JURIST Guest Columnist George Dix of the University of Texas School of Law says that challenges made by Representative Tom DeLay (R-TX) to his two criminal indictments for conspiracy and money laundering may require the Texas courts to consider the fundamental question of whether – in the face of traditional secrecy – defendants should be allowed to investigate and challenge prosecutors' attempts to influence grand juries' decisions to indict…

Former US House Majority Leader Tom DeLay’s challenge to his Texas indictment implicates the rise of Republicans to political power in Texas, the State’s longstanding policy of limiting corporate contributions to political races, and the function of the grand jury in Texas criminal procedure.

The Texas Election Code seeks to limit the role that funds from corporate donors play in state elections. Subdivision D of Chapter 253 of the Code addresses this, and it essentially bars corporations from contributing to individual candidates’ campaigns. In addition, corporations are barred from contributing to general purpose political committees except to establish or administer the committees. They are also barred from contributing to political parties, except that up to 60 days before an election a corporation can contribute funds to be used for the party’s administrative expenses. The Election Code creates a number of criminal offenses, many consisting of making or receiving contributions and making expenditures in a manner violating various provisions of the Code. The provisions creating these offenses sometime appear to overlap.

ALSO ON JURIST  Topic: Tom DeLay | Text: Money laundering indictment | Text: Criminal conspiracy indictment

TRMPAC and the 2002 Elections

In 2002, a number of corporations gave contributions to a general purpose political committee, Texans for a Republican Majority Political Action Committee (TRMPAC). Mr. DeLay is widely regarded as having stimulated the formation and administration of this committee. It now appears that some of these contributions may have been made, accepted, and used under an impermissibly broad definition of permissible contributions for administration of the committee. The purposes for which they were made, accepted and used probably means that they violated Subdivision D of Chapter 253 of the Election Code.

As the November elections neared, TRMPAC gave $190,000 to the Republican National Committee (RNC), a national political party. The check was dated September 13 and was from an account for money donated by corporations. In early October, the RNC made a number of contributions to Republican candidates for the Texas legislature. These contributions totaled $190,000. The successful Republican candidates, as members of the Texas Legislature, supported redistricting that increased Republican representation in the United States House of Representatives.

Ronnie Earle, the Democratic elected District Attorney of Travis County, Texas, began investigating fund raising for the 2002 elections soon after they were over. He used Travis County grand juries in this process. Texas grand juries sit for limited times, but generally no longer than six months. A grand jury’s may be extended but this seldom occurs. In most metropolitan areas, including Austin (the county seat of Travis County), there are usually one or more grand juries sitting at any particular time.

Mr. DeLay was widely regarded as among the persons Mr. Earle believed might have engaged in criminal activity related to the fund raising.

The Offenses at Issue

Two provisions of the Texas Penal Code are involved in the results of this investigation and Mr. DeLay’s prosecution in particular. Title 4 of the Texas Penal Code concerns “Inchoate” or preparatory offenses. Section 15.02 defines criminal conspiracy as committed when a person, with intent that a felony be committed, agrees one or more persons that one or more of them will engage in conduct that constitutes the offense. In addition, one of the conspirators must commit an overt act in furtherance of the agreement.

Money laundering is criminalized and defined by section 34.02. As involved here, it consists of knowingly conducting or facilitating a “transaction” involving the proceeds of felony criminal activity. In 2002, if the transaction involved funds of $100,000 or more the crime was a first degree felony, punishable by up to life imprisonment.

The general “limitations” rule in Texas is that felony prosecutions must be brought—an indictment must be returned—within three years of the commission of the offense. This applies to money laundering and felonies under the Election Code.

The Investigation Before DeLay’s Indictment

In 2004, a Travis County grand jury returned a number of indictments related to the investigation. Some charged corporations with donations in criminal violation of the Election Code. Two individuals, John Colyandro, head of TRMPAC, and James Ellis, a Washington political operative, were charged with money laundering under the state’s Penal Code. The Colyandro and Ellis indictments alleged as the money laundering transaction the delivery of the $190,000 check to the RNC. $155,000 of this, they alleged, was proceeds of felony criminal activity consisting of the corporate donations to TRMPAC in violation of the Election Code. The crime was alleged to have been committed on September 13, 2002, the date of TRMPAC’s check to RNC.

On September 12, 2005, as the three year anniversary of September 13, 2002 approached, Mr. DeLay executed a waiver of the period of limitations for certain potential charges. Quite likely, this was in return for prosecutors’ agreement to not immediately seek an indictment but rather to continue to consider whether Mr. DeLay’s indictment was permissible and appropriate.

