WASHINGTON — Sen. Larry E. Craig said he had retained a lawyer to examine his case, suggesting that he may attempt to withdraw his guilty plea. That may be possible in some circumstances, legal experts say, but he would risk having more serious charges reinstated and the public exposure of other details of the restroom incident that has imperiled his congressional career.
Ordinarily, Minnesota law allows defendants to withdraw plea agreements in limited situations where there has been "manifest injustice." Courts have interpreted that narrowly -- where prosecutors have not upheld their end of a plea bargain, for example, or where a defendant was denied access to a lawyer. Craig, an Idaho Republican, waived his right to a lawyer, and the $500 fine he paid for disorderly conduct was typical for a first-time offender.
In practice, judges are given discretion in individual cases. Craig could argue that the state would have little to lose by allowing him to rescind the deal, which he now says was a mistake, because prosecutors could still go to court with the testimony of the undercover officer involved in the sting that resulted in his arrest.
He also could argue that he never appeared before a judge -- he worked out the deal in correspondence with Minnesota prosecutors after he got back to Washington -- and did not have the opportunity to have all of his rights explained to him.
Some lawyers said that -- given that Craig now claims that he didn't do anything wrong -- some judges would oblige any effort to reopen the case.
"If I was the judge, I would be more than happy to allow him to come back and explain himself," said Eric Newmark, a Minneapolis criminal defense lawyer who practices in the Hennepin County District Court where Craig was convicted. "It is a pretty serious thing to go into court, swear to tell the truth, say what you did, and then [later] tell the media that you didn't do it."
The downside of doing that would be the reinstatement of a more serious charge against him that was dropped as part of the plea agreement. And that charge -- invasion of privacy linked to his allegedly peeking through a bathroom stall door -- is punishable by up to a year in jail. He would also run the risk of a trial where more embarrassing facts could come out, lawyers said.
Several lawyers in Minnesota said that Craig could have avoided the embarrassment of having to admit committing a crime if he had first hired a lawyer. Minnesota, like many states, has a program that allows first-time offenders to have charges against them dropped after a year if they do not engage in any further misconduct.
"Very likely, a lawyer would have gotten one of those dispositions . . . and Craig could have said, 'I never admitted I did anything wrong,' " said Stephen M. Simon, a professor at the University of Minnesota law school who runs a legal defense clinic that represents indigent inner-city men charged with prostitution and indecent exposure, among other crimes.
"A lot of these men . . . are horribly embarrassed," Simon said. "That explains the dynamics of him not going to a lawyer."