Wednesday, October 05, 2005

Delay's Hail Mary Play

Monday was an interesting day at the Travis County Courthouse.

Tom Delay’s legal team tried to pull off the legal equivalent of a “Hail Mary” pass in a move to get the original indictment thrown out.

It was a bold move that failed.

Delay’s attorneys filed a motion to quash and dismiss the indictment of Tom Delay with an order ready for the judge to sign. There was also a letter to Earle calling on him to “do the right thing” and dismiss the flawed indictment.

The last page in the link provided is a curious letter from the defense attorney to prosecutor Earle that says:

“Rumor has it that your are going to try and get another indictment against Tom Delay. Please tell the Grand Jury that Mr. Delay has filed a Notice to Withdraw his Waiver of Statute of Limitations.”


We don’t have the actual notice of withdrawal. We don’t know when it was issued. But we know it exists, and was in place at the time the motion to quash and dismiss was filed. Interesting maneuver.

In Texas, the Statute of Limitations are tolled (delayed) while an indictment is pending in court.

Which means that dismissal of the indictment, accompanied by the withdrawal of the waiver might have eliminated both the indictment and the prospect of future indictment on matters related to the September 13, 2002 check at the center of this case.

It was a pretty smooth move. It failed. As you probably know, Ronnie Earle re-indicted Tom Delay and added Money Laundering charges in the process, which apparently cures the potential flaw in the original indictment.

There’s a lot of talk in the media about the “bumbling” prosecutor for filing an improper indictment. Ronnie Earle isn’t talking. At the end of the day, however, the talk from the Delay defense team had turned to a trial, which they hoped could be accomplished by the end of the year. Doesn’t seem that Earle was the one outwitted in all the maneuvering.

Some news accounts make a big deal about the withdrawal of the waiver of the statute of limitations, and I think it might be bigger news than we know. But, since Texas law tolls the statute of limitation until the indictment is resolved in a court proceeding. And in light of recent Texas cases that allow prosecutors to bring additional charges associated with the same act while that indictment is in place, the statute of limitations will not be a factor in any other court proceedings. Mr. Earle appears to be free to pursue further indictments stemming from the same activities.

What Tom Delay and his attorneys thought would be a good day Monday, didn’t turn out as they would have liked.

I think they are being very optimistic about a trial before the end of the year. There are schedules to consider, and whether Delay and his alleged co-conspirators should be tried together. Separate trials might speed the process, but if they are to be tried together, Colyandro and Ellis have not been pursuing a rapid procession of justice in their other cases. And, as everyone seems to now agree, the longer this thing goes, the less likely there's a leadership position wating for Mr. Delay.

By the way, despite claims to the contrary, there is at least one case out there that gives credence to the prosecution claim that not all was legal in the TRMPAC operations, despite the opinion of TRMPAC lawyers. I’ll get to that case soon.