Judge has many options in sentencing ex-Rep. DeLay
Friday, November 26, 2010
AUSTIN, Texas (AP) — Former U.S. House Majority Leader Tom DeLay argued throughout his trial that the deck was stacked against him by a politically motivated prosecutor and a jury from the most Democratic city in one of the most Republican states.
But following DeLay’s conviction Wednesday on money laundering and conspiracy charges, some legal experts say the edge may now shift to the Republican who represented a conservative Houston suburb for 22 years.
Before DeLay’s inevitable appeal, which his lawyers predict will be a far friendlier process than his trial, he faces sentencing next month from Senior Judge Pat Priest. While technically the money laundering charge carries a punishment of up to life in prison, the judge has wide latitude and could end up just giving him probation.
“It is absolutely impossible he would get anywhere near life,” said Philip Hilder, a Houston criminal defense attorney and former federal prosecutor. “It would be a period of a few years, if he gets prison.”
Barry Pollack, a Washington-based lawyer who represents clients in white-collar and government corruption cases, said the judge may not feel the need to throw the book at DeLay, figuring the conviction itself is severe punishment for someone who once ascended to the No. 2 post in the House of Representatives.
For example, as a convicted felon, DeLay won’t be able to run again for public office or even be able to cast a vote until he completes his sentence.
“I think in a lot of cases a judge wants to make an example, but I don’t see that happening here,” Pollack said.
Prosecutors accused DeLay of conspiring with two associates to use his Texas-based political action committee to send $190,000 in corporate money to an arm of the Washington-based Republican National Committee. The RNC then sent the same amount to seven Texas statehouse candidates. Under Texas law, corporate money can’t go directly to political campaigns.
The money helped Republicans take control of the Texas House in 2002, and once there, they were able to push through a DeLay-engineered congressional redistricting plan that sent more Texas Republicans to Congress in 2004, strengthening DeLay’s political power.
While the string of alleged events may have been difficult for jurors to follow, outside legal observers said prosecutors were able to prove that DeLay had an undeniable motive for breaking the law.
Phillip Turner, a Chicago attorney who focused on criminal tax and public corruption cases as a federal prosecutor in the 1980s, said jurors always want clear evidence that the defendant stood to personally gain through his alleged misdeeds.
Turner contrasts the DeLay case with the federal corruption trial of former Illinois Gov. Rod Blagojevich, who was convicted only on a lesser charge of lying to the FBI, with the jury deadlocking on 23 other charges — including the most serious ones.
Although prosecutors argued Blagojevich wanted to enrich himself by trying to sell the Senate seat that once belonged to President Barack Obama, Turner said a “corrupt motive” was tougher to prove in that case. Blagojevich didn’t seem to receive any reward, either in money or power, and it was unclear whether he ever really intended to, Turner said.
“Those are the sorts of facts that make a difference in a jury’s mind and lead to a conviction in one case and a hung jury in another,” Turner said.
DeLay opted to be sentenced by Priest, a Democrat, rather than a jury in heavily Democratic Austin. Hilder said that was a wise move, particularly if DeLay thinks he might be able to get by with just a probation sentence.
“The judge may be more receptive than a jury,” Hilder said. “He obviously thinks he will get a fairer shake with the judge. The jury more likely would sentence him to prison time.”
The sentencing hearing, which is set to begin Dec. 20, will feature “numerous witnesses who will talk about the other acts of corruption that Tom DeLay has committed,” lead prosecutor Gary Cobb said. The defense, which called only five witnesses during the trial compared to 30 for the prosecution, also could present testimony in the penalty phase.
But even with sentencing nearly a month away, DeLay’s lawyers expressed confidence they could overturn the conviction rather than just minimize the punishment.
Although they haven’t named the specific areas of the case they intend to appeal, their denied change of venue request is almost certainly to be among them. DeLay also long contended the charges against him were a political vendetta by Ronnie Earle, the former Democratic Travis County district attorney who originally brought the case and is now retired.
“This is a terrible miscarriage of justice,” said Dick DeGuerin, DeLay’s lead attorney. “... This will never stand up on appeal.”
Associated Press Writers Jeffrey McMurray in Chicago and Terry Wallace in Dallas contributed to this report.
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