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  •  Aleady said this (4.00)
    on the other diary, but he didn't get off on a technicality, he got off on a bogus ruling. Earle explained that the 2003 law simply clarified and pointed the law toward election code--which didn't exist when conspiracy law was written in 1907. It was still a crime and should have been applicable and chargeable under that law.

    You didn't do it.

    by Earl on Mon Dec 05, 2005 at 02:34:20 PM PST

    •  Okay. (none)
      My post above still holds, although my feeling regarding the rightness of the decision is questionable.  I would have to take a look at the arguments on both sides before deciding what I think regarding the merits of the conspiracy charge.

      Q: Is it ignorance or apathy? A: I don't know and I don't care. [-4.25, -5.33]

      by GTPinNJ on Mon Dec 05, 2005 at 02:36:46 PM PST

      [ Parent ]

      •  I put a link (none)
        in the other diary that came up first.

        You didn't do it.

        by Earl on Mon Dec 05, 2005 at 02:40:36 PM PST

        [ Parent ]

        •  Clarification (none)
          I slightly misconstrued Earle's meaning. 1907 is the date that the law against corporate contributions--Election Code 253.094--was put into the books, not conspiracy laws.

          The main law Earle is using in his investigation dates back to at least 1907, said Ethics Commission Executive Director Karen Lundquist. She said the law was born in response to political abuses by the "Robber Barrons" in the late 1800s. She said state law gives corporations an advantage in accumulating wealth and it was believed that wealth should not be used to influence policy.

          You didn't do it.

          by Earl on Mon Dec 05, 2005 at 04:37:33 PM PST

          [ Parent ]

      •  Here (4.00)
        Earle's argument

        But Earle also argued that the conspiracy statute applied to any felony in 2002, including those of the election code. Earle said the original conspiracy law was written when there was no separate election code and election law violations were included in the penal code.

        "Clearly, as of 1907, the offense of criminal conspiracy covered a conspiracy to commit the felony offense of unlawfully making a corporate political contribution," Earle's brief said.

        You didn't do it.

        by Earl on Mon Dec 05, 2005 at 02:45:46 PM PST

        [ Parent ]

        •  Ok. (4.00)
          So the legislature was remedying an improper interpretation of the conspiracy law when they amended it in 2003.  An improper interpretation that the judge apparently duplicated in this case, regardless.

          You're right.  It was a shit ruling.

          Q: Is it ignorance or apathy? A: I don't know and I don't care. [-4.25, -5.33]

          by GTPinNJ on Mon Dec 05, 2005 at 02:49:16 PM PST

          [ Parent ]

        •  None of us really knows (4.00)
          The standard legal process is that both sides make a legal argument, both of which sound good, and the judge decides who has the better view of the law this time.  By all accounts, this judge is a straight shooter.  I'm not saying judges never get it wrong, but there's no reason to assume he got it wrong, either.  Earle's argument sounded good to me but DeLay's argument also sounded good.  And in the realm of criminal law, we tend to err on the side of the defendant, trying to ensure that no one goes to jail unless the statutes said their conduct was clearly a crime.

          One thing that's been frustrating about the war of talking points on this issue is that both sides have a way of repeating their own side's legal argument as though it's unimpeachable gospel.  Right-wingers say "it wasn't a crime at the time, this is the most bogus indictment ever!"  None of them have researched the law, and they don't really have a clue.  They just know that it's their guy's story and they're sticking to it.  But by the same token, just because the prosecutor stands by his indictment doesn't mean he gets the last word on what the law says.

          From my perspective as a lawyer, maybe he did get off on a technicality, but technicalities are part of the system and I hope we all respect that.  The fact that the state can only throw you in jail if you unequivocally violated the law is a concept that's there for your protection.

          •  Great comment! (none)
            Wish I could give you a couple 4's for this one.
          •  Thanks, Lawyer Steve (none)
            I'm not a lawyer, but can you explain how you thought DeLay's argument sounded good?

            You didn't do it.

            by Earl on Mon Dec 05, 2005 at 03:31:06 PM PST

            [ Parent ]

            •  not a lawyer either (none)
              But it sounded a lot like an ex post facto problem: can crimes be committed before they're defined?

