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Tuesday, September 04, 2007

Craig "reconsidering" resignation; and his chance to withdraw his guilty plea is probably better than Beldar first presumed

On Sunday, I spent a good seven hours doing legal and factual research, all going into a post that would have explained why there was not a chance in hell that Idaho Sen. Larry Craig could succeed in trying to retract his guilty plea.

Airport men's room stalls, credit: Newsweek Law-blogger and real-life criminal defense lawyer Jeralyn Merritt argued last week that that Craig's written motion to enter his guilty plea didn't fully comply with the requirements of Rule 15.02 of the Minnesota Rules of Criminal Procedure as that rule was made applicable to mailed-in guilty pleas by Rule 15.03 — a failure made especially obvious by comparing it to the more much thorough forms provided in Appendix B and Appendix C to Rule 15. Specifically, the form Craig signed and mailed in didn't include a representation that Craig knew of, and was deliberately waiving, his right to counsel at every crucial stage of the criminal proceedings, including specifically in connection with his decision to accept a plea bargain and to enter a guilty plea to the disorderly conduct charge in exchange for the dismissal of the peeping charge.

I agree with Jeralyn that when such arguments are presented in a timely fashion, they can be surprisingly robust, even though they seem awfully picky. There's a good reason that the appendices included the language that was specified in Rule 15.02 but omitted by the Hennepin County prosecutors: Those picky little rules, collectively, both ensure and constitute due process. The more important the value being protected by the rule, the less strict courts tend to be in requiring a direct showing of causation between the violation of the rule and any particular harm to the defendant. And faced with a defendant who was proceeding without a lawyer, who's not a lawyer himself (even if he is a "lawmaker"), whose operative documents were being written for him by the advocates for the State (and they didn't follow the rules), and who's now maintaining his factual innocence and making a timely complaint about a violation of even such a picky little rule, I agree with Jeralyn that Craig would have a reasonably good chance of getting his plea withdrawn.

But I was prepared to disagree with Jeralyn because I was convinced that any attempt by Craig to make that argument now would be deemed untimely — sort of like asking for an instant replay review after the game has been whistled over.


Rule 15.05 of the Minnesota Rules of Criminal Procedure permits withdrawal of a guilty plea "upon a timely motion and proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice." The missing language from Craig's written plea might be enough to satisfy the "manifest injustice" requirement, but I had already confirmed earlier last week that, based on the judgment date of August 8th, Craig had already missed his fifteen-day deadlines under Rule 26.04 for filing either a motion for new trial or a motion to vacate the judgment of conviction in the trial court, as well as missing his ten-day deadline under Rule 28.02 for filing a notice of direct appeal as of right.

Based on those deadlines, I was therefore working on the reasonable assumption that any motion by Craig under Rule 15.05 would therefore be considered "untimely," and that he would therefore be restricted to a so-called "collateral attack" on his conviction. In some states that would be done through a writ of habeas corpus, but in Minnesota, all such collateral attacks are made under Minn. Statutes § 590.01 et seq. I saved until last the task of looking for cases interpreting those statutes, again working on the assumption that they would at least roughly parallel the collateral attack standards I was familiar with from Texas and other states within the old Fifth Circuit.

My intended grand conclusion was that because he'd missed these bright-line deadlines, Craig would have to show something vastly more than the sort of technical defect that Jeralyn had spotted. He'd need to show that a fundamental constitutional right was violated, and not just in some technical way, but in a way that had actual consequences for him. He'd therefore need to show, I assumed, something like (a) a complete failure of anyone to ever advise him of his right to counsel, plus (b) an actual ignorance on his part of those rights, plus (c) a convincing argument that if the missing language had been in the form plea motion sent to him by the prosecutors, it would have tipped him against pleading guilty and instead into seeking a lawyer's advice, plus (d) an argument that on the basis of such advice, he would have reevaluated the charges and evidence against him, and would have decided instead to fight both charges rather than taking the plea bargain. Since we've heard the arresting officer Mirandize him in the post-arrest audiotaped interview, I thought it would be impossible for him to meet that burden in a traditional collateral attack.

