We live in the most powerful country in the world and America is arguably at the zenith of its historical strength. Our leading journalists and newspapers, the New York Times to the contrary notwithstanding, are celebrated as models of professionalism and sophistication. Many newspapers and television networks employ journalists with law degrees or at least with some modicum of legal training. Cable television networks devote a significant portion of their programming to trials and legal issues and one such network, Court TV, is supposedly all about the law. Why is it, then, that none of these persons or entities has seriously examined the criminal charges against former House Majority Leader Tom DeLay in the light of Texas statutory and case law? To do so is to discover that the charges against DeLay will almost certainly be dismissed.
This is not really about Tom DeLay. You can love him or you can hate him. It is about Travis County District Attorney Ronnie Earle and about our collective glee whenever a person of an opposing ideology gets indicted. Tom DeLay will never go to trial, if Judge Pat Priest is as honest and judicious as his reputation suggests. As soon as the charges against DeLay are dismissed, however, the inquiries into Earle’s official conduct should begin. We don’t need to blather on anymore about Earle’s supposed partisanship or DeLay’s purported sleaze. We have the indictment now, and we know the law.
Title 4, Section 15.02 of the Texas Penal Code is the general criminal conspiracy statute. In 1977 the Texas Court of Criminal Appeals, the highest court in Texas authorized to rule on criminal cases, held in Baker v. State, 547 S.W.2d 627 (Tex.Cr.App.1977), that Section 15.02 could not be applied to a criminal offense defined by another law (that is, defined by a law located outside of the Penal Code) unless the other law explicitly referenced the Penal Code. The non-Penal Code offense at issue in Baker was the Texas Controlled Substances Act. Baker followed a similar holding in Moore v. State, 540 S.W.2d 140 (Tex.Cr.App. 1977), which had found Section 15.01 of the Penal Code, the general attempt statute, inapplicable to the Controlled Substances Act. Both rulings were based on a strict reading of Penal Code Section 1.03(b) which stated in part that “[t]he provisions of Titles 1, 2 and 3 of this code apply to offenses defined by other laws, unless the statute defining the offense provides otherwise.” Since the conspiracy and attempt statutes were contained in Title 4, they could not apply to the Controlled Substances Act, the Court of Criminal Appeals reasoned, unless the Controlled Substances Act provided otherwise. The Controlled Substances Act did not provide otherwise, and did not contain its own attempt or conspiracy provisions. (The Texas Legislature later amended the Controlled Substances Act and it now expressly references Title 4 Penal Code offenses.) Both Baker and Moore were written by Tom G. Davis, a widely respected mainstream jurist. In reversing Baker’s conviction and ordering the prosecution dismissed, Davis ruled that “[t]he complaint and information in the instant case do not allege an offense against the laws of this state.”
Baker is still the law in Texas, and has been for 28 years. The pertinent portions of the conspiracy statute (Section 15.02) and of Section 1.03(b) remain the same. Earle’s original indictment of Tom DeLay charged that DeLay conspired in October of 2002 to violate the Texas Election Code. (This was the only charge against DeLay.) The Election Code is not a part of the Penal Code. In 2002, the Election Code did not contain a conspiracy provision or reference or incorporate Section 15.02. The Election Code was amended, effective September 1, 2003, to permit application of Title 4 offenses, including the Section 15.02 conspiracy statute. But, as every schoolboy knows, the amended version cannot be applied to DeLay’s alleged conduct without violating Ex Post Facto principles. Ergo, Earle’s original indictment of DeLay did not, in the words of Tom G. Davis, “allege an offense against the laws of this state.”
According to a story in the Washington Post, Earle did not learn that there might be a problem with the original charge until his assistants told him about it, shortly after the indictment was returned. It is difficult to overemphasize the professional incompetence of such behavior. The Penal Code went into effect in 1973. The Election Code was enacted in 1975. Earle was elected Travis County District Attorney in 1976. Baker was decided in 1977. DeLay was indicted in 2005.
What did Earle do, upon discovering his mistake? Did he order new pocket parts? No, he re-indicted DeLay but kept in the original charge of conspiracy to violate the Election Code. I will deal in my next post with the fresh allegations contained in the superseding indictment. But Earle’s decision to re-indict DeLay for the Election Code conspiracy, after being informed about Baker, has to go down as one of the most sinister and improper prosecutorial actions in Texas history.