DeLay Gets High Court Hearing On Dismissal
By Kevin Aylward on Justice
Wizbang
The Texas Court of Criminal Appeals (the state's highest criminal court) agreed to hear U.S. Rep. Tom DeLay's request for dismissal of the money laundering and conspiracy indictments brought by Travis County District Attorney Ronnie Earle. His attorney's also petitioned for the court to order an immediate trial charges pending against him. The court yesterday gave prosecutors one week to respond.
DeLay is racing to clear his name prior to Congressional leadership elections next month. If he is still under indictment at the time he will not be able to run for House majority leader - a position from which he has temporarily stepped down while fighting Earle's indictments.
For the lawyerly types you can read up on DeLay's Motion and Original Petition for Writ of Habeas Corpus (both links below).
The Writ is fairly interesting, as DeLay's lawyers make a good case that the indictments against him do not allege offenses as a matter of law. I've pulled out the meat of their arguments (shown below) so that you don't have to wade through the PDF's:
Count 1 - DeLay's attorney's contend that the law at the time of the alleged offense did not allow for the charging of "criminal conspiracy." The legislature later amended the Election Code to allow for such a charge.
To state the obvious, Subchapter D of Chapter 253 of the
Election Code is not contained in the Penal Code. The
criminal conspiracy provision of the Penal Code does not
apply to an offense set out in the Election Code.
Id. "Conspiracy to violate the Election Code" is not an
offense.
This Court has unequivocally concluded that, absent a
specific statute providing otherwise, the criminal
conspiracy provision of the Penal Code does not apply to
criminal statutes outside of the Penal Code.
Count 1 - DeLay's attorney's contend that the law at the time of the alleged offense was very specific about what constituted "funds."
...[T]to properly charge an act of money laundering which
occurred in 2002, the State must allege that Congressman
DeLay conducted, facilitated, or supervised a transaction
involving "funds." In 2002, the definition of "funds"
only included coin or paper money, silver certificates,
or Federal Reserve or Treasury notes as set forth in
$34.02(2)(a)-(c), that were the proceeds of a crime. The
definition did not include "checks." "Checks" cannot
constitute "funds" for purposes of a 2002 money
laundering allegation. All transactions referenced in
Counts I and I1 of the second indictment concern checks,
not coin or paper money, silver certificates, or Federal
Reserve or Treasury notes. Therefore, the second indictment
does not allege that "funds" were laundered. It does not
allege an offense.
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