              Florida Democrats: Learn how to WIN at the polls! www.victoryfordems.com

              by JR on Mon Dec 05, 2005 at 03:46:23 PM PST

              [ Parent ]

              •  I've commented too many times (none)
                to repeat. Sorry. Upthread I have links to Earle's argument that it was a crime in 2002. That makes ex post facto a non-issue.

                You didn't do it.

                by Earl on Mon Dec 05, 2005 at 03:51:47 PM PST

                [ Parent ]

                •  Well, it does and it doesn't (none)
                  Read Earle's argument.  The thing I find problematic is that the specific statute DeLay is charged with violating is at issue, not whether or not what he did was illegal at the time.  If Earle could prosecute under the statutes that were in effect in 2002, that would be a different story, I think.  But from my (uneducated and limited) understanding, it seems like he's limited to current statutes, which weren't in effect at the time.

                  Florida Democrats: Learn how to WIN at the polls! www.victoryfordems.com

                  by JR on Mon Dec 05, 2005 at 04:10:52 PM PST

                  [ Parent ]

          •  Having just taken (none)
            criminal law--the way the system works is the "accused" is given A LOT of leway b/c of the seriousness of the penalty.  From my limited understanding of what happened, it seemed like an ex post facto law that the "accused" (Delay) had no notice at the time it was committed, you can't be convicted for something that was legal when you acted.  Makes sense.  We have to take the good w/ the bad I guess.  Now from Delay's perspective, if it was a liberal on trial, he would have no problem applying this law retroactively, he's damn lucky the system doesn't think like his immature, vindictive ass.

            It's not easy being a Floridian.

            by lawstudent922 on Mon Dec 05, 2005 at 03:38:50 PM PST

            [ Parent ]

          •  Another question to answer, please. (none)
            Do judges frequently (or even sometimes) dismiss parts of cases because of reasons like these: Case is already unwieldy because of other parts; Other parts are clearer and easier for both defense and prosecution to make; sets a tone of not being on a witch hunt?

            I know from my reporting that lawyers and prosecutors will make complaints/press charges they don't expect to stick in order to put the mose eggregious in perspective. So I'm wondering if judges are working partners in the system.

          •  Speaking of technicalities (none)
            the presumption of innocence should not be treated as a mere technicality.  Yet it is being ignored both in this post and the comments I have read so far.

            I am no Tom Delay fan; this country would be much better off if he was still squirting bug juice under floor boards.  But to write that there is no vindication for DeLay unless there is a not guilty verdict is to stand the presumption on its head.

            I live and practice law in West Michigan, an extremely conservative part of the country.  It drives me crazy to no end that the wingnuts around here believe and act that if you have been charged with a crime you must prove your innocence.

            To see this attitude on the Kos is a bit scary.  

            •  On one hand... (none)

              On one hand I agree with you wholeheartedly. One of the nicer things about our legal system is the presumption of innocence, and I wouldn't like to see it done away with.

              On the other hand, well, two things: one, nobody said he would be guilty unless he proved his innocence. They said he wouldn't be 'vindicated' until a plea of 'not guilty' was returned. Which is, frankly, perfectly reasonable: he's going through the legal proceedings, and there's a chance he will be found guilty. Therefore, I as a person have no responsibility to assume he's innocent and act thereon.

              In fact, it would be irrational of me to, say, lend money to someone who has been accused of being a swindler but who hasn't been found guilty yet, unless I had a very strong reason for doing so, or a very strong reason to believe he's innocent. The justice system has to assume he's innocent, and I don't think we should be assuming he's guilty, but saying that he's not vindicated (i.e. proven innocent) until a plea of 'innocent' is returned is really just rational.

              And two... two... uh. What was two?

              Oh well. Maybe I'll think of it. In the mean time, something to think about: If I understand it correctly, England's approach to justice is to require the prosecution to collect enough evidence that a judge will make a 'presumption of guilt' (or something along those lines), and during the trial the defendant has to prove that the presumption is flawed... that is to say, that there is enough doubt about his guilt that it can be thrown out. Which country do you suppose has more trouble with corruption, bias, wrongful imprisonment, and other general (il)legal chicanery... the US or England? Now, I don't say presumption of innocence isn't a good thing -- isn't, indeed, better than the alternative -- but frankly there are quite a few other countries that seem to be doing better than we are without it.

