Prosecution Accuses Sen. Larry Craig of "Politicking"

By Jeralyn, Section Other Politics
Posted on Mon Sep 24, 2007 at 07:52:39 PM EST
Tags: Larry Craig (all tags)

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Minnesota prosecutor Christopher Renz has responded to Senator Larry Craig's Motion to Withdraw his Guilty Plea.

Denying Craig's motion "prevents further politicking and game playing on the part of the defendant in relation to his plea," Renz wrote.
Renz wrote that Craig didn't decide to withdraw his plea until after he was hurt by the publicity of the allegations...."The defendant chose to plead guilty and consciously took that risk. The defendant's current pursuit of withdrawal of his guilty plea is reactionary, calculated and political."

Renz also complains that if Craig is allowed to withdraw his plea, there will be a "deluge" of similar requests from other defendants. His support for that belief apparently is a single call received from another defendant.

Renz writes of several calls he had with Craig before the plea. In one, his notes say he advised Craig to seek counsel.

You can read the 41 page memorandum brief here (pdf). His affidavit (with attachments)is here.

Some thoughts:

First, Craig's motives in withdrawing the plea shouldn't matter if it was an inaccurate, unintelligent or involuntary plea.

Second, it's the Court's job, not the prosecutor's, to advise Craig of his right to counsel. That the prosecutor suggested to Craig he seek legal advice or that Craig indicated in the plea agreement that he is proceeding without counsel is not the same thing as being advised that he has a right to counsel and waiving it. Even the case Renz attached to his memorandum on a different issue says so (see page 3.) But, since Craig's lawyers didn't raise the failure of the mail-in plea document to advise him of his right to counsel, it's a non-issue.

Third, whether others will seek to withdraw their pleas is irrelevant to Craig's case.

That being said, the prosecutor's response is very well-written and I think quite adequately refutes the arguments made by Craig's lawyers in the motion to withdraw the plea.

The court must decide if allowing Craig's plea to stand would be a "manifest injustice" because it was either inaccurate, involuntary or unintelligent.

Based on the arguments in Craig's motion (here) and the prosecutor's response, I'd say Craig's plea will stand.

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Prosecution Accuses Sen. Larry Craig of "Politicking" | 23 comments (23 topical)

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Craig's lawyers did raise the Rule 15.02 argument (none / 0) (#1)
by Beldar on Mon Sep 24, 2007 at 08:18:02 PM EST

They just did it incredibly badly, and waited until page 9 of their motion to mention the rule.

Not really (none / 0) (#2)
by Jeralyn on Mon Sep 24, 2007 at 09:15:31 PM EST

They mentioned the rule nd tied it not to the facial deficiency of the plea document but to the judge not conducting an oral examination to confirm he understood the right and was waiving it. A better argument, in my view, is that the document is insufficient on its face for failing to include the right to counsel in the paragraph of rights he understands he has and is giving up.

PDFs aren't loading (none / 0) (#3)
by andgarden on Mon Sep 24, 2007 at 10:49:10 PM EST

in Safari 3.

they open in Safari (none / 0) (#5)
by Jeralyn on Tue Sep 25, 2007 at 12:21:01 AM EST

Version 2.0.4 (419.3)

that's what's on my new macbook,


Hmm (none / 0) (#6)
by andgarden on Tue Sep 25, 2007 at 12:41:53 AM EST

Are you calling a special plugin?


I downloaded Adobe Reader (none / 0) (#7)
by Jeralyn on Tue Sep 25, 2007 at 12:58:19 AM EST

and set the browser to automatically open pdf docs in Adobe Reader rather than Safari's program.


