October 08, 2005

Unethical Prosecutorial Conduct

The DeLay camp is alleging unethical and illegal conduct by Ronnie Earle in securing the second indictment against the Majority Leader after initially securing an indictment for a crime that did not exist.

"During the five-day period of Sept. 29, 2005, to Oct. 3, 2005, Ronnie Earle and his staff engaged in an extraordinarily irregular, and desperate attempt to contrive a viable charge and get a substitute indictment of Tom DeLay before the expiration of the statute of limitations on Oct. 3, 2005," the motion states.

The motion claims that Earle and his staff "attempted to browbeat and coerce" a grand jury to change its decision to no-bill DeLay on a separate money-laundering charge. In addition, the motion says that the prosecutors "unlawfully attempted to cover up and delay public disclosure" of that no-bill.

Richard Bernal of Austin, foreman of the grand jury that didn't indict DeLay, said he had no comment on the allegations in DeLay's motion. He said he had not spoken with DeGuerin or anyone on DeLay's legal team.

On Oct. 3, a newly sworn-in grand jury indicted DeLay on money-laundering and conspiracy charges. Earle said then those indictments were based on "additional information" that had come to his attention.

The motion also accuses the district attorney's office of inciting the foreman of the first grand jury to talk "publicly, and on the record, to the media, in an effort to bias the public and sitting grand jurors."

That foreman, William M. Gibson Jr. of Austin, has given interviews to reporters. He has not discussed the evidence against DeLay but has said that Earle did not pressure the jurors to vote to indict.

On Thursday, Gibson, 76, told Austin radio station KLBJ that Earle's staff said "that we were free to talk to the media if we wanted to, that the media was a very good source of information for everybody."

On Friday, the retired state insurance investigator told the Houston Chronicle that Earle did not incite him to talk.

He said he answered questions when reporters called but didn't divulge any secret information.

"I don't think I did anything wrong," said Gibson.

Now let's look at this very closely. After three years and (if I remember correctly) six grand juries, Ronnie Earle finally got DeLay indicted on charges of conspiracy to violate campaign finance laws in 2002. The problem was that the statute did not go into effect for nearly a year after DeLay's actions -- and DeLay's participation in the conspiracy was his failure to attempt to stop a financial transaction that the PAC's lawyers said was legal and commonplace. By the time the flaw was discovered, the grand jury had been dismissed because its term had expired. That grand jury was told it was free to talk to the press about the case, according to its foreman, a partisan Democrat who admits that his decision to indict was based upon press reports and other information that was not (and could not have been) presented to the grand jury.

By the next day, the indictment had been torn to shreds by a great number of commentators and analysts, including many who oppose Tom DeLay. The Travis County DA therefore sought an additional indictment to backstop the first, and presented the same evidence to another grand jury that was about to expire, hoping to get an indictment that the pliant first grand jury refused to give him. Earle expected the second indictment to be forthcoming, because they would not have heard all of the contradictory evidence given to the first grand jury during its term, just the evidence that Earle cherry-picked to make his case. But an indictment wasn't forthcoming, and the grand jurors no-billed the case. Ronnie Earle was visibly angry and attempted to pressure the grand jurors into doing his biddingdespite their conviction that ther ewas no basis for charges. He then instructed them that grand jury secrecy rules applied to them even after their term was up and that they could not speak to the media.

Over the weekend, Earle and his employees called the members of the expired grand jury to discuss the "additional evidence" that was presented to the second grand jury -- which appears to be a violation of grand jury secrecy, since it involved the discussion of the activities decisions and deliberations of that grand jury with individuals who were not a part of that or any other sitting grand jury -- and polled them on whether they would have issued an indictment on specific charges. This action certainly crosses ethical boundaries,and probably legal ones as well.

On October 3, Ronnie Earle presented the same evidence to the a brand new grand jury -- supplemented by the opinions of the members of the defunct grand jury which had indicted on a charge that didn't exist. These opinions were the "new evidence" which constituted the basis for presenting the evidence to the third grand jury in less than a week. The third grand jury was persuaded in a matter of hours to return an indictment on charges that could bring life in prison for one of Ronnie Earle's biggest political targets to date, despite the fact that one grand jury had found no evidence of a crime and the other had only been willing to return an indictment on a much less substantial charge. Why? Because Earle presented material that was not evidence, but rather a statement of opinion of the former grand jurors. Thus the Travis County DA secured an indictment by saying that he and the other grand jury had made a mistake, and here's how we want you to fix it

In short, what we have here is an example of the old saying that a prosecutor can get a grand jury to indict a ham sandwich if he wants it to -- but only if he has access to a sufficient number of grand juries to do so.

(More at Blogs for Bush)

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