The Volokh Conspiracy

Wasn't Sen. Hutchison indicted--and cleared-- a while back for something similar?

So I read the indictment.

What was interesting to me was the part on pages three and four, where, apparently DeLay waived the statute of limitations.

Now, politically, that makes good sense- "I want to prove these charges are baseless" and all that. However, at the same time, if you thought there was a good chance of actually getting convicted, better to let the scandal play itself out in the media rather than get a conviction against you.

That's why I strongly suspect that he's going to beat this charge, especially since, as Hugh59 notes, this prosecutor has a history of these prosecutions- whether this one is part of that or not, that's a theory I'd love to take to the jury.

The question is not if the prosectur has a record of these type of cases. Rather it is what is his success rate with these type of cases?

On the federal level, I believe his success rate is zero.

From statement issued by Delay's office:

<blockquote>
Ronnie Earle's 1994 indictment against Senator Kay Bailey Hutchison was quickly dismissed and his charges in the 1980s against former Attorney General Jim Mattox-another political foe of Earle-fell apart at trial.
</blockquote>

The real beauty is that David Dreier (R) San Dimas is going to temporarily be House Majority Leader. Maybe Dreier's true colors will come out.

9.28.2005 3:28pm

He waived the statue of limitations? Wow, that's hubris. Low-level defendants (universally to their disadvantage) waive their rights all the time, but people represented by sophisticated counsel know better. Anyone have any ideas why he would have done such a thing?

Would an originalist believe that the campaign finance laws in question are even constitutional? I suspect they aren't.

Yours,
Wince

Wince,

I assume you are talking about under the Texas Constitution, seeing as how these are Texas laws.

Scipio,

So much for my attempt at prophylaxis.

Brief synopsis of Earl's prosecutorial record against politicians from the Austin American Statesman:

http://makeashorterlink.com/?R2DF511EB:

Six Democrats, two Republicans, 6 convictions, two acquittals.

Of course, this doesn't jibe at all with the standard talking points of "he's partisan" and "he's not successful". But let's not let facts get in the way of rhetoric.

The brief against Ronnie Earle is not so much that the prosecutions are partisan, it's that they are political. He's shown a willingness to go after Democrats who cross him, or who are in his way, as well as Republicans. His politically motiviated prosecutions are much less successful than others. His prosecutions of Jim Mattox and Kay Hutcheson were purely political and, consequently, unsuccessful. Delay has had a big target on his back ever since he helped engineer the redistricting of Texas in 2004. He obviously believes he can beat these charges. We'll see how quickly he can get to trial.

Medis,

No, I was thinking of the U.S. Constitution. Freedom of association, freedom of speech, those bits.

Yours,
Wince

Following up on what Nobody said, the notion that Delay waived the SOL to prove his innocence is a crock. If you read the final paragraph of the indictment it says the grand jury made the indictment on September 13, 2005. So the indictment could have been filed then.

Harding was the subject of one of my favorite headlines ever, to the effect "Warren G. Harding replaces Jesse James as Treasurer." Jesse James was the previous state treasurer, who died in office. I wouldn't put anyone with that name in charge of money.

Warren Harding or Jesse James?

I'm afraid it's not on spot.

Can you elaborate for a layman?

The law he's charged under doesn't require an overt act to support a conviction. Mere entry into a conspiracy in which others are acting illegally is sufficient.

There doesn't need to be a charge of overt action on the part of Delay to support a criminal conspiracy conviction.

I'm not a huge fan of that law, but there it is.

Bryan,

Thanks for your time and your help.

One thing about the criticism on junk yard blog is the author is claiming that the law doesn't apply to Federal Races, only state races.

Tom DeLay is accused (in the indictment) of funneling money into State Legislative Races. It seems a bit of slight of hand to justify the article's criticism.

Swamp,

You're right. And now Texas is basically a Republican operation. Hence the recent trend in the indictments.

That he goes after the party in power should be expected. Once the Dems, now the Repubs.

Delay has known for a long time, and so has everyone else, that Ronnie Earle would indict him. I don't think Delay would have waived the statute of limitations if he thought there was a serious chance of conviction.

