Not sure if that is what NP was suggesting. But it needn’t be, since there was plenty of other evidence if you discount the testimony, including how the donations were solicited and the nature of the scheme itself.
Maybe not BARD, but a much closer call than the majority made it seem, IMHO.
Why do you say it was missed? It wasn’t missed. It was a key element at trial. During deliberations, the jury TWICE asked the judge for guidance on the effect of the money not having illegal origins; both times, the defense argued the jury should be explicitly instructed that it was necessary for the money to be illegal. The prosecutor objected, and both times, the judge refused to do anything but point the jury at his original charge.
So when you say the slam-dunk defense was missed by a fine legal mind, to what, specifically, are you referring?
Did the prosecution’s evidence eliminate all reasonable scenarios except that of guilt?
No matter how close a call you think it was, in the end that question still has to be answered “No.”
What? I’m saying it is a close call whether they successfully eliminated all reasonable scenarios except that of guilt.
The jury isn’t required to be naive. These donors were told that their money would be used to “directly help candidates” and that “All contributions will be used for direct campaign expenses.”
Now, it is *possible *that they heard all of this, knew of the scheme, and nevertheless had no intention that their money go to candidates. The question is whether that possibility rises to the level of *reasonable *doubt. And my contention is that it is a close call.
The Election Code does not stop a corporation from making contributions in connection with elections in other states. And while it’s true that printed materials spoke of helping candidates in Texas, those same materials were used for both individual and corporate solicitations. And of course it’s perfectly legal for money donated by individuals to be used for candidates.
Fine. In a close call in a criminal case, tie goes to the runner.
Fair points. Was all of that presented at trial? (Meaning the bit about these being materials for individual donors)
What if the fact of it being a tie is a close call? (I’m only partly kidding. This kind of “tie goes to the runner” reasoning is turtles all the way down.)
I don’t know. I don’t follow Texas criminal proceedings with the kind of rigor necessary to be sure of that. There were some examples earlier in the thread of other defendants who also had their convictions overturned on the same premise.
But none of that would change my opinion that the benefit of the doubt should always be given to the defendant, and never to the state (and not just in terms of questions of fact, but also with regard to the criminality of an act itslef - that is to say that the law should be strictly contrued to only criminalize what is explicitly stated and never read to be broadly applicable in instances where there is any ambiguity or vagueness).
I read too quickly above. I thought you were suggesting that the materials put into evidence may only have been used for individual donors.
I don’t think it’s especially helpful to the defense that the PAC used the same materials to solicit both individual and corporate donations. If anything, that underscores the prosecution’s point that all the money had the same purpose.
I heard some black guys got the chair…
(Emphasis added)
Nitpick here: not that there’s no crime at all, just that the transactions don’t constitute the specific crime he was convicted of. The pattern of financial transactions could easily have violated a different criminal statute than money laundering. Though, since the financial actions alleged are fundamentally the same, my understanding is that Jeopardy attaches and they can’t retry for any laws he might have actually broken–correct?
Yes. See FN12 of the Third District’s opinion.
The same lawful purpose, though, as each corporate rep who testified at trial underscored.
INAL but I don’t think that would apply in the case. I don’t think that having an appeal of a guilty conviction to a new jury would count as double jeopardy. My understandin is that double jeopardy would only apply if the original jury found him not guilty and the state tried to re-prosecute the case.
Uh, no. If the purpose was to give the money to candidates, it was not lawful. The law does not require that the corporations knew it was unlawful to give to candidates.
The dispute of fact is whether or not they intended their donation to go to candidates or not. They testified that they did not. A jury may disbelieve them. If they do, then they’re left with the evidence that these corporations were told their money would go to the same place that individual donors were told.
Ok so - the new jury convenes (just for the sake of argument). In accordance with the appeals court decision, the judge tells the new jury that no crime has been committed. What do you think the jury’s decision will be?
Maybe.
If there’s another crime with different elements, but which relies on some of the facts presented here, another trial might be possible.
The question would then become: under Ashe v. Swenson, is the prosecution collaterally estopped from proving the elements of the second crime? Considering that we had a jury guilty verdict to begin with, I’d say not. Of course, i don’t know nearly enough about Texas criminal procedure to say what other barriers might exist, but as a matter of constitutional protections, in my view if the same conduct constitutes a different crime, such that former and current crimes each contain an element that the other does not, there is no barrier to retrial.
Is there such a crime, though?
No.
Under most circumstances, yes, you’d be right. If the appeals court found, let’s say, that a witness testified to inadmissible evidence, and that evidence was so prejudicial that it undermined confidence in a fair verdict, then the verdict would be overturned, but the prosecution would be free to re-try him.
Here, however, the appeals court found that the evidence presented to the jury was simply not enough to convict: the prosecution didn’t prove that the contribution money was the result of an illegal scheme. In other words, they didn’t prove a particular aspect of the case, an element of the crime.
So their finding means that the verdict should have been “not guilty,” from the start. The effect of this ruling is that double jeopardy prevents a retrial on the same charge.
(To help reconcile this statement with what I said in post #75: two crimes are different, for double jeopardy purposes, if each includes an element that the other does not).
§ 253.003(a) and (e) provide it’s illegal to knowingly make a political contribution in violation of the rules in subchapter D. I’m pretty confident that the “knowingly” doesn’t refer simply to the making of the contribution – your construction approaches strict liability. And it’s not only my confidence in play: the Texas Court of Criminal Appeals agrees:
In Ex Parte Ellis, 309 SW 3d 71 (2010), the Texas Court of Criminal Appeals rejected a challenge of Election Code for vagueness, noting that what saves it was the intent requirements:
So now we’re back to the rule I started with: a jury cannot use its disbelief of some testimony as proof of facts of an opposite nature.
The bottom line is that there were two accounts. The State tried to create a crime by showing that money went into one account and identical amounts came out of the other. But that is legal.
It should not be forgotten that Mr DeLay is an author of No Retreat, No Surrender, from Remainder House, currently available in hardcover for $.01 at Amazon.
He is fortunate to be married to a gifted lobbyist, who, according to Wiki, was paid “…about $115,000 directly by ASG, and got another $25,000 via money put into a retirement account by the firm…” for “…telephone calls she made periodically to the offices of certain members of Congress seeking the names of their favorite charities, and that she then forwarded that information…”.
You’re conflating different things. The contribution must be made knowingly. And it must be made with the knowledge that it is going to a candidate. But the law does not require that the contributor know about the law, unless you read *Ellis *to say that ignorance of the law is a defense. Is that how you read Ellis?
No, that’s not where we are. Discrediting the witnesses just cancels out that evidence. At that point, all the jury is left with is what the corporations were told about where their donations would go, and whatever inferences can be drawn from that beyond a reasonable doubt.
Well, I want there to be. But that’s not worth much.