Q and A on Tom DeLay; Part III

For more than a decade now the Travis County District Attorney has been trying to convict former U.S. Congressman Tom DeLay of violating Texas campaign finance laws. This is the third in a series of four posts where I am attempting to explain and answer questions about this complex and long-running case.

Q: Obviously, DeLay has appealed his conviction on money laundering charges; on what grounds?

A: DeLay’s attorneys raise several issues on appeal but the only one that really matters (at least, so far) is centered on case law related to due process and the sufficiency of the evidence upon which a jury has relied in order to render a verdict. The primary case in question is a 1979 U.S. Supreme Court decision styled Jackson v. Virginia.

Jackson requires the State to prove beyond a reasonable doubt every element of a crime.

Jackson further says that an appellate court reviewing the case must determine whether a rational trier of fact could have come to the same conclusion as the jury; considering the essential elements of the offense and the requirement that guilt must be determined beyond a reasonable doubt.

Jackson further holds that, when considering the sufficiency of the evidence to support a conviction, the appeals court should do so in the light most favorable to the verdict.

Writing for the majority and referencing Jackson, Third Court of Appeals Justice Melissa Goodwin said; “The fundamental problem with the State’s case was its failure to prove proceeds of criminal activity.”

She notes that RNSEC deposited the $190,000 it received from TRMPAC in a soft money account and those funds were never commingled with the hard money account that was used to write the checks to the candidates for the State House in Texas.

“Thus, the State failed in its burden to prove that the funds that were delivered to the seven candidates were ever tainted,” Goodwin wrote.

She says the deficiency of the State’s case is illustrated by the confusion displayed by the jury during deliberations.

During deliberations, the jury sent a note to Judge Priest asking; “Can it constitute money laundering if the money wasn’t procured by illegal means originally?”

Priest did not answer that question directly. Instead, he simply referred the jury to the original charge he had given them when jury deliberations began.

Goodwin says Priest should have answered the jury’s question and that the answer he should have given them was no.

She says the jury was placed in the “uncomfortable position of trying to decide what the law is, which is not their job.”

“The lack of legally sufficient evidence that the funds were “proceeds of criminal activity” requires an acquittal,” Goodwin concluded.

Q: Apparently, not everybody on the Third Court of Appeals agrees with Justice Goodwin?

A: That’s correct, at least one does not. But before I get into that, it may be helpful to explain how Texas’s 14 intermediate appeals courts function. They hear both civil and criminal cases appealed from district or county courts. Each Court of Appeals has jurisdiction in a specific geographical region of the State. Each Court is presided over by a chief justice and has at least two other justices. The specific number of justices on each Court is set by statute and ranges from three to thirteen. Appeals in the Courts of Appeals are usually heard by a panel of three justices and rarely by the entire Court sitting “en banc”. The Third Court of Appeals in Austin has six justices (not judges) and covers a 24-county area of Central Texas that stretches as far west as San Angelo.

The Third Court had a difficult time cobbling together three justices to serve on the panel hearing the appeal in the DeLay case. Three justices, all Republicans, recused themselves and DeLay was successful in getting a fourth justice, a Democrat who had made public comments about the case several years ago, removed. As a result Texas Supreme Court Chief Justice Jefferson had to appoint a justice from the Ninth Court of Appeals in Beaumont – David Gaultney – to fill out the panel. Gaultney, who is a Republican, signed onto Goodwin’s opinion.

The lone dissenter is a Democrat, the Chief Justice of the Third Court, J. Woodfin Jones.

Q: Why did Chief Justice Jones dissent from the majority opinion written by Justice Goodwin?

A: He relied heavily on the DA’s assertion that the corporate contributions that were made to TRMPAC were illegal because they were not expressly designated or limited to a lawful purpose.

At the trial the DA called numerous witnesses from the corporations that donated to TRMPAC and elicited testimony indicating they expected their donations to be used to help elect specific candidates to public office, which is of course illegal. The DA also introduced into evidence at trial TRMPAC documents (Power Points, brochures, letters, etc.) that suggested the donations from the corporations would be used to elect candidates. Therefore, Jones concludes, the corporate contributions to TRMPAC were made in violation of State election laws thus the corporate contributions that were made to TRMPAC constitute proceeds of criminal activity thus the money laundering statutes do apply. It is more nuanced than that, of course, but that’s the gist of his dissenting opinion.

Jones also said that a rational juror hearing the evidence presented in the trial could have found that the relevant corporate contributions to TRMPAC were made with the intent that they be used to support individual candidates; or be put to other purposes not authorized by state election laws; because the forms, and letters used by TRMPAC to solicit these contributions included statements like:

• "TRMPAC is focused on raising and giving funds directly to Republican candidates for state house, state senate, and potentially all statewide offices."
• "Your support today will go directly to help Republican candidates in Texas successfully run and win their campaigns."
• "All contributions, whether to the PAC or individuals, will be used for direct campaign expenses."

“I disagree with the majority’s assertion that these statements are evidence only of TRMPAC’s intentions and do not constitute evidence of the intent of the corporate contributors,” Woodfin wrote in his dissent.

He goes on to say that; “…a rational juror could find that a corporation that makes a contribution to a political committee whose stated primary purpose is to raise and give funds directly to candidates, in response to a solicitation that essentially promises that the funds will be used for “direct campaign expenses” “rather than just paying for overhead,” is doing so with the intent that its contribution go to an individual candidate or campaign.”

Woodfin says these are fact issues; “…properly resolved by the jury, whose judgment regarding a witness’s credibility we may not supplant with our own.”

 Q: Okay, I guess that brings us full circle; back to the Petition for Review that is now pending before the Court of Criminal Appeals?

A: Yes, I suppose it does. 

Q: Could you briefly re-state where the matter now stands? 

A: Sure. If the CCA accepts the case they will have to weigh the arguments of the Travis County DA and Chief Justice Woodfin’s dissent against those of DeLay’s attorneys and Justice Goodwin’s majority opinion. If the CCA does not accept the case DA Lehmberg will have to decide whether or not to retry the case or simply let it rest. 

Q: You've said you think the CCA will take the appeal. If so, what arguments will the DA make? 
 
A: We don’t know that in detail yet, of course; but the Petition for Review offers plenty of hints. The DA says Justice Goodwin’s opinion “improperly invaded the province of the jury” and misapplied the guidelines of Jackson v. Virginia and suggests this could set a dangerous precedent in other criminal cases. The DA also says Justice Goodwin created - basically out of thin air - a requirement that dollars derived from criminal activity be the same dollars returned via money laundering; something the DA says the Legislature did not intend. The Petition for Review also raises the same points about the illegality of the corporate donations that Chief Justice Woodfin raised in his dissent. 

In my next, fourth, and final post on this topic I will try to wrap up some loose ends.