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Thursday, October 04, 2007

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

Sen. Larry Craig's motion to withdraw his guilty plea has been denied. Here's Judge Charles A. Porter's 27-page order, along with the Metropolitan Airport Commission's one-page press release. I'll have more analysis after reviewing the order.


UPDATE (Thu Oct 4 @ 2:40 pm): I've now read the order. Craig is toast.

This is an order written by a judge who is very experienced; who knew that what he was writing is likely to be appealed; and who was therefore being very thorough and very careful to do everything possible to make his ruling bulletproof on appeal. He's almost certainly succeeded.

For example, Judge Porter's order recites (page 2 of the .pdf) that Craig "concedes for the purposes of this motion that the facts contained in the Complaint and in the affidavits and statements of the two Metropolitan Airport Commission ("MAC") Police Department officers are true." That is undoubtedly based on a concession sought and obtained by Judge Porter from Craig's counsel during the oral argument. It's the kind of thing that is incredibly important for purposes of a future appeal — but of course, none of the news media who covered the hearing bothered to mention it. The practical effect is that the prosecution's version of the facts hasn't been challenged at all. And any reviewing appellate court won't even consider any contrary factual arguments.

Similarly, the opinion recites (page 7 of the .pdf file) that Craig's lawyers conceded "that when he accepted the guilty plea, Judge Larson had access to the official court file, which included the Complaint." That's doubtless another concession extracted during the oral argument, and it further bolsters the factual worst-case scenario against Craig, while simultaneously expanding and maximizing the fact pattern from which Judge Larson could have found a basis to conclude that the disorderly conduct statute had indeed been violated. This concession renders moot, in other words, any argument that Craig's lawyers made to the effect that there was an inadequate showing in the written motion to accept his guilty plea, by itself, of facts tending to show a violation of the statute.

Mind you, I'm not faulting Craig's lawyers for making these concessions. As a practical matter, they had to do so if they were to maintain any credibility whatsoever. My point is that by nailing these points down,  first at the hearing and then again in the written order, Judge Porter was adding Kevlar to his ultimate ruling for appellate purposes — anticipating, and then pre-negating, what otherwise might have turned into appellate arguments for Craig.

On two subsidiary points on which he had discretionary rulings to make, Judge Porter actually ruled against the prosecution: First, he refused to reject Craig's motion in its entirety as being untimely; and second, he refused to strike the profoundly silly amicus brief filed by the ACLU. Contrary rulings would have given Craig (or the ACLU) something to complain about in an appeal. But they're deprived now of those arguments, and Judge Porter has also demonstrated that he wasn't just blindly following the prosecution's lead or wholly unreceptive to opposing positions. And yet these subsidiary rulings didn't affect Judge Porter's ultimate ruling in rejecting Craig's motion to withdraw his guilty plea. Though timely, Judge Porter concluded that Craig's motion lacked merit; and he spent a page near the end (page 26 of the .pdf) explaining why the ACLU's arguments also lacked merit.

The rest of the opinion just methodically examines and then demolishes every one of Craig's sprawling, sometimes conflicting arguments — often displaying a light sense of irony in the process. For example, after quoting from the petition to enter a guilty plea that prosecutor Renz prepared for Craig's review and signature, Judge Porter examines Craig's argument that his "guilty plea lacked a sufficient factual basis" (page 12 of the .pdf; emphasis mine):

This factual basis contains the requisite date, location, and elements of the offense, but clearly does not describe, in detail, the conduct that substantively supports each element of the offense. The Defendant argues that because the factual basis in the petition lacks detail, he was therefore not aware of the facts  underlying his conduct coinciding with the elements of the offense, or more importantly, that he was not admitting to having engaged in that conduct. This is illogical. The Defendant admits in his post-conviction affidavit that he pled [guilty] in haste in an effort to avoid the public disclosure of the very facts which he now maintains should have been painstakingly detailed in the petition and therefore of record memorializing his admission to specific facts. This Court believes that the Defendant's plea had a more than sufficient factual basis on the face of the petition.