              -fred

              •  Your observation on vindication (none)
                is correct.  But the prior sentence in the diary includes the phrase "when DeLay committed his crimes."  The comments to this diary clearly indicate the posse has saddled up.

                 

            •  Technicalities apply in court the court of law... (none)
              ...but not in the court of public opinion. They may be a necessary evil (and sometimes even good) in the legal system, but we don't have to be bound by them when forming our personal opinions. Heck, Bush hasn't even been charged with anything -- and how many of us presume that he's innocent?
            •  You are overapplying assumption of innocence (none)
              The assumtion of innocence and the requirement in the criminal law that the case be proven beyond reasonable edoubt are restrictions on the government and the legal system to protect all of us. I strongly support that.

              I am not, however, required to accept any "Not Guilty" decisions in such circumstances as vindication. I run  more to personal judgement of DeLay, which I take from a preponderence of evidence in the various media which I read and view, as well as personal experiences with the people I meet who approve of him.  

              I still think that Cullen Davis of Fort Worth and O.J. Simpson committed murder, but both were declared "Not Guilty" in the courts. So the highly paid defense attorneys were able to convince juries that one or more of the elements of proof of the charges were not adequately proven and the government cannot take punative action. That doesn't make them "Innocent." Courts (properly) can't make that decision. I can.

              I can similarly make such a decision on Tom DeLay. The man is guilty as sin.

              I would set such opinion aside if I were on the jury in his trial. I would demand that the legal requirement be met for a "Guilty" verdict. But I damned sure don't have to make those mental and logical gymnastics when I am writing or talking about the son of a bitch.

              Recovering Perfectionist IWDWIC (I Will Do What I Can) - Politics Plus Stuff

              by Rick B on Tue Dec 06, 2005 at 08:25:47 AM PST

              [ Parent ]

          •  Speaking of technicalities (none)
            the presumption of innocence should not be treated as a mere technicality.  Yet it is being ignored both in this post and the comments I have read so far.

            I am no Tom Delay fan; this country would be much better off if he was still squirting bug juice under floor boards.  But to write that there is no vindication for DeLay unless there is a not guilty verdict is to stand the presumption on its head.

            I live and practice law in West Michigan, an extremely conservative part of the country.  It drives me crazy to no end that the wingnuts around here believe and act that if you have been charged with a crime you must prove your innocence.

            To see this attitude on the Kos is a bit scary.  

          •  a quick question (4.00)
            And in the realm of criminal law, we tend to err on the side of the defendant, trying to ensure that no one goes to jail unless the statutes said their conduct was clearly a crime.

            I'm working parttime for my father as a legal assistant, but we do only civil litigation.  This seems to be the criminal equivalent of losing on summary judgment.  If there really is a serious question of DeLay's guilt on this charge, shouldn't the judge have at least allowed the prosecutor to present the case to a jury?  It seems to me that a dismissal at this state is a bit of a slap in the face to Earle.

            I realize there is a higher burden of proof in the criminal sphere.  Anyway, I'm just curious to hear thoughts from a criminal lawyer on this.

            •  The civil litigation equivalent (none)
              to the dismissal of the criminal charge is summary disposition for failure to state a claim.  
              •  So Earle charged DeLay under the wrong law? (none)
                I've also done civil litigation work, not criminal.  And I understand this is not "a technicality."  I don't think the judge's ruling is "shit."

                One should not be charged with violating a law that hadn't been in effect at the time of the alleged offense.

                But, doesn't this mean that Earle can still charge DeLay with criminal conspiracy under the older, more general statutes or codes?

                "We, the people..." [shall] "establish justice!"

                by trupatriot on Mon Dec 05, 2005 at 06:00:59 PM PST

                [ Parent ]

    •  I disagree (4.00)

      I suspect Priest decided the conspiracy was for practical purposes an complication in a trial the DeLay people will try to make confused and impossible anyway.  It's essentially a penalty increasing count if/when Earle proves the money laundering charge- but it increases the length of the trial and number of witness by a factor of two or three in return for what (guessing from Watergate sentences) would be maybe an additional six months in Club Fed on a money laundering sentence of a year or two or three.

