Experts say Craig may have a case

Sen. Larry Craig could have grounds for withdrawing his guilty plea to disorderly conduct in an airport restroom, even though he signed statements admitting to the allegations and saying he was making no claim of innocence, Minnesota legal experts agree.

He might not be able to get that guilty plea withdrawn before his self-imposed deadline of Sept. 30, when he has said he intends to resign if he can’t clear his name. And if he is successful, he could face trial on that misdemeanor and an even more serious charge of “interfering with privacy,” the gross misdemeanor that was dismissed in exchange for his guilty plea.

But Minnesota law allows for a defendant to withdraw a guilty plea if he can prove it’s a “manifest injustice” to allow it to stand, said Mary Jane Morrison, a professor of constitutional and criminal law at Hamline University in St. Paul. Craig would have to convince the judge who accepted his plea that it was not accurate, not voluntary and not intelligently entered.

“That’s a pretty steep mountain to climb,” Morrison said. But a state Supreme Court ruling earlier this year suggests it is possible.

There are several potential problems with the guilty plea petition Craig signed on Aug. 1, including the fact that it doesn’t specifically say the Idaho senator was waiving his right to be represented by a lawyer, said Stephen Simon, a law professor at the University of Minnesota Law School in Minneapolis, who operates a criminal defense clinic.

The three-page plea agreement, which appears to be a standard form with spaces where details of specific charges and penalties are filled in, has a sentence that reads “I am/am not represented by an attorney.” Craig circled “am not.”

But that form does not list the right to an attorney in a subsequent section that lists other constitutional rights being waived, such as right to trial, to cross-examine witnesses or to refuse to testify against oneself.

Craig was informed of his right to an attorney when arrested by an undercover detective during a “sting” to crack down on lewd behavior in the Minneapolis-St. Paul airport, according to police. But Hennepin County District Court records don’t immediately confirm that he was informed of that right again during his judicial proceedings.

Case law in Minnesota says that if a defendant does not have an attorney, the state has a heavier burden of proving he was advised of his rights, Simon said.

That’s true whether it’s a poor defendant with no knowledge of the law or a U.S. senator who has been in Congress for a quarter century. There can’t be two standards for upholding a constitutional right, Simon said.

“I think he has a leg to stand on,” Simon said.

Craig was not present when the plea was accepted by a judge; he had filled out the petition and mailed it to the court.

“It’s possible that cuts in the senator’s favor,” Morrison said. “He’s not there for the court to see with the judge’s own eyes and hear that this is a knowing, voluntary plea.”

The guilty plea petition Craig signed also may have some elements that could be challenged in a section that lists the disorderly conduct charge to which Craig admits guilt, Morrison said.

Courts require a defendant make an “allocution,” or recitation of his actions that were a crime, she said. The form Craig signed lists the location and the date where the disorderly conduct occurred, with an admission that he “engaged in conduct which I knew or should have known tended to arouse alarm or resentment or others which conduct was physical (versus verbal) in nature.”

The undercover detective’s report describes that activity as signals commonly used to solicit gay sex in a public restroom. But the plea petition doesn’t specifically say what that conduct was, Morrison noted.

The petition also has a typographical error, so what Craig is admitting doesn’t really make grammatical sense, Simon said. It should say “resentment in others” not “resentment or others.” A good defense lawyer probably would have caught that and might also have arranged a way for Craig to avoid a guilty plea on a first offense for a victimless crime, he added.

Craig now has lawyers, and they will have to lay out their arguments for having his guilty plea withdrawn in a motion that must be filed with the Hennepin County District Court. They probably will ask for a hearing to present evidence why the plea should be withdrawn, said Ted Sampsell-Jones, a professor of criminal law and evidence at William Mitchell College of Law in St. Paul.

They could call witnesses at the hearing, but so could the prosecution, Sampsell-Jones said.

While filing a motion to withdraw a guilty plea is relatively common, he said, success is relatively rare. Prosecutors routinely ask for the motions to be denied and usually succeed.

“What’s typical is they are summarily dismissed without any hearing at all,” he added. Minnesota law also gives prosecutors 20 days to respond to the defendant’s motion, Sampsell-Jones said. That means if Craig’s attorneys file the motion Monday, the response might not be filed until Sept. 30, the day Craig has said he will resign if he can’t resolve the case.

There’s no time limit for a judge to schedule a hearing. Sampsell-Jones said he has a motion to withdraw a defendant’s guilty plea in a murder case that’s been pending eight months without a hearing being scheduled.

In a high-profile case like this one, legal experts agreed that a judge is likely to hold a hearing and unlikely to rule from the bench. With so many eyes on the proceedings, the judge is likely to review all the arguments and rule later. A judge wouldn’t want to be seen as favoring Craig because he’s a senator.

If he’s successful in withdrawing his plea, Craig could still face trial on the charges stemming from the restroom arrest. He’d likely face the invasion of privacy charge – essentially a complaint that he was acting as a “peeping Tom” by looking through a space in the toilet stall – which was dropped in exchange for his guilty plea in August.

At that point he can “mount a huge effort not to be convicted,” Morrison said.

But prosecutors also could present any evidence gathered by police, including the tape recorded interview with Craig after he was arrested. Although Craig denies that he was soliciting sex in the restroom through tapping his foot and moving his hand under the stall divider, Simon pointed out that the senator does at least show he knows what the detective is talking about.

“One of his first comments is, ‘You solicited me,’ ” Simon said. “That could be pretty damaging evidence, because he uses a phrase that could be a window into his mind.”