: yeah, it opened in adobe just fine for me (none / 0) (#8)
by cpinva on Tue Sep 25, 2007 at 05:27:35 AM EST

hmmmmmmmmmm (none / 0) (#4)
by cpinva on Mon Sep 24, 2007 at 11:34:49 PM EST

i agree with your first two comments: his motivations for requesting to withdraw his plea, and any consequences elsewhere to his being allowed to, are completely irrelevant to the case at hand. who cares? that's just fluff on the DA's part.

with respect to the motion itself, i don't even see any mention made, specifically, of the DA's failure to include a written waiver of counsel notice, in the plea agreement. there is, as you noted, just a brief mention of the rule, by number. that's it. it's then tied, tenuously, to the failure to provide an oral judicial examination.

there's a lot of extraneous verbiage in both the motion and response. do these guys get paid by the word?

all the nonsense leading up to the fateful event is just that, nonsense. totally irrelevant to the issue at hand: was craig correctly advised of his right to counsel, with respect to the plea agreement, and was that right presented as required by MN law? that's it, that's all that matters.

geez, if these lawyer's were doing my job, they'd get reamed on review.

with regards to the outcome, i'm not sure i wholly buy into your position. simply put, the DA admits, in his motion, his failure to follow the rule of law; that the notice be written, and affirmed in writing, by the defendant. he attempts to gloss over this failure, by noting that he told sen. craig, several times, on the phone, of this right, and that sen. craig, on the phone, waived it.

can't get much clearer than that: the DA affirms his actions violated state law. or rather, his failure to act, in the manner prescribed. it's not the defendant's job to make sure the prosecutor does his correctly, it's the court's.

were i making odds, i'd say sen. craig has better than a 50/50 chance of success, and the DA is going to get a slap on the wrist as well.

I agree with Beldar (none / 0) (#9)
by Deconstructionist on Tue Sep 25, 2007 at 07:34:29 AM EST

that Craig did (barely) raise the failure to advise and obtain waiver of right to counsel argument. Many of us commented at the time that we thought his motion was poorly done but I do think the somewhat oblique reference is enough that the issue is before the court. I've always assumed his focus on the weaker argument that he pleaded to doing something that is not criminal was for public consumption more than for the court

Craig's thank you note to the prosecutor (none / 0) (#10)
by Ellie on Tue Sep 25, 2007 at 07:51:48 AM EST

Via Talking Points Memo, here's a scan of Craig's hand-written note telling the prosecutor, "Thank you for your cooperation," and Craig refrained from phrases like, "Let's do this again sometime," that might further damage his claim.

(I didn't see this with the other PDFs, though one didn't load completely.)

the note (none / 0) (#11)
by Deconstructionist on Tue Sep 25, 2007 at 08:06:44 AM EST

is an exhibit to the prosecutor's response and it loadeed here for me. I don't think such perfunctory courtesy is something that should be considered probative of Craig's state of mind. i do think, however, that the number of communications and the time elapsed are quite probative.

I agree with Jeralyn that the only strong argument he has is the absence of an EXPRESS advisement of his right to counsel and an EXPRESS waiver thereof. I fervently believe that we cannot allow implied waivers of fundamental constitutional rights-- even where as one might argue here the implication is strong.


: Craig's playing with a double edged sword (none / 0) (#14)
by Ellie on Tue Sep 25, 2007 at 10:25:01 AM EST

He's dealing on one hand with the legal case and process, but is also aggressively trying to establish an "official" story for public consumption that's getting increasingly messy with contradictions.
It seems he's between a stall and a hard place here: his thank you note for the prosecutor's cooperation isn't merely perfunctory in context with the dropping of other charges that would have placed more salacious (and damning) details of this event in the public record. (I have no idea whether those charges would be back in play now.)
His stance that he was rushed into making a plea from naivete and confusion appears to be contradicted both by his long experience as a lawmaker who was strategizing about public relations at the outset -- not calling a lawyer seems more related to PR than ignorance about his rights -- and the fact that he and the prosecutor had several exchanges, over an extended period, to expedite this matter quietly (also with PR being at the forefront.)
So thanking the prosecutor for his cooperation seems to relate more to Craig making his personal interests and requests known at the outset than being passively kept ignorant of his rights and denied them.
I'd be interested in knowing the kind of leeway others had who entered pleas and paid fines via this form and mediation. If they got less consideration than this moral values phony, I hope they come forward and ask for a do-over.

