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Withdraw the Plea? Maybe He Can

09.05.07 -- 12:55AM
By Josh Marshall

From TPM Reader RS ...


I'm a criminal defense lawyer in Oregon, so nothing I say would be dispositive on the law in Minnesota. That said, withdrawing a plea on a misdemeanor is far from impossible. The primary factor in Craig's case is that he didn't have a lawyer. For example, in Oregon, the judge should take extra time with an unrepresented (or pro se) defendant, to make sure they are "knowingly" waiving their right to counsel. This "colloquy" between the judge and the defendant usually consists of the judge informing the defendant of the types of things a lawyer can do for that defendant which the defendant probably can't do for himself (legal arguments, challenges to the complaint, etc.).

It wouldn't surprise me, however, if the misdemeanor judge didn't take the time to do that. If it's a big docket, if the judge is pressed for time, if the judge doesn't know any better, if the defendant appears capable, if there's no jail time or immigration consequences, all of these factors would impact the time and care that the judge would take with a pro se defendant.

Craig's lawyer will want to get a transcript of the plea and sentencing. (I haven't heard about one floating around the internet, but that will change shortly, I imagine. Depends I guess whether it was tape-recorded or a court reporter was used. Most jurisdictions have switched to tape-recordings, as far as I know.) The lawyer will then parse it carefully, for any misstatements the judge may have made, but the primary focus will be on the discussion between Craig and the judge on his decision to waive counsel.

Legally, it probably doesn't matter that Craig didn't know (as you alluded to earlier) that his statements could be suppressed or that he had factual defenses to the crime. But I would expect the lawyer to emphasize those things at the motion hearing anyway, because they could be persuasive, if not legally significant.

Again, I want to emphasize that it all depends on the transcript of the plea and sentencing and what Craig was told prior to his decision to waive his right to an attorney.

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