Will the checks clear DeLay?

I'm having a hard time wrapping my mind around the idea that the notorious "checks aren't cash" defense might have gotten enough of a boost from the appeals court ruling on Friday to make it actually viable in a real courtroom, but it may have done so. At least, that's what DeLay's defense attorney would like you to believe.

Money-laundering charges against former U.S. Rep. Tom DeLay and two indicted co-conspirators may be dismissed because the 2002 campaign finance case involved checks and not cash, a lawyer for DeLay said Sunday night.

"We win," said Dick DeGuerin, DeLay's lawyer, "because there's nothing but checks in the case."

The state's 3rd Court of Appeals on Friday actually upheld the money-laundering indictments against DeLay's two campaign associates, John Colyandro of Austin and Jim Ellis of Washington.

But the ruling contained a silver lining for the trio's lawyers because it concluded that the state's money-laundering statute -- written in 1993 to combat illicit drug activity by focusing on the cash in the criminal transactions -- did not apply to checks at the time DeLay is accused of laundering corporate money into campaign donations. The Legislature changed the law in 2005 to include checks.

Lawyers for the three defendants have included the check-versus-cash argument in other legal motions. But it was not part of the constitutional challenge that was before the 3rd Court of Appeals, so the appellate court could not dismiss on those grounds, DeGuerin said.

[...]

Travis County District Attorney Ronnie Earle said the check-versus-cash argument is absurd: "The court's reasoning is like saying that you can get away with murder if you pay the hit man with a check."

Prosecutors can file a motion for a rehearing before the appellate court.

DeLay is technically not a part of Friday's opinion because he was indicted a year after Colyandro and Ellis. But the ruling could effect all three.

DeGuerin said he would take the appellate court's opinion back to Pat Priest, the trial judge in San Antonio, who has dismissed the check argument previously. Armed with the opinion, however, DeGuerin said he expects Priest to reconsider DeLay's motion to dismiss the charges because only checks -- not cash -- were involved in the transactions.

The Chron is also on this story. One of the main drivers behind the whole "tuff on crime" movement has been a fervent belief that lots of criminals get off on so-called "technicalities". You know, things like not being advised of their rights, not being given access to an attorney, not being informed about exculpatory evidence - that sort of thing. In this case, they would be right. If DeLay gets off based on this, either by a dismissal of the indictments or a not-guilty verdict, he will have won on a technicality.

Last summer the Texas Court of Criminal Appeals confirmed the dismissal of a separate indictment against DeLay and his associates on a charge of conspiring to violate the state election code. The court ruled that conspiracy did not apply to election code violations until 2003 -- a year after the $190,000 exchange -- when the Legislature changed the law.

On Sunday night, DeGuerin noted the similar circumstances for the money-laundering indictment.

"If this is how it ends," DeGuerin said, "it means every crime Ronnie Earle indicted Tom DeLay for was not a crime."

No, they'll all still have been crimes. He'll just have gotten away with them. In some sense, that doesn't really matter any more. DeLay is out of power, his style of politics has largely been discredited, and he's borne a big part of the blame levied by his fellow Republicans for the party's current woeful state of affairs. He's a footnote to history now, and in a practical, if not a moral, sense he's already been punished enough. But still. As with the Kim Brimer ballot lawsuits, if this is how he wins, we'll all know the reason why.

Posted by Charles Kuffner on August 26, 2008 to Scandalized!