Well, thanks for all of the explanations/speculation. Looking around online, I’m finding squat regarding this manuever, other than the original story put out by the Delay camp. The press and all the blogs I read aren’t really putting forth any analysis.
I don’t know the details, but I’d be willing to bet that they are looking at filing charges against Earle for misusing his office. Not sure what the actual offense filed would be, but I would imagine it could be under Chapter 39 of the Texas Penal Code.
I actually heard a report about it late last night on CNN (?) (I was listening to Air America, but they run CNN news). The commentator just gave broadbrush impressions of the maneuver. He said something like, “DeLay is putting Earle on the defensive.” Not especially informative.
Its the Super Bowl, Vikings versus Cowboys, Vikes leading 27-0 halftime…
Tom DeLay hauls his grandmother by her hair to the 50 yard line and bludgeons her to death with a ball-peen hammer, in full view of the attendees, players, umpires, etc…
Prosecutor: If it please the Court, we call our first witness, Anthony A. Aardvaark…
DeLay walks. If evidence is need, it will be manufactured. If a fall-guy is needed, he will step manfully forward and fall upon DeLays pork sword. If a technical fine point of law is useful, it will be found.
“Forget it, Jake. It’s Chinatown.”
Why do you accept the allegations of wrondoing against Delay at face value, but immediately discount the allegtions of wrongdoing against Earle?
Why, blind partisanship, of course! That the answer you were looking for?
Bricker, as long as you are here, what do you think of the legal significance of the allegations. If everything DeLay’s lawyers claim about Earle’s conduct turns out to be true, does DeLay walk?
Why do you think DeLay did not exercise his right to an examining trial before the indictment was issued? http://www2.co.galveston.tx.us/distatty/answers.htm; http://www.capitol.state.tx.us/statutes/docs/CR/content/htm/cr.001.00.000016.00.htm#16.01.00
It seems a likely answer. But usually people motivated by blind partisanship are loathe to admit it. I do appreciate the honesty.
And, of course, it doesn’t make you automatically wrong. Delay well may be guilty, and earle’s hands well may be completely clean.
It’s just not so persuasive to automatically adopt that position based on the political allegiance of the players. I’d prefer to say that we relay on the justice system, flawed as it may be, to produce results we may have confidence in. Delay, like any other citizen, is entitled to demand that the state prove beyond a reasonable doubt any allegation of criminal behavior.
As a member of the House, I think he should be held to a higher standard than that. But resolving that question is up to the voters of his district, and, ultimately, the other members of the House.
The usual cure for a claim that indictment doesn’t rise to the level of probable cause is a trial. In other words, if a grand jury’s finding of probable cause is wrong, then a trial will clearly end with an acquittal. You don’t usually go back and revisit the grand jury finding.
But in extraordinary circumstances, especually given the cost and social opprobium associated with a criminal trial, a judge may look at the circumstances surrounding a particular indictment and find it so lacking in probable cause that he quashes the indictment.
If all of Delay’s allegations are true, I certainly think this would approach that level.
I imagine it’s because Delay wanted to avoid giving “free discovery” to the prosecution. Any positions taken or testimony offered at such a preliminary hearing are locked in, and may not be useful when trial rolls around. Because the standard of proof is so low - “probable cause” - there’s typically no advantage to an accused to participate in such a preliminary hearing. Now, having seen the paucity of evidence offered by the prosecution, and becoming aware of the strong-arm tactics used to secure the grand jury indictments (if in fact these are accurate allegations) he may, in retrospect, think that he should have demanded an examining trial and crashed the case right there. But hindsight is always 20/20.
Um, 'cause one *has * evidence of a crime, the other is merely hoping to find some? Is it all that complicated?
People “motivated by blind partisanship” are NOT usually “loathe to admit it”, they’re simply blind to it. They aren’t reluctant to admit it because they cannot conceive of the possibility. One example might be a person willing to believe, on the basis of no facts whatsoever, that a prosecutor is acting in a partisan, even “fascist” way when the target is a politician of one party, while strenuously upholding the honor of another whose target is a politician of a different party. When trapped, such a person will switch to ad hominems against the person with the temerity to press such an inquiry.
What if the prosecution is able to muster better evidence in support of a probable cause finding, but the evidence establishes serious prosecutorial misconduct in obtaining the indictment, or singling DeLay out for prosecution? Should a potentially guilty man go free simply because of unethical conduct by a prosecutor?
