the day when an officer would introduce himself as gay to someone in a gay bar, go back home with him, and then when the guy made a move on the officer, he'd be arrested for lewd conduct. Except for the fact that it's in public.

But the prosecutor seemed pretty focused on the violation of personal space in his response.

Beldar~ Haha, yeah, good point. Thanks, I updated.

Chuck~ Thanks for responding.

I'm just going to say that if Craig did seek counsel before pleading guilty, that's a pretty bad lawyer he visited.