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Monday, September 10, 2007

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

Via Jeralyn Merritt at TalkLeft, here is a 39-page .pdf file containing Sen. Larry Craig's motion to withdraw his guilty plea, including a new three-page affidavit from him in support of it. In it, one finds (at pp. 19-20 of the .pdf file, in paragraph 12) this extraordinary statement under oath (boldface mine):

Deeply panicked about the events [of my arrest and post-arrest interview], and based on Officer Karsnia's representations to me regarding the potential outcome, my interest in handling the matter expeditiously, and the risk that protracting the matter could lead to unnecessary publicity, I did not seek the advice of an attorney on the date of my arrest, and I made the decision on that date to seek a guilty plea to whatever charge would be lodged against me.

Oh, really? Capital murder and treason included? This is a ridiculous statement — one that's not only almost certainly untrue, but that actually undercuts Craig's motion: If Craig had indeed come to an irrevocable decision to plead guilty to whatever they charged him with, and he came to that decision immediately after being Mirandized and with full knowledge that he was entitled to an attorney, then any later violation of or compliance with Minnesota's procedural rules designed to ensure that his waiver of his right to counsel was a knowing and voluntary decision was causally irrelevant, either way, to the actual entry of his plea.

(Christopher P. Renz' name, by the way, isn't on the new pleadings as part of Craig's legal team. But I still haven't heard back from him with a denial that he's been retained by Craig. Maybe I'll phone his office tomorrow.)

Craig's whole "I panicked" argument can be ground firmly into the dust with no more of a cross-examination tool than a calendar. Craig was arrested on June 11th and didn't sign his motion to plead guilty until August 1st.

Nor do I think it's a great idea to lead with an assertion that Craig's "panic" was justifiable because a homestate newspaper was investigating his lifestyle, including rumors of homosexual activities. That's not only not a crime on the part of the press, it's not something that any senator has any basis to claim surprise about. "Boo hoo, poor overwhelmed and picked-upon me" is an emphatically stupid defense strategy for a U.S. senator.

Overall, I am decidedly unimpressed with the motion and supporting exhibits that Craig's lawyers filed today on his behalf. It does a barely adequate job of making what is clearly his best argument — that the written motion to enter a guilty plea, drafted for him by the prosecution, failed to comply with Minnesota Rule of Criminal Procedure 15.02. They have what appears to be a crystal clear violation of an important pretrial rule designed to protect fundamental constitutional rights, and they wait until the seventh page of a sixteen page brief to even cite that rule!

To give you just an idea of the lack of care paid to this argument: At the top of page 8, in an intended explanation for how Rule 15.03 requires mail-in pleas to conform to the standards of Rule 15.02, appears this sentence: "Rule 15.03, which governs 'pleas by mail' such as the petition entered in this case, requires the same protections as Rule 15.03." Now, that's just a typo — they clearly meant to end the sentence with "Rule 15.02." But some typos are less excusable than others, and getting a rule number wrong in the most important portion of your argument is pretty damned sloppy.

The motion does not argue that the sting operation unconstitutionally discriminated against gays — no doubt because to make that argument, Craig would have to admit that he's gay, but also perhaps because it would be a bogus argument. Nor does it focus on the "'or' for 'in' typo," or the Article I, Section 6 "arrest en route to a Congressional session" immunity, both of which would also have been completely bogus. (I discussed all of these in more detail here.)

And indeed, other than the Rule 15.02 point (which can be made solely from the written record as it existed at the time the court accepted the plea), Craig's lawyers' only other argument was that neither the plea agreement nor the complaint make out conduct that even arguably violated the disorderly conduct statute. That's an argument that I think is badly, obviously wrong for all the reasons I explained in my very first post on the Craig matter. It might win with a jury; it's not going to persuade many, if any, judges that the prosecution's complaint didn't even allege a prima facie case from which a jury could find a violation of the statute.

By submitting Craig's sworn affidavit, his lawyers have chosen to attempt to prove his entitlement to withdraw his plea by relying on evidence outside the existing record. The prosecution should object on grounds that even though his affidavit is sworn, his statements in it were made out of court, not subject to cross-examination — and therefore they're hearsay. His motion asks for oral argument, but not an evidentiary hearing; yet without an evidentiary hearing, with live witnesses subject to cross-examination, they ought not be able to rely on anything outside the record when the court accepted the guilty plea. (The court could consider the affidavit for the purpose of deciding whether there have been allegations sufficient to justify having such an evidentiary hearing, without giving any evidentiary weight to the hearsay allegations in the affidavit as substantive evidence.)