For a Texas politician it will be better in the long run to show the indictment has no merit than to snuff it with the statute of limitations, thus leaving the issue of his guilt or innocence open to question.

Once this indictment is shown to be the cheap political trick that it is, Delay will be a powerhouse in Texas politics. That's what Earle's indictment of Kay Baily Hutchinson did for her.

Wince,

Surely you are not contending that the original meaning of the First Amendment was that it applied to STATES!

Or are you--gasp!--implying that the 14th Amendment INCORPORATED the First Amendment against the states! For shame!

Assume for the moment that Delay's attorneys are able to demonstrate that the charges are without merit and they are dismissed, either with prejudice or with a judge-mandated acquittal ala' Hutchinson... What potential penalties, if any, may be levied against Earle to, in some sense, forestall or preclude a spate of indictments filed by any D.A. with questionable and historically demonstrable political agenda in an attempt to disrupt the national, legislative or political process? I would suggest that something other than a suit for malicious prosecution might be needed to create a disincentive to bring an extremely weak case while simultaneously providing proper incentive to assemble a preponderance of evidence.

Ugh! I don't really like the idea of fettering the prosecutor's ability to zealousy pursue people because of the way that really bad people could (ab)use it. The Al Capones &John Gottis of the world could (and did) make claims of harrassment and of charges without merit ... and the DA's persistence was key to bringing them down.

Perhaps changes to the Grand Jury process to take away some of the advantages enjoyed by the prosecutor and making it harder to ger indictments. Most people have no clue how slanted this process is and would probably not mind placing a higher burden on the DA and make them include known exculpatory info/evidence etc.

Perhaps to (in addition to facing the voter check) the Bar association could oversee/monitor this process and provide reviews &reports on indictments sought and the like. That veil of secrecy surrounding GJ proceedings would make that tough though and one admits that there is value in protecting the identity/reputation of those whom are so clearly innocent that DA can't get a bill returned.

Reforming the grand jury process is a very difficult thing to do. My criminal procedure professor stated that, in response to criticism from law professors at the University of Texas that he was leading laymen astray on a grand jury, an Austin DA constituted a grand jury stuffed full of law professors and other professionals. At the end of that grand jury's term, the DA demonstrated to this group of luminaries that they had been the most likely to indict grand jury that he had ever seen.

So this group, which you would think contained a large number of law enforcement skeptics, was actually less skeptical than your typical group of laymen. How do you get around the fact that almost any grand jury is going to indict someone if the DA believes he should be indicted?

Houston Lawyer and Yankee Mark: I find the suggestion of more transparency in the GJ process to be intriguing. I agree that there might be some value in making the process of obtaining a bill of indictment just a touch more difficult for D.A.'s. I'm not in favor of taking yet another arrow out of the D.A.'s quiver in terms of leverage in obtaining a plea, rolling conspirators, et al. But, there does seem to be an increasing number of frivolous, or at least ill-advised, prosecutions based on the scantiest or most convoluted evidence.

However, my question was more intended to address the post-indictment/"trial" phase than the pre-indictment/"trial" phase. What we have in this situation (not to mention the economic and social impacts to normal individuals outside this unique example) is the de facto removal of the majority party's leader at the national level, while making the process of national political ascension and the resultant impacts on national political agenda/effectiveness vulnerable to the whims of local political ideologues or operatives. Even should Delay and his attorneys demonstrate that the charges are without merit and achieve the same results vis a vis Hutchinson, the process will take a minimum of weeks and more likely months. In the mean time, the national political process has been disrupted at a minimum and the democratically elected majority's ability to pursue its legislative agenda has been negatively or completely thwarted at worst.

What punitive measures or disincentives could and should be put into place to discourage potential abuses? No, we don't necessarily wish to fetter D.A.'s in their zealous prosecutorial pursuits. But, neither do we wish to allow the judiciary to be a means by which political parties are allowed to circumvent the national process using local officials who are less open to scrutiny and less vulnerable politically than either state or federal officiers which must seek to satisfy or are answerable to a much broader base.