I agree. T That and there is no secrecy rule for examining trials, so any evidence that the prosecution introduced would be very public.hough the examining trial seems like a very powerful tactic, at least in some cases. I’m unaware of any other state that permits one to get a ruling that the grand jury may not indict him. But then, I don’t do much criminal work.
I suppose his statute of limitations waiver was based on the same logic, plus timing. If he hadn’t waived the statue, he could have been indicted at a politically inconvenient time. Once a defendant has waived the statute of limitations and a prosecutor has relied on the waiver (by not seeking an immediate indictment) can the defendant withdraw the waiver? If the defendant can withdraw the waiver before an indictment has been issued, what prevents the defendant from doing so after he has been indicted?
For what it’s worth, the jury foreman seems to assert the claim by DeLay’s men is bull.
http://www.cnn.com/2005/POLITICS/10/12/delay.prosecutor.ap/index.html
Should read:
I agree. That and there is no secrecy rule for examining trials, so any evidence that the prosecution introduced would be very public. Though the examining trial seems like a very powerful tactic, at least in some cases. I’m unaware of any other state that permits one to get a ruling that the grand jury may not indict him. But then, I don’t do much criminal work.
To clarify: I very much doubt that Tom DeLay set out to break the law. I’m more inclined to believe he set out to skirt the law, to find a route to put corporate money into deserving hands without actually violating the strict letter of the law. Gather up that sweet, soft money, ship it off to the RNC, they pass their hands over it and presto! clean money!
Of course, its a shuck and jive. I’ve little doubt that Mr. DeLays lawyers looked it over and declared it kosher: it violated the intent of the law, but so much depends on what the meaning of “is” is. It is legal sophistry at its finest: find a way to bugger the intent of the law without violating the precise formulation.
Mr. DeLay is powerful and Republican, and he will walk.
All I know is I’m fascinated. We may well have a legal war between two religious nutcakes unfolding, and either way, it’s a beguiling display of Texan political pathology in action. With all the depressing news out of Iraq, what better distraction could we ask for?
I withold all judgement. I’ve no idea how this will play out. I’m just counting the hours until that judge finishes his holiday…
Won’t he be surprised.
Depends. If the indictment was obtained by misconduct, it should be quashed. Period.
But there’s no jeopardy attached at that stage. The prosecution can certainly re-indict – properly – if they develop sufficient evidence to do so.
But let’s look at your last question in a bit more depth: *Should a potentially guilty man go free simply because of unethical conduct by a prosecutor? *
The answer is yes. We impose sanctions upon the prosecution (and the police) precisely for this reason: to deter them from improper conduct. If the result of unethical conduct is the loss of the case, then presumably we remove the incentive to act unthically.
Of course, all ethical violations are not equal. If the prosecutor fails to hand of some Brady material, we do not automatically reverse the conviction. We examine the material and ask if there’s a reasonable chance it would have affected the verdict. If ten prosecution witnesses testified that they saw the murder happen, it’s really not likely that the disclosure that one of the witnesses had a previous perjury conviction would have changed anything.
On the other hand, if the prosecution’s entire case rested on the testimony of a single witness, and they withheld his previous perjury conviction, there’s certainly a reason to reverse.
Beats me. Equity would suggest that a waiver tolls the statory period during the time it’s in effect - a waiver that’s withdrawn merely starts the clock running again, but doesn’t instantly forclose the prosecution’s ability to indict. But that’s a wild-ass guess - I’d defer to anyone with knowledge of Texas rules.
In Virginia, what I describe is the rule. An accused may waive his right to a timely indictment or a speedy trial, and absent a specific agreement with the prosecution may withdraw his waiver at any point in the future. The speedy trial or timely indictment clocked is tolled by the waiver while it’s in effect.
Thanks Bricker.
But here’s the catch: if you play those sorts of games on the edge of the law, you run the very real risk of actually slipping over the line. That is, if Delay set out to skirt the law’s requirements and accidentally crossed the line, he cannot reasonably hope to appear before a jury and show his hands are clean. The jury may well infer that he had a guilty mind simply from his actions.
One of them has a grand jury which agreed the allegations should be investigated. The other’s allegations were probably rubber-stamped by a clerk.
Allegations which have survived a review process should be given more weight than allegations which have not. Even if that review process is the modern Grand Jury system(in which I have very little confidence).
Those who are subject to blind partisanship may elevate the confidence in Earle’s allegations and denigrate the allegations of DeLay’s counsel, but that doesn’t change the fact that different weights can and should be given to reviewed versus non-reviewed allegations.
Enjoy,
Steven