Panic – The Larry Craig Defense

Those of us who spend some time dealing with the actual mechanics of criminal defense, as opposed to the big picture rhetorical stuff that is always fascinating but rarely viable, wondered how Sen. Larry Craig’s brilliant and expensive legal defense team would approach his motion to vacate his guilty plea.  The answer is in:  Panic.

The panic defense.  Well, we all know that one pretty well.  When the screws are put to the defendant to cop a plea now or forever lose any chance of getting the deal again.  Take it now or never.  So what if your entire life will hinge on the outcome of this decision, likely the biggest decision you will ever make.  You have 3 second to decide.  What’s it gonna be boy, yes or no?

The master of the panic plea was Judge Harold Rothwax in Supreme Court, New York County.  A former legal aid lawyer, something very horrible happened to his mind one day and he became angry, then mad.  Never had a judge become so jaded and cynical as Rothwax.  He went on to write a book, entitled “Guilty!” that reflected his hatred for the Constitution and defendants. 

Rothwax loved to dispose of cases, and he actually believed that he was doing defendant’s a favor by taking the prosecution’s plea offer, adding in some additional minor incentive, and giving the defendant 10 seconds to take it or, he would promise, the defendant could spend the rest of his life in jail. A little coercive?  Well, I can’t remember any appellate court smacking Harold’s hands.

But we digress.  Back to Larry Craig and his panic.  Does anyone in America doubt that he panicked?  If you were in his position, wouldn’t you have panicked too?  After all, a career built on conservative family values about to blow up based on what appears to be nothing more than one consensual dalliance in the men’s room?  It’s not like he was gay, ya know.

On the one hand, he had the expectation that this plea to an exceptionally minor offense would foreclose public access to the career-killer charge.  But panic doesn’t begin to cover the problem, since his options (like the options available to most defendants) ranged from bad to worse. 

Panic is a state in which many criminal defense decisions are made.  Lawyers are used to it, and use their detachment to swiftly analyze the possibilities and impact.  But ultimately, there are always unknown variables where the odds are played.  Larry Craig played the odds and lost.  He played them without benefit of counsel, though being a Senator makes it harder to claim that he was simply clueless.  Not that it wasn’t true, but just harder to claim.

Now I don’t mean to make fun of poor Sen. Craig’s situation.  The irony of his politics is another matter, but not his situation.  Courts and prosecutors have long enjoyed the ability to exploit panic to dispose of cases.  Indeed, prosecutors routinely overcharge so that the gun pointed at a defendant’s head is so big that the defendant is coerced into an inappropriate plea bargain.  It’s the grease that keeps the system moving.

But I have one nagging question that keeps bugging me before I cross that line and feel sorry for Larry Craig.  How many federal laws did he vote in favor of that were intended to do the same or similar harm to others as he complains of today?  If now, as a criminal defendant, he has had an epiphany, then let him first come clean about the error of his ways.  No, not about what he does in the airport bathroom, but what he does in the Senate bathroom. 

2 thoughts on “Panic – The Larry Craig Defense

  1. Turk

    Panic would be a lot more believable if he hadn’t been busted in June and then pled in August. He had lots of time to mull this over. This long time frame, I bet, will be one thing the court uses to deny the motion to take a mulligan on the plea.

  2. SHG

    That’s the problem with you civil lawyers.  You let reason interfere with a good panic.  I just want to enjoy the many levels of irony that come from this abject lesson in criminal law.  It’s just too good to pass up.

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