Tuesday, December 6, 2005

No Surprises in DeLay Ruling

It is not surprising that the judge tossed out the charges related to the conspiracy to commit a violation of the Texas election laws in the case pending against Tom DeLay.  Although judges seldom will toss out charges in an indictment pre-trial, when the basis of the motion to dismiss is on a legal ground - as opposed to a factual ground - such a decision can be warranted.

In this case the prosecution had an innovative argument in that they claimed that the conspiracy charge could relate to conduct prior to the enactment of the specific underlying offense.  Conspiracy, without doubt, is one of those crimes that is extremely useful for prosecutors.  Judge Learned Hand called it "that darling of the modern prosecutor's nursery."   But we do have an ex post facto clause as part of our constitutional rights, and that clause prohibits indicting someone for something that is not a crime at the time of the offense. The underlying policy rationale being that people should be put on notice that something is a crime before they are punished for the conduct.

Had this been in a case in the federal system and the basis for the conspiracy was under title 18 section 371, and was not premised upon a specific offense but rather on a conspiracy to defraud, the prosecution might have had a better argument. Section 371, the generic federal conspiracy statute provides prosecutors with two choices in proceeding: 1) a case premised upon a specific offense, or 2) case premised generally on a conspiracy to defraud the government. Because a specific offense is not required for such a prosecution, there is only the need to determine whether the underlying conduct defrauded the federal government. (Professor Abe Goldstein, Yale, has a superb article - truly a classic - on this subject). Obviously it would require a federal defrauding as opposed to a state one.

So that leaves Tom DeLay with money laundering charges. (See Indictment here). And perhaps it also leaves him with yet another experience about how the judicial process works. Here he learns why the conspiracy to defraud statute in the federal system needs to be reigned in to make certain that prosecutors do not have too much discretion in bringing cases such as these. He also learns how people lose their jobs merely on an allegation of criminality as opposed to an actual conviction. As previously noted here, if Tom DeLay did not have means to secure counsel, would he still be sitting in jail awaiting his trial with a public defender (not meant to say public defenders are not superb, as most are wonderful lawyers, but rather the system they are forced to work within do not always allow for the "luxuries" (and "necessities" - Gideon) that Tom DeLay might have here).  For stories on this recent ruling see Wall St Jrl here, NYTimes here, and Houston Chronicle here.



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Thanks for the analysis. Have you had occasion to read Judge Priest's decision? I have been unable to locate a copy anywhere. An update with a link would be welcome.

Posted by: Sebastian Dangerfield | Dec 6, 2005 3:31:27 PM

Ellen - You rightly praise Abe Goldstein's article on conspiracy to defraud, but you speak of him in the present tense. Perhaps you hadn't heard that Professor Goldstein died several months ago. His memorial at the Law School was in November.

Posted by: Peter G | Dec 6, 2005 9:21:21 PM

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