« Memorandum to Sally Quinn | Main | Should the C-in-C be able to distinguish hostile from friendly fire? »

Monday, October 01, 2007

Is Craig's strategy "winning by losing," counting on colleagues and constituents to confuse "innocent until proven guilty" with "guilty (pending further appeals)"?

It's October 1st, and Sen. Larry Craig's self-imposed resignation deadline has passed without his formal resignation being tendered. Dan Popkey, a columnist for the homestate newspaper whose investigation Craig claims "panicked" him into pleading guilty, the Idaho Statesman, hypothesizes today that the senator may have a new plan — one that not only anticipates, but depends upon Craig losing last Wednesday's trial court hearing on his motion to withdraw his guilty plea (boldface mine):

On Sept. 1, Sen. Larry Craig told Idaho and the world he intended to resign Sept. 30. That's today. Instead, Craig says he plans to stay "for now." ...

... Now, Idaho Republican leaders tell me they've come to believe Craig will likely complete his term in January 2009.

"'‘For now' is permanent," said one. "He ain't leaving."


Craig has about $500,000 in the bank for his 2008 re-election campaign. He is authorized to use that to pay lawyers.


Craig's bid to complete his term would be best served by heading off a trial. A trial would mean testimony from the arresting officer and experts on the culture of anonymous homosexual sex. That's not something Craig, his family, Idahoans or the GOP want to endure.

So far, Craig's strategy is working. Minnesota's Fourth District Judge Charles Porter was skeptical of the arguments of Craig's lawyers. If Porter rules against Craig, as most legal experts expect, Craig won't face a jury anytime soon.

Porter might surprise us and set a trial date in coming months. But the likely scenario is Craig will head to the Minnesota Court of Appeals. He can expect oral argument within two or three months after filing his challenge to an unsatisfactory ruling. An appellate decision would come within another 90 days, extending Craig's battle to spring.

Next step: the Minnesota Supreme Court, with arguments to come two or three months after a second appeal. The average time between argument and a decision is 4 months. That gets Craig to term's end in January 2009.

Well. That certainly would explain the abysmal quality of Craig's legal team's strategy, tactics, and written work product so far: Maybe their instructions were to get in there and throw the game!


As of today, as on every day since his guilty plea was accepted on August 8, 2007, in the eyes of the law, Craig is a convicted criminal — one conclusively proved by his own admissions to have committed the misdemeanor disorderly conduct offense alleged in the complaint against him. Unless Judge Porter permits him to withdraw his plea, Craig will remain a convicted criminal — subject only to the shall and successively diminishing chances of Judge Porter's decision being reversed on appeal.

I don't know whether Judge Porter will issue a written opinion, or simply issue a thumbs up-or-down ruling granting or denying Craig's motion. But if — as seems likely, given his taking the motion under advisement at the hearing, and waiting until some time this week to announce his decision — Judge Porter both denies the motion and issues an opinion explaining that ruling, the opinion is almost certain to contain language affirming that Craig's guilty plea (and waiver of associated rights as part thereof) was voluntary and uncoerced. In any event, if Craig's planning on "hanging tough" and "holding out," he has to anticipate doing so not only in the face of a continuing legal adjudication of guilt, but also in the face of Judge Porter's public re-affirmation of Craig's guilty plea (either implicitly or explicitly).

It's unlikely that Craig's misdemeanor crime (involving no abuse of his office), his breaking of his pledge to resign, or his general hypocrisy — even when taken collectively — are adequate grounds for his formal impeachment and removal from office. So in that very important sense, it doesn't matter what Judge Porter, the Minnesota Court of Appeals, or the Minnesota Supreme Court ultimately do with Craig's conviction, nor when they do it.

