Justice for DeLay but not for the corrupt

| Sunday, Sept. 22, 2013, 8:09 a.m.

More than a decade and $12 million in legal costs later, a federal appeals court has affirmed the criminal case against former Republican House Majority Leader Tom DeLay for what it was — a political prosecution if not a persecution.

Mr. DeLay, now 66, was indicted in 2005 on state money-laundering charges in Texas. He was convicted in 2010 of funneling $190,000 in corporate donations through the Republican National Committee to Republicans running for the Texas Legislature in 2002.

DeLay was sentenced to three years in prison. Two associates also were convicted. He remained free pending appeal.

Those hellbent on making an example of “The Hammer,” so named for his hardball political acumen, saw the “scheme” not merely as a clandestine way to undermine Texas campaign finance laws and elect Republicans but as a nefarious way to pack the state Legislature in advance of redistricting.

But the legal case against DeLay smelled from the beginning.

Rabid Democrat operative Ronnie Earle, the chief prosecutor for Travis County, Texas, first won an indictment against DeLay for conspiring to violate state campaign laws. Never mind that the law of which DeLay supposedly ran afoul did not exist at the time of the alleged violation. Can you say ex post facto whoops?

Or as Alexander Hamilton noted in Federalist No. 84, “(T)he subjecting of men to punishment for things which, when they were done, were breaches of no law” is among “the favorite and most formidable instruments of tyranny.”

But the tyrant was not to be deterred. Rebuffed by the legal system, Earle impaneled a second grand jury; it rejected his entreaties. A third grand jury was called and quickly gave Mr. Earle what he wanted — the conspiracy and money-laundering indictment. Those allegations, too, were odoriferous.

To prove that money has been illegally laundered first requires proof that it was acquired illegally. “The state did not prove that the funds were ‘illegal at the start of the transaction' or ‘procured by illegal means originally,'” concluded Justice Melissa Goodwin, writing for a 2-1 tribunal of the Third Court of Appeals of Texas. “The lack of legally sufficient evidence that the funds were ‘proceeds of criminal activity' requires an acquittal.”

In fact, Ms. Goodwin says “the evidence shows that the defendants were attempting to comply with the” law, not circumvent it.

The Travis County DA's office (sans Ronnie Earle, who left office in 2009) says the appellate panel substituted its judgment for that of 12 jurors who heard the testimony of 40-plus witnesses over several weeks. Never mind that the tribunal used the prosecution's words (addressing jury questions before the trial judge as the jury deliberated) against it: “I feel a little bad for the jury because I think it is evident from their question that they are confused about the law. ... And I think we've put them in an uncomfortable position of trying to decide what the law is, which is not their job.”

The district attorney says an appeal to the full court is being considered. But experts say it's unlikely that it would even hear, let alone overturn, the panel's ruling given the egregious nature of the prosecutory misconduct.

Justice finally appears to have prevailed in Tom DeLay's case. Pity that there will be no justice for those who worked so assiduously to corrupt it.

Colin McNickle is Trib Total Media's director of editorial pages (412-320-7836 or cmcnickle@tribweb.com).

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