June 28, 2007
The reasoning behind the CCA's decision on DeLay

Here's the basic reasoning behind the Court of Criminal Appeals' refusal to reinstate the conspiracy charge against Tom DeLay and two of his co-defendants.

In Wednesday's decision, the Court of Criminal Appeals had to decide whether a conspiracy charge could be applied to all felonies or only those specified by the Legislature. To side with prosecutors, the court would have had to either reverse or limit its decisions from the 1970s that the Legislature must specify that the conspiracy statute applies to felonies outside the penal code.

The court's majority noted that the Legislature had not reacted to the rulings. Instead, lawmakers applied the conspiracy law piecemeal to various felonies.

The dissent said not applying conspiracy to all felonies defies common sense.

What the court said in effect is that while breaking certain election laws is a crime, plotting to break them with other people isn't a crime unless the Legislature has specifically defined a crime called "conspiracy to violate election laws". Which it did indeed do in 2003, but DeLay and his pals did their thing in 2002, so they get to skate. I can't say I find the Court's logic to be terribly flawed, but it does mean that some conspiracies will be crimes while others will not. You can see the basics of the state's arguments here, from when they were made.

Fort Bend Now has Travis County DA Ronnie Earle's response to the CCA's ruling:

"Criminal conspiracy means three things. It means a person intends to commit a felony. It means that the person agrees that he or his co-conspirators will engage in conduct that would constitute the crime. And it means one of them performs some act in pursuit of the crime," he said in a prepared statement.

"Under the rationale of today's majority opinion, the Legislature has blessed these criminal conspiracies as long as the felony they agree to commit is not in the Penal Code. There are many felony crimes that are contained in parts of the law other than the Penal Code.

"Of course, it is illegal for them to actually commit the crime, but they can legally conspire to do it all they want," Earle said. "This is a tortured result."

The public policy considerations surrounding this decision are larger than this one case. Criminal conspiracy prosecutions "allow for the prevention of crime before it occurs," Earle said. "Under the court's opinion today, law enforcement is powerless to intercept certain felonies before they are actually committed."

In the short term, Earle is going to ask for a re-hearing on this ruling. I'm not sure what that means, or what practical effect it may have. DeLay and his codefendants are themselves still pursuing an appeal with the Third Court of Appeals on the conspiracy to launder money charge; that apparently may take another year to resolve. I believe that's separate from the checks aren't cash claim that Colyandro and Ellis once made - frankly, I have no idea if that's still an ongoing appeals issue.

Something to watch out for longer term is an attempt by the Lege to clean up this loophole in some fashion. That could make for some interesting legislation, if it were to happen. I'm just speculating here, as so far there's no obvious crusader for this cause. But the prosecutors in this state carry a fair amount of weight, and if they think this may let some bad guys get off the hook, I'll bet they'll ask for the matter to be addressed in 2009.

Finally, a matter I've noted before but just can't let go without noting it one last time:

One of the judges in the majority said he might have ruled differently "were we writing on the proverbial pristine slate." Another in the majority concluded that the court would be denying DeLay due process if it retroactively changed course now.

Because as we know, the Court of Criminal Appeals is all about protecting the due process rights of every defendant in Texas.

Posted by Charles Kuffner on June 28, 2007 to Scandalized!