No one would ever accuse Dick DeGuerin of being fainthearted.
Indicted Rep. Tom DeLay's attorneys turned the tables on a Texas prosecutor today, delivering a subpoena to compel his testimony about his conduct with grand jurors. The prosecutor refused to accept the subpoena, a defense lawyer said.
Attorney Dick DeGuerin wants Travis County District Attorney Ronnie Earle and two of his assistants to testify, alleging prosecutors had improper contact with two grand juries that indicted DeLay and one that refused to file charges.
DeGuerin said acceptance of the subpoena was voluntary today because it had not been stamped by a court official, but added the defense team would go through the court procedure Wednesday and redeliver it. He said Earle, district attorney for Travis County, would then be obligated to accept the subpoena, but could file a motion to have it dismissed.
The defense lawyer, who is trying to get the indictments dismissed, said an assistant district attorney also refused to accept her subpoena, but a second assistant accepted the subpoena delivered to him. Acceptance simply involves signing a paper acknowledging delivery.
The subpoenas asked that the prosecutor and the two assistants appear in court or submit to a deposition in which the defense lawyers would question them.
DeGuerin also asked that grand jurors be released from their secrecy oath so they could answer questions about the prosecutor's conduct.
Earle's office said in a written statement, "Because of laws protecting grand jury secrecy, there are limitations to what we can say at this time, but we fully expect to prevail in this matter."
DeGuerin wants Earle to answer 12 questions about conversations he had with grand jurors, including whether the prosecutor became angry when a grand jury decided against an indictment of DeLay and why that decision was not publicly released.
He also wants to know the details of Earle's conversation with William Gibson, foreman of a grand jury that indicted DeLay on conspiracy charges, whose term has since ended.
"If you did nothing improper, you should not be concerned about answering these questions," DeGuerin said in his letter to Earle.
Keith Hampton, a lobbyist with the Texas Criminal Defense Lawyers Association, said that a defense attorney is entitled to get testimony of a witness who appeared before a grand jury to use in examining that same witness at a trial.
"But the communications between prosecutors and grand jurors are not subject to a subpoena," said Hampton.
Hampton said that the Legislature has repeatedly rejected bills that would allow inroads into grand jury secrecy.
It's not like we shouldn't have seen this coming. This subscription Roll Call article from when the indictment against DeLay first came down spells it out:
DeLay’s allies privately suggested that they would seek retribution against Earle, although DeLay himself will have no role in that effort. Charges of prosecutorial misconduct may be lodged against Earle, and a public-relations effort to discredit Earle personally had already begun on Wednesday, with GOP insiders repeatedly pointing out that Earle unsuccessfully attempted to prosecute Sen. Kay Bailey Hutchison (R-Texas) in the midst of the 1994 Senate race in Texas.
"Everything will be in play," said one high-ranking House Republican aide. "We will throw everything we can at Ronnie Earle."