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Tuesday, September 25, 2007

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.


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

Posted by Beldar at 05:51 PM in Law (2007) | Permalink


Other weblog posts, if any, whose authors have linked to Craig plans to ditch hearing, but Renz should object to his affidavit as hearsay and force Craig to take the stand and sent a trackback ping are listed here:

» 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 5:34:03 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 11:00:11 PM

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

Tracked on Oct 4, 2007 3:18:18 PM


(1) nk made the following comment | Sep 25, 2007 8:06:54 PM | Permalink

As a first order of business, criminal defendants are obligated to be present in court and that requirement is waived only in extreme circumstances. What is going on here?

(2) Carol Herman made the following comment | Sep 25, 2007 10:52:17 PM | Permalink

Politics is such a strange business. Plus, if I had to guess, how many judges are familiar with computers? Here in LA? A whole bunch. Because the computers are up at the bench. And, are used for their databases. But the judge presiding, t'marra? Can he be unaware that his ruling will receive attention? And, a "bad" (or inane ruling, discounting "hearsay," and instead "believing" Larry Craig; on the principal that he is a senator), I think, holds the most baggage. Can a judge just toss something FUNDAMENTAL? I wonder how much of this "insider trading" Larry Craig's lawyer can use? Or can count on?

And, I'm glad we at least know what's hanging there IS a piniata. Who swings first?

What are the best odds? That the judge "postpones" for a day? So that Craig can get to the courthouse? Since it seems he's now in the senate, perhaps, he'd wire back that he "can't ... due to senate business." Which is in the Constitution. Then? Well, then, it's the judges ball.

I am just amazed the senate republicans haven't got a "pair" between them; to tell Larry Craig to QUIT. They must all be out getting fitted for their prom dresses, instead?

What does the future hold? The argument that men can be accosted in toilets; as they are then "free to choose?" By the way, on the Net, the picture of the bathroom, stalls, themselves; has already become "identifiable."

Meanwhile, Craig only cares about his own skin. Typical. He's a senator. And, he's out to prove he's got some sort of law on his side. As if the truth is a big secret, here.

Well? If the judge rules so that Craig wins, you think the story just goes away? Or the homosexual lobby isn't given a boost with shots of adrenaline.

(3) nk made the following comment | Sep 25, 2007 11:21:45 PM | Permalink


My imagination runs to "irascible judge, at the prompting of conviction-happy prosecutor, threw out Senator Craig's motion to vacate his guilty plea just because he could not be in court because he had to attend to the nation's business". My guess is that Craig and his lawyers know that this motion is a loser and just eye-dressing and are looking for all possible ways to spin the inevitable denial.

(4) Beldar made the following comment | Sep 25, 2007 11:26:40 PM | Permalink

nk: It's a motion for post-conviction relief under Minnesota Rule of Criminal Procedure 15.05 — not an arraignment, nor a motion to revoke his probation, so there's no chance that Craig will need to be taken into custody at the end of the hearing. There's been no show-cause, capias, or other writ or order issued that would formally require his attendance. And so I think he probably is not officially required to be there in person.

But it just sends a horrible, horrible message, and but for the chance of him being popped onto the witness stand, I would never in a million years advice a client to not attend a hearing on which his political (which is to say, professional) life quite literally may depend.

That said, I think Craig's lawyers screwed up big-time in drafting and attaching Craig's affidavit to their motion, and in their whole "panic/Idaho Statesman" farce, to begin with. They had a perfectly respectable argument based on the prosecution's and sentencing judge's noncompliance with Rule 15.02 in connection with the entry of the plea. (And see Rule 15.03, Appendices B & C to Rule 15, and Form 11!) They didn't need to go outside that record; when they did so, their client had to stretch, if not trample, the truth, which is what would open him up to a particularly devastating cross-examination; and they were just badly mistaken to open that door. Had they not filed the affidavit, they then could have had Craig attend the hearing, nodding and looking concerned (but saying not a single word!), and then raised a Fifth Amendment objection if the prosecution tried to call him.

(5) nk made the following comment | Sep 26, 2007 5:52:13 PM | Permalink

Viewed in retrospect it was not unforeseeable that I was wrong. One story I read about the hearing today related that Judge Porter will hear about 70 cases a days with none of the defendants appearing.

Additionally, he asked the prosecutor only one question about a "procedural matter" (no more details) but many of the defense team, which is reasonable since they have the burden but also indicative that their motion may have been lacking as Beldar has been saying.

(6) bmaz made the following comment | Sep 27, 2007 1:05:13 AM | Permalink

Beldar - I left this comment at TPMin response to yours, but clicked your link just to see what your site was about. Since I'm here, might as well copy the comment as you are probably more likely to see it here; not that the comment is worth much, but what the heck.

"bmaz wrote on September 27, 2007 12:23 AM:
Beldar - I don't practice in Minnesota, so this is really just a thought, but I am not sure that actual prejudice ought to be the standard. I would hope on a fundamental right deprivation (assuming that is found) that prejudice is presumed. However, even if not, certainly the theoretical prejudice is pretty easy to sustain in either the form of the, in most every jurisdiction I have practiced in, diversion that should have been offered; or, alternatively, an extremely triable case. I think Craig's affidavit attached to his motion to set aside was sufficient for this without decent contravention; of which I am aware of none.

Just as important, however, is the absolutely bizarre lack of a formal record and ANY stated factual basis on a formal record. Furthermore, these two missing requisites are not necessarily stand alone arguments; they complement each other quite well actually. I am no fan of Craig's whatsoever, quite the opposite actually, but from a due process consideration I think it is awfully hard to see this plea as anything but defective."

Couple of other things after seeing additional content in your post here. I totally agree with your thought on the prosecutor. If I was him, I would have noted a "Request for Evidentiary Hearing" on my response to the Craig motion to set aside and requested the court to issue an order that the defendant either appear at said hearing, or the affidavit disallowed. Irrespective of what the prosecutor did or didn't do, I was fairly surprised the court didn't order the defendant present sua sponte.

Lastly, I know of Billy Martin a little; he is a hell of a "trial lawyer" (you are right about that nomenclature by the way). Never heard of him before this, but my understanding that local counsel Tom Kelly is well thought of too. That said, I thought they framed their pleading in somewhat of a wishy washy fashion. I would have made the fundamental error issues I stated above, counsel advisement and factual basis/formal record deficiencies the key pillars of the argument with the other stuff wrapped around that instead of the reverse, which is how I read their presentation.

At any rate, all for what it is worth; which isn't much. Nice blog you got here. Take it easy.

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