However, for purposes of the entry of a judgment of conviction, the Constitution presumes that everyone's innocent until proven guilty. That presumption of innocence is one of the rights that Craig waived when he entered his guilty plea. And with the waiver of that legal right, Craig also forfeited any moral right to ask his colleagues and constituents to reserve or withhold their own judgments. Asking them to withhold their political judgment for a month, while he asked for a mulligan at the trial court level, was damned presumptuous of him. Asking them to withhold their political judgment for many months, while he exhausts further appeals, would be outrageous, and indeed, insulting.

If Craig insists on staying even if Judge Porter rules against his plea withdrawal motion, the pendency of further appeals ought furnish him with zero political cover. The Constitution may grant Sen. Craig the effective opportunity to make a mockery of his own office, and to poke his thumb repeatedly in the eyes of everyone around him — and that's what he'll be doing if he stays on despite an unfavorable ruling this week. But that doesn't mean anyone whom he's thus abusing has to be nice, or polite, or even minimally respectful to him in return.

Whoever among his senate colleagues is presently shaking his hand and encouraging him, even by acting as though his continued presence is "normal" — and I'm looking directly at you, Sen. Specter, you great sanctimonious buffoon, but also at you, Senators Crapo, Smith, and Lott — is doing neither Craig, his constituents, nor his party any favors at all. You're not even being his "friend" by helping him block out reality; you're just enabling more bad behavior that will ultimately heighten and prolong his disgrace. And even if it's likely to result in no more than a public censure, the Senate should definitely proceed with its threatened open ethics hearing (complete with klieg lights, C-SPAN, and vigorous inquiries into "patterns" of misbehavior), and his office space should be relocated to a post office somewhere in central Virginia or Maryland.

Right now, I mostly still pity the man. Is he going to deliberately earn our contempt as well?

I hope columnist Popkey is wrong, and that "for now" really does mean "for now while my motion is still pending at the trial court level, which will be the immediate end of it when and if my pending motion is denied."


Previous posts on the Craig matter, oldest to most recent:

  1. The answer to the "Why was this a crime?" crowd on the Craig matter
  2. Craig "reconsidering" resignation; and his chance to withdraw his guilty plea is probably better than Beldar first presumed
  3. Has Larry Craig hired the part-time prosecutor who filed the complaint against him?
  4. Craig swears that on the date of his arrest, he "decided to seek a guilty plea to whatever charge would be lodged" against him
  5. In letter forwarding proposed plea, prosecutor Renz repeatedly reminded Craig of his right to counsel and warned that plea would result in "a conviction for Disorderly Conduct appearing on [his] criminal record"
  6. ACLU files silly brief in support of Craig's plea withdrawal
  7. Prosecution moves to strike ACLU amicus brief supporting Craig's motion to withdraw guilty plea
  8. Of pleas and piñatas: No surprises in prosecution's response to Craig's motion to withdraw guilty plea
  9. Craig plans to ditch hearing, but Renz should object to his affidavit as hearsay and force Craig to take the stand
  10. Just "one procedural question" for prosecutor Renz as he opposed Sen. Craig's motion to withdraw his guilty plea

Posted by Beldar at 10:52 PM in Law (2007), Politics (2007) | Permalink


Other weblog posts, if any, whose authors have linked to Is Craig's strategy "winning by losing," counting on colleagues and constituents to confuse "innocent until proven guilty" with "guilty (pending further appeals)"? and sent a trackback ping are listed here:

» Minnesota trial court rejects Craig's motion to withdraw guilty plea from BeldarBlog

Tracked on Oct 4, 2007 3:11:43 PM


(1) nk made the following comment | Oct 2, 2007 10:11:51 AM | Permalink

Sadly, it seems that he has lived his whole life this way.

(2) Carol Herman made the following comment | Oct 2, 2007 4:07:59 PM | Permalink

Corsair was a blog InstaPundit linked to, the other day. Seems there's a "twist" in the Minnesota laws ... something called the Alford Plea. (Yes, in a case involving a minister "touching" a policeman.)

So Minnesota courts "have been there, before."

As to the "word games" Craig wants to play, I'd bet has something of a "shakedown nature to it."

