Q and A on Tom DeLay

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, raising many questions. In a series of four posts I'll try to answer some of those questions about this complex and long-running case.

Q: What’s the scoop on the Tom DeLay case? First we read that he’s guilty and sentenced to prison; then we hear that he’s not. Has “The Hammer” been nailed or hasn’t he?

A: I guess you could say the jury is still out (pun intended). Tom DeLay (a.k.a. The Hammer) has been found guilty by a jury and has been sentenced to prison by a judge; but he has also been acquitted by an intermediate appeals court. So it is still possible that he could go to jail, but it is also possible that he will walk away from this without a legal scratch. I wouldn’t bet the farm on either outcome. This case is still very much up in the air.

Q: What was he convicted of?

A: In November 2010, DeLay was found guilty by a jury in Travis County of one count of money laundering and one count of conspiracy to commit money laundering; activities that were related to his efforts eight years earlier to bolster Republican control of Texas state government. Retired District Judge Pat Priest, a Democrat from San Antonio, sentenced him to three years in prison on the money laundering charge and five years on the conspiracy to commit money laundering charge, with the five-year sentence reduced to 10 years of community supervision.

DeLay has appealed and Judge Priest has allowed him to remain free on bond until the appeal process is complete.

Q: When will the appeal process be complete?

A: My guess would be sometime in 2015, but that’s a SWAG. It could be over next week.

DeLay got a substantial boost in September with a 2-1 ruling by a three-judge panel of the Third Court of Appeals that acquitted him of the money laundering charges because; “…the totality of the evidence…does not support a conclusion that DeLay committed the crimes that were charged.” In other words, in the view of the majority on the panel (both Republicans), the jury was wrong. The justice in dissent (a Democrat) listed several reasons why he disagrees with the conclusion of the majority. Basically, the dissenting justice believes the other two overstepped their authority and misapplied case law by overturning the jury verdict.

In October Travis County District Attorney Rosemary Lehmberg, who is prosecuting the case on behalf of the State of Texas, petitioned the Court of Criminal Appeals (CCA) to review the Third Court’s ruling but the CCA has not yet decided if it will do so. In the parlance of the CCA, the Petition for Review is pending.

Q: What happens if the CCA doesn’t take the case?

A: This is the best-case scenario for DeLay. The effect of denying the Petition for Review would be to let the Third Court’s ruling overturning the jury verdict stand. If that happens, the DA will have some difficult choices to make. The CCA is the “supreme court” for criminal appeals in Texas (the court that is actually called the “Texas Supreme Court” deals only with appeals from civil matters) so there is nowhere else for the DA to appeal. It’s possible she could attempt to retry the case and overcome the procedural issues that were the basis of the Third Court’s ruling, or she might simply let the matter rest and chalk the loss up to politics (all nine of the CCA judges were elected as Republicans although Judge Larry Meyers recently switched parties and announced that he would run as a Democrat for a seat on the Texas Supreme Court). Finally, there is an interpretation of a U.S. Supreme Court ruling at play and it might be possible for the DA to get that aspect of the case into the Federal Courts, but that seems unlikely.

Q: What will happen if the CCA does take the case?

A: Attorneys for both sides will file briefs. The CCA will probably allow oral arguments (which the DA has requested) and it could easily be sometime in 2015 before the case is argued. A final ruling any earlier than 2015 would be unlikely.

Q: Do you think the CCA will hear the state’s appeal?

A: Yes. I think the CCA will grant the petition for review and hear oral arguments even though the CCA accepts only about 100 of the roughly 1,500 petitions for review that it receives each year.

One of the guidelines for the CCA to hear an appeal is if the lower appeals court was divided in its opinion, which the Third Court was. Furthermore, in this case the Third Court has done something very unusual for a Texas appeals court by overruling a jury’s decision to convict after a lengthy and robust trial where the defendant was ably represented. That doesn’t happen very often in Texas.

Q: When will the CCA decide whether or not to grant the Petition for Review?

A: It can take six months or longer to make a decision. It takes the vote of four of the nine judges on the CCA to accept a Petition for Review.  The Travis County DA’s Petition for Review in the DeLay case is now about two months into this process; so it appears that it will be sometime in the first quarter of next year before a decision is made.

Q: Why is the Travis County District Attorney prosecuting this case?

A: The Travis County DA has statewide prosecutorial authority because Austin is the state capital. He or she is, in effect, the de facto prosecutor for the state. Because Travis County is a Democratic stronghold in a state that is ruled almost entirely by Republicans this “statewide portfolio” of the Travis County DA has been a frequent source of political friction over the years.

Q: Hasn’t there been some additional controversy about the Travis County District Attorney?

A: Yes. The indictments against DeLay were brought by Travis County DA Ronnie Earle, who has a long history of high-profile, controversial prosecutions. However, Earle retired in 2009 and was replaced by Lehmberg, a veteran prosecutor in Earle’s office who was endorsed by him. Thus Lehmberg was the DA when the trial where DeLay was found guilty of money laundering took place in 2010. Lehmberg was re-elected in 2012 and arrested for DWI in April; sloppy drunk and alone in a parked car in downtown Austin, nursing a bottle of vodka. She pled guilty, served a 45-day jail sentence and checked into re-hab. There were calls for her to step down, mostly from Republicans; including Gov. Rick Perry, the guy who would appoint her interim replacement if she did resign. But Lehmberg refused to resign. A petition seeking her removal from office was filed by an Austin attorney under an obscure state law that allows the removal of elected officials for "intoxication on or off duty caused by drinking an alcoholic beverage." That petition triggered a civil trial to determine if Lehmberg is fit to hold office. However, after hearing testimony earlier this month, David Peeples, a retired Republican district judge from San Antonio, ruled that Lehmberg is fit to hold office and should not be removed. So it seems likely that she will serve out her term.

In the next post I will discuss the specific charges against DeLay.