The First Indictment

On September 28, 2005, a grand jury formed in March and apparently presented with considerable evidence regarding the 2002 events returned an indictment recharging Colyandro and Ellis and indicting Mr. DeLay. The indictment was for conspiracy to commit the felony of making an improper corporate campaign contribution and doing so on September 13, 2002. Specifically, this first indictment alleged that the defendants conspired to engage in the making of a corporate contr
ibution to a political party which was prohibited because it was to be made within sixty days of an election. This contribution was the transfer of funds to RNC. The State’s theory was clearly that although these funds had been channeled through TRMPAC, the contribution was of the same money that had come to TRMPAC from the corporations. The indictment was returned on the last day of the term of that specific grand jury. It alleged a number of overt acts, but did not specify a date for any of them. It did allege that Mr. DeLay had waived the period of limitations.

Potential Problems With the First Indictment

Almost immediately after being indictment, Mr. DeLay through new counsel notified the prosecutor that he was withdrawing his waiver of limitations. He also raised several questions about the indictment. DeLay specifically contended that in 2002, the Penal Code did not make criminal a conspiracy to engage in conduct that if completed would be a felony violation of the Election Code. Thus, he argued, the indictment did not charge an offense.

The Penal Code provision, on its face, appeared to make conspiracy to commit a felony violation of the Election Code a crime, since it required only that the accused agree to commit “a felony.” Several older cases, however, cast some doubt on this. In the 1970s, a state court had refused to permit prosecutions for conspiracy to engage in conduct made a felony by the Texas Controlled Substance Act. The decisions might be read as indicating that despite the language of the Penal Code, conspiracy required an agreement to engage in conduct made a felony by the Penal Code or some other statute expressly providing that the conspiracy statute applied to it.

The 1970s decisions might alternatively be read as relying on the legislative intent in enacting the Controlled Substance Act. So read, they stand for no general rule that would invalidate the charges against Mr. DeLay.

In 2005, the legislature amended the Election Code to explicitly provide that the conspiracy statute applied to it, but this amended provision does not apply to prosecutions based on conduct before the amendment was effective. It may reflect legislative recognition that in 2002 conspiracy to violate the Election Code was not a Penal Code offense. Or, it may reflect the legislature’s desire to simply make clear and explicit what it intended by the original language.

Mr. DeLay also contended that his waiver of limitations was revocable. Although the Texas courts have said that limitations is, as a general rule, waivable, they appear not to have specifically address the matter as raised by Mr. DeLay.

There was at least one additional potential problem with the indictment. The intended violation of the Election Code was specified as a contribution of corporation funds to the RNC. There is some question as to whether the Texas Election Code purports to cover donations to national entities such as the RNC. There is further some question of whether, if it purports to cover such actions, this is permissible given what might be preemptive federal law.

The Second Grand Jury Presentation

Mr. Earle’s office has acknowledged that “out of an abundance of caution,” the office had presented some evidence of “other allegations” against DeLay to a second grand jury on Friday, September 30, the last day of that grand jury’s term. That grand jury declined to indict Mr. DeLay. The foreman later signed, and the presiding judge ordered filed, a document reporting that the body had inquired carefully into an unspecified “case against” Mr. DeLay. The document concluded, “[W]e have failed to find a bill of indictment against him.”

The Third Grand Jury Presentation and the Second Indictment

On Monday, October 3, another Travis County grand jury was convened. Mr. Earle’s office later stated that “additional information” regarding Mr. DeLay had come to the prosecutors’ attention during the weekend of October 1st and 2nd. This was presented to the newly convened “third” grand jury on October 3. Later the same day this grand jury returned an indictment of Mr. DeLay for conspiracy and money laundering.

The new indictment was considerably more complex than the first. Unlike the one court first indictment, the second contained two counts. Whether the prosecution intends to seek conviction for both, or rather alleged them as essentially alternatives, is not clear from the document. Under existing Texas law, this need not be clear.

Count One – Conspiracy

In the first count, the second indictment again alleged a conspiracy, but contained alleged two alternative theories. One was again that the defendants conspired to violate the Election Code. Now, however, it specified that the conspiracy was to violate the election code by making improper corporate contributions to candidates. The target felony under the first conspiracy theory, then, was changed from the corporate contributions to RNC to a donation of the corporate funds to the candidates. The new indictment alleged additional overt acts and—unlike the first–specified the dates on which the State claimed the overt acts occurred.

This first theory is subject to the same challenge as Mr. DeLay made to the first indictment, that is, that it alleges a 2002 conspiracy to violate the Election Code, which was not at the time a criminal offense. The alternative conspiracy theory was that the defendants conspired to commit money laundering of funds in excess of $100,000. Apparently the money laundering the defendants are alleged to have conspired to commit is the money laundering charged in the second count.

In either case, the second indictment alleged overt acts committed on October 4. If Texas applies the general rule, this would mean that an indictment returned within three years of those overt acts would be within limitation. Thus the prosecution would not have to rely on Mr. DeLay’s waiver of limitations.