My assumptions, though, were wrong. Minnesota law on withdrawing guilty pleas is just damned generous, at least as compared to Texas and other states I'm more familiar with. Minnesota's caselaw treats Rule 15.05 as having no bright-line deadline, and motions to withdraw pleas under it aren't automatically considered to be "untimely" even after new trial motion and notice of appeal deadlines have passed. Instead, the Minnesota courts have engaged in the sort of sliding scale balancing of interests tests that judicial conservatives (including me) so tend to mock. They weigh the magnitude of the right supposedly deprived against the delay in asserting it, with special emphasis on whether that delay will prejudice the prosecution in proceeding to trial if the plea is permitted to be withdrawn. The presumption of validity for final, no-longer-appealable judgments gets mouthed by the Minnesota appellate courts, but sometimes seems to count for very little. My research was far from exhaustive, and of course I'm not admitted in Minnesota, but in an hour or so I came upon a goodly handful of Minnesota cases permitting plea withdrawals months and even years after they'd been made, sometimes without anything approaching the kind of rigorous examination for both violation of fundamental rights and the resulting causation of prejudice that I would have expected.

Surprised and frustrated — partly with the squishy laws of Minnesota, but mostly with my own assumptions that they were probably like other states' laws I was already familiar with — I hit the "Delete Post" button, and went back to Jeralyn's blog to leave a "never mind" comment after the questioning comment I'd left earlier. (She apparently had seen some of the same cases I had.)

(The wild-card: If by chance the Hennepin County prosecutors also had Craig execute and file Minnesota's "Form 11," through which defendants are supposed to ask permission of the courts to exercise their rights to proceed "pro se" (that is, without counsel), then all bets as to whether he can withdraw his plea are off. But I'm working on the assumption that if there were such a document in the court's file, one of the mainstream media sources who've been swarming around this story would have mentioned it by now. If it's not there, its absence is yet another factor that would support Craig in withdrawing his plea.)


Sen. Arlen 'Super-Precedent' Specter (R-PA) Now, though, as Jeralyn and K-Lo have blogged, various MSM sources (including ABC, WaPo, and the Idaho Statesman) are reporting that Craig is "reconsidering" his announcement that he may resign, in part based on encouragement from Sen. Arlen Specter that he ought to fight rather than bow out. Specter is indeed a former state-court prosecutor, which probably gives him just enough credibility that his advice seems to Craig like a life vest thrown to a man who'd already given himself up for drowned.

But that Specter may be right in saying Craig could get his plea set aside doesn't mean Specter's advice to fight is wise. One of Jeralyn's co-bloggers at TalkLeft who's also a criminal defense lawyer wrote a fascinating post last week reporting his/her poor success rate in trying cases like Craig's:

Does he want a trial? Can he win a trial? I don't think so.

I have tried about a dozen cases involving men arrested in bathrooms or in similar situations. My record:  1 and 11. Why? These cases are hard to win because the credibility determination always favors the officer. Judges feel compelled to rid their communities of gay men trolling for anonymous sex in public bathrooms, as a "quality of life" crime.

That record sounds about right to me — and that's presuming that Jeralyn's co-blogger is a capable and experienced lawyer doing a very competent job. There's a very real possibility — one that I'd go so far as to call a substantial probability — that Craig might get his plea withdrawn in the next week or two, withdraw his statement of intent to resign effective September 30, and then still end up being convicted. Indeed, he might be convicted not only of the simple misdemeanor disorderly conduct charge, but of the much more serious "gross misdemeanor" peeping charge. The trial would be, of course, a media circus; the result would likely come down largely to Craig's on-stand credibility as compared to that of the arresting officer, Sgt. Dave Karsnia, and to the jury's sensitivities in their legitimate role as "conscience of the community."

If I had a client in Craig's position and he was genuinely convinced of his innocence, and if he was therefore insistent upon proceeding to trial despite all the potential downsides — not just the criminal penalties he faced, but the expense and distraction, and most of all the intense embarrassment and hardship on him and his family and friends — then I'd certainly have no trouble buckling on my armor and picking up my sword and going to do battle on his behalf in court. To ensure that his decision was well-informed and truly well-considered, however, I would be as brutal as I could be in describing the risks. I'd do an extended and very realistic mock cross-examination of him on videotape, and then go over the playback with him — and with his wife. I'd beat him up in private as badly as I expect the prosecutors will beat him up in public. Because while a trial here would be very interesting for the public, it won't be pretty. And even if he risks it and wins, it still may not solve his political problems.


