22 November 2005. Tuesday.

RE: DeLay hearing

See also: Today’s story in the Austin Statesman newspaper.

By Robert Willmann, Jr.

Attorney at Law

San Antonio, Texas

[editor’s note, by susanhu] Robert sent this to me by e-mail today, and I found his first-person, “in the flesh” account of the hearing so fascinating that I asked him to consent to post this as a story so that you all may read what he observed, and you can comment. — susanhu

I was in Austin today for a brief meeting and
also went by the courthouse to see what was
going on in the hearing to quash the indictment
of Tom DeLay, Ellis, and Colyandro.

The hearing started at 9:00, but I got there
a little after 10:30 a.m. It went on until
almost 12:30 p.m. The courtroom was full
of reporters.

The lawyers for the defendants were making some
arguments that the indictments do not charge an
offense against the laws of the State of Texas,
based on such things as the legislature changing
the definition of certain words and adding and
modifying provisions. There were also arguments
that money laundering was not properly charged
as a factual matter; that is, that the alleged
facts do not constitute money laundering. Of
course, there was also talk about the Code
Construction Act, which is the law that is
supposed to guide statutory interpretation.

Dick DeGuerin of Houston, the lead lawyer for
DeLay, has done criminal defense work in
Texas for a long time. He was pressing for
a fast ruling from the judge.

Senior or retired Judge Pat Priest was
appointed by the Chief Justice of the Texas
Supreme Court to hear the case after
a lot of hassle and motions to disqualify
other judges. I have known Judge Priest
for around 22 years, and have appeared
before him a number of times, including in
two capital murder cases.

He is a Democrat, and has a reputation of
giving the State and the accused a fair trial.
Texas chooses judges by partisan elections,
and Judge Priest usually never drew an opponent
because he did a good job.

He is quite scholarly, and would actually
grant pretrial motions, including motions to
suppress, something which is becoming more and
more rare.

If he thinks the law requires it, he is
capable of granting the motions to quash
the indictments, but he would certainly not do
it as a favor to DeLay.

At the end of the arguments, Judge Priest said
that he would give the parties one week to
get any more legal briefs filed, and then he
will decide within a week after that. So
any more written legal arguments will have to
be in by November 29, and he will rule by or
before December 6.

He said that he has other cases he has to attend
to, including one in Dallas that he has to
preside over. As a “senior” or “retired” or
“visiting” judge, he can sit and hear cases in
different parts of the state if asked.

He said if he does not grant the motion to quash the
indictment, he could not hold a trial until after
the first of the year. He also said that if he does
not rule for the defense, he will try to hear the
other pretrial motions before the end of the year,
possibly between Christmas and New Years.

Update: The Austin American Statesman has consistently supplied the most thorough msm reportage on this case. You can read their coverage of yesterday’s hearing here.


DeLay ruling put off until December

Judge Pat Priest said Tuesday that he could take up to two weeks to decide whether to dismiss felony indictments against U.S. Rep. Tom DeLay, and he warned the Sugar Land Republican that a trial wouldn’t occur until January if the indictments survive…

…contributing to the pressure on DeLay to regain power quickly is the federal investigation of DeLay associates — lobbyists Jack Abramoff and Michael Scanlon — accused of defrauding Indian tribes and bribing public officials in exchange for official acts. Both have been indicted, and Scanlon pleaded guilty this week.

…For more than three hours Tuesday, the defense team fired a barrage of objections to the indictments.

“No crime occurred,” DeGuerin said in his opening remarks, “and no crime is charged.”

The defense team argued that Texans for a Republican Majority legally raised the corporate money, then donated $190,000 of it to the RNC, where it could legally be spent in 26 states that allow corporate money in campaigns. On the other hand, the team argued that the RNC’s $190,000 — raised from individuals from around the country — was legally given to Texas candidates.

…Under state law, Reed said, the $190,000 transaction became money laundering because the money was “the proceeds of criminal activity.” He argued that a crime was committed when the corporations gave money — political contributions, he claimed — to Texans for a Republican Majority.

The defense team also argued that the state’s conspiracy statute did not apply to the election code in 2002. The defense noted that the Legislature changed the law in 2003 to apply it to election code violations. Reed argued that lawmakers only clarified that conspiracy had always applied to the election laws.

…Priest admitted Tuesday’s arguments had an effect.

“I had a pretty good idea (what I’d do) 24 hours ago,” he said. “Now I’m a little confused.”

continued below:

The last thing he addressed concerned a gag order.
He said he was not going to impose a gag order, but
he reminded the lawyers of Texas Disciplinary Rule
3.07 that speaks to trial publicity, and had copies
for the lawyers. He said that since he is not
issuing a gag order, he could not hold anyone in
contempt, but if they violated the disciplinary rule,
he would report them to the grievance committee in
a minute. In connection with that, he said that he
didn’t want to hear about any of the lawyers disparaging
the potential jurors in Travis County (Austin), or
Fort Bend County (Sugarland, where DeLay is from) or any
other Texas County. That admonishment really shut the
wild talking up, such that when the hearing was over,
and the attorneys walked out of the courtroom before the
battery of television cameras, they were as mild as
church mice.

DeLay appeared somber the entire time. He did not have
a cocky or self-confident look on his face. He had
two bodyguards with him who looked by the pins on their
lapels to be with some sort of Congressional guard or
security service.

Since I haven’t read the paperwork and didn’t hear the
entire argument, I can’t give an opinion on the motions
to quash the indictments. Back when I started in 1980,
Texas law was very strict on the wording of indictments,
such that if you wrote an “and” instead of an “or,”
the case would be reversed on appeal. The law has
loosened up a lot since then, and the State can even
amend the indictment within 10 days in certain situations.
I imagine that is why the defense was trying to push
the argument that the indictment failed to allege an
offense due to legislative changes and their effective
dates, and legislative history, as opposed to
a lack of particularity and specificity.

From my limited information, there is some chance that
at least one of the charges may be quashed and dismissed.
But there was a lot of argument about the facts of the
cases, and an indictment is judged only by the words
on its face and whether it activates the jurisdiction
of the court and states an offense in plain and
intelligible words. It does not concern the
sufficiency of the evidence.

Here ends the on-the-scene report.

Robert Willmann, Jr.

Attorney at Law

San Antonio, Texas