Six reasons why Tom DeLay’s conviction will be reversed on appeal.
Posted by iusbvision on November 25, 2010
Why the DeLay conviction will not stand:
1 – In the first place a six year investigation into Delay’s fund raising by the Justice Department yielded in no violations of federal elections law or charges being filed (keep this in mind when we get to reasons 4 and 5).
2 – Ronnie Earle, the Texas prosecutor in the case, has a long history of partisan proprietorial misconduct. For example: Earle went after Kay Baily Hutchinson with bogus charges filing indictments against Hutchinson three times all of which failed. One judge was so disgusted by Ronnie Earle’s behavior that he empaneled a new jury in one indictment and directed them to return with an ruling of not guilty.
3 – Ronnie Earle spoke at partisan fund raising events bragging about how he was going to “Take Tom Delay down.” Before the charges were even announced Prosecutor Earle had a film crew follow him around so they could document on how to take down a member of Congress. Earle brought the charges in the county with the highest Democrat vote registration. Earle also had big press conferences filled with accusations in what were obvious attempts by the prosecution to further taint any possible jury pool. It is precisely for this reason, press tainting of the public, that “a change of venue” is often granted in cases involving high profile people and cases. The defense motion for a change of venue was denied, which again, is a rather obvious constitutional violation in light of the circumstances; especially when considering that none of the acts Delay was accused of happened in that district. Remember Prosecutor Nifong and the Duke rape case? Similar reasoning applies.
The appellate case for getting the conviction overturned for lack of a fair trial is a pretty fat one which is why the defense, as well as other lawyers are pessimistic that the conviction can withstand appellate review.
4 – The conviction also stands four square in violation of the U.S. Constitution’s “Supremacy Clause”. In areas where state law and federal law conflict the federal law applies. Keep this in mind as we go to reason five.
5 – Delay is accused of money laundering for the following reasons. Texas law forbids corporations from donating to directly to candidates for Texas state legislative office. Corporations, PACS, and other interests from around the country donate to the Republican National Committee (RNC). The RNC donates to the campaigns of candidates for state office all around the country including Texas. This is nothing new and has been done for ages. Ronnie Earle managed to convince a likely tainted jury that since some of those interests were close to Delay’s interests that it was all a scam to get around Texas Law. Federal law allows those types of donations.
Political Action Committee’s (PACS) do this all the time as well for both parties. The PACs hold fund raisers, take donations, rune events, sell merchandise etc and take that money and “bundle” it and give it to candidates and other partisan groups. “Bundling” is perfectly legal and is done by interests who support both political parties. When I took a political science class on federal election law we were shown that this is how it is done.
6 – Both parties have done this before and have continued to do this to this day in Texas and everywhere else. The American Spectator reports some examples of this same thing being done by Democrats repeatedly:
At stake in 2002 was control of the Texas legislature, which was to redraw congressional district lines. Corporate contributions to legislative candidates are illegal in Texas. The DeLay aides stand accused of violating that prohibition, along with eight companies like Sears Roebuck that provided the funds. The corporate money, however, never went to the candidates. Instead, it went to a much larger fund for state elections controlled by the Republican National Committee in Washington. That committee made contributions to Texas legislative candidates, constituting what Earle now charges is “money laundering.”
The only problem is that similar transactions are conducted by both parties in many states, including Texas. In fact, on October 31, 2002, the Texas Democratic Party sent the Democratic National Committee (DNC) $75,000, and on the same day, the DNC sent the Texas Democratic Party $75,000. On July 19, 2001, the Texas Democratic Party sent the DNC $50,000 and, again on the same day, the DNC sent the Texas Democratic Party $60,000. On June 8, 2001, the Texas Democratic Party sent the DNC $50,000. That very same day, the DNC sent the Texas Democratic Party $60,000.
In essence this conviction, if it is allowed to stand, could serve to prohibit any corporation in Texas from giving money to PAC’s or the Republican National Committee, and would endanger any candidate who took money from the Republican National Committee. It is preposterous. It would also set precedent to allow a similarly minded local Republican prosecutor to do the same to any Democrat legislative candidate in the state and their fund raisers.
It is important to keep in mind that political donations are covered under the 1st Amendment (political speech), which is why the Supreme Court favors fewer restrictions on donations and has shot down many campaign finance restrictions. The 14th Amendment binds the First Amendment and the Court’s rulings on it to the states (this is called incorporation of the Bill of Rights). It is because of “incorporation” that state laws in areas covered by incorporation are as restricted as the federal laws.