In effect, this is chiding Craig (my paraphrase, not a quote): "Don't be faulting the prosecutor or the court for not rubbing your face in all the sordid details of your crime, Sen. Craig! We were cutting you some slack." But the opinion then proceeds to go through the rest of the conduct in all its detail as revealed in the complaint, lest there be any doubt.

And of course, by the end, there's really not. There never really has been — except in the minds of well-meaning civil libertarians whose zeal to protect gay rights blinded them to the simpler reality that, whether intended as part of a gay cruising ritual or not, an airport traveler's protracted staring into someone else's bathroom stall, and then poking his hand and foot into it to wave at and then rub against that stall's occupant, is just not acceptable conduct in a public restroom.

The opinion also includes an exoneration of both Sgt. Karsnia and prosecutor Renz from any blame or overreaching. It quite appropriately puts all of the responsibility — first for the crime, and then for the guilty plea — directly where it should be, which is to say, directly on Sen. Larry Craig.

What's missing from the opinion? The same damn thing that was missing — inexplicably to me — from Craig's lawyers' written papers: A focused discussion of Minnesota Rule of Criminal Procedure 15.02(3), as made applicable to mail-in pleas by Rule 15.03. In fact, there's no mention of either rule. That may well reflect the absolutely lousy job that Craig's lawyers did of pointing out that these proceedings didn't strictly comply with those rules. But as a result, what I and other legal pundits thought was Craig's very best argument isn't addressed at all. An appellate court would probably conclude, if asked, that Craig has waived that argument by failing to make it more clearly.

And now it simply remains to see whether Sen. Craig plans to become a professional pariah. His chances of successfully appealing this ruling are somewhere below 1% in my opinion; this motion was a farce, but an appeal from this ruling would be nothing but tragic. Will he add "oath-breaker" to his record by continuing to disregard his pledge to resign?

Just quit, Larry. For the sake of your family, if for no one else. Just ... quit.


UPDATE (Thu Oct 4 @ 5:10 pm): He says he's staying through the end of his current term (January 2009). As part of the press release, he says: "I am innocent of the charges against me. I continue to work with my legal team to explore my additional legal options."

Bring on the Senate hearings. Roll in the klieg lights. It looks as though columnist Dan Popkey was right in predicting that Craig actually wanted to lose this ruling because it would permit him to continue appeals through the end of his term while avoiding an actual trial. So: The Senate should force that trial upon him, in the context of an ethics hearing. Those proceedings are likely to be many times more nasty than a criminal trial anyway. Heat the tar, gather the feathers, and strike up the band, boys, the circus is coming to town.

A lawmaker who is a convicted lawbreaker says the law's rulings don't apply to him, and such a man can't be permitted to remain in office.


UPDATE (Fri Oct 5 @ 3:15 pm): James Joyner very ably fisks Craig's "not gunna resign nyah-nyah" press release.


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

Posted by Beldar at 01:37 PM in Law (2007), Politics (2007) | Permalink


Other weblog posts, if any, whose authors have linked to Minnesota trial court rejects Craig's motion to withdraw guilty plea and sent a trackback ping are listed here:


(1) dave made the following comment | Oct 4, 2007 3:07:07 PM | Permalink

While I believe it is a crime and should be prosecuted, it is also a compulsive disorder and I feel sorry for the man. Then again, I remember how cocky he sounded on that voice mail. But, you're right in that he needs to now just go away.

(2) Carol Herman made the following comment | Oct 4, 2007 4:08:35 PM | Permalink

Well, Craig's not gonna go!

He's staying in the senate. And, the gas bags there don't know what to do with him; or even how to punish Arlen Specter; who gave Larry Craig the "advice" to fight.

As to the ways Craig got to have sex in toilets, it's done WITHOUT WORDS! That's why there are known hand signals.