Note's no big deal; cover letter is (none / 0) (#17)
by Beldar on Tue Sep 25, 2007 at 06:21:32 PM EST

I agree that Craig's perfunctory thanks to Renz in the note is pretty meaningless. The cover letter under which Renz sent the proposed motion to enter the guilty plea that Renz sent to Craig, however, is hugely important. It shows, for example, that rather than trying to take advantage of Craig's supposed "panic," Renz volunteered to secure an extra two-week continuance so that Craig could review the proposed agreement with a lawyer.


again, (none / 0) (#12)
by cpinva on Tue Sep 25, 2007 at 08:19:05 AM EST

all else is irrelevant to the issue at hand: the failure, by the prosecutor, to include the mandatory waiver in the plea agreement. everything else is dross, designed to confuse the issue.

the prosecutor hopes that the court will overlook his failure to follow the rule of law. hopefully, the court will see through this grandstanding, and require the state to abide by its own rules.

Craig "started it" though (none / 0) (#13)
by Deconstructionist on Tue Sep 25, 2007 at 08:35:24 AM EST

by supporting his motion with all the "dross" and pretty much invited the prosecutor to respond as he did. By just barely broaching the issue of the lack of advisement and waiver and rambling on at length on much weaker arguments, Craig pretty much ensured that the prosecutor would attack the arguments Craig's motion stressed. I think the prosecutor did a good job of that and i can't blame him for doing that.

It will be interesting to see if Craig files a supplemental motion and/or strsses the advisement/waiver issue at the hearing on the motions.

One other reason why I think Craig's tactics are not very well considered, is that he is also inviting the prosecutor to put the cop on the stand at the hearing and THAT will be a media field day, whereas the advisement/waiver issue requires no testimony from the cop.

Tomorrow (none / 0) (#15)
by eric on Tue Sep 25, 2007 at 05:35:21 PM EST

I am going to try to attend the hearing tomorrow. I live reasonably close to the courthouse where the hearing is but my office is not close. I will try to work it into my schedule.

For what it's worth, I think Judge Porter is going to deny this motion with authority. That is part of the reason I really want to attend.

Craig is ditching hearing (none / 0) (#16)
by Beldar on Tue Sep 25, 2007 at 06:18:05 PM EST

Jeralyn, do you agree that — especially given that Craig has now publicly announced that his lawyers have told him not to show up for the hearing himself — prosecutor Chris Renz would be well advised to make a formal hearsay objection on the record to Craig's affidavit (which was attached to his motion to withdraw the plea)?

I think that objection is unquestionably a valid one, and that it would effectively force Craig to either take the witness stand or withdraw his motion.

: Ouch (none / 0) (#18)
by eric on Tue Sep 25, 2007 at 06:22:44 PM EST

He's not showing up? That would be a very bad idea, IMO.

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

Eric (none / 0) (#19)
by Jeralyn on Tue Sep 25, 2007 at 07:10:50 PM EST

let me know if you'd like to write a diary about the hearing if you go. I'll change your status to diarist before I leave town if you do.

A really good post on Craig's motion (none / 0) (#20)
by Jeralyn on Tue Sep 25, 2007 at 07:12:05 PM EST

Check out this post by Alex at Bilerico. He's not a lawyer but he really grasps the issues and explains them well.

reality vs. the law (none / 0) (#21)
by lawstudent on Tue Sep 25, 2007 at 09:35:12 PM EST

I agree with your first point, legally speaking, in that Craig's motives in withdrawing the plea shouldn't matter. But in reality, his motives seem quite relevant. Craig is clearly trying to (ab)use the legal system for his own political benefit.

His actions and thought process are quite transparent...He did something embarassing; he got caught; he sought to avoid publicity by pleading guilty; he ended up getting said publicity; he decided to go back and fight the plea. He wants to have his cake and eat it, and he's getting two bites at the apple. Why? To salvage his political career--one that has been disrupted by his own voluntary actions. To me, that just doesn't seem right.

Didn't make it (none / 0) (#22)
by eric on Wed Sep 26, 2007 at 01:41:50 PM EST

Sorry all, but I didn't make it to the hearing. I am afrain the almighty billable hour prevented me from getting away.

the hearing is apparently over (none / 0) (#23)
by Deconstructionist on Wed Sep 26, 2007 at 02:46:46 PM EST

but all the reports focus on the judge saying he won't decide until next week and past Craig's one-time deadline for resigning. Almost nothing of substance about the arguments is available yet beyond Martin being quoted as saying it is nearly impossible to withdraw pleas and should be and Renz saying Craig had lots of time to decide before pleading.