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The indictment of U.S. Rep. Tom DeLay for alleged criminal conspiracy sets up a rematch in Texas between Travis County District Attorney Ronnie Earle and prominent Houston criminal defense lawyer Dick DeGuerin, who successfully defended another high-profile politician in a case that ultimately was a big embarrassment for Earle. In 1994, DeGuerin was lead counsel for U.S. Sen. Kay Bailey Hutchison, R-Texas, whose trial for allegedly tampering with government records ended with a directed acquittal, after Earle refused to present the state’s case. In that case, prosecutors alleged Hutchison, while the state treasurer, put state-paid employees to work on her 1992 Senate campaign and then attempted a cover-up after Earle, a Democrat, began investigating. On Sept. 28, a Travis County grand jury indicted DeLay, R-Texas, and two political associates for criminal conspiracy, the result of an almost three-year investigation into allegations that corporate money was unlawfully directed to Texas House of Representative candidates in 2002. “The law that makes corporate contributions a felony in Texas is intended to safeguard democracy and make the ballot box accessible to everybody, regardless of the amount of money involved,” Earle said at a news conference a few hours after the grand jury returned the indictment. DeGuerin’s involvement makes the indictment against DeLay, arguably the most powerful Texan in Congress, less of an easy prosecution for Earle’s office. “Dick, of course, is an excellent lawyer and will do a good job and has the experience of going against that office,” says Ronald Woods, a former U.S. attorney for the Southern District of Texas who worked with DeGuerin on Hutchison’s defense team. “My heart goes out to Tom and his family,” Hutchison said in a written statement on Sept. 28. “We must all remember that in our system of justice he is innocent until proven otherwise and he deserves the chance to tell his story.” Jamie Loftus, a spokeswoman for Hutchison, says the senator would not immediately comment further on the indictment. David Crump, a University of Houston Law Center professor who teaches criminal law, says DeGuerin has continued to represent defendants in major cases. In 2003, DeGuerin joined Houston solo Michael Ramsey in defending New York millionaire Robert Durst for the killing of Durst’s 71-year-old neighbor. Durst claimed that he killed Morris Black in self-defense and then dismembered the body. A Galveston jury acquitted Durst of murder. “That case enhanced [DeGuerin's] reputation,” Crump says. Austin solo Steve McCleery, who was Earle’s first assistant DA and lead counsel for the Hutchison trial, says he expects to see a huge amount of publicity coming from DeLay’s defense early on. McCleery says he is basing his prediction on his previous experience on prosecutions in which DeGuerin was the defense attorney. “It will be run to a great extent like a political campaign,” McCleery says. At a press conference in Washington, D.C., on Sept. 28, DeLay characterized the indictment as a partisan attack by Earle and proclaimed his innocence. “Now let me be very, very clear: I have done nothing wrong. I have violated no law, no regulation, no rule of the House. I have done nothing unlawful, unethical or, I might add, unprecedented, even in the political campaigns of Mr. Earle himself,” DeLay said. The indictment in Texas v. Colyandro, et al. charges DeLay with conspiracy to violate Chapter 253 of the Texas Election Code. The indictment also names John Colyandro, former executive director of the DeLay-founded Texans for a Republican Majority Political Action Committee (TRMPAC), and James Ellis, DeLay’s chief fund-raiser in Washington, D.C., as co-conspirators. DeGuerin, a partner in Houston’s DeGuerin, Dickson & Hennessy, told reporters at a separate news conference in Austin that DeLay retained him in recent days, when it became apparent Earle would seek the indictment. DeLay’s defense team also includes Bill White, of the Law Offices of Bill White in Austin, and Austin solo practitioner Steve Brittain, who was the first chief of the special crimes division in Earle’s office. Brittain helped establish the division. “We’re going to fight this tooth and nail,” DeGuerin said. “There’s no crime here. We want a trial as quick as possible.” In DeGuerin’s view, politics motivated Earle in Hutchison’s case and in DeLay’s case. DeGuerin contended that Earle prosecuted Hutchison to destroy her chances of being the Republican senator from Texas and now is trying to destroy DeLay because of what DeLay has meant to Republican politics in Texas. In 2002, DeLay pushed to elect a Republican majority in the state House, enabling Texas Republicans in 2003 to draw new districts for U.S. House seats that favored GOP candidates. Earle said he’s only doing his job. “The law says that corporate contributions to political campaigns are illegal in Texas,” Earle said. “The law makes such contributions a felony. My job is to prosecute felonies. I’m doing my job.” DeGuerin said the indictment already has affected DeLay by causing him to step down as majority leader in the U.S. House of Representatives. “That’s what Ronnie Earle wants,” DeGuerin contended on Sept. 28 when speaking to reporters. Under House Republican Conference rules, any GOP leader indicted for a felony that carries at least a two-year prison sentence must step down immediately. Criminal conspiracy is a state-jail felony