The Texas Court of Criminal Appeals has affirmed that a criminal conspiracy indictment against former congressman Tom DeLay and two associates – which was tossed out in 2005 by Senior District Court Judge Pat Priest – will remain tossed out.
The court decided 5-4 to affirm Priest’s decision to toss the indictment, one of three obtained against DeLay, John Colyandro and James Ellis by Travis County District Attorney Ronnie Earle, who accused the three of conspiring to violate state election laws.
“The Texas Court of Criminal Appeals today ruled that I was wrongfully indicted by Ronnie Earle, the Mike Nifong of Texas, on laws that didn’t even exist,” DeLay said in a statement early Wednesday afternoon.
Earle strongly disagreed with the majority opinion
“Today a sharply divided Texas Court of Criminal Appeals ruled that individuals can be involved in an ongoing conspiracy to commit certain felony crimes and their conspiracy is perfectly legal,” he said in a statement.
DeLay, Colyandro and Ellis were indicted in the fall of 2005 in Travis County, accused of channeling money from corporate donors to Republican candidates for the Texas House in 2000, in violation of Texas election laws. In addition to the conspiracy charges, they also face a count of money laundering.
Specifically, the three were charged with conspiracy to violate a portion of the Texas Election Code, conspiracy to engage in money laundering, and with money laundering.
Colyandro is former executive director of Texans for a Republican Majority, a political action committee DeLay founded. Ellis is a political consultant who has been identified as DeLay’s chief fund raiser.
DeLay, who resigned from Congress in part as a result of the indictments, has said the charges are baseless and represent a political attack by Earle.
He repeated that contention Wednesday.
“The court affirmed the decision to throw out the conspiracy indictments because they were based on laws that weren’t even on the books. What Ronnie Earle accomplished is no rookie error – it’s a political attack using our legal system as the primary weapon,” DeLay said.
“Ronnie Earle’s politically motivated indictments cost Republicans the leader of their choice, and my family hundreds of thousands of dollars in legal fees. The damage he has done to my family and my career cannot be rectified, but the courts have recognized a significant portion of the injustice and ruled accordingly. For nearly two years I have been willing and eager to go to trial and with this ruling, we are thankfully closer to that day.”
In December 2005, Judge Priest threw out threw out one conspiracy count against the three defendants, narrowed the scope of a second conspiracy count, but let stand money-laundering charges.
DeLay attorney Dick DeGuerin had argued at the time that the indictment alleged a conspiracy to violate sections of the Texas Election Code on Sept. 13, 2002, but that conspiracy did not apply to the election code at the time.
Judge Priest agreed, calling Travis County prosecutors’ arguments to the contrary “not persuasive.”
Earle’s office appealed Judge Priest’s ruling, arguing in March 2006 before the 3rd Court of Appeals that charges dismissed against the defendants should be restored, because a felony defined by the Texas Election Code, like a Penal Code felony, can be the object of a criminal conspiracy.
However, a three-judge panel from the appeals court said in April 2006 that prosecutors can’t “rely on” an amendment the state Legislature made to the election code in 2003, “to explicitly incorporate a conspiracy offense,” because the charges against DeLay involve conduct that occurred prior to the amendment’s enactment.
On Wednesday evening, Earle took issue with the criminal appeals court’s ruling.
“Criminal conspiracy means three things. It means a person intends to commit a felony. It means that the person agrees that he or his co-conspirators will engage in conduct that would constitute the crime. And it means one of them performs some act in pursuit of the crime,” he said in a prepared statement.
“Under the rationale of today’s majority opinion, the Legislature has blessed these criminal conspiracies as long as the felony they agree to commit is not in the Penal Code. There are many felony crimes that are contained in parts of the law other than the Penal Code.
“Of course, it is illegal for them to actually commit the crime, but they can legally conspire to do it all they want,” Earle said. “This is a tortured result.”
The public policy considerations surrounding this decision are larger than this one case. Criminal conspiracy prosecutions allow for the prevention of crime before it occurs,” Earle said. “Under the court’s opinion today, law enforcement is powerless to intercept certain felonies before they are actually committed.”
The court decided 5-4 to affirm Judge Pat Priest’s decision to toss the indictment, against DeLay, John Colyandro and James Ellis by Travis County District Attorney Ronnie Earle, who accused them of conspiring to violate state election laws.
“The Texas Court of Criminal Appeals today ruled that I was wrongfully indicted by Ronnie Earle, the Mike Nifong of Texas, on laws that didn’t even exist,” DeLay said.
