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Wednesday, September 28, 2005

Delay's Indictment Constitutional?

Update: Southern Appeal looks at Texas law and the specific code sections, and thinks the indictment will stand as it is. Excellent blog. End update.

I'm certainly absolutely ignorant in this area, but I had a vague feeling that a person had to be actually indicted for some specific charge before he or she could be brought to trial? Amendment V:
Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Is this unconstitutionally vague? The indictment doesn't seem to actually accuse Delay of anything specific. It names three persons (the two previously indicted plus Delay), and then it goes on to say that "the defendants herein, with the intent that a felony be committed, did enter into an agreement with one or more of each other or with a general purpose political committee known as Texans for a Republican Majority PAC" etc.

It does name various specific political contributions and presumably illegal deeds of the two previously indicted, but it never gets down to actually specifically saying that Delay himself did anything. There are specific charges against the other two defendants, but nothing against Delay.

I've read the thing four times now. Can Delay be constitutionally brought to trial under this indictment? It does not actually state that Delay conspired with the either of the other two or the PAC. I'm no constitutional lawyer, but for the requirement of an indictment to serve as a constitutional protection it must actually mean that a specific allegation has been presented and returned as valid by the grand jury. I do not know that the language is specific enough to qualify as having done that. "We think he had something to do with it, or may have" is about all that this amounts to.

I haven't been following the details of this story at all, but now I am suspicious that this is a politically motivated prosecution.

Most of what I know about Earle is a result of the Senator Hutchison and Attorney General Maddox prosecutions.
Neither of which reflect any way but poorly on him.

The fact our state laws leads a local District Attorney (and the one for far and away the most liberal part of the state) to prosecute statewide happenings is just ridiculous.
Hutchison's was tossed, wasn't it?

If Delay actually did anything, I say prosecute him. But I think you first have to indict him for something specific.Astuteblogger thinks the charge is absolutely unfounded.
Well the Hutchison case appeared to be nothing more than a smear campaign against an increasingly powerful member of the Republican Party. The Maddox case seems to be the same (an increasingly powerful member of the conservative democratic party).

And Earle has said before he wanted to indict Delay to force him to step down from his leadership position. From where I am, the problem is I think Earle would prosecute Delay if he could, guilt or evidence wouldn't be relevant.
Well, that is one of the reasons that the need to indict someone on a significant charge provides some constitutional protection. It's a small enough protection as is that it should not be eroded.

Truthfully, prosecutors with all sorts of agendas can use their power as a political weapon.

Is it true that Earle (I caught something on the radio) talked about indicting Delay in front of a Democratic gathering? If so, I think he has ethical problems.
I think it's fairly well acknowledged that Earle has ethical issues. There was a point in time where being investigated by him was taken as a positive sign that you had arrived in the Republican party. It's not so much that way now since the majority of the state is Republican.

He could not exist outside of Travis county. The same county where Dan Rather's daughter is a player in the Dem party.
Is that where Dan the Man attended the Democratic fundraiser his daughter threw?
that one.
As a lawyer I am sure the indictment stands. Actually for most felonies a Grand jury indictment is not needed. In Louisiana the DA can charge a person with the majority of felonys with a "bill of information" that his or secretary types up with no Grand Jury involved whatsoever. Thats has been ruled Valid
While the charge is bogus, DeLay IS a slimeball and he's just one of too many Republicans who have abandoned any pretense at governance; trying to balance the budget; actually excercise Congressional oversight; the Bush apointments of totally unqualified people to positions of power and influence; and on and on and on.... Stick a fork in them, the meat is stinking.
Howard - When I heard the news my first thought was thankfulness, because Delay's theory that we had cut all the fat from the federal budget really irked me. But that was ill-natured of me.

If they really have the goods on him, they should prosecute. The temptation to use the criminal justice system as a political weapon is so extreme that it should be carefully scrutinized.
I'm no lawyer and admittedly understand little of criminal law, but it is a bit hard to understand how Delay would have done anything he thought was illegal, insamuch as there was no attempt to hide anything at all! His rationale was clearly to 'beat the system' via legal means- not anything only he or other Republicans engage in.

The monies were accounted for all along the way, separate bank accounts were all open to audit, etc. There were no bags of cash and no midnight meetings under the fifth oak tree west of the largest boulder on the north wall.

