The Case Against Tom DeLay:

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What has Happened to Grand Jury Secrecy in Texas?
By John W. Dean
Findlaw

Friday 07 October 2005

What is one to make of the criminal charges against Tom DeLay?

I spoke with several knowledgeable Texas lawyers, of both parties, about the case against DeLay; they were willing to speak, but only off-the-record. Or, as one put it, "Who in hell wants to get in the middle of a fight between a polecat and a skunk?"

(I don't like unidentified sources. But I will use them in this column, only because they are sharing nothing more their expertise, no inside information. They were offering their professional "speculation," if you will.)

There is no speculation, however, by the grand jurors who have spoken out in this case; they are familiar with the evidence prosecutors must have adduced, before them, to convince them to indict. And what they are saying appears dangerously close to breaking their oaths of secrecy.

The Charges Against DeLay

The (now) former Majority Leader of the U.S. House of Representatives was indicted on September 28, and again on October 2, by two different Travis County, Texas grand juries. The second indictment is far more serious than the first.

The first indictment charges DeLay with engaging in a criminal conspiracy in violation of Texas Penal Code Section 15.02. It states that DeLay and two of his associates (also indicted) agreed to make corporate political contributions which are prohibited by the Elections Code. If convicted, DeLay faces up to two years in jail and a $10,000 fine.

Six days later came the second indictment, which is twice the length of the first, with its two counts. The first count charges another conspiracy under Section 15.02, again to violate the election law - but ALSO to launder corporate money, in violation of Texas Penal Code Section 34.02, the state's money laundering prohibition. The second count charges DeLay outright with the offense of money laundering, and because the amount of the money allegedly laundered exceeds $100,000, that is a felony punishable by life in prison.

Not surprisingly, DeLay angrily responded that the charges are blatantly political, reckless, a sham, and "wholly unsupported by the facts." DeLay called the first indictment "one of the weakest, most baseless indictments in American history." He called the second indictment a "do over" by Texas prosecutor Ronnie Earle, suggesting that Earle was facing a legally-strong motion to toss the first indictment as defective, and hedging his bets with the second indictment.

The First Indictment is not Flawed but it is now Irrelevant

All those with whom I spoke said that DeLay's attorney, Dick DeGuerin, is extremely able. As one former judge, a Democrat who knows the players well, told me, "DeGuerin is A-1, probably several notches above Ronnie Earle." DeGuerin successfully defended Senator Kay Bailey Hutchinson when Earle indicted her in 1994.

DeGuerin's motion to dismiss the first indictment has not been made public. All that is known is that the gist of his argument is a claim that the conspiracy statute cited in the initial indictment, Section 15.02 of the Texas Penal Code, was not applicable at the time of DeLay's purported offense, the alleged 2002 violation of the Election Code prohibiting corporate contributions.

Despite DeGuerin's skill, one of my sources suggests his tactic in filing the motion to dismiss the first indictment when he did, may have been faulty. "DeGuerin probably pulled the trigger too fast," one attorney told me. "Had he waited until it was clear the statute of limitations had passed, and had he made it clear DeLay's waiver of the statute of limitations had ended, he might have done to Earle again what he did in the Kay Bailey Hutchinson case, and raise the technical error when it was too late to fix it. But by going in guns blazing, trying to blow Earle out of the water, Earle simply issued a second indictment to cover himself."

Another Texas attorney told me he thought that, in any case, DeGuerin's technical argument about the defect in the first indictment would not fly. Texas has had a conspiracy statute forever. And it has had a prohibition against corporate contributions for about as long. So the fact that the state legislature did not get around to adding statutory language picking out, in particular, a conspiracy to violate the elections laws does not seem especially significant. Thus, it probably does not mean, as DeGuerin says, that there cannot be a conspiracy to violate the election laws. This lawyer, a former federal prosecutor, but now active criminal defense attorney, believes that any thinking judge will deny DeGuerin's motion to dismiss the first indictment.

"But it's irrelevant now, with the second indictment," he added, "and DeLay is in much worse shape under the second indictment."

Could the Second Indictment be Barred by the Statute of Limitations?

But what if the second indictment is barred by the statute of limitations for the offenses it describes?

The issue of whether the statutory limitations period has expired is complicated by the fact that DeGuerin at least temporarily waived his client's ability to raise the statute of limitations as a defense. In the first indictment, this waiver is set forth.

But only temporarily: When DeGuerin filed his motion to dismiss the first indictment, he simultaneously sent a letter to District Attorney Ronnie Earle, advising him that DeLay was now withdrawing his waiver of his client's ability to raise the statute of limitations as a defense. Clearly, this was a move by DeGuerin to cut off further indictments.

So now that the waiver has expired, has the statute of limitations elapsed vis-à-vis the second indictment? It seems the answer is probably no.

When I asked two Texas attorneys who have been following the case in the news, as well as on their respective local grapevines (but neither has insider information), I got a unanimous opinion that Earle's second indictment was timely. As one put it, "The reason DeLay is pissed is that Earle moved faster than they thought he could. He found a spanking new grand jury, and he had a new indictment within hours. That suggests to me that Ronnie Earle has some good evidence." "Those Austin grand jurors usually aren't push-overs," he told me.

This attorney continued, "It is my understanding that the reason Earle's office moved so fast was because the day the motion to dismiss arrived was the last day under the Texas statute of limitations to charge DeLay with money-laundering." So Earle got the second indictment just in the nick of time. (Incidentally, the same source reminded me that DeLay's associates, and now alleged co-conspirators, John D. Colyandro and James W. Ellis, had also been previously indicted for money laundering.)

While this attorney said he had not looked at the docket in the Colyandro and Ellis cases, he had read news accounts indicating that these defendants have been filing, and losing, a number of motion against their separate money laundering charges.