The addition of money laundering as a target crime made the charged conspiracy a second degree felony. Conspiracy to violate the Election Code, as charged in the initial indictment (and the first theory in the second), is a considerably less serious State jail felony.

Count Two – Money Laundering

In the second count, the indictment alleged money laundering. The “transaction” relied upon as constituting the offense was the transfer of funds from the RNC to specific candidates after October 3, 2002. Thus the State’s theory here as in the revised conspiracy count does not require reliance on Mr. DeLay’s waiver of limitations.

The money laundering allegations also specified that the transferred funds were proceeds of a felony because the transferred funds involved money that been contributed by corporations in violation of Subdivision D of Chapter 253 of the Election Code. The allegations did not appear to commit the prosecutors to a specific theory, that is, whether the Election Code violation had been the transfer from the corporations to TRMPAC, the transfer of funds to the RNC, or perhaps some other aspects of the events.

Texas Grand Jury Law and Practice

Mr. DeLay has now attacked the October 3 indictment on a number of grounds, among them that it is fatally tainted by misuse of the grand jury process by Mr. Earle’s office.

Under the Texas Constitution, felony defendants have a right to be put to trial only on indictment of a grand jury. This right to indictment almost certainly means that an indicting grand jury must have acted free of at least outrageous pressures from prosecutors. When prosecutorial conduct before a grand jury violates a defendant’s right to a reasonably independent grand jury decision to indict is simply not addressed in either Texas statute or case law.

Texas statutory law does explicitly give a defen
dant the right to have an indictment dismissed upon proof that anyone not a member of an indicting grand jury—including a prosecutor—was present when the grand jury was “deliberating” or “voting.” This is apparently designed to provide rigorous assurance that grand juries are free from potentially improper influence by prosecutors at the time when the juries are most vulnerable—during deliberations and voting.

The statutory and case law is, however, largely silent on a defendant’s right to access to information to investigate concerns that this occurred. As a general rule, an indicted Texas defendant cannot attack an indictment on the basis of the nature, quality, or credibility of the evidence supporting the decision to indict. Were a defendant to show in court that his indictment was based on no more than a prosecutor’s oral statement to the grand jury of what the prosecutor believes were the events, that showing would not entitle the defendant to dismissal of the indictment.

A prosecutor has a statutory right to access to grand juries. Prosecutors may be present when a grand jury is taking evidence and of course often are not only present but develop the testimony or other information. The critical question is when the grand jury process moves from the taking of evidence to “deliberating,” because this defines the point at which no prosecutor can be present.

Texas law is quite clear that, as a general matter, a grand jury’s refusal to indict is no bar to a prosecutor’s presentation of a mater to another grand jury. Defendants are sometimes reindicted, perhaps by a different grand jury, often to eliminate defects in the original indictment. Reindictments for different crimes arising out of the same fact situation than were charged in an initial indictment is less common. Nothing in Texas law suggests that this is improper, as long as the newly charged offenses are charged within the period imposed by limitations.

In a 1908 decision, the Texas Court of Criminal Appeals addressed a situation in which a prosecutor returned to the indicting grand jury with a proposed new indictment “because he desired additional grounds in the indictment that were not in the old indictment.” He successfully asked them to approve the new indictment without hearing witnesses. The court found no problem with the resulting indictment. “[T]he law of this state,” the court stated, “is that the grand jury may take the advice of the district attorney.” It added that it would not even “consider” the allegation that the grand jury heard no testimony before approving the second indictment.

This case apparently involved reindictment by the same grand jury. Whether the courts would give equally vigorous approval to reindictment by a subsequent grand jury simply on “the advice of the district attorney” is not clear. The courts’ repeated unwillingness to consider what testimony grand juries considered, or even whether the juries heard any at all, suggests that reindictment by a different grand jury would be treated the same.

The Texas statutes reflect strong commitment to a policy of grand jury secrecy. Grand jurors, prosecutors, and witnesses are all barred from revealing what occurred before a grand jury. These bars to disclosure of matters occurring before grand juries has long been inapplicable at a court hearing on the validity of an indictment when the judge permits one of the parties to question a witness has to such matters. It is unclear, however, when a defendant has the right to a hearing at which that defendant can call and examine grand jurors, prosecutors or grand jury witnesses under circumstances that permit the witnesses called to testify about otherwise secret matters. Common sense suggests that a defendant should have to make some sort of preliminary showing of impropriety before becoming entitled to a hearing at which grand jury secrecy is out the window. Whether a defendant has a right to a full hearing upon, and only upon, such a preliminary showing is unclear.

