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Can Sen. Craig Withdraw His Guilty Plea?

We lawyers often tell prospective clients considering self-representation in a complicated matter to save some money that you can "pay me now or pay me later." Because as it often happens, those clients who try to economize by foregoing legal help in cases where it's necessary (such as drafting a complex trust or a contract or defending oneself in a criminal matter) later find that their self-help efforts land them in an even deeper hole, and they need to pay a lawyer far more than they would have originally to dig themselves out. And indeed, by that time, the client's options may be severely constrained.

Right now, Sen. Larry Craig has become the poster child for the "pay me now or pay me later" line of advice. As we posted back here, Larry Craig never consulted a lawyer when he plead guilty to engaging in disorderly conduct in a Minneapolis airport bathroom. Sure, Craig would have paid top dollar to retain an attorney with the right balance of criminal skills, connections and political know-how to plot a strategy for getting rid of the charges and keeping the case out of the headlines. But look at the price that Craig is bound to pay now. As the WSJ Law Blog reports here, Craig has now had to hire two high-priced D.C. attorneys -- Billy Martin (who also represented Michael Vick), a criminal lawyer who will help Craig try to withdraw his guilty plea, and Stanley Brand, who will defend Craig against ethics charges brought by the Senate as  result of his conduct.

Moreover, there's some doubt as to whether Craig can even withdraw his guilty plea at all. Some of the law professors quoted in this story say that Craig has an uphill battle. Professor Steve Simon explained that motions to withdraw pleas are seldom brought and estimated that perhaps only one in a hundred are granted, typically when a defendant gets a harsher sentence than expected at the time they entered the plea bargain. Another lawyer opined that it would be difficult for a U.S. senator to convince a judge that he didn't understand the legal system and, thus, didn't know what he was doing when he entered the plea. Josh Marshall agrees in this post at Talking Points Memo, opining that as a matter of policy, courts do not like to grant plea withdrawals because defendants who get stiff sentences will always try to withdraw their plea.

Some bloggers, however, are more optimistic about Craig's chances. In this post at the The National Journal's Gate, Jane Roh suggests that Craig can argue that he had no idea that his conduct -- toe tapping and having a wide stance in his stall -- could constitute an invitation to sex or serve as the basis for a disorderly conduct charge. Thus, he could claim that his plea was not accurate as required by Minnesota law. And Jeralyn Merritt suggests two potential defenses at Talk Left. First, she notes that Craig can withdraw his guilty plea because the mail-in form he signed failed to advise him of his right to counsel. Second, she cites another provision -- Article 1, Section 6 of the U.S. Constitution, which "provides that no member of Congress can be arrested while traveling to or from official session." Merritt notes that "Craig voted on a bill in Washington at 5:55 pm, which raises the clear inference he was traveling from MN to D.C. to vote."

Craig has said that he intends to resign if he can't get his guilty plea withdrawn by Sept. 30 and clear his name. That's a tall order -- and a problem that could have been avoided entirely had Craig simply hired a lawyer in the first place.

Posted by Carolyn Elefant on September 5, 2007 at 06:42 PM | Permalink | Comments (1)


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