UPDATE (Tue Sep 4 @ 11:10pm): This lede gets my vote for "droll reporting of the week":

Just when Republicans thought things could not get much worse for their scandal-stained party, Idaho Sen. Larry Craig leaked word Tuesday night that he is reconsidering his abrupt plan to resign from the Senate in the wake of his arrest in a police sex sting operation.

Top Republican strategists were neither delighted nor amused by the senator's decision to rethink retirement after pleading guilty to disorderly conduct following his arrest in a Minnesota airport men's bathroom.

By way of further explanation of the difference between "direct" and "collateral" attacks on a guilty plea, let me give you an example of just how strict the Texas courts are with respect to the latter.

This past May, in Ex parte Douthit, the Texas Court of Criminal Appeals considered a collateral attack by a capital murder defendant who pleaded guilty as part of a plea bargain in 1987. As part of the plea, he escaped the death penalty and received instead life imprisonment with no possibility of parole. Eighteen years later, he filed a petition for a writ of habeas corpus in which he raised, for the first time, an absolutely valid argument: Prior to 1991, Texas law quite literally did not permit a defendant charged with capital murder to waive his right to a jury trial. Douthit's plea bargain squarely violated the then-existing statutes, and the judge ought to have required the prosecutors to dismiss the capital charge and re-indict him on a non-capital murder charge before accepting his plea. Had that happened, he would have been eligible, eventually, for parole. In effect, the pre-1991 statute prevented over-charging of capital murder by prosecutors who would then be able to plead down to get a life with no parole sentence; so although it looks like a restriction on defendants' rights, it arguably actually expanded them (albeit at the expense of prosecutors' flexibility in the plea bargaining system, which might come back around to hurt at least some defendants).

On similar facts, the Texas Court of Criminal Appeals and the intermediate Texas appellate courts had granted writs in several previous cases, but the Douthit court reconsidered and then overruled those decisions. The "right" in question, it emphasized, was merely one conferred by statute — it was not a fundamental constitutional right guaranteed by either the U.S. or Texas constitutions, and indeed it had been dissolved for capital defendants accused after 1991 by unquestionably valid action of the state legislature. "The Great Writ [i.e., habeas corpus] should not be used to litigate matters which should have been raised on appeal or at trial," said the court.  And more fundamentally, collateral attacks through habeas corpus — those made after the time for a direct appeal has expired, or those that were not included in the original direct appeal — could not be used to correct procedural errors, or even violations of supposedly "mandatory" statutes. Douthit thus reminds courts that habeas corpus actions aren't meant to give unlimited bites, nor late bites, at every apple. Deadlines have consequences; finality is a value; and sometimes bright-line rules are preferable to balancing tests.


UPDATE (Wed Sep 5 @ 1:55am): In a new post, besides graciously linking this one, Jeralyn discusses, and I think correctly discounts, the possibility that Craig might have a defense based on his rights under Article I, Section 6 of the Constitution to be free from "arrests" while traveling to and from congressional sessions. And she again mentions the possibility that, if Craig were to succeed in getting his plea withdrawn, he might then, through counsel, try to re-negotiate a better plea bargain — perhaps one for delayed adjudication, in which his case could be placed "on hold" for a year-long probationary period. If he keeps his nose clean, the charges would then be dismissed without his having ever had to enter even a conditional guilty plea. That is indeed the kind of deal that good lawyers often can get for nonviolent clean-record clients, especially if there are other weaknesses in the State's case. It would be the "best case scenario" for Craig: He could maintain his innocence, but avoid both trial and conviction.

But Craig has already very publicly claimed that he's been "railroaded," and he's probably going to have to point more fingers at the prosecution to get his plea withdrawn. Once that's done, I can't imagine the prosecution cutting him any slack in plea negotiations. He shouldn't try to withdraw the plea unless he's really ready and willing to go the distance, all the way to a jury verdict, on both the disorderly conduct and the peeping counts.