      Earle wins the whole game if he gets the conviction and DeLay any jail time at all, and he's probably exploited the charge for subpoenas to the extent possible if that was a goal in bringing the conspiracy charge.

      As I see it Earle probably agreed with Priest that it's all about the money laundering charge but couldn't drop the conspiracy charge for PR reasons.  So Priest, on tacit agreement of all sides, tossed the charge on a pretext whose legal validity is unimportant.

      I don't see why I should consider it a bad thing, either.  I think DeLay and his lawyers are gambling that a short media-obscured trial with a serious chance of getting convicted is preferable to a long trial in which DeLay stands better chances with the jury but Earle gets to parade every major Republican in Texas onto the stand and forces them to explain their corrupt dealings with DeLay on the record.  Scylla versus Charybdis.

      Renewal, not mere Reform.

      by killjoy on Mon Dec 05, 2005 at 04:31:52 PM PST

      [ Parent ]

      •  Hmm (none)
        Makes more than a bit of sense, but that would be pretty bold of a judge, don't you think? If the charge is there and right, you have to go with it.

        Anyway, i hope you're right about the other charge.

        You didn't do it.

        by Earl on Mon Dec 05, 2005 at 04:41:00 PM PST

        [ Parent ]

        •  Pat Priest is reputed to be (4.00)
          a smart man.  A very smart man.

          This is a game for keeps- finishing off DeLay and (more importantly, really) all he stands for literally and figuratively, which is quite a bit of Texas history and its Establishment.  When he falls or hangs an awful lot does so with him in short order.

          I think that's how Priest is playing this, aware of what this trial represents.  No unambiguous charges, the outcome is either acquittal and Sheriff Earle biting the dust in the firefight that follows- or conviction and Wild Tom DeLay getting hung high and a posse shooting down his gang.

          Renewal, not mere Reform.

          by killjoy on Mon Dec 05, 2005 at 05:22:47 PM PST

          [ Parent ]

    •  I agree, Earl.. (4.00)
      I'll wait to see Judge Priest's ruling and his reasoning, but I too think Ronnie Earle had the better argument.  I posted a diary on it a couple of months ago that goes into my reasoning in excruciatingly boring detail.  But basically, it's this: the language of the Texas Penal Code, pre-2002, made conspiracy applicable to the election code, and the fact that the Texas Legislature later amended the code to make this absolutely clear doesn't change that fact.  In fact, even if the legislature that amended the law thought that conspiracy didn't apply to the election code, and that they were adding totally new provision, that doesn't matter, either.  What mattered is what the legislature thought who enacted the original conspiracy provisions in the first place.  Anyway, I think the judge just fell for a seductive, but logically and legally flawed, argument.
      •  Detail is what we need (none)
        Do you know if anyone was ever convicted on a similar charge before 2002? And two things you might be able to clear up:

        1. Am I right in thinking that Earle did not mention the new, 2003, law in his indictment?

        2. Was the fact that he didn't mention it (he had the other law in mind) the basis of the bullshit talking points from DeGuerin about "he wasn't even charged with a crime" in the indictment?

        You didn't do it.

        by Earl on Mon Dec 05, 2005 at 05:49:45 PM PST

        [ Parent ]

      •  Apparently there is (none)
        Check this out.

        I'm looking at a case here, Castillo v. State, 59 S.W.3d 357, in which a man was convicted in 2001 of violating Texas Election code 253.003 [Ed. Note: The law Earle cites]. If, as it has been alleged, the laws were enacted in 2002, then it's hard to explain this strange circumstance.

        You didn't do it.

        by Earl on Mon Dec 05, 2005 at 06:00:55 PM PST

        [ Parent ]

      •  GO TO GLENN'S DIARY (none)
        If you're interested, Glenn in NYC above has a GREAT diary on this. Thanks for the link, Glenn. More to read...

        You didn't do it.

        by Earl on Mon Dec 05, 2005 at 06:41:47 PM PST

        [ Parent ]

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