These are going to be other reasons that the appellate court will have to overturn the conviction as well; as these glaring constitutional violations are merely the most obvious ones. I am confident that the defense team will recognize others. Even the AP says in it’s report that the odds will turn in Delay’s favor in the appeals round, which was so obvious even they felt compelled to state it prominently in the article.
AUSTIN, Texas – Former U.S. House Majority Leader Tom DeLay argued throughout his trial that the deck was stacked against him by a politically motivated prosecutor and a jury from the most Democratic city in one of the most Republican states.
But following DeLay’s conviction Wednesday on money laundering and conspiracy charges, some legal experts say the edge may now shift to the Republican who represented a conservative Houston suburb for 22 years.
Before DeLay’s inevitable appeal, which his lawyers predict will be a far friendlier process than his trial, he faces sentencing next month from Senior Judge Pat Priest. While technically the money laundering charge carries a punishment of up to life in prison, the judge has wide latitude and could end up just giving him probation.
“It is absolutely impossible he would get anywhere near life,” said Philip Hilder, a Houston criminal defense attorney and former federal prosecutor. “It would be a period of a few years, if he gets prison.”
Barry Pollack, a Washington-based lawyer who represents clients in white-collar and government corruption cases, said the judge may not feel the need to throw the book at DeLay, figuring the conviction itself is severe punishment for someone who once ascended to the No. 2 post in the House of Representatives.
For example, as a convicted felon, DeLay won’t be able to run again for public office or even be able to cast a vote until he completes his sentence.
“I think in a lot of cases a judge wants to make an example, but I don’t see that happening here,” Pollack said. [For obvious reasons – Editor]
Prosecutors accused DeLay of conspiring with two associates to use his Texas-based political action committee to send $190,000 in corporate money to an arm of the Washington-based Republican National Committee. The RNC then sent the same amount to seven Texas statehouse candidates. Under Texas law, corporate money can’t go directly to political campaigns.
The money helped Republicans take control of the Texas House in 2002, and once there, they were able to push through a DeLay-engineered congressional redistricting plan that sent more Texas Republicans to Congress in 2004, strengthening DeLay’s political power.
While the string of alleged events may have been difficult for jurors to follow, outside legal observers said prosecutors were able to prove that DeLay had an undeniable motive for breaking the law. [The motive was to win elections using the same process that both parties have used and still continue to use. By that reasoning everyone elected official stands guilty of money laundering – Editor]
Phillip Turner, a Chicago attorney who focused on criminal tax and public corruption cases as a federal prosecutor in the 1980s, said jurors always want clear evidence that the defendant stood to personally gain through his alleged misdeeds.
Turner contrasts the DeLay case with the federal corruption trial of former Illinois Gov. Rod Blagojevich, who was convicted only on a lesser charge of lying to the FBI, with the jury deadlocking on 23 other charges — including the most serious ones.
Although prosecutors argued Blagojevich wanted to enrich himself by trying to sell the Senate seat that once belonged to President Barack Obama, Turner said a “corrupt motive” was tougher to prove in that case. Blagojevich didn’t seem to receive any reward, either in money or power, and it was unclear whether he ever really intended to, Turner said.
“Those are the sorts of facts that make a difference in a jury’s mind and lead to a conviction in one case and a hung jury in another,” Turner said.
DeLay opted to be sentenced by Priest, a Democrat, rather than a jury in heavily Democratic Austin. Hilder said that was a wise move, particularly if DeLay thinks he might be able to get by with just a probation sentence.
“The judge may be more receptive than a jury,” Hilder said. “He obviously thinks he will get a fairer shake with the judge. The jury more likely would sentence him to prison time.”
The sentencing hearing, which is set to begin Dec. 20, will feature “numerous witnesses who will talk about the other acts of corruption that Tom DeLay has committed,” lead prosecutor Gary Cobb said. The defense, which called only five witnesses during the trial compared to 30 for the prosecution, also could present testimony in the penalty phase.
But even with sentencing nearly a month away, DeLay’s lawyers expressed confidence they could overturn the conviction rather than just minimize the punishment.
Although they haven’t named the specific areas of the case they intend to appeal, their denied change of venue request is almost certainly to be among them. DeLay also long contended the charges against him were a political vendetta by Ronnie Earle, the former Democratic Travis County district attorney who originally brought the case and is now retired.
“This is a terrible miscarriage of justice,” said Dick DeGuerin, DeLay’s lead attorney. “… This will never stand up on appeal.”