Sunday, December 18, 2005
Tom DeLay's defense case suffered a setback today when the trial judge ruled that the appellate court needs to hear and rule on the propriety of the dismissed count, before the trial can go forward. (see here) The dismissed count related to an alleged conspiracy to violate election laws. The court did not dismiss the counts pertaining to money laundering. (see post here)
The key issue on appeal is likely to be whether the underlying offense has to be in existence at the time of the alleged conspiracy. If the specific offense is later added, can it be used to form the basis of the conspiracy or will this be ex post facto. A fascinating legal issue that might be different if the case were in the federal courts and the prosecutor were using a conspiracy to defraud under section 371 of title 18. Seeing this argument, one can't help but think of Professor Abe Goldstein, the author of a leading article called Conspiracy to Defraud, who passed away earlier this year. For some wonderful tributes to him, see the Yale Jrl here.