It's amazing sometimes how what's said to reporters and what's said to a judge are often two very different things.
U.S. Rep. Tom DeLay's chief lawyer says he has no evidence that Travis County District Attorney Ronnie Earle participated in grand jury deliberations, despite having made that allegation in motions to dismiss DeLay's indictments.
But Houston attorney Dick DeGuerin said there have been enough public comments by grand jurors in news media reports to raise suspicions that Earle may have violated laws in his efforts to indict one of the most powerful Republican politicians in the nation.
DeGuerin is seeking access to grand jury records to develop possible evidence of misconduct on Earle's part. He has subpoenaed records from two of his assistant district attorneys related to their dealings with three grand juries that investigated DeLay.
Members of a grand jury that no-billed DeLay have told reporters that Earle was angry with them. DeGuerin also has focused on media reports that Earle's office telephoned former members of the first grand jury to indict DeLay, asking them if they might have returned other charges, and then presented the results of the poll to a third grand jury, which issued new indictments.
DeGuerin is asking a judge to allow him to question members of the grand juries. A prosecutor being present when a grand jury was deliberating or voting on an indictment is specific grounds under Texas law for an indictment to be dismissed.
"It seems an uphill battle to get access to grand jury material based upon things reporters have written in a newspaper," said Samuel Buell, a former federal prosecutor who now teaches criminal law at the University of Texas School of Law.
Buell, who served as lead prosecutor in the case against Enron's former top executives, said the defense would have to show a "real serious claim of misconduct" to persuade a judge to allow questioning of Earle and grand jurors.
Susan Brenner, a professor at the University of Dayton School of Law who has researched grand juries, said polling discharged grand jurors about what they might have done on another charge is not a violation of secrecy.
"I don't see any impropriety of polling people who used to be grand jurors," said Brenner, who formerly defended white-collar-crime cases.
But Brenner added that such a poll would be "a strange thing to do." She said the results should not be presented to another grand jury as evidence.
If such a scenario did occur, Brenner said Earle might have violated an ethical rule and could be sanctioned or held in contempt of court. "But there's a difference between saying something is not wise or not appropriate and saying that it requires the dismissal of the indictment," she said.
We're two days out from DeLay's first court appearance. It looks like he'll be treated more or less like any other arrestee.
At a hearing Friday before state district Judge Bob Perkins in Austin, the former House majority leader will be asked to designate for the record the names of his attorneys.
The judge said Tuesday he doesn't know whether he'll take up any of the legal motions filed so far by DeLay's attorneys and that he may schedule those matters for a later date. DeLay is one of numerous defendants scheduled to appear before Perkins that day.
DeLay is expected to be fingerprinted, photographed and booked this week, despite attempts by his attorneys to bypass that process.
"Perkins believes that if God was charged with a felony, he would have to go through the booking process, too," said D'Ann Underwood, court coordinator for the judge.
DeLay, a Republican from Sugar Land, Texas, probably will spend about an hour being fingerprinted and photographed, she said.