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September 05, 2007

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Amen! Its is time we quit paying, wish the dems in congress could get their act together.

Jane Hamsher had a take on the Craig "affair-that-was-not-consummated" the other day on FDL- that it seems Craig was not and never had been, on board with the Patriot Act, that perhaps it was too conveinent that he be outed, confused, arrogant and stupid, so a more bushy loyalist could be installed in idaho before 2008. Lets see, FISA, Patriot Act, Craig in a mens restroom, Jack Goldsmith's Book, Fisa, Patriot Act, Craig, Glodsmiths book, repeat after me....

eyes

I'd love to believe Scottish Haggis--another person with doubts about the PATRIOT Act--was supporting Craig because he knows that's what's going on. But, in spite of the fact that he punked Leahy recently, I don't think he's that clever.

Though I would note that ID's Republican delegation is taking a soft stance on this issue.

Arlen is clueless as we know too well. I was at first sceptical of Jane's take on this, but the minute that Goldsmith book and related articles came out, it made sense. As i catch up to the proclivities of the Repugs, I now know that it was no secret of Craig's sexual orientation, that the story broke and buried the more powerful story of Goldsmith's allegations, and then Pepubs get a two-fer, with also having just the right amount of time to install a replacement in congress, for what we do not know yet. I guess it could be a coincidence, it could be tinfoilhaty, but I don't know. Craig of course, was so easy a target. And then to top it all off, he starts going on about Hillary abusing the patriot act when she becomes president. The guy needs a long break at a spa out in the desert, if he could oonly convince Arlen to go with him.

thanks for your reporting. My guess is that Idaho's republican delegation is spending a lot of time in church.

Eyes - Don't ship ole Wide Stance out here to the desert. We are doing just fine without him, thank you very much.

bmaz-

chuckle chuckle, Well, maybe he can promise to peep-ee like a big boy.

Condi: Nobody could have imagined terrorists would use haggis as a weapon against the Republican party!

Mary - If you see this, I am curious as to your thoughts. Clearly you travel over to TPM. Last night and this morning, Josh Marshall cited a series of readers that claimed to be criminal lawyers (in fairness, they know a nominal enough amount that they clearly probably are) on the validity of the Craig plea and whether it stood a chance of being withdrawn (set aside is the more proper term since Craig is beyond the Minnesota statutory new trial motion period). At any rate, I sent him late last night the following email explaining what appeared to be the case here, and he went on to cite two other sources that STILL had not reviewed the actual plea form at issue. There appears to be no audio record of a formal plea proceeding, either live or telephonic. Everything is effectively in this document, which I find inherently defective on it's face. Wondering your opinion and whether or not you know of any Minnesota court that has reviewed this particular plea form (I can't believe one did or it would have been fixed). Here is my email and a URL for the actual Craig plea document. Tell me what you think.

Josh,
I have now read the comments you posted by "NS" and "DL". Both accurately state the general nature of the law, as did RS last night. The thing is that none of the above have actually seen the the plea agreement form. Interesting that you keep referring to lawyers that have not even reviewed the actual form.
I have practiced criminal law for twenty years in multiple jurisdictions. I have seen thousands of plea agreement forms. I have never seen any that had as defective an advisement to the defendant as to rights regarding counsel. Never. Appellate courts everywhere I have practiced have been consistent in holding that a defendant must be specifically advised of his rights to counsel for the proceeding and that there must be crystal clear record of the defendant having waived them. That is because the right to counsel is a Constitutionally protected right. Because the plea form from Hennepin County used in Craig's case does not have a full enumeration of the defendant's rights; there is no clear evidence that the defendant knowingly waived them. In every jurisdiction I have practiced in (which does not include Minnesota, but there is no reason that should be different) this plea form would be found to be defective on it's face by an appellate court.
Now, the burden is indeed on Craig here. If I were a judge and this matter was put in front of me, based upon the defective form, I would have to set the matter for an evidentiary hearing to determine the defendant's (Craig's) state of knowledge and mind when he entered the plea. My personal opinion is that Craig consulted an attorney, maybe more than one, before entering this plea; they just were not attorneys of record in the court case. What the decision would be would depend on the sworn record from there; but the defective plea form really does militate in his favor. Again, here is a link to the actual document. The fully stated enumeration of the specific components of the Constitutional right to counsel should have been delineated in paragraph 9 with the other Constitutional rights that are being waived.
http://www.talkleft.com/docs/craigguiltyplea.pdf

Guys like Craig are 'scorched-earth' practitioners - they are going to take someone down with them.

