MINNEAPOLIS – Sen. Larry Craig’s lawyers are in search of a rare legal prize – a do-over. And getting it won’t be easy.
“He’s already gotten lots of justice and fairness. A court will view this as taking not just a second bite at the apple, but a fourth and fifth bite,” said Mary Jane Morrison, a professor in criminal law at Hamline University in St. Paul.
This afternoon, attorneys for the Idaho Republican hope to convince Judge Charles Porter that Minnesota’s justice system made a terrible mistake in accepting the senator’s guilty plea.
Craig contends he did not solicit sex in the airport restroom and erred only in pleading guilty by mail to disorderly conduct without consulting a lawyer. He has said he would resign by the end of the month but has since linked his political future to whether he can take back the plea.
Craig, who’s been in Washington, D.C., this week attending Senate proceedings, said Tuesday that he won’t attend the hearing today.
“If it’s just legal argument, his presence really doesn’t add a lot to it,” said Howard Bass, a Burnsville, Minn., attorney and former president of the Minnesota Association of Criminal Defense Lawyers.
Craig has said his foot-tapping, hand gestures and looks into a bathroom stall were misconstrued by the police officer who arrested him. His attorneys say that he pleaded guilty to a misdemeanor because he feared his June 11 arrest would trigger a story by an Idaho newspaper that had been investigating his sexual orientation. Craig has denied being gay.
In plea bargains in open court, judges walk the defendant through testimony about precisely which actions violated the law. Craig mailed in a written plea agreement that admitted disorderly conduct, but the agreement did not describe exactly what he did that was illegal. Craig’s attorneys argue that a judge’s inquiries would have prevented Craig from pleading guilty because it would have become clear that he hadn’t done anything illegal.
Minneapolis defense attorney Joe Friedberg said that argument is stronger than contending that Craig was panicked into a guilty plea.
“The only shot he’s got is if the judge determines that there’s no factual basis for the plea,” Friedberg said.
Prosecutor Christopher Renz has argued in court papers that thousands of guilty pleas are entered the same way. He also contends that Craig, a college graduate who has served in Congress for nearly 30 years, should not be able to claim he was ignorant about his guilty plea.
If Porter rules against Craig, the senator can go to the state Court of Appeals. On Tuesday, it ruled against a defendant who wanted to withdraw his guilty plea for criminal sexual conduct because he said he didn’t understand part of his plea. The appeals court ruled it was up to the trial court to decide whether to allow pleas to be withdrawn.
On Tuesday, Idaho Gov. Butch Otter cleared his schedule to allow him to interview potential appointees to replace Craig in the Senate by the end of the day today. “He does have quite a list to go through,” said Jon Hanian, Otter’s press secretary. “He wants this office to be ready.”
Craig said earlier that he’d resign from the Senate on Sept. 30, which is this Sunday. But then he said he might not resign if he could clear his name before then.