Josh Marshall, meantime, gives us partial benefit of his Roll Call subscription in quoting reports which suggest that Craig had actually consulted Washington lawyer Billy Martin many times over the past several weeks — an inference from what seem to have been a large series of mis-dialed phone calls that Craig intended for Martin, and that included a voicemail message in which Craig was coordinating the language of his "intent to resign" announcement with Martin last Saturday. That actually would not surprise me at all; it's always been hard to swallow the suggestion that Craig returned to the airport police station to ask for a "contact person" for his lawyer, but that he hadn't yet consulted a lawyer, and didn't at any point before entering his plea. (On the other hand, he says he didn't tell his wife or his staff, and the mailing address in his motion to plead guilty was for a D.C. residence, presumably to keep them out of the loop.) Confirmation of pre-plea contacts with a lawyer would weaken Craig's arguments for withdrawing his plea, though, to the extent that such a motion is based on the (already ludicrous) suggestion that he really didn't know he had a right to counsel.

Regarding the voicemail message that's now public (and quoted in full at TalkLeft among other places), here's what I left as a comment there:

There's a good chance that Craig could get any evidence of the voicemail suppressed as an unintentional disclosure that didn't amount to a valid waiver of attorney-client privilege — meaning he could keep the prosecution from making any use of it at trial.

Of course, it will be pretty hard to find a jury in Minneapolis who doesn't already know that he pleaded guilty, even if he is permitted to withdraw his guilty plea.

But he's very, very lucky there wasn't anything more sensitive in the voicemail. If he'd said, for instance, "I've got to keep fighting this thing in court or else my wife will realize I'm really gay and divorce me, and I can't afford that," then it would have been cold comfort for him that he might be able to keep that from being formally offered into evidence at a trial.

Moral: When speaking to your lawyer on voicemail, limit yourself to, "Billy, this is Larry, call me back, k thx bai."

Finally: I've updated this post to add, gratuitously, a screencap of Sen. Specter on Fox News Sunday, urging Craig to fight. My question to you is this: Would you take legal advice from a man who matches that tie to that suit? (Or who wears that tie with anything?)


UPDATE (Wed Sep 5 @ yes I suffer from occasional insomnia o'clock a.m.): Josh Marshall quotes at length from an unidentified Oregon attorney who says that whether Craig can or can't withdraw his guilty plea "all depends on the transcript of the plea and sentencing [colloquy]." Well, yeah — except there wasn't a colloquy, so there won't be a transcript.

I don't blame this lawyer for jumping to that conclusion, because if this were a felony, or if it were what Minnesota terms a "gross misdemeanor" (like the peeping charge that was dismissed; and no, that's not an intentional double entendre), Craig would have had to show up in person to enter his plea, and there would have been a conversation on the record between him, his lawyer, and the judge. Dr. Marshall's correspondent is just behind the learning curve in failing to have figured out that this was a mailed-in plea.

But that is an important fact here. And frankly, it's hard to tell how it cuts.

One the one hand, the U.S. Supreme Court has been notably reluctant to impose the full range of constitutional requirements and protections for misdemeanors (a term whose meaning varies from state to state, but normally means a crime punishable by fines and a year or less of jail time) as compared to felonies (normally crimes punishable by fines and more than a year of prison time). That's one reason that the Minnesota Rules of Criminal Procedure require a more detailed set of inquiries by a judge who's accepting a guilty plea for a felony or a gross misdemeanor (Rule 15.01) than for a simple misdemeanor (Rule 15.02). That's also why an unsworn plea-by-mail, for the convenience mostly of the defendant, may be okay (per Rule 15.03) for a misdemeanor, with all of the admonitions that would normally be part of an on-the-record colloquy being instead reduced to a written form.

But on the other hand, given the fact that they're already short-cutting the procedures required for more serious crimes, there's an argument to be made that it's particularly important to follow strictly every one of the relaxed rules that have been permitted for the less serious offenses. Arguably, that's where the greatest dangers of prosecutorial abuse lie — in the little cases, where people likely want to just get it over with, and paying a fine that costs less than what a lawyer would bill you in two hours looks pretty damned attractive.

In most of those smaller cases, no one is going to end up fly-specking the written motion to enter a guilty plea. And this is just another simple misdemeanor, sure. But most simple misdemeanors, with no jail time and a $550 fine, don't end up abruptly ending the careers of prominent national figures.

