January 25, 2007
Arguments before the CCA in the DeLay case

Following up on yesterday's post, here's the story about the arguments made in the Court of Criminal Appeals in the DeLay case, over whether or not the conspiracy charge that was tossed should be reinstated.

Rick Reed, an assistant to Travis County District Attorney Ronnie Earle, told the appeals court that the state's conspiracy statute under the penal code has applied to all felonies in Texas since 1974. Reed said the fact the Legislature in 2003 passed a law adding conspiracy language to the election code did not matter.

Reed also said the appeals court erred in two 1970s-era opinions that said the conspiracy statute only applied to crimes that are listed in the penal code. He said those opinions should be overturned or their rulings limited to cases involving the controlled-substances act. Both rulings were in drug cases.

DeGuerin told the court that the earlier cases were "brilliantly decided." He noted that at the time, the controlled-substances act was the only law that created a crime outside the penal code.

"The trend of the last 50 years has been to write all sorts of other codes," DeGuerin said. "You can't just look at one set of books anymore. That's a problem."


Earle afterward said he thinks the court should overturn the earlier rulings and uphold the indictments.

He said if the current case law logic is followed, prosecutors would have a difficult time pursuing conspiracy charges in cases involving many crimes against children, the elderly or the environment because those crimes are in other state laws and are not listed in the penal code.

I'm not a lawyer, so I'll leave it to others to determine the validity of each side's logic. It sounds to me like this is a case that could have some far-reaching implications. We'll see what happens.

Easily the funniest thing ever written about this case from the beginning:

From the questioning Wednesday, it was difficult to tell whether the judges were inclined to agree with prosecutors.

Even if they overturn the earlier opinions, the judges appeared to be disinclined to reinstate the indictments. Several indicated they believe that would violate the due process rights of DeLay, Ellis and Colyandro.

Yes, the Texas Court of Criminal Appeals is universally known for its deep and abiding respect for the due process rights of defendants. I'm sure they'll handle this matter with the same care and thoughtfulness they bring to every death penalty case that comes before them.

The trial on related money-laundering charges cannot go forward until the appeals court rules on the conspiracy indictment. The Court of Criminal Appeals has no deadline for ruling.

However, Ellis and Colyandro have appealed similar money-laundering charges against them. That case is pending before the 3rd Court of Appeals. Its outcome also could affect the DeLay prosecution.

"We may be in the appellate orbit for some time," [Joe] Turner, Colyandro's lawyer, told the high criminal court on Wednesday.

I believe that's their appeal of the "checks aren't cash" defense, which was justly swatted down by the trial judge. I don't believe it'll go anywhere with the appeals courts, but you never know. Given how solicitous the CCA seems to be feeling towards these defendants, it's best to never say never.

Posted by Charles Kuffner on January 25, 2007 to Scandalized!