Unsurprisingly, as CNN reports, the prosecution intends to oppose Craig's motion:

Patrick Hogan of the Metropolitan Airports Commission said the prosecutor will oppose Craig's motion, according to The Associated Press. The commission runs the airport and handled the prosecution of the case.

"We do feel we have a strong case, and he's already made his plea, and it's been accepted by the court," Hogan told the AP. "From our standpoint, this is already a done deal. Mr. Craig was arrested and signed a guilty plea, and from our standpoint, this case is already over."

I would love the opportunity to cross-examine Larry Craig on the quoted statement above from his affidavit, plus others that I think have a very questionable ring, plus the huge subject areas that his affidavit and motion carefully avoid.

  • Does he now claim under oath, for example, that he was unaware that he had the right to counsel to advise him on how taking the plea bargain compared to his other options?

  • Does he claim that if the written plea agreement had contained the warnings required by Rules 15.02 and 15.03 to the effect that he was entitled to counsel at every critical stage of the proceedings, including in connection with plea negotiations and the entry of his guilty plea, he would have suddenly decided — inconsistently with what his affidavit swears — not to enter a guilty plea? [Update (Mon Sep 10 @ 9:20pm): This is an awfully important point, and it prompted me to add the additional concluding sentences in the paragraph near the top of this post, just after "treason included?"]

  • Does he claim that Sgt. Karsnia promised him to seal the court files so that no one, whether the Idaho Statesman or anyone else, could find out about his guilty plea?

  • As a U.S. senator, did he not understand that criminal proceedings, including trials and pleas and court records about them, are generally open to the public? Or was he instead working on the assumption — notwithstanding the dozens or hundreds of votes he's cast as a law-maker — that American criminal justice operates through secret Star Chamber-like trials?

Despite the average-or-less quality of this motion and supporting affidavit, I still think (as I wrote at length last week) that the chances are still fairly good that Craig can get his plea withdrawn — something on the order of 50/50, anyway. Today's New York Times confirms that, as I suspected, some defendants caught up in the same sting that netted Craig had negotiated pleas through their lawyers for "deferred prosecution." If the judge reviewing Craig's present motion takes that into account, he may conclude that Craig was indeed materially harmed by not having a lawyer, and thus pay particularly close attention to whether the record confirmed a knowing and voluntary waiver by Craig of his rights to counsel before his plea was accepted.

But Craig may now have to climb onto the witness stand for what potentially could turn into a very embarrassing evidentiary hearing even to get that far. [Update (Mon Sep 10 @ 10:30pm): I haven't researched it, but I'm reasonably sure that by filing this affidavit, Craig has voluntarily waived any Fifth Amendment privilege against self-incrimination that he might otherwise have asserted to prevent the prosecution from calling him to he witness stand as an adverse witness during an evidentiary hearing (at least on the topics covered in the affidavit and for purposes of the plea withdrawal). If the prosecution's hearsay objection to the affidavit is sustained, it would be stricken from the record, or at least not considered for any evidentiary purpose other than as a proffer to show why an evidentiary hearing would be justified if the Craig team asked for one. But even if the affidavit is stricken, and even if Craig's team is willing to lose the benefit of the affidavit rather than ask for an evidentiary hearing, the prosecution should still insist on an evidentiary hearing. The more I think about it, the more I think that filing that affidavit was a colossally bad idea, and that whoever helped Craig draft it used particularly abysmal legal judgment. — Beldar]

More importantly, as I've said from the beginning, Craig may win this battle only to be thrust back into the larger war — a trial on the merits on both the disorderly conduct and the peeping charges, as a result of which he may well be convicted of both and have to do serious jail time, in addition to incurring considerable expense and subjecting himself and his family to continuing ruthless public scrutiny. From today's CNN story, we hear more from Sen. Arlen "Super-Precedent" Specter:

In a CNN interview Sunday, one of Craig's Senate colleagues compared the guilty plea to a motorist paying an undeserved parking ticket. Sen. Arlen Specter, the ranking Republican on the Senate Judiciary Committee, said Craig should stay in the Senate and fight to overturn his conviction.

"He thought that this matter would not be publicly disclosed, and that was very foolish," Specter said. "Now look here, you have 27 years in the Congress, you have his reputation, you have his whole life on the line. I think he's entitled to his day in court. Maybe he will be convicted, but I doubt it."

Specter said Minnesota law allows a defendant to withdraw a guilty plea "if there is manifest injustice, and that is defined that a plea can be withdrawn if it was not intelligently made," Specter said. "And what Sen. Craig did was by no means intelligent."

