Bad judges, or bad laws?
By RICK CASEY
Copyright 2008 Houston Chronicle
Aug. 27, 2008
If former Texan Tom DeLay's lawyer is right, the Hammer could escape being nailed on criminal charges by (take your pick):
a) Activist judges using technicalities to let criminals off the hook, or
b) An incompetent Texas Legislature.
An all-Republican three-judge panel has upheld the money-laundering statutes under which DeLay and two former associates have been charged.
But the Austin appeals court also opined that the money laundering statute at the time the alleged crime occurred does not include money transfers made by check.
That's the technicality — illicit money laundered through the use of a check rather than, say, unmarked $100 bills — that could keep DeLay and cohorts out of the pokey.
Back in 2002, DeLay famously concocted a scheme to elect enough Republicans to the Legislature to push through a mid-decade redistricting of congressional seats.
The Democrats had controlled the Legislature and gerrymandered the congressional seats after the 2000 Census. DeLay wanted to gerrymander them in the other direction.
That is perfectly legal, but one of the few things that is not legal in Texas politics is to use corporate funds to help elect state and local officials.
Checks excepted here
The indictments allege that in concert with DeLay, James Ellis and John Colyandro sent a check for $190,000 (of which $155,000 came from corporations) to the Republican National State Elections Committee in Washington.
Then the Washington committee sent checks totalling exactly $190,000 to a list of Texas Republican legislative candidates allegedly provided by Ellis. Since the Washington committee received other funds not from corporations, the idea was that the contributions could be legal.
Travis County District Attorney Ronnie Earle disagreed and called it money laundering.
But the three-judge panel of the 3rd Court of Appeals notes in a ruling regarding Ellis and Colyandro that the money-laundering law in effect in 2002 defines "funds" to include U.S. cash, both paper and coins, silver certificates, U.S. Treasury notes, Federal Reserve notes and foreign bank notes and foreign bank drafts.
It did not include checks.
The appeals court did not throw out the case, apparently because the fact that the money in question came in the form of a check needs to be formally established at the trial court.
DeLay's lawyer, Dick DeGuerin, predicts that this is inevitable. He may well be right, but this also could lead to yet another appeal in the case, which has already dragged on for years without going to trial.
Prosecutor Earle called the court's rationale regarding checks "absurd."
The appeals court ruled that checks are substantially different from the financial instruments listed in the law because they represent only a promise of funds and not actual funds. Yet the "promise" was deposited by the Washington committee, and the Texas candidates received checks that they deposited and spent.
It's hard to think of a definition of "funds" that does not include that reality.
The appeals court bolsters its ruling by citing a 2005 law that adds personal and bank checks to the list, which it suggested confirms that the Legislature did not think checks were covered by the earlier law.
If DeGuerin is right, this will be the second time in this one case that DeLay has benefited from a ruling on a technicality.
More than two years ago, the same appeals court upheld a ruling by District Judge Pat Priest throwing out a count of conspiracy to violate the state's Election Code.
The reason: A controversial 1977 ruling by the Texas Court of Criminal Appeals said the conspiracy law didn't cover crimes outside the Criminal Code. The 1977 violation in question was in the Controlled Substances Act.
DeLay was accused of violating a criminal provision in the Texas Election Code.
As is likely in this case, that one was appealed to the Court of Criminal Appeals. It worried over the matter, then agreed with the lower courts.
So it looks like the case will drag on so long the 2010 Census may provide us yet another congressional map before it is concluded.
Correction: In a recent column suggesting that the Texas Ethics Commission was growing actual teeth, I wrote that Sen. Craig Estes, R-Wichita Falls, was told he needed to refund his campaign chest for personal expenses or be fined $52,300. In fact, he was fined $52,300 for other infractions, but the fine was reduced to $17,300 after he submitted corrected finance reports.
You can write to Rick Casey at P.O. Box 4260, Houston, TX 77210, or e-mail him at firstname.lastname@example.org