Tuesday, January 06, 2009

So THAT's why Tom DeLay isn't in prison yet

Scott Horton at Harper's:

In theory, our legal system affords equal access to justice. But, as George Orwell offers in Animal Farm, some of us are more equal than others, and Tom DeLay is, in Texas politics, the most equal of all. Texas courts, which are notoriously political, are packed with Republicans who owe their careers to Tom DeLay, directly or indirectly. That makes the justice dealt out in the DeLay case justice without equal.

DeLay is now facing trial in Austin on charges of money-laundering. But his case has been bottled up by an appeals court dominated by Republicans. Ronnie Earle, a legendary prosecutor who has taken down far more Democrats than Republicans in his day, had hoped to end his career with this trial–but DeLay’s fellow Republicans insured that this would not happen. They waited patiently for Earle to retire and then handed down a preliminary ruling. The Republican judges find no reason why one of their colleagues who, before coming on the bench, said the DeLay prosecution was “politically motivated” could not then rule on the case. That reflects a novel understanding of the canons of judicial ethics, which–at least in places other than Texas–require that a judge handle his matters impartially. When a judge expresses an opinion on the merits of a case before it comes to him, that is prejudgment. It disqualifies him from participating in the case. Why this extraordinary departure from settled rules of judicial ethics? It appears that with one Republican recused, the court would have a tie vote, and DeLay would be denied the deus ex machina he is waiting for: a court ruling that the prosecution’s case is fatally defective.

As the Houston Chronicle reports today, the Republican majority on the court even blocked the two Democratic justices from filing dissenting opinions.

And what did the Houston Chronicle report yesterday?

The polarized state appeals court has ruled that Republican Justice Alan Waldrop did not have to excuse himself from a case against two associates of former U.S. House Majority Leader Tom DeLay.

The ruling from the 3rd Court of Appeals does not immediately affect the money-laundering charges against DeLay and his associates, John Colyandro and Jim Ellis.

DeLay and his associates, John Colyandro of Austin and Jim Ellis of Washington, have been accused of laundering corporate money into political donations to Republican candidates in 2002. Use of corporate money is generally banned from state campaigns.

Before any trial, Ellis and Colyandro challenged the constitutionality of the law.

Last September, Travis County District Attorney Ronnie Earle asked the court to remove Waldrop because Earle claimed Waldrop betrayed his bias four years ago, before he became a judge. Earle alleged that bias was betrayed when Waldrop called a similar money-laundering allegation in a related civil lawsuit "politically motivated" and an attempt to "harass political opponents." At the time, Waldrop was representing a client who was a political ally of DeLay.

Waldrop wrote an opinion in August that upheld the constitutionality of the law on money laundering but warned that the prosecutors had a fatal flaw in their case, a view that two trial judges and one other appellate judges have disagreed with.

Waldrop, Chief Justice Ken Law and a third Republican justice, Robert Pemberton, wrote that the charges against DeLay and his associates should be dismissed because they used a check, not cash, in their transaction. Waldrop argued that the law — before it was changed in 2005 — did not cover checks during the 2002 election.

Two Democratic justices on the 3rd Court objected.

Justice Jan Patterson, a Democrat on the Austin-based state appeals court, claimed last year that Law, blocked the filing of her dissent to a ruling in October. The ruling overruled a motion asking Waldrop to step aside in the money-laundering case involving DeLay's associates.

Justice Diane Henson complained that her GOP colleagues were wrong about the money-laundering law and had bottled up the case for years to thwart prosecution of the high-profile case.

On Wednesday, the Republican majority struck back in an opinion written by Justice David Puryear. Law and Pemberton joined in Puryear's opinion. Puryear criticized Patterson's "attempts to insert suspicion and intrigue into what have been routine decisions by this Court," the Austin American-Statesman reported in an online story Friday.

Henson argued that a reasonable person would question whether Waldrop might favor DeLay's associates because of his earlier work with DeLay's political allies.

"One might also question why, if Justice Waldrop's lack of bias or partiality is so obvious, a 38-page opinion, including personal attacks on dissenting justices, was necessary to explain why the motion to recuse was denied," she wrote.

Earle just retired and Law's term ended Wednesday.

The old "it's not money-laundering if it's a check" trick again. Let' see now; where have we written about Alan Waldrop and David Puryear before?

Back to Horton for the obvious conclusion ...

Texas was once famous for Judge Roy Bean, who following various homicides and petty offenses established himself as the “law west of the Pecos.” Bean’s first act in judicial office was to shoot up the saloon of a Jewish competitor. Now Texas is home to Tulia, where in the governorship of George W. Bush forty African-Americans were arrested on bogus drug charges by a racist cop, and it’s the state that sent Alberto Gonzales to Washington as attorney general. Its notions of justice are transparent from cases like the DeLay prosecution, in which we get a glimpse of the most ferociously partisan judges in the country. Did Reconstruction end too soon?

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