In a number of early Texas cases, the appellate courts discussed at length the significance of various versions of grand jury proceedings developed by defense testimony from grand jurors. Often it is unclear on what authority the defendants were permitted to call these witnesses and elicit from them the details of the grand jury proceedings. Perhaps the trial courts erred in permitting this. In any case, the decisions do not address when a criminal defendant has a right to a hearing at which the defendant can subpoena grand jurors and compel them to testify as to what specifically occurred during the grand jury process.

A defendant may now by statute ask the trial court to permit disclosure of secret grand jury matters upon the defendant’s showing of “particularized need.” Particularized need is not defined. Almost certainly it is met by a showing that grand jury testimony is necessary to impeach inconsistent testimony at trial and thus to a fair trial on guilt or innocence. When if ever it is met by a showing that breaching grand jury secrecy may show a basis for challenging the indictment is less certain.

DeLay’s Grand Jury Procedure Attack on the Second Indictment

Mr. DeLay is seeking an in-court opportunity to develop facts as a basis for challenges to his indictment. He urges, in effect, that the theories of the second indictment are less soundly based on the facts than the theory of the first charge. The District Attorney, he has strongly suggested, pursued these factually weaker charges only after belatedly determining that the perhaps more easily-proved facts alleged in the first indictment do not constitute a crime under the law.

Prosecutors were unsuccessful in attempting to persuade the second grand jury to summarily approve the second set of charges, the defense believes. They then tried again—and more rigorously–with a third grand jury, which they did persuade to summarily approve the second indictment. But, he contends, those more rigorous efforts constituted overreaching that fatally tainted the second indictment.

Specifically, Mr. DeLay believes that prosecutors, after the first grand jury was discharged, interviewed some members of that grand jury and elicited from them that had they been asked to approve the second indictment they would have done so. Prosecutors conveyed these views of the first grand jurors to members of the indicting grand jury. They did not, however, inform the indicting grand jury that the second grand jury had considered the matter and had refused to approve the charges.

In part, Mr. DeLay contends that by presenting this information prosecutors improperly were present during, and participated in, deliberations by the indicting grand jury. But more fundamentally, Mr. DeLay’s implicit argument is that the prosecutors’ actions impermissibly impacted the indicting grand jury and deprived it of the independence which the state constitutional right to grand jury indictment requires.

At a minimum, Mr. DeLay contends, the available information sufficiently suggests improper participation in deliberations and unconstitutional overreaching to entitle him to a full hearing at which he can elicit testimony from grand jurors and prosecutors as to precisely what occurred.

Part of the difficulty, of course, is that if a defendant is able to offer fairly specific support for a claim of impropriety in the grand jury process, this suggests a breach of grand jury secrecy in which the defendant or defense counsel was complicit. Mr. DeLay’s lead attorney has acknowledged that the factual basis for his claim is limited to news reports that prosecutors presented to the third grand jury the results of their conversations with some members of the first grand jury. These news reports apparently did not include the basis for the factual assertions made in the reports. < br/>
The defense team is in effect arguing that these news reports are as firm and specific a basis as the courts can realistically expect for a request for a hearing on a claim of improper prosecutorial actions in a grand jury. Requiring more, they contend, would demand that an indicted defendant violate grand jury secrecy law to vindicate his constitutional and statutory rights.

Resolving Mr. DeLay’s challenges will require the Texas courts to face directly how far prosecutors can go in presenting information in summary form to grand juries and in expressing the prosecutors’ views as to what action the grand jury should take. Most significantly, the courts will have to address when grand jury proceedings cease to become merely taking of evidence and progress to deliberations. If DeLay can prove that prosecutors urged the third grand jury to indict because members of the first grand jury heard extensive evidence and would have authorized the new charged had then been asked, this might constitute deliberation over whether to indict. If so, the prosecutors’ participation — and in fact their mere presence with the grand jury — would be fatal to the indictment.

The courts will at the same time have to address what sort of allegations and preliminary proof a defendant must offer in order for the defendant to be able to develop, on the record and from grand jurors and prosecutors, what specifically occurred during pre-indictment grand jury proceedings.

More General Grand Jury Policy Considerations

If grand juries are to provide any worth while protection against zealous prosecutors, some judicial scrutiny of prosecutors’ actions before grand juries is clearly necessary. But courts cannot permit any defendant with hopes of developing evidence of misconduct to negate grand jury secrecy.

DeLay’s challenge to his indictment may require the Texas courts to confront directly whether to take grand juries seriously enough to permit defendants to investigate and challenge prosecutors’ attempts to influence the bodies’ decisions to indict. The challenge has, however, been temporarily delayed. On October 21, the trial judge referred Mr. DeLay’s motion to recuse the trial judge to another judge for consideration. Any action on the other pending matters was postponed until the recusal matter is resolved.

George Dix is Professor of Law at the University of Texas School of Law
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