He wants to hide behind this, now.

And, if you'll notice. When the senate went back in session; Craig stayed in hiding.

He will continue to do so! Which is also part of the "thrill."

How did this bugger get elected? Well, that's the problem that you'd see at the other end, IF you just viewed the con artists who get elected swearing they'll reverse ROE.

It's almost what people deserve; if they think they can lord it over others with their conservative agenda.

Now? Larry Craig's taking his agenda right into the toilets.

Why not? He's so easily recognized, it should make the sex in public toilets even easier to obtain.

While he's a big problem for the senators; ALL GAS BAGS!

Now, if it was me? I'd look to someone grabbing Arlen Specter's chairman's chair right out from under his behind.

That would begin sending "messages." To the turkeys who twist and turn everything into their own sound bites.

Oh, yeah. Next up the gas bags are threatening to "tax" the Internet. (As if people don't already see the charges adding up on their phone bills.)

What a crock.

The whole place smells like a toilet.

As to "silent games," as we go forward? Larry Craig's the pro.

(3) Carol Herman made the following comment | Oct 4, 2007 4:27:31 PM | Permalink

Okay. Now, I took the time to read your whole post! Sure, should'a done that in the first place!

But going back to your original point, the press was in the courtroom. And, they missed the action.

I'll guess that EITHER Larry Craig's lawyers "knew what they were doing." Or, didn't.

Because they'd have had to have been very experienced at the APPEALS end of things. When I think their MAJOR WORRY was that Judge Porter would DEMAND Larry Craig BE PRESENT!

SO, the game could'a gone another way. With Larry ducking out in the senate. Perhaps, that's the game he was anticipating. But that ball never came his way.

Instead? His lawyers CONCEEDED HIS GUILT! Just to cover for the fact that Larry Craig wasn't gonna testify.

Now? It's just a game.

I really hate senators, in general. But unless someone goes and punishes Arlen Specter; for talking Larry Craig into the "prosecutor's choice, to fight this to the bitter end," has made things worse.

While Craig, so far, stays entrenched.

You really think the gas bags are gonna go after Craig with an ethics investigation? Too many swishy characters in this brew.

But the mess continues.

Meanwhile, asking Larry Craig to quit is like asking him to stop doing his hand signals.

Judge Porter's actions have been BRILLIANT! Before he proceeded with his ruling, he made sure to get Craig's lawyers up against the wall.

Maybe, Craig will sue his lawyers?

(4) nk made the following comment | Oct 4, 2007 5:53:20 PM | Permalink

You can see by the way I walk ....?

(5) SarahW made the following comment | Oct 4, 2007 6:12:47 PM | Permalink

Craig agreed as a part of his plea, never to claim innocence of the charges he pled to.

Is revocation of the plea the only penalty for violating this condition of the plea deal? May other charges now be brought by the state? Is a contempt charge possible?

I have seen these clauses in please repeatedly ignored before, they seem to have no effect at all.

(6) David Ehrenstein made the following comment | Oct 4, 2007 6:27:37 PM | Permalink

I am so glad Larry Craig has decided to stay. He is the heart and soul of the Republican party, embodying absolutely everything it stands for.

Or rather, squats over.

(7) Beldar made the following comment | Oct 4, 2007 6:41:04 PM | Permalink

Sarah W, the State was trying to enforce the plea agreement and guilty plea. So no, it can't now re-assert the more serious peeping charge that was dismissed as part of the plea bargain. Nor has Craig violated any of the terms of his probation by seeking to withdraw the plea. He's tried to set aside a court judgment, but hasn't violated a court order, so there's no contempt of court possibility. Theoretically, there's some risk that he or his lawyers might have been sanctioned (e.g., fined double court costs or some other penalty like that) if his motion had been determined to have been filed in bad faith and without even arguable grounds, but the fact that Judge Porter wrote a 27-page decision is inconsistent with that; motions that fail to jump that minimal hurdle are usually disposed of with a paragraph or two.