punishable by up to two years of incarceration and a fine of up to $10,000. DeLay spokesman Ben Porritt says DeLay’s resignation from his leadership position is temporary. U.S. Rep. Roy Blunt, R-Miss., took over as majority leader on Sept. 28. STATUTE WAIVED The indictment against DeLay and the two political associates is short on specifics with regard to DeLay’s alleged wrongdoing. “The indictment provides no particulars at all regarding DeLay’s role in the alleged conspiracy, so we are working with a blank slate,” says Robert Davis, a partner in Hughes & Luce in Dallas, who also notes that state election laws are vague in many ways. He is not involved in the litigation. “It looks mighty slim,” Frank Reilly, an Austin attorney whose practice includes election law, says of the indictment. Reilly is not involved in the criminal prosecutions and does not represent any parties in the civil suits stemming from the alleged contribution of corporate funds to state legislative candidates. “It is the most awkwardly worded indictment I’ve ever seen,” says Woods, the Houston criminal defense lawyer, who notes that Hutchison’s defense team obtained a dismissal of the indictment against her three times, because Earle’s office failed to clearly state an offense in those indictments. Woods, who is not involved in DeLay’s defense, says he would expect DeGuerin to file a motion to dismiss the indictment. As alleged in the indictment, DeLay, Ellis and Colyandro entered into an agreement to violate Texas Election Code (TEC) Chapter 253 by funneling corporate dollars to seven Republican candidates for state House seats. Specifically, the indictment alleges that the trio violated TEC ��253.003, 253.104 and 253.084, which prohibit corporations and labor unions from making contributions to political parties or candidates within 60 days of an election and makes it illegal to accept such contributions. “The indictment describes a scheme whereby corporate money, which cannot be given to candidates in Texas, was sent to the Republican National Committee, where it was exchanged for money raised from individuals and then sent to those Texas legislative candidates,” Earle said at the news conference. The indictment alleges that Colyandro and TRMPAC accepted $155,000 in corporate contributions. The indictment further alleges that the corporate money was included in funding for a $190,000 check that Colyandro signed and Ellis delivered to the Republican National Committee. The check, a copy of which is included in the indictment, was made out to the Republican National State Election Committee (RNSEC), which also received instructions on the amount of money that was to be contributed to each of the seven GOP candidates, the indictment alleges. Lawyers for Ellis and Colyandro say their clients will plead not guilty to the criminal conspiracy charge. Another Travis County grand jury indicted Colyandro and Ellis in September 2004. Those indictments accuse Colyandro and Ellis of money laundering. The earlier grand jury also indicted Colyandro of accepting or making banned corporate contributions. Both men deny the allegations. Austin’s Joseph A. Turner, Colyandro’s attorney, said the Sept. 28 indictment is “a rehash” of the other indictments. Turner said, “Not one penny of corporate dollars ever found their way to candidates’ campaigns. “It came out of a separate account, which was a hard-dollar account,” he said. Ellis’ lawyer, Jonathan D. “J.D.” Pauerstein, a partner in Loeffler Tuggey Pauerstein Rosenthal in San Antonio, says the allegations are baseless. “Needless to say we are very disappointed this political persecution is continuing and expanding � in the face of a void of evidence,” Pauerstein said. While the indictment alleges that Ellis, Colyandro and TRMPAC performed “overt acts” that carried out the criminal conspiracy, it provides no details on DeLay’s alleged involvement. “That’s because he didn’t do anything,” DeGuerin told reporters. Earle said criminal conspiracy, in this context, means that a person, with the intent to commit a felony, makes an agreement with two or more persons. One or more of those persons then performs an overt act in pursuance of the agreement, he said. “I don’t see in this indictment that they’re making a prima facie showing that this occurred,” said Reilly, a partner in Potts & Reilly. Reilly said that, for DeLay to be convicted, prosecutors will have to prove that DeLay agreed to the allegedly illegal campaign-funds transfer with either Colyandro or Ellis or both of them. “It seems a stretch to me,” he said. Reilly says prosecutors also must prove that what they are alleging is a crime, and Crump has doubts whether they can. “The money that went to candidates in Texas came from individuals,” Crump said. “The prosecution’s theory is that was substantially money that was exchanged for corporate money and that’s somehow illegal. I don’t think that’s an objective way of reading the law.” According to the indictment, DeLay waived the three-year statute of limitations on the conspiracy charge. Brittain said the limitation on that charge ran out on Sept. 13. DeGuerin said DeLay signed the waiver to provide more time to convince Earle that no crime had been committed. “It was done under duress; it was done because Ronnie Earle said, ‘I’m going to get the grand jury to indict you right now,’ ” DeGuerin contended. Earle did not return a telephone call seeking further comment.

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