Who has Craig come back to haunt, possibly?

http://www.cnn.com/2007/POLITICS/09/05/craig/index.html

On Tuesday, Senate Minority Leader Mitch McConnell of Kentucky said he expected Craig's resignation to be final.

"I think the episode is over," he said. "We'll have a new senator from Idaho at some point in the next month or so, and we're going to move on."

---

Mitch better hope he's clean as a whistle...heh, heh.

Senator Craig's recent non statement statement: "It's not that I am anti homo, I am! It's not that I don't admit to using the bathroom for my "wide stance", I do! But this talk of my signaling for a homosexual encounter, knowing just what to do to have the officer arrest me and then plead guilty to the charges when he gives me a break, it's just nonsense. No one that is a homosexual looking for a fast one in the bathroom would do any of the things I did, ever" (if they knew it was a police officer they were trying to have relations with.
so much fun on so many levels. no one except the "gay old publicans" care about the gay part, as it is the last straw to begin outing all the hypocrites, and they know they are next. no senator is going to plea to a cop in a bathroom bust if he is innocent, but that is becoming irrelevant too. the g.o.p. (as mentioned above), are now blaming the democrats who are asking them to include diaper boy in with the bathroom naughties as the ones that caused all of this now.

help Senator Craig retain his standing as one of the leading "Ida-ho's" and stop persecuting him for his actions as the straight man about town that he is. and help his poor children that don't want to think daddy likes taint more than he likes mommy.

is this really happening? it's like a 60's high school event, and Frank Zappa was right. Politics is just like high school with guns and money.

bmaz - It would be malpractice for me to attempt crim def and I hadn't been paying much attention to the Craig stuff, but I followed your link and another at Talkleft and I'll give my free opinion.

IF Craig REALLY TRULY thinks he wants to withdraw the plea and go to trial, I would bet he could.

As you mentioned, the plea fails to incorporate reference to the Constitutional right being waived. But even without that - the link I followed from Jeralyn (beldar.blogs?) took me to the MN rules of criminal procedure.

http://www.mncourts.gov/rules/criminal/RCRP.htm

Rule 15 et seq deals with pleas and the rules are kind enough as to incorporate forms in the appendix for use and Craig's doesn't comply.
http://beldar.blogs.com/beldarblog/2007/09/RCRP_appendixC-1.pdf

http://beldar.blogs.com/beldarblog/2007/09/RCRP_appendixB-1.pdf

Ok, the forms aren't necessarily compulsory, so you look to the rule(s) on which the forms are based and those rules (e.g. 15.02, and there is another 1 I think) required that "Before the court accepts a plea of guilty" there be certain representations to the court (in person or by form) including

"Whether the defendant knows there is a right to the assistance of counsel at every stage of the proceedings and that counsel will be appointed for a defendant unable to afford counsel"
15.02(3)

It would take research, but I would tend to think along the lines of "void act" bc the plea is being taken without compliance with the rules of procedure and the court may have lacked authority to enter it under that approach - even separate and apart from the Constitutional argument and whether the court could enter without confirming that the petitioner was aware of right to counsel.

Then you also have the MN rules on withdrawal of pleas

Rule 15.05 Plea Withdrawal Subd. 1. To Correct Manifest Injustice. The court shall allow a defendant to withdraw a plea of guilty upon a timely motion and proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice. Such a motion is not barred solely because it is made after sentence. If a defendant is allowed to withdraw a plea after sentence, the court shall set aside the judgment and the plea.