Yes. There are homosexual republican law makers. ANd, they probably get blackmailed all of the time.

To stand up to Craig? You want this to happen with the bovines in the senate? You must be pulling my leg.

On the other hand, as long as Hillary is a senator. And, as long as senators who run for the presidency tend to lose; by wide margins. It is possible that the senate is just full of PROM QUEENS, who are terrified of Craig? Or, perhaps, are willing to hand him millions of dollars to "just leave," already. He won't.

Will he be an "issue in 2008?" How so? He's not going to win another race in Idaho.

And, it seems Judge Porter has the option of accepting Craig's plea under the Aford "standard?"

Why else would the law professor, Glenn Reynolds post this on his blog? Hint? Hint?


Mr. Marxhausen did not actually commit the crime he was convicted for. In the state of Minnesota, individuals are allowed to accept what is called the "Alford Plea", which means that they do not admit to the offense but accept the conviction. In the case of my client, he did not wish to go through the trouble and spend extra money for a defense simply to avoid 50 hours of community service. At the time, however Mr. Marxhausen did not realize that there might be the possibility that his story could be posted online.

(3) EW1(SG) made the following comment | Oct 2, 2007 4:20:30 PM | Permalink

and his office space should be relocated to a post office somewhere in central Virginia or Maryland.

Have some mercy, please! We already have enough ludricrous legislators here in Maryland...

(4) Beldar made the following comment | Oct 2, 2007 5:17:17 PM | Permalink

Carol, let me see if I can clear this up for you.

An "Alford plea" refers to the U.S. Supreme Court's decision in North Carolina v. Alford, 400 U.S. 25, 37-38 (1970). Alford was a capital murder defendant. By pleading guilty, he could eliminate the possibility of being sentenced to death under then-existing North Carolina law. But if he insisted on maintaining his innocence and going to trial, there was a very real possibility, maybe even a probability, that the State of North Carolina had enough evidence to convict him of capital murder with a resulting death sentence. So while continuing to insist upon his innocence, he nevertheless entered a guilty plea and got the life sentence instead of the death penalty. Then he changed his mind and tried to withdraw his plea, claiming that even though it was based on a rational assessment of the risks of being convicted (despite his belief in his own innocence), the prospect of the death penalty had acted to "compel" him into making the guilty plea. The Supreme Court disagreed, and held that he was stuck with his plea (internal case citation omitted):

Whether [Alford] realized or disbelieved his guilt, he insisted on his plea because in his view he had absolutely nothing to gain by a trial and much to gain by pleading. Because of the overwhelming evidence against him, a trial was precisely what neither Alford nor his attorney desired. Confronted with the choice between a trial for first-degree murder, on the one hand, and a plea of guilty to second-degree murder, on the other, Alford quite reasonably chose the latter and thereby limited the maximum penalty to a 30-year term. When his plea is viewed in light of the evidence against him, which substantially negated his claim of innocence and which further provided a means by which the judge could test whether the plea was being intelligently entered, its validity cannot be seriously questioned. In view of the strong factual basis for the plea demonstrated by the State and Alford's clearly expressed desire to enter it despite his professed belief in his innocence, we hold that the trial judge did not commit constitutional error in accepting it.

Thus, North Carolina v. Alford says that states may choose to accept "Alford pleas," and that if so, they'll still be valid even though the defendant was continuing to insist upon his innocence while simultaneously agreeing to "take the deal" offered by the state. However, states don't have to accept Alford pleas. And many states continue to refuse to accept them: If you're claiming you're innocent, you can't simultaneously plead guilty in those states. I think that some states also leave it up to individual judges whether they'll accept Alford pleas on a case-by-case basis.