(8) Linus made the following comment | Oct 4, 2007 6:50:43 PM | Permalink

As an Idahoan, this makes me sick. He makes me sick. It's not enough that people confuse us with Iowa and Ohio, now the one thing we'll be famous for (besides the potato) is Larry "I'm not gay, I'm not guilty, and I'm not very good at this whole PR thing either" Craig. Like I've said before, it isn't the conduct. Gay, straight, whatever. It's the idiotic and dishonest cover-up and backsliding since. Moron.

(9) DRJ made the following comment | Oct 4, 2007 7:54:21 PM | Permalink


I know you are legitimately upset at this incident and I don't blame you, but your comment was very funny.

(10) Carol Herman made the following comment | Oct 4, 2007 8:27:48 PM | Permalink

Linus, we're not going to get rid of the gas bags, until citizens proved BEYOND A REASONABLE DOUBT, that "length of time" doesn't even more more in the senate, than it would for people who work at the post office!

What's really rotten? His staff has been covering his arse for ages.

That he "decided" since June 11th; and this "all" began ... was that there was a hole ... someplace ... he'd be able to crawl through ... And, "get set free."

Ain't gonna happen, now.

And, it's about time! It's about time people stopped voting "those peculiar" conservative issues; that have produced lame ducks, even up on the supreme court.

As a country, we can do better!

By the way, how come the press, in Idaho, didn't make a dent on this subject? It's not as if "hints" haven't existed for years and years.

All Larry Craig has been able to think of, since this whole thing started; has been "how to use his office" to get away with it! Nope. He doesn't collect the "presidential prize." That one still belongs to Bubba.

So, I guess? Bubba understood PR better? Well? There's a difference. Monica actually "loved" the President. And, went to bat for him. What appalls? He never did thank the lady for saving his graceless arse.

What a schnook, ordinary voters are taken to be.

As to the "silence." Larry Craig is a master at using time ... to let things slide.

You ever seen such a pro? In action?

He could very well make it to the end of his term! This means he doesn't leave before January, 2009. Believe it. Or not.

Too many gas bags are in the senate.

(11) buzz made the following comment | Oct 4, 2007 8:45:52 PM | Permalink

"There never really has been — except in the minds of well-meaning civil libertarians whose zeal to protect gay rights blinded them to the simpler reality that, whether intended as part of a gay cruising ritual or not, an airport traveler's protracted staring into someone else's bathroom stall, and then poking his hand and foot into it to wave at and then rub against that stall's occupant, is just not acceptable conduct in a public restroom."

I really have no zeal to protect cruising in public restrooms, and have never defended it as acceptable conduct in a public rest room. I just wasnt sure at what point a law was broken. I read your previous post about his peeping charge and that part does make sense. Why wasnt he arrested at that point though? When I travel, I put my luggage in front of my feet, which I know know is a "sign". I might unconsiouly tap my foot to the music which apparently is another "sign". While I would never slide my foot outside my own stall, much less slide my hand along the bottom of the stall, would just tapping my foot and putting my bag in front be enough to be arrested? If the law he broke was peeping, then again, why wasn't he arrested then? Personally, I think he went in there for what he was arrested for. Would he have still have been arrested if he hadnt peeped?

(12) DRJ made the following comment | Oct 4, 2007 9:19:18 PM | Permalink


Good question. My gut reaction - uninformed as it is in this area - is that police bring disorderly/lewd conduct charges based on the totality of the circumstances. They may judgment calls that the behavior has crossed the line beyond inadvertent or unusual conduct to actionable conduct. It's similar to the way we identify pornography: We know it when we see it.

(13) dave made the following comment | Oct 5, 2007 3:36:48 AM | Permalink

He wasn't immediately arrested for the peeping because the officer was still gathering evidence, in that sticking his hand and foot under the partition is evidence that the spying wasn't innocent but that indeed he was peeping. Also, I would assume the officer was waiting to see if additional crimes would be committed, i.e., lewd behavior.