The blogger at the site thought that the were "bright line" cutoffs by the 15 day limits to request a new trial/vacate judgement (and even if there were, I would argue against their application bc I would argue that a plea was never actually entered since nothing that comported with the procedural rules was tendered and the reference to right to counsel is compulsory on the court - not a voluntary act of the court).

But then he/she had taken a look at the case law on 15.05 and found MN to be surprisingly amenable to withdrawal without regard to brightline deadlines (they don't apply the 26.04 or 28.02 time periods when the "manifest injustice" is raised"

http://beldar.blogs.com/beldarblog/2007/09/craig-reconside.html

Minnesota's caselaw treats Rule 15.05 as having no bright-line deadline, and motions to withdraw pleas under it aren't automatically considered to be "untimely" even after new trial motion and notice of appeal deadlines have passed. Instead, the Minnesota courts have engaged in the sort of sliding scale balancing of interests tests ... They weigh the magnitude of the right supposedly deprived against the delay in asserting it, with special emphasis on whether that delay will prejudice the prosecution in proceeding to trial if the plea is permitted to be withdrawn. ... My research was far from exhaustive, and of course I'm not admitted in Minnesota, but in an hour or so I came upon a goodly handful of Minnesota cases permitting plea withdrawals months and even years after they'd been made, sometimes without anything approaching the kind of rigorous examination for both violation of fundamental rights and the resulting causation of prejudice that I would have expected.

I don't know the blogger, but based on the language of 15.05 and all the other facts and circumstances relating to the form, the crim pro rule requirements, the Constitutional aspects, etc. I think that a Judge is going to allow the withdrawal - the prosecution cannot be all the prejudiced at this point and the right implicated is one of overweaning importance.

So, I'd bet for him getting a chance to withdraw if he wants.

I'd lay a lesser wager on the fact that he might prefer NOT to withdraw but instead bemoan how he didn't get a lawyer and didn't understand how it worked and he just wanted to get the travesty behind him and not allow a culpable officer to try to make political hay out of Craig's lack of familiarity with "gay signals" in bathrooms, yada yada yada. I'm really thinking he and other in the party can't want a prominently mentioned trial going on into 2008. OTOH, it may be a bargaining chip for him to force the party to be kinder to him and make his leaving a much more gentle easing than they have been.

All fwiw and jmo.

Your keys to God's microprocessor RFW. As a Kentuckian, here's hoping Mitch isn't all that clean.

If Craig didn't know he had the right to a lawyer, I'd think it would be a sign of serious lack of mental ability, leading to questions about his qualification for office. I mean, really, he doesn't know that much and he's in Congress??
(With Miranda rights and you-can-make-one-phone-call on just about every detective/law enforcement show for the last, what, twenty or thirty years, he didn't know that?)

Mary - Thanks. I had seen this Beldar's analysis. I don't know Minnesota law, but then again, I don't think he does either; he appears from his website to be in Texas somewhere. Like I said, I don't know Minnesota law, but I think the whole manifest injustice bit that he and some folks at Talk Left are off on is a bunch of bunk. What the hell manifest injustice has Craig suffered that they are talking about? I think that language is helpful only in overcoming any time preclusion argument. I may be goofy, but I think Craig gamed this whole bit and had a lawyer advise him off the record. Irrespective of that though, I think the form is Constitutionally defective and stands a very good chance of getting him out of his plea if he really wants it.

