When last we checked, Travis County District Attorney Ronnie Earle had asked the Court of Criminal Appeals to reconsider its ruling to uphold the dismissal of the conspiracy indictment against Tom DeLay. Yesterday, Earle got an assist from an unexpected source.
State Prosecuting Attorney Jeffrey Van Horn filed a friend of the court brief saying the court erred in not upholding a conspiracy indictment against DeLay. Van Horn is appointed by the Court of Criminal Appeals and usually represents the state in appeals brought from counties with understaffed district attorney's offices.
But Van Horn said it is unusual for the appeals court to grant rehearings once it has decided a case.
"It's a matter that they've considered and made a record over, so it's naturally difficult to get the court to grant a rehearing," Van Horn said.
After considering the case for 13 months, the all-Republican Court of Criminal Appeals shot Earle down on the narrow vote. But two of the judges who ruled against Earle said they did so because the earlier case law was what existed at the time of DeLay's alleged crime.
Van Horn told the court that should not matter in this case because conspiracy requires the people involved to commit a felony, not just a conspiracy. If DeLay and two co-defendants knew their actions violated the felony code, Van Horn said, then the conspiracy statute should also apply.
In an interview, Van Horn said he gave the court a brief in support of Earle's request for a rehearing because the ruling would affect many areas of criminal law. He said under the court's ruling, the conspiracy statute will only apply to crimes that have been specifically designated by the Legislature as having a conspiracy element.