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Craig: When is a guilty plea not a guilty plea? Good question

Withdrawing a plea is unusual and, in Sen. Craig's case, may not happen. But it isn't impossible, Minnesota experts say.

By Bob Von Sternberg and Kevin Duchschere, Star Tribune

Last update: September 5, 2007 - 9:48 PM

If Sen. Larry Craig, R-Idaho, tries to withdraw a guilty plea he entered after being caught in an airport restroom sex sting, legal experts say he faces an uphill battle.

While they say it's difficult to convince a judge to allow a guilty plea to be withdrawn, it's not unheard of -- and Craig's case could be bolstered by Minnesota Court of Appeals ruling last week that allowed a Rochester man to do just that in a 2004 burglary case.

"The scenarios are a little different," said Olmsted County Attorney Mark Ostrem, who prosecuted the burglary case. "People try to change their pleas all the time, but it's rare to get one overturned. It's not unheard of, but it's very, very rare."

On Wednesday, Craig relayed word that he would resign his seat by Sept. 30 only if he does not withdraw last month's guilty plea to a charge of disorderly conduct.

Craig has maintained he is innocent following his arrest by an Minneapolis-St. Paul International Airport undercover police officer who said the senator had behaved in an airport men's room like a man soliciting sex. Craig said he mistakenly pleaded guilty to simply make the case go away.

He hasn't filed legal documents to challenge his plea.

Barry Feld, a University of Minnesota law professor who specializes in criminal procedure, said that Craig has limited grounds on which to withdraw his plea. If Craig didn't get what he bargained for in entering the plea, or if he could show he was coerced into making the plea, he might have a case, Feld said.

Another possible argument is that he was incompetent or didn't understand the plea, but that seems unlikely, Feld said.

Defense attorney Ron Meshbesher said that, since the police investigation showed that Craig denied what the undercover officer said he did, the senator might argue that there's no factual basis in the case record for his guilty plea.

"His chances are slim but not impossible," said Meshbesher, who has won withdrawal of a guilty plea a client entered in a felony case.

Under Minnesota law, a defendant who wants to overturn a guilty plea has to demonstrate a need "to correct a manifest injustice."

The Appeals Court found that when Rickford Munger pleaded guilty to reaching into an open bedroom window of a Rochester apartment and moving a curtain with his hand to "invade the privacy of the resident of the apartment," he should have been allowed to withdraw the plea because "they decided being a peeping Tom wasn't the same as being a burglar," Ostrem said.

In Craig's case, he signed a plea agreement admitting that he "engaged in conduct which I knew or should have known tended to arouse alarm or resentment or others which conduct was physical (versus verbal) in nature."

That plea, however, is slightly different from the disorderly conduct statute, which describes engaging in "offensive, obscene, abusive, boisterous, or noisy conduct or ... language tending reasonably to arouse alarm ... in others."

In the plea agreement, signed Aug. 2, Craig also said he was not claiming he was "innocent of the charge to which I am entering a plea of guilty."

A judge could decide that the differences are trivial and hold Craig to his plea agreement, or allow the case to be reopened on grounds that what he admitted doing was substantially different from the disorderly conduct statute.

Ostrem, who has not decided whether to appeal the Munger case, said he doesn't see how Craig's case rises to the "manifest injustice" standard.

"It may just be the prosecutor in me talking, but to suggest just because you got a lot of publicity that caused you to resign your Senate seat, you can't come back later and say you didn't know what to do," he said. "That's almost incredible to me. You do the crime, you do the time."

The New York Times and the Associated Press contributed to this report. vonste@startribune.com 612-673-7184 kduchschere@startribune.com 612-673-4455

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