(14) David Ehrenstein made the following comment | Oct 5, 2007 9:27:39 AM | Permalink

Can't Stop the Craigs!

(15) SarahW made the following comment | Oct 5, 2007 9:58:33 AM | Permalink

Bledar, a more pointed question related to my first - what purpose is the "never publicly protest innocence" clause in a plea agreement good for?

I should make clear I understood that filing an appeal is not an act of contempt, but would claiming innocence ever *become* an act of contempt...or would there be any penalty for violating that provision of the plea when it reaches the irrevocable stage?

(16) Carol Herman made the following comment | Oct 5, 2007 11:29:25 AM | Permalink

Homosexuals know the routine. And, OScar Wilde dropped the "hint" when he said nothing gets spoken. "Dare not speak." Its name. In TEAROOM TRADE the men all have erections. It's not really a duo. Since there are participants to watch. And, others who "look out" to see no one's gonna come in who busts this setup up. Again, it's cute to see people claiming that Craig wasn't vocal. That was the tack the ACLU took with its Brief. "No fighting words." Judge Porter demolished the argument. And, he found Craig GUILTY. Just playing "political games" in trying to remove his plea.

Sure. Craig's been elected. And, he gets to stay, as long as other senators are just gas bags. It's pretty obvious the Bonkeys fell into disrespect because they can't produce great generals. That wasn't supposed to happen to the republicans. But it did. congress is without leadership; a fest at the pork barrels. Until "you are called home." And, replaced by someone else. George Allen? Had ambitions to run for president. But a pretty much "split" in the voting results had him coming in second. To James Webb. About as paranoid as you can get; but he's a Bonkey.

What you won't find just yet, in congress, is a working organization, where there is leadership to respect. That when the guy on top speaks, (like when LBJ ran the senate), a man was very careful to make sure his testicles didn't get stuck in a vice. Sure. I believed there were better forms of leadership available. But none so far have reached the senate. Where factions fight with each other. And, the biggest call goes to the limelight. As people vy with Upchuck Schumer in their race towards the spotlight. Maybe, that's what's gonna come next? Not the freaks telling you that as long as no words are spoken, they can do what they like. Be it in the toilet. Or at the pork fest. Because it's not true.

Ed Morrissey, over at Captain's Quarters, said that Larry Craig is a man of contradictions. SO when he says one thing; he does something else. Since he says "he's staying," Captain Ed thinks he'll be gone in 10 days. Oh, since Craig won't be Appealing; it's a good thing to read Judge Porter's Opinion. Because it shows how "disorderly cnduct" is what keeps our commons clean. Can't change greed. Can't change sexual compulsions. But, yes. You can have effective police measures in place so that the "odd behaviors" don't take over the commons. It's as simple as that.

As to those who "can't see the crime," detour to Amazon. And, buy TEAROOM TRADE by Laud Humphreys. He lets the men who do this, speak for themselves. And, speaking adds the voice to what usually happens in silence. Conception, too, is a funny thing. Most people are conceived without a whole lot of screaming and yelling. Though its better to explain more, rather than to stop at the birds and the bee's.

(17) David Ehrenstein made the following comment | Oct 5, 2007 6:09:53 PM | Permalink

THe closet is the realm of silence, Ms. Herman.

The out and proud don't need it. Nor do we need tearooms. Republican closet cases like Larry Craig are a tinny echo from an increasingly distant past.

(18) Carol Herman made the following comment | Oct 6, 2007 11:53:29 AM | Permalink

What's with this "closet" business? Sexuality, like the color of your eyes; your intelligence, and other paraphenalia, are all INHERITED. Marked on everyone's genes.

