Experts say legal loophole in guilty plea favors Craig

ghahn@idahostatesman.comSeptember 6, 2007 

U.S. Sen. Larry Craig wants to reverse his guilty plea and clear his name by Sept. 30, when he has said he would resign from the Senate. But can he?

What Craig hopes to do is so rarely done in Minnesota courts that "there's no way of talking about the kind of timeline" it would take, University of Minnesota law Professor Barry Feld said Wednesday.

But a longtime Minneapolis criminal defense lawyer and another law professor said Craig's signed plea agreement has a hole — one Craig's high-powered attorneys are sure to seize on.

Craig signed a document Aug. 1 pleading guilty to disorderly conduct in that now-infamous Minneapolis-St. Paul Airport restroom sting after an undercover police officer said Craig solicited sex from him June 11. But the plea agreement never waived his right to an attorney — an omission that "screams out" at Bob Speeter, who has defended criminal cases in Hennepin County, Minn., for 23 years.

Craig's plea waived five specific rights, including the right to a trial, but not his right to a lawyer.

"I can't think of a reason to remove that," Speeter said. "That would give a good argument for someone trying to open a plea."

After his arrest, police read Craig his Miranda rights, which include his right to legal counsel, but that just referred to his interrogation, not the plea document, experts said.

Craig has said he pleaded guilty and did not consult a lawyer because he wanted to keep the incident from coming to light.

"I chose to plead guilty to a lesser charge in the hope of making it go away," he said last week.

The original charges included a more serious allegation of interference with privacy, based on Craig looking into the stalls. That charge was dropped.

Craig has since hired Billy Martin, a well-known lawyer who represents NFL quarterback Michael Vick in a dogfighting case, and two other lawyers to fight for him in the Minneapolis case and a Senate ethics committee investigation. If Craig can clear his name before the end of the month, his spokesman said, he hopes to keep his Senate seat.

Craig could win a hearing on the case soon, but the judge is unlikely to rule quickly because of the attention the case would receive, said University of Minnesota clinical law professor Steve Simon.

"The whole world is looking at the case," Simon said. "The judge knows this and is not going to rule from the bench."

Though Craig is a U.S. senator who knows his basic right to an attorney, the courts should not consider that, said University of Minnesota clinical law professor Steve Simon.

"They avoid adopting a subjective standard in terms of constitutional rights," he said.

And the right to an attorney is part of the "holy trinity" of these rights, he said, along with the right to a fair trial and the right not to incriminate yourself.

Minnesota courts have thrown out plea agreements for failing to acknowledge the right to an attorney, he said.

Craig has maintained his innocence since the arrest was first reported Aug. 27. He already has been sentenced. He paid $575 in fines and fees, and has a 10-day suspended jail sentence hanging over his head during his one-year unsupervised probation if he commits the same offense again.

He signed each page of the three-page plea of guilty.

Craig had yet to file court papers Wednesday seeking to challenge the plea, and his lawyers weren't talking. Craig's Minneapolis attorney, Tom Kelley, did not return a telephone call Wednesday. Neither did prosecutor Christopher Renz.

"I think the odds are long," said Doug Kelley, a Minneapolis defense lawyer and former assistant U.S. attorney who was chief of staff to former U.S. Sen. David Durenberger. "I think he's got to show either that he was coerced into the plea, or that he didn't understand his legal rights at the time that he signed the document acknowledging his guilt."

A defendant who wants to overturn a guilty plea has to demonstrate a "manifest injustice" under the state's Rules of Criminal Procedure, Simon said.

"Very few motions to withdraw pleas are brought," Simon said. "Of those that are brought, few are granted."

To withdraw his guilty plea, Craig would have to bring the motion before the same judge who handled the case.

If the judge agreed, the prosecutor would be free to refile the case — including a gross misdemeanor charge of interference with privacy that was dismissed in the plea agreement. That charge was based on a police sergeant's claim that Craig gazed into his stall.

Craig could then take the case to trial in search of an acquittal.

"Legally, I'll give him decent odds on that," Kelley said. "But PR-wise, he'll get murdered."

For starters, the prosecutor could be expected to put the police officer on the stand to testify about the protocol for bathroom sex.

"I wouldn't think that would be much fun," Kelley said.

Gregory Hahn: 377-6425

Idaho Statesman is pleased to provide this opportunity to share information, experiences and observations about what's in the news. Some of the comments may be reprinted elsewhere in the site or in the newspaper. We encourage lively, open debate on the issues of the day, and ask that you refrain from profanity, hate speech, personal comments and remarks that are off point. Thank you for taking the time to offer your thoughts.

Commenting FAQs | Terms of Service