In short, it seems that Earle's money laundering case has been poked and probed, and found to be solid.

"These money launder charges against DeLay are going to trial," I was told with some assurance. "Unless the feds indict DeLay, and request that Travis County step back, and the judge and prosecutor agree."

But no one can predict what a Texas jury will do, if a trial does occur.

DeLay's Foolish Untruthful Public Statements about the Case

One experienced criminal defense attorneys (from Texas, who is following the case closely) volunteered his surprise that DeLay was going around to radio and television shows to speak out on the matter. DeLay has visited Rush Limbaugh's show, Sean Hannity's, and Chris Mathews's "Hardball" to mention a few. At each stop, DeLay repeats his claim that the grand jury had no basis, no evidence whatsoever, to indict him.

"It is just not smart for a criminal defendant to blabber on," the attorney told me. "Those public statements will come back to haunt Tom DeLay in a courtroom, probably early next year." I asked that he be more specific.

This attorney said he had watched DeLay contradict himself on "Hardball," and then, apparently, lie about never having been requested to appear before the grand jury. I pulled the transcript.

Referring to the fund-raising entity at the heart of the case, Texans for a Republican Majority PAC, DeLay told Mathews, "TRMPAC is a separate entity. I had no fiduciary responsibilities. I had no managerial responsibilities. I had nothing to do with the day-to-day operation. I was simply, along with four other elected officials, on an advisory board. They used my name as headliners for fund-raisers."

A few minutes later, though, the transcript reflects that DeLay is contradicting himself. He tells Mathews he was, in effect, deeply involved: "Everything TRMPAC did - and I insisted on - to even be on their board of advisers. Now, TRMPAC was my idea. I wanted the Texas House to be a Republican majority. And I went down there and worked with them to do that. We were successful."

One DeLay lie that seemed to stir several of the grand jurors into speaking out, was his false statement that the grand jury and the prosecutor had ignored him. In fact, they claimed, the grand jurors had requested DeLay be invited to appear, and Ronnie Earle had transmitted their request to DeLay, but DeLay refused, submitting an unsworn written statement in lieu of an appearance, which would have been required to be under oath.

Nevertheless, DeLay told Mathews: "The grand jury and prosecutor never asked me to testify, never doing anything for two years."

Grand Jurors put the Lie to DeLay: Have they Violated their Secrecy Oath?

Frankly, I was surprised to read, within 48 hours of DeLay's denials, and commentary on the grand jury, a response by no less than the foreman of the grand jury that issued the first indictment. "It was not one of those sugarcoated deals that we handed to [District Attorney] Ronnie Earle," William M. Gibson, a retired sheriff and state insurance inspector, was quoted telling the Dallas Morning News.

Even more remarkable was Gibson's interview with Aaron Brown of CNN. Gibson told the anchor, that while he was a Democrat, he was not politically motivated. Aaron Brown asked, "Was there any single compelling piece of evidence that said to you, Mr. DeLay knew that this money was being raised from corporations and sent to Washington and then sent back to Texas? That he knew it."

"We had information that was presented to us," Gibson continued, "and the twelve members of that grand jury decided that was enough evidence to warrant that indictment."

"Would you have liked to have heard from Mr. DeLay?" Gibson was asked.

"We had requested. He had answered with Ronnie Earle the district attorney. But he would not go under oath. He gave a statement to Mr. Earle. That statement was presented to the grand jury. We had requested that Mr. DeLay visit with us. He was given an open invitation but he never did appear."

This extraordinary peek inside the grand jury continued, as Brown pressed forward: "Let me ask you one other thing. There's an old saying that a good prosecutor perhaps, even a bad one, can get a grand jury to indictment a ham sandwich. Did you hear evidence that would have led you to believe beyond a reasonable doubt that Tom DeLay was guilty of a crime?"

Gibson, after congratulating Ronnie Earle's work, said, "We were provided with documentations, we had witnesses. I cannot go into what was said and everything, but I feel that the grand jury acted properly and I would have not put my name on that indictment had I not felt there was sufficient evidence to proceed on with this."

Clearly, Gibson was trying to be careful. But he appears perilously close to the line. The Texas Code of Criminal Procedure, Article 19.34, requires all grand jurors take an oath to "keep secret" their proceeding. And Article 20.02 is rather blunt in describing this secrecy: "The proceedings of the grand jury shall be secret."

And Gibson was not alone. Veronica Dixon, who sat on the jury that returned the first indictment, told the Houston Chronicle that the "only thing the grand jury bases its decisions on is the evidence presented to us. " "We had quite a lot of evidence," she said. Dixon, a state employee who said she voted Democratic in the last elections, added, "My decisions had nothing to do with what party I belonged to."

The Chronicle found a public copy of the list of the grand jurors' names, before it was sealed by a judge, and determined that seven of the 12 grand jurors had voted in Democratic primaries in recent years. One grand juror had voted in a Republican primary. Four of the grand jurors had no history or could not be fully identified by the Chronicle.

Interesting reporting. Clearly the grand jury was not totally stacked against DeLay politically, and clearly its members saw convincing evidence. But this reporting is also very close to the reporting described by Bob Woodward and Carl Bernstein in All The President's Men - reporting that came very close to landing the reporters in jail, for grand jury secrecy rules apply to the press, as well as grand jurors.

It seems the best thing that has happened to this case is this: It has gotten buried by the hubbub surrounding President Bush's controversial nomination of White House counsel Harriet Miers for Justice O'Connor's seat on the U.S. Supreme Court.

Both the prosecution and the defense are better off trying Tom DeLay's case in a courtroom, not in the news media. And it should be thrilling.

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