Like you, I question whether he really wants out as opposed to just saying he wants out. I said exactly that the second he started making noise about getting out of the plea. And therein lies the ironic beauty here; he likely CAN get out, whats he going to do? I will say this, if I were the Hennepin County prosecutor, I would make a fair wager that I could could convict Craig on a solicitation variation of lewd and lascivious conduct and probably another Minnesota statute (can't remember the number or name; may actually have been a subdivision of the disorderly conduct section) tha clearly contemplated included conduct of peeping violations. If am Craig I do not want to try this junk; it will get very messy and embarrassing for him even if he does win. There is one other good possibility for Craig, and if I am Craig's lawyer, this is where I am heading very fast and very quietly. The Hennepin County Court has a pre-trial diversion program that could be offered. I would be talking very quietly to the head county attorney, or his chief deputy, about what a useless mess for both sides this is if it gets reset on a trial docket; big time and resource costs, dog and pony show interrupting other court activity etc. Talk him into stipulating to set aside the plea and entering into the pre-trial diversion program; which is typically a 8 or 16 hour class costing about a $150, an agreement that you will not commit any other offenses for a year and you are done. By the way, are you really in Kentucky (my mom was born and raised in Murray)? At any rate, I think Craig had a chat with McConnell and told him to back off and tentatively support him or he would start chatting about McConnell's proclivities. Howie Klein and the other guy who has been getting notoriety for outing Craig some time back are making loud noises that they are going to out McConnell and Graham a little closer to the election anyway. Should be interesting. Back to Craig, I think he already has some deal in the works in Hennepin County from the fact that they keep talking in terms of there being something accomplished before end of the month; the only way that could be is if they are reaching an agreement.

PJ - On a practical level, of course, you are right. From the standpoint of the law though, there is very established long held precedent that these rights have to not only BE understood by the defendant, but also that the record evidence clearly and unequivocally understands them and is KNOWINGLY waiving them to plead guilty. For better or worse, that is the law in every jurisdiction I have practiced in. Where I practice, all courts require you to not only sign such a document, and one that has ALL the rights enumerated, you have to write your initials next to each specific Constitutional right waived. Clearly these protections are not, as a general principle, designed with defendants as sophisticated as Craig, but once implimented, they must be applied to everyone.

Personally - I would like, pending research, the argument that the plea entry was void and not just voidable act bc of the Constitutional defects on the face of the plea, but I would definitely bootstrap the withdrawal rule's manifest injustice argument on too (I'm a throw everything and see what sticks type though)

I have a hard time believing that anyone can claim in his position can claim actual prejudice - that they didn't know - but the injustice rule is a pretty open time frame rule so that's why they are trying to fit in that cubbyhole. Big enough hammer and you can sometimes whack a square peg into that round hole.

The rules meant to protect the least are still available to the nonleast.

I think the form is Constitutionally defective Is it your understanding that is a form that the county provided for pro se defendants? Bc it isn't the standard form provided by the MN rules. Or did Craig self-generate that petition? In which case I would think it that much more likely a lawyer might have gamed it for him.

I think Craig's only winner from threatening to fight the prosecution is that the Republicans might sweeten a pot for him to instead back off and let the whole thing die down well before 2008.

My BIL practices in MN so I'll see if I can get his input, but he doesn't do crim either - city planning stuff.

My understanding is that it is a court form and that it was recently changed; how I don't know. I don't think a court would let a dedendant completely generate his own plea form. A lawyer they are familiar with maybe. But hey, I can't believe a court entered a criminal plea, on a case that origianlly involved moral turpitude, without having an official record; so what do i know? Actual prejudice on the part of Craig - yeah, that is why I was not to impressed with all that manifest injustice hooey the folks at Talk Left were bandying about. This plea document, with no audio or written record to back it up, is a fairly compelling argument in my opinion. I hate saying that, but thats how I see it. Not a slam dunk (as Tenet would say), but a real decent argument. Back to who generated the document, generally you construe against the maker; but here, it may not matter. The court has a duty to insure that there is a clear record of knowing and voluntary waiver; they ain't got it. The whole thing is so unbelievably goofy I am dumbfounded. Bad document, mailed in, no record even telephonic... it is all way bizarre. My experience is that defects of this type are usually cut and dried if properly challenged. For one thing that nobody has considered; if this is indeed a defect in the court's own document as it appears to be, neither the prosecutors nor the court have a vested interest in having it litigated on the record. There are other idiots that can come pouring out of the woodwork too. Might want to just get this out of their hair and fix the form. We shall see.

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