An uphill battle

A legal expert said it could be tough for the senator to have his plea withdrawn.

By PHIL DAVIDSON

pdavidson@postregister.com

Any attempt U.S. Sen. Larry Craig might make to withdraw his guilty plea on a misdemeanor charge is probably not worth the effort, legal experts say.

But Craig could have an opportunity if he decides to pursue an appeal.

Craig has retained a lawyer to review his June 11 arrest in a men's bathroom at the Minneapolis St. Paul International Airport on charges of disorderly conduct and invasion of privacy.

He pleaded guilty Aug. 1 to the disorderly conduct charge but said later that the plea was entered without the aid of legal advice.

Sid Smith, a spokesman for Idaho's senior senator, said the lawyer since hired by Craig will explore the possibilities of Craig withdrawing his plea. Smith on Friday declined to divulge the attorney's name, but on Saturday, The Associated Press reported it was Billy Martin, the Washington, D.C., lawyer who recently represented Atlanta Falcons quarterback Michael Vick in his dogfighting case.

Stephen Simon, a professor at the University of Minnesota law school who was once both a prosecutor and a public defender in the county where Craig was arrested, said Minnesota law allows defendants to withdraw plea agreements in limited situations where there has been "manifest injustice."

Simon said that's a hard thing to prove -- an example is a defendant being denied access to a lawyer -- which is why so few requests to withdraw pleas are brought to the court.

"Of those brought, even fewer are granted," he said.

In Craig's favor, Simon said, is what appears to be a typo in the senator's written guilty plea that says Craig engaged in conduct that would "arouse alarm or resentment or others." The line should say "in others."

Because Craig entered a guilty plea without legal counsel, which he waived, there's a slight chance the presiding judge, Gary Larson, would allow him to withdraw his plea, Simon said.

But pursuing a withdrawal would be "foolish," Simon said, based on his review of the evidence.

In an audio tape of Craig's interview with the undercover police officer that was aired widely across the nation Thursday, Craig can be heard saying "You solicited me" to the officer.

Sgt. Dave Karsnia arrested Craig on June 11 after Craig made hand and foot gestures the officer believed was a signal that the senator was attempting to engage in lewd conduct.

On the recording, Karsnia said he sees that kind of behavior all the time during bathroom stings -- an undercover investigation had yielded 40 separate arrests since May.

Simon said Craig's "you solicited me" comment is a "very strong indication that Craig understood his behavior."

If the case were to go to a jury, Craig would be in jeopardy of being found guilty of interference of privacy, a gross misdemeanor charge in Minnesota that carries a maximum yearlong jail sentence. That charge was dropped in the plea deal.

Public restrooms are one of the last places where citizens enjoy a reasonable expectation of privacy, Simon said. If a jury heard Karsnia's testimony that Craig was staring at him in the stall where the officer was staked out, members would likely find Craig guilty.

"Craig is pretty much toast," Simon said.