When I was young, I had my mom explain to me that there one of my aunt's brothers was homosexual. Given that my mom was born in 1905, I admit that, yes, people were honest. Religion really didn't cover that stuff up. Now, my aunt? Knowing full well that her beloved brother, Sam, lived with a man, still did not invite this man to her daughter's wedding. I was ten years old. My mom said that it was a disgusting thing, to let Sam come to his beloved niece's wedding, alone. By the way, Sam sat at our table. He loved kids. He was an architect. And, he enthralled me with his conversation; which included a bit of drawing, as well. Memorable enough that I can still recall this.

It was only much later; when I read Marlene Zuk's biological findings. Perhaps, five years ago? That she has put into the scientific community's "data base" ... the fact that homosexuality comes linked to the mitrochondria. In other words? A heterosexual female can still produce some children who are gay.

I've got two gay cousins. One male. One female. And, when my own son was ten years old, I explained to him that Pam and Kathleen were a loving couple. And, that he should be aware of the range there is out there on people's natural sexual identifications; and selections. And, as long as he brought home a person who really truly loved him; I'd be accepting. To me, that's the sanest approach. But I also told my son that the "closet" was a misnomer. It was stuffed with ancestors that came before; exhibiting whatever traits you have. Including the 'forbidden' sexual choices. Just be aware.

As to TEAROOM TRADE by Laud Humphreys; you'd read he was the first to tackle a rather common manifestation of promiscuous sex. Most of this trade is done by married men. Sure, married men also make up the bulk of the trade in whore houses. (Again, there were plenty of jokes I've heard, even when I was a kid. About the people found going in and out of whore houses.) One of my favorites dealt with this traffic, while "two viewers" stood outside. Then, a priest emgerges, and one turns to the other and says, "gee, I wonder who died?"

Anyway, David Ehrenstein, I'd like to make s amall correction on your claim that "once out of the closet" all permiscuous sex "stops." It's no better for men in committed relationships to each other, than it is for wives. When their husbands are McGreevey. Or, Larry Craig.

And, in political instances, the sex is the least of America's problems; when you know the criminals that we've been selecting to send to congress. Beats me why we can't fix this. But one reason that stands out? There's a group who controls ENTRY! Just like union thugs. They know how to place those they "bless" onto tickets. Where better people aren't even given a fair chance. Oh, our US Constitution started this way! While the presidency goes to the public every four years for votes. There were a few aristocratic families, who thought they'd be passing the baton back and forth.

You don't come to the first MAN OF THE PEOPLE, until 1824. When Andrew Jackson won his first election. And, then Henry Clay stole it from him. Pushing the results into the House. Where the 2nd runner up, John Quincy Adams, got sworn in. Yes, Andrew Jackson ran again in 1828. Won it by a wide margin. And, repeated this, again, as an old, old, man, in 1832. While John Quincy Adams? Grandson, scion to the 2nd president, John Adams, got tossed uncerimoniously out of office. With Henry Clay having to exit the Secretary of War cabinet chair he had so9 covet-ed. We've got a wonderful political system. But it's not saintly. And, it has it's troubles. Of course, the WHIGS died. Henry Clay did cost the party at least that much! And, Abraham Lincoln learned what he knew about politics from the foibles of Henry Clay, coupled to the way he was treated by the hacks. Who controlled entry.

As to Larry Craig? He's a fine example of a politician who says one thing, and then changes his mind. Full of excuses. Doesn't mind stepping on the toes of the next republican; preferring instead to turn Idaho'ans voters towards the circus tent.

I have a feeling there's a lot of stuff roiling about right now. While Captain Ed, over at Captain's Quarters said you can disregard anything, now, Craig says. He says the guy will be gone in less than ten days. Whatever.

You think there'll be less discussion ahead? Or that permiscuous encounters in public toilets will get a boost because it could be harder to stop the action with the help of the police? Dunno.

I also don't think it makes it any easier for a boss to fool around with his female staff; just because "Monica fell in love with Bubba." And, saved his sorry ass.

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