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Off to the appeals courts for DeLay

Whatever sentence awaits Tom DeLay – I strongly suspect it will be probation, but you never know – it will be a long time, if ever, before he begins serving it.

DeLay’s lead attorney, Dick DeGuerin, expressed confidence on Friday the Third Circuit Court of Appeals in Austin will rule in his favor because it has in the past. Add to that a varied assortment of available arguments, and DeGuerin and law experts say they’re convinced this is only the start of what will become a precedent-setting case.

“This is the first and only time that a prosecution like this has ever taken place in Texas. It’s totally unprecedented, and we believe we’re right,” DeGuerin said.

Yes, the Third Court of Appeals has distinguished itself in a bad way throughout this case. I totally understand Team DeLay’s glee at the prospect of taking their chances with them.

Some legal experts argue that such unprecedented cases immediately raise the interest of the appellate courts. Others, however, note that Texas’ conservative, largely Republican appellate courts do not have a strong record of siding with defendants.

“Statistically, he is going to be fighting an uphill battle,” said Philip H. Hilder, a former prosecutor who is now a Houston-based criminal attorney concentrating on white-collar cases.

The courts could see it as a “partisan fight” though, Hilder said.

“Then the courts are of his political persuasion,” he added. “But still, they would have to rely on precedent and they will have to really do back flips to do any favor to him.”


The appellate court in Austin has previously ruled in DeLay’s favor – striking down the first indictment and parts of the second, an indication the court thinks DeLay had a valid argument, DeGuerin said. So while the criminal court of appeals overturned that decision saying the issues first had to be brought to trial, DeGuerin says the court’s previous ruling paved the way for support now that the trial is over.

“There was no crime. There was no crime,” DeGuerin insisted, explaining the legal argument he will make. “It was not criminal for there to be a money swap – that is for lawful money, collected from corporations for the national Republican party, and for the Republican Party to send money collected from individuals to the Texas Republican Party. That was not unlawful.”

Barry Pollack, a Washington-based white-collar criminal defense attorney, agreed this is the best argument, even though it didn’t convince the jury. Money collected by the national party is segregated between corporate contributions and individual donations, then redistributed to Texas candidates from the pot of money donated by individuals, Pollack explained.

“Typically, in money laundering, you can trace the laundered money directly back to the illicit money. Here, you can’t. What they’ve done is they’ve used different moneys,” Pollack said. “The way the government looks at that is that it’s very effective money laundering because you’ve managed to make it into a different set of money, but what you’ve done in effect, is complied with the law.”

The one thing I know is that DeLay won’t be shy about making partisan arguments to the Republican judges on the appeals court. They’ve already shown their willingness to do those back flips for him, so why not try it again? PDiddie has more.

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