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

Maybe Washington hotshot lawyer Billy Martin has been reading my recommendations to prosecutor Chris Renz that Renz pop Martin's client, Sen. Larry Craig, onto the witness stand at tomorrow's hearing on Craig's motion to withdraw his guilty plea. According to the Associated Press:

Senator Larry Craig won't be there when his lawyers go to court in Minnesota tomorrow in search of a rare legal prize — a do-over.

A spokeswoman for Craig attorney Billy Martin says the Idaho Republican won't be attending the hearing at a suburban Minneapolis courthouse.

And per a CBS News report (actually quoting a blog on Politico.com):

Sen. Larry Craig (R-Idaho) told reporters that he will not attend his hearing tomorrow in Minnesota on seeking the withdrawal of his guilty plea in a men's room sex sting.

"I've been advised not to," Craig said at the Capitol. "I have very competent lawyers."

Craig then slipped into the Senate Republican Conference luncheon and ignored further questions.

In the meantime, Craig continues to be coy on whether he'll go through with his announced intention to formally resign from the Senate on September 30th.

Craig's public announcement of that his lawyers have advised him not to attend the hearing is all the more reason for Renz to make a formal hearsay objection on the record to Craig's affidavit, as attached to Craig's motion.

"Your Honor," Renz should say, "in support of his motion to withdraw his guilty plea, Sen. Craig has asked the Court to venture outside the record that was already on file when the Court accepted his guilty plea. He filed a detailed written affidavit that raises factual questions about his state of mind, his intentions, what was said to him by the arresting officer, and a variety of other crucial facts upon which his entire motion depends. Some statements in the affidavit are conclusory; but some are very detailed.

"The prosecution is perfectly willing to address those facts too, Your Honor," Renz should continue, "But only in the manner prescribed by rules of evidence for the adversary system. Sen. Craig's affidavit is an out-of-court statement. Although sworn, it was not subject to cross-examination. His lawyers are offering the affidavit to prove the truth of the factual allegations in it. The affidavit is, therefore, hearsay. The prosecution therefore objects to the affidavit, and moves to strike it from the record. We will have no objection, however, if — to try to prove the facts as to which he's already attested in his affidavit — Sen. Craig takes the witness stand.

"By filing his affidavit," Renz should say, "Sen. Craig has already waived his constitutional privilege against self-incrimination, if only for purposes of this motion and on the topics he voluntarily addressed in his affidavit. The prosecution disputes some of his factual assertions, and justice requires that we be permitted to cross-examine Sen. Craig on those assertions. The prosecution has submitted a counter-affidavit, my own, to challenge some of Sen. Craig's factual assertions and to add context on factual matters that he ignored. And yes, it is also subject to a valid hearsay objection, if Sen. Craig's lawyers choose to make one. But the prosecution has no objection to being required to prove those facts through my own live testimony, and I have no reluctance to subject myself to cross-examination from Sen. Craig's lawyers. Indeed, I have with me a colleague from my firm to take over as first chair for the prosecution while I'm on the witness stand.

"No doubt as a tactical maneuver," Renz should wind up, "Sen. Craig's counsel has not brought him to this hearing. Sen. Craig has been quoted in the national media as saying he would not attend, and that that decision was based on the advice of his counsel. But if the Court sustains — as it must, under the rules of evidence — the prosecution's hearsay objection to Sen. Craig's affidavit, then the prosecution will have no objection to a one-day adjournment of this hearing in order that Mr. Martin can secure Sen. Craig's personal attendance. The State's interest is not in hiding any facts, but rather, in fully developing them. And we welcome the opportunity to do so — provided that is done in accordance with the rules of evidence, and not through a self-serving piece of testimony drafted for Sen. Craig by his lawyers at the same time they're trying to immunize his testimonial assertions from being tested by cross-examination."

Craig's lawyers are trying to have their cake and eat it too. Craig's non-appearance sends a powerful, if implicit, message that he has a good reason to be scared to come to court. And in fact, he does, because the truth will sink him.

But Renz ought not be content with Craig's non-appearance, and he definitely ought not let Craig's lawyers get away with trying to use Craig's affidavit without Craig being there live for cross-examination. The hearsay objection is an absolutely valid one as a matter of basic evidentiary law. It should be sustained. And then, if faced with the decision whether (a) to take the stand in support of his motion to withdraw his plea or (b) simply withdrawing that motion altogether and letting his guilty plea and conviction stand, Craig might well take the latter option.

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Previous posts on the Craig matter, oldest to most recent:

1. The answer to the "Why was this a crime?" crowd on the Craig matter
2. Craig "reconsidering" resignation; and his chance to withdraw his guilty plea is probably better than Beldar first presumed
3. Has Larry Craig hired the part-time prosecutor who filed the complaint against him?
4. Craig swears that on the date of his arrest, he "decided to seek a guilty plea to whatever charge would be lodged" against him
5. 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"
6. ACLU files silly brief in support of Craig's plea withdrawal
7. Prosecution moves to strike ACLU amicus brief supporting Craig's motion to withdraw guilty plea
8. Of pleas and piñatas: No surprises in prosecution's response to Craig's motion to withdraw guilty plea