The blog you linked suggests that Minnesota is a state that does, at least sometimes, accept Alford pleas. I don't know if that's correct or not. But even if it is, it is nevertheless very clear that Craig's guilty plea was not an Alford plea. The written plea motion that prosecutor Renz prepared and that Craig signed says:

4. I understand that the court will not accept a plea of guilty from anyone who claims to be innocent.

5. I now make no claim that I am innocent of the charge to which I am entering a plea of guilty.

My assumption is that this reflects pre-existing knowledge on the part of prosecutor Renz that — regardless of whether the State of Minnesota permits Alford pleas — Judge Gary Larson would not.

There's a related kind of guilty plea called "nolo contendere" or "no contest" that many states permit only in the case of minor misdemeanors, typically traffic citations. Sometimes courts will permit someone to plead "no contest" to speeding or running a red light, for example, and what the defendant gains thereby is the chance to argue that his conviction on the charge he "didn't contest" can't be used against him in some later proceeding. But that's also clearly not what Craig did here.

(5) antimedia made the following comment | Oct 2, 2007 9:31:14 PM | Permalink

Beldar, you're killing me. Forget Larry Craig - what's your take on the defamation suit against Murtha? Come on, man, I'm dying to read your learned reasonings.

(6) Beldar made the following comment | Oct 2, 2007 11:30:05 PM | Permalink

Antimedia, I lack the military background (including in UCMJ) to add any worthwhile opinions on Sgt. Wuterich's or any of the other Marines' conduct. When potential criminal/disciplinary proceedings against him are resolved, I may or may not have something interesting to say about his lawsuit against Rep. Murtha. Despite his own admirable military service, Murtha long ago turned into a corrupt and blathering windbag, and his inclusion in the House leadership is an indictment of the judgment of every House Democrat. At a minimum, Murtha's rush to judgment in accusing Sgt. Wuterich and the other Marines who were serving with him of "cold-blooded murder" and "war crimes" was disgusting.

(7) Milhouse made the following comment | Oct 14, 2007 8:25:16 PM | Permalink

I understand that the court will not accept a plea of guilty from anyone who claims to be innocent.

5. I now make no claim that I am innocent of the charge to which I am entering a plea of guilty.

As I read that, it's perfectly consistent with: "I am not at this moment claiming to be innocent, even though I really am, because I understand that if I do so the court won't accept the guilty plea I've decided is my best option; none of this changes the fact that I didn't actually do what I'm accused of, and I'm not ruling out claiming innocence at some future time".

I'd bet that regardless of what's on paper, the prosecutor gave him a verbal promise that if he accepted the plea it would be buried where it would never come out. Yes, Craig agreed on paper that he understood a conviction was a matter of public record; of course he understood that, because it is. But there's public record and public record. I think that he thought he had an understanding that this particular public record would be filed together with the demolition order for Arthur Dent's house. That understanding was not kept — the press didn't stumble on this story by accident, someone leaked it, and Craig is understandably feeling aggrieved, but with little he can do about it.

(8) Beldar made the following comment | Oct 15, 2007 1:51:35 AM | Permalink

Milhouse, you're entitled to believe anything you wish.

But neither in the motion papers his lawyers signed, nor in the affidavit that Craig signed, did any of them claim that the prosecutor gave Craig any side assurance. Any such assurance would have been beyond the power of the prosecutor to accomplish — recall that he's not even a county employee, Chris Renz is a part-time prosecutor from a private law firm hired by the airport authority. He's affirmatively denied under oath in his own affidavit that he made any such assurances, and the cover letter he wrote stated, correctly, that any conviction would be on Craig's public record. Potentially dozens of Hennepin County employees could have seen the record of the guilty plea being accepted. The odds are pretty good that at least one of them, whether for reasons of personal politics or simple mischief, decided to bring this potentially career-ending embarrassment of a Republican senator to Roll Call's attention without having had any personal contact with Craig (or for that matter with Renz or arresting officer Karsnia).

Based on all this sworn evidence and documentary record, as tested and supplemented by my common sense, I refuse to join you in your belief that Craig was promised that this would be "buried."

The comments to this entry are closed.