Craig certainly knew — and regardless of what's in the record, the judge will know Craig knew — that he (Craig) had a right to a lawyer. But did Craig know that if he had a lawyer, he might have been able to negotiate a deferred adjudication plea — exactly the sort of thing that a prosecutor might not volunteer to a pro se defendant, even a U.S. senator defendant, but that even a semi-decent defense lawyer would have known to ask for? If I were Craig's lawyer, I'd have minions down at the courthouse this week developing a statistical model to try to establish just how much better similarly situated defendants did on their plea bargains with and without lawyers. But an experienced judge will know that anyway, and bringing him the actual numbers is probably carrying coals to Newcastle. This judge will presumably have seen many, many plea bargains, both mail-in and in-person; he will have a strong sense of what's "normal," and if he has the slightest hint that the prosecution extracted more from Craig than from other pro se defendants, that will help Craig enormously. Even if he senses that the prosecution took advantage of Craig as compared just to defendants who have lawyers, that will help Craig.

On balance, I think the fact that this was a mail-in plea probably makes the odds of getting the guilty plea withdrawn better rather than worse.

And if Craig's attempt to set aside his plea really ought to have been filed within 15 days to be unarguably timely, it will end up being filed no more than a few days after that. The prosecution can't plausibly claim that it's "prejudiced" in the sense of evidence having been lost, or witnesses having died or wandered out of touch, by virtue of the trial taking place in September instead of August.

All of this is what goes into my informed gut hunch about the likelihood of Craig getting his guilty plea withdrawn. The gut hunch of someone who actually practices regularly in the Hennepin County criminal courts would be better, but frankly, I've seen some press reports from people who look like they fit that criterion and yet have been making wilder guesses than Jeralyn or I have.

Posted by Beldar at 09:46 PM in Law (2007), Politics (2007) | Permalink


Other weblog posts, if any, whose authors have linked to Craig "reconsidering" resignation; and his chance to withdraw his guilty plea is probably better than Beldar first presumed and sent a trackback ping are listed here:

» NOT BREAKING: Media Desperate for Craig Headlines from preciseTruth Commentary Weblog

Tracked on Sep 4, 2007 10:13:44 PM

» Craig swears that on the date of his arrest, he "decided to seek a guilty plea to whatever charge would be lodged" against him from BeldarBlog

Tracked on Sep 10, 2007 8:00:51 PM

» In letter forwarding proposed plea, prosecutor Renz repeatedly reminded Craig of his right to counsel and warned that plea would result in "a conviction for Disorderly Conduct appearing on [his] criminal record" from BeldarBlog

Tracked on Sep 12, 2007 9:37:47 PM

» ACLU files silly brief in support of Craig's plea withdrawal from BeldarBlog

Tracked on Sep 17, 2007 11:05:40 PM

» Prosecution moves to strike ACLU amicus brief supporting Craig's motion to withdraw guilty plea from BeldarBlog

Tracked on Sep 21, 2007 6:55:43 PM

» Of pleas and piñatas: No surprises in prosecution's response to Craig's motion to withdraw guilty plea from BeldarBlog

Tracked on Sep 24, 2007 9:13:53 PM

» Craig plans to ditch hearing, but Renz should object to his affidavit as hearsay and force Craig to take the stand from BeldarBlog

Tracked on Sep 25, 2007 6:29:17 PM

» Just "one procedural question" for prosecutor Renz as he opposed Sen. Craig's motion to withdraw his guilty plea from BeldarBlog

Tracked on Sep 28, 2007 6:33:31 AM

» Is Craig's strategy "winning by losing," counting on colleagues and constituents to confuse "innocent until proven guilty" with "guilty (but pending further appeals)"? from BeldarBlog

Tracked on Oct 1, 2007 11:19:46 PM

» Minnesota trial court rejects Craig's motion to withdraw guilty plea from BeldarBlog

Tracked on Oct 4, 2007 3:37:39 PM


(1) DRJ made the following comment | Sep 5, 2007 12:35:46 PM | Permalink

Either Craig immediately consulted a lawyer after he was arrested or he was foolish, and I can't believe any US Senator would be that foolish. However, he may not have known any Minnesota lawyers he felt he could trust so he may have consulted a DC attorney. That may explain why there wasn't a Form 11 filed - especially if Craig had a politically-connected lawyer but not a Minnesota-licensed lawyer who could appear of record. It might also explain the tightrope Craig has been trying to walk and continues to walk to this day.

(2) sam made the following comment | Sep 7, 2007 7:30:54 AM | Permalink

Before trying to withdraw the plea, I would consider the long run repercussions, i.e., when he gets arrested again for the same compulsive behavior. Will the time and money withdrawing this plea really be worth it? Better for Craig to spend his $$ on psychotherapy and behavior modification.

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