Something isn't right, here. Dingo, Boomr or another lawyer need to explain this further.
This does seem odd too me. For one he waited two years before indicting him. The timing seems suspicious in that it is now time to gear up for the '06 elections. As well, I agree that if you are going to indict the number 1 person in the house maybe you should spell out the charges with some specifics.
Gindy - any person!

I don't feel like I have looked into the case well enough to know whether there was even an underlying offense, but this is looking odd. I don't think Delay should get special treatment because of his position, but that cuts both ways too.

SC&A, I have been reading a few people who I think are objective, and it does seem fishy.
The indictment will stand. It is more than enough for the investigation to go forward. The specific charge is criminal conspiracy. That is all that is needed. The finer details don't need to really be laid out until later when, I am sure, DeLay's attorney will try to get the charges thrown out at a preliminary hearing for lack of evidence. We will see then whether it holds water. If the judge allows it to go forward than there is pretty significant evidence against DeLay.

As for the timing, the speculation is that one of the other people indicted have flipped and is now cooperating with the DA against DeLay.

BTW, Mattox has actually defended Earle on the indictment saying that while Earle may not be the best DA in the world, his motivations are not partisan.

Tommy, the reason an Austin DA has the jurisdiction is because most likely the PAC was located in Austin. Since Austin is the capital, Earle is going to have jurisdiction over much of the political prosecutions.
" one of the other people indicted have flipped and is now cooperating with the DA against DeLay."

I don't get that part- everything was done in the open! What am I missing?
Siggy, you can walk into a Best Buy, pick up a TV and walk out the door with it during business hours. Just because you did it in plain sight of everyone doesn't mean you are not guilty of stealing. It doesn't have to be at night when the store is locked up.

And, BTW, it was not all done in the open. Not all of the transfers were reported and not all of the funds were used for the legal purposes and it looks like a lot of the motovation for the solicitation was on the up and up.
dingo the PAC was in Houston. The Austin DA has jurisdiction because our state laws say the state Attorney General can't handle a lot of the cases involving the state officials. That's why he indicted Hutchison before, all of that activity was supposedly in Dallas I think. I don't understand it, it's a silly and stupid law but it is what it is. There is actually some belief in some areas that he is technically required to file the indictment in Houston since that is where the activity occurred, but I honestly don't know enough to know for sure.
And I can't explain to you just how heated the redistricting events were down here in Texas, but suffice it to say all of the state's elected Democrats moved to New Mexico once and Oklahoma once in order to shut down the state government in an attempt to prevent it from happening.

To say there is political bad blood and a willingness to bend the rules to get an indictment is an understatement. I don't like Delay, and my initial thoughts are that he is probably guilty as charged, and that the Austin DA is more crooked than has been alleged as well.
Could be Tommy. You know more about the feelings and happenings there than I do, so I will defer to you on that. Thanks for letting me know the juristictional laws. I have never heard of something like that.

I do know that there is a lot of bad blood right now. I had two Texan friends in law school and both were pissed about the democrats leaving town. One because he was a republican and wanted the redistricting. The other was democrat and pissed off because the Dems had to leave town in the first place for a redistricting that should never have happened. I still remember the heated debate those two had over dinner.

Hmmm... I wonder if that restaurant will still be there the next time I go back to New Orleans. We had a lot of good debates there.
Dingo, I hope it will be there - or at least rebuilt!

As for redistricting, I have to say we in GA have suffered horribly from it. It's one of the reasons why the Dems were voted out. I know districts have to be redrawn for the census, but it should not be done on purely political grounds and it now is by whichever party is in ascendance in a state at the time. Before the R's redistricted in TX the D's did, so it is not like this is a D/R issue.

This is one more thing (like the pork) for which people in every shade of the political spectrum should challenge their politicians.
well the redistricting should have happened, just not then and not that way. The reason the whole thing came up was that the Dems had successfully blocked redistricting during the two previous sessions when the census mandated it to happen, forcing it into the courts that just passed the buck keeping the previous districts in place (the ones the Dems drew when they were in power.)

When it comes to actions that can be defended as ethical and "democratic" neither side in this particular fight has a leg to stand on.

In defense of the Dems though, this isn't anything new for them, back when they were the only party in the state they were known for having different groups leave Austin to prevent something from being passed by their own party. It's nastier now because before it was sort of an in house Democrat thing, but now it gets pretty unpleasant.
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