Well, yeah, we can all agree that Sen. Craig has been foolish. The problem is, he's apparently not getting any smarter even now that he's lawyered up.


UPDATE (Tue Sep 11 @ 11:10am): I phoned the Hennepin County District Courts this morning and waded through the automated messages until I got to a live deputy clerk, who advised me that as best she can tell from her computerized court records summary screen, there was no "Form 11" (or as she called it, "pro se form") on file in Sen. Craig's case. She also advised that an "oral hearing" has been set for 1:30pm on Wednesday, September 26th — which fits with Sen. Craig's announced intention to try to get this "disposed of" before his announced Senate resignation effective date of September 30th. I've got voicemail messages pending for Chris Renz and for the spokesperson for the Airport quoted above, Pat Hogan; maybe one or both will call me back.


UPDATE (Tue Sep 11 @ 7:10pm): I received a prompt return phone call from Mr. Hogan, who's the director of public affairs for the Minneapolis-St. Paul Metropolitan Airports Commission, around mid-day today. He confirmed that to the best of his knowledge, Chris Renz has not been hired by the Craig team, contrary to the Congressional Quarterly report; like me, he could only speculate that they got a name wrong somewhere. Mr. Hogan explained that the Minneapolis-St. Paul airport functions like a municipality in many respects, including in hiring Renz' law firm to prosecute its misdemeanor charges. He said that same firm will be responding to Sen. Craig's motion to withdraw his plea, and that they'd make whatever decisions were appropriate about, for example, whether to try to call Sen. Craig to the witness stand, have stand-by counsel if Renz should become a witness, and so forth. Understandably, however, he was unable to discuss specific tactics or positions with me.

The September 26th oral hearing setting came, according to Mr. Hogan, directly from the court. He noted that there's no assurance that the court will actually rule on Sen. Craig's plea right away, however.

Finally, consistent with what the deputy clerk had told me, Mr. Hogan also said that he was unaware of any motions or pleas being filed by Sen. Craig before the motion to accept his guilty plea by mail. So that's some further confirmation that Sen. Craig didn't fill out and file a Form 11, either on his own initiative or at the prompting of prosecution or clerk's office personnel.

Posted by Beldar at 07:00 PM in Law (2007), Politics (2007) | Permalink


Other weblog posts, if any, whose authors have linked to Craig swears that on the date of his arrest, he "decided to seek a guilty plea to whatever charge would be lodged" against him and sent a trackback ping are listed here:

» 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 9:10:42 PM

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

Tracked on Sep 17, 2007 11:02:22 PM

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

Tracked on Sep 21, 2007 6:48:37 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 9:09:33 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 6:11:20 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 6:31:24 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 11:13:18 PM

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

Tracked on Oct 4, 2007 3:34:27 PM


(1) Carol Herman made the following comment | Sep 10, 2007 8:31:17 PM | Permalink

Everybody knows the hand-signal, where you flip up your middle finger. After that? And, when you're talking about men's toilets?

Why are they called "John's," anyway? Is it a place you go to looking for dates?

We also know sodomy is not against the law. So, of course, wide-stance Larry can play with these charges. And, he's gone to fetch some professional help; to "beat the rap."

But out of the water-closet we now know that married men can sometimes go looking for sex in the strangest places.

As to the hand-signals; if a man were to "flip the bird" to another guy, while he was in the John, "that" could lead to trouble.

But if you knew signals others wouldn't be aware of; perhaps you could ask for sex. And, a heterosexual guy would just think you wanted some toilet paper from your stall to his?


Well, it's like discovering Rock Hudson is queer.

Rock Hudson paid good money to keep that truth, hidden.

But he got AIDS. And, he went out in the direction his sex life took 'em.

So, too, shall Larry Craig. He's just making it very painful. He, and his family, remind me of Gary Condit.

(2) DRJ made the following comment | Sep 10, 2007 11:30:19 PM | Permalink

He's laying the groundwork for an incompetency defense based on fear of Media.

Okay, I'm kidding but it's the best I can come up with given the horrible facts Craig's defense team has to work with. If the old legal saying is true, this case will end up making some very good law.

(3) DRJ made the following comment | Sep 10, 2007 11:35:01 PM | Permalink

I hope you are wrong that Craig has waived his Fifth Amendment privilege by filing the affidavit. Not because I hope you're wrong but because it's so bad it hurts to think about.

(4) Beldar made the following comment | Sep 11, 2007 12:59:24 AM | Permalink

DRJ,I don't know whether Minnesota law tracks federal law, but under the latter, after spending an hour skimming privilege waiver cases, I'm pretty sure that voluntary submission of an affidavit can constitute a waiver on those same subjects at least for that same stage of the proceedings. Thus, I don't think that the State could use Craig's affidavit, made for purposes of his plea withdrawal motion, against him at a trial on the merits should they ever get to that stage. But the law's pretty clear that Craig can't simultaneously use his own testimony as a sword while claiming that the Fifth Amendment shields him from further probing of those same topics. And in cases where such a waiver has been found, the scope of further examination on those same topics is limited only by ordinary rules of relevancy for cross-examination generally.

Of course, the motion tries to use Craig's affidavit not just on the questions relating to whether he made a fully informed waiver of his constitutional right to counsel at every crucial stage of the proceedings, but on the question of whether there was a sufficient factual basis of guilt to support the acceptance of the plea. Thus, if the prosecution gets to rag Craig around — excuse me, probe Craig's testimony on cross-examination on that, then they basically get the same kind of shot at him now that they'd get if he takes the stand at his trial. Craig's outburst near the beginning of the tape, for example, to the effect that Sgt. Karsnia "solicited" him, would be fair game: You said that, dintya, and that shows you knew the cruising-bathrooms-for-sex codes (that Karsnia will say he hadn't even brought up yet). Oh, it could be a messy, ugly, delightfully bloody hearing.

On the other hand, the prosecution couldn't manage to use the right plea form that was available for download as a MS Word .doc file from the state legislature website. I suppose it's possible they may not snap to all this either.

(5) DRJ made the following comment | Sep 11, 2007 2:37:00 AM | Permalink

If Craig has to testify at any point and if he doesn't do well (and I know that's a lot of "ifs"), then he may win the battle but lose the war. A poor or inflammatory appearance won't help his efforts to keep his Senate seat and/or to win in the next election.

(6) nk made the following comment | Sep 11, 2007 9:04:10 AM | Permalink

The motion does have a "making lemonade" aspect to it, doesn't it? Others' experiences may vary but mine is that a narrative form like this where, as Beldar points out, the best assistance for the judge to reach his decision is in the middle of the motion, shows that the lawyer is uncertain about where to start and where to go.

On the question of the affidavit and Craig's Fifth Amendment rights, I venture that there would be a strong expectation for Craig to be called by his side to back up the affidavit. If that does not happen ... the prosecutor might not even need to argue that the affidavit should not be given any weight. The judge would be expected to see its hearsay and selfing-serving nature.

I don't know the Minnesota courts. If this were Chicago, I could tell you that the case would be in an overwhelmed branch, with more than a hundred cases on the call per day, ranging from shoplifting to urinating in public to poker games to soliciting for the purposes of prostitution. Neither the judge nor the city could afford to spend more than a few minutes on the case. Nine out of ten cases will be SOL'ed (deferred prosecution?) or pleaded out with a small fine or restitution and non-reporting "supervision". The few cases in which jail time is a possibility would be transferred to a jury calendar and the in-betweens would be tried on the spot with a more substantial fine and a more permanent mark on the defendant's record. (A long-winded way of me saying that this motion with its 39 pages is not putting one's best foot forward.)

(7) Maynard made the following comment | Sep 11, 2007 10:16:52 AM | Permalink

I don't believe Craig never talked to a lawyer. By the way, how was the plea negotiated? He didn't plead cold...there were two counts. Did Craig personally talk to Christopher Renz? Renz becomes a witness.

(8) Beldar made the following comment | Sep 11, 2007 11:22:09 AM | Permalink

Maynard: There's a reference in a previous press account, here, to Renz having sent Sen. Craig a cover letter dated July 20, 2007, enclosing and discussing the proposed plea bargain. One presumes that was sent in response to a prior telephone conversation between Craig and someone. You're right, though, that Renz may be a witness if there's live testimony taken.

As to whether he ever consulted a lawyer before signing the motion to enter his guilty plea: He's denied having done so in his (unsworn) press conference(s). His affidavit is a bit flaky on that subject. He affirmatively states that he didn't consult with a lawyer on the day of his arrest. Then he says he "did not seek the advice of an attorney before entering my plea." A skeptic might suggest that leaves him a sliver of wiggle-room: That he might have consulted a lawyer at some time in the interim, and about the case generally, but not specifically about whether to enter his plea. Josh Marshall claimed to have heard that the series of mis-dialed phone calls intended for Washington lawyer Billy Martin extended back for several weeks before the date of his "intent to resign" announcement, but if so, I haven't heard any further verification of that (and Dr. Marshall, a non-lawyer, has been way behind the curve on this story, often publishing absolute mis-information about it.

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