December 06, 2005

posted by Daniel J. Solove

They're called headlines.

bdg -- Good point; I posted late at night and just threw on a title to the post without thinking about it. I've now retitled (or re-headlined) the post accordingly.

Looks like the NY Times has the most accurate and informative headline. Good for them.

"Looks like the NY Times has the most accurate and informative headline. Good for them.

Posted by: Commenterlein at December 6, 2005 10:51 AM"

I think that's wrong. As I understand it (and I'm not an attorney), getting a charge dropped before trial is very rare. That it happened in this case is the real news.

my understanding of the case, which is rather weak, is that the judge threw out the charges issued by the first grand jury, and did not decide on the motion to dismiss of the charges issued by the third grand jury. (which grand jury heard only 4 hours of testimony.) He decided it would be necessary for him to hear testimony on that motion.
Thus he apparently did not decide to let the charges he did not throw out proceed, but instead deferred judgment on them.
My interpretation is that he did not "uphold" or "let stand" any charges, by rejecting the motion to dismiss them. He is still addressing the motion to dismiss them.
Thus the statement that he upheld any charges is incorrect, and the Times headline is equally incorrect.
He was presented with motions to dismiss the various charges. He has ruled favorably on one, and has yet to rule on the other.
The Times may yet be right but only if it turns out that he rejects the motion to dismiss the laundering charge.

Also keep in mind the lack of perspective on the alleged crime. DeLay is accused of mishandling a piddling $190,000 in campaign cash.

Compare that to the $230 million in 527 cash spent by Democrats in 2004. We have a post on that at AttackMachine.com: http://www.attackmachine.com/index.htm#devils

I think that's wrong. As I understand it (and I'm not an attorney), getting a charge dropped before trial is very rare.

I'm not sure "rare" is the right word here. It all depends on the prosecutor. If you're dealing a prosecutor, as DeLay is, who is bat-sh*t crazy, then some charges will usually be dismissed. DeLay's prosecutor "overcharged" him. It's pretty common in criminal cases with prosecutors like the one DeLay is fighting. (I am no fan of DeLay, but it's undeniable that the guy going after him is not the model most people have of an ethical prosecutor.)

Now, if the resolution of a legal issue involves a factual determination, then yes, getting those types of charged dismissed are rare, since judges have a send-it-to-the-jury attitude.

I think the Washington Post and LA Times clearly are the most incorrect headlines, since they give no indication of the dismissal of the conspiracy charges. While it is true that the judge upheld the other charges, this really is not the newsworthy item.

"I'm not sure "rare" is the right word here. It all depends on the prosecutor. If you're dealing a prosecutor, as DeLay is, who is bat-sh*t crazy, then some charges will usually be dismissed. DeLay's prosecutor "overcharged" him. It's pretty common in criminal cases with prosecutors like the one DeLay is fighting. (I am no fan of DeLay, but it's undeniable that the guy going after him is not the model most people have of an ethical prosecutor.)

Now, if the resolution of a legal issue involves a factual determination, then yes, getting those types of charged dismissed are rare, since judges have a send-it-to-the-jury attitude."

Mike, good point. I hadn't thought of it that way. Let's hope the federal prosecutor in the Abramoff case is more competent and ethical than Mr. Earle.

> Also keep in mind the lack of perspective
> on the alleged crime. DeLay is accused of
> mishandling a piddling $190,000 in
> campaign cash.

> Compare that to the $230 million in 527 cash
> spent by Democrats in 2004. We have a post
> on that at AttackMachine.com:
> http://www.attackmachine.com/index.htm#devils

we'll be sure to keep in mind something that's completely irrelevent to the case itself and to this post in particular, which regards spin in headlines.

but thanks for your opinion. (and your site shill)

I might also add that 527 group spending is not illegal, and that all contributions over $250 (I believe) must be disclosed. However, the FEC recently sued The Club For Growth, under the theory that 527's are political committees under BCRA, and that the contribution limitations should apply. It will be interesting to see how it plays out.

Sorry this is off topic, just figured I'd stick in that little piece of information.

While it is true that the judge upheld the other charges, this really is not the newsworthy item.

Considering that the two charges that were upheld carry far more serious penalties than the one that was dismissed, I'm not quite sure how you justify this statement.

The fact that one out of the three charges was dismissed is newsworthy, sure, but Washington Times, Fox News, and CNN headlines make it seem like DeLay is out of trouble, which is certainly not true.

The only headline that is completely accurate and fair is the New York Times...

Somewhat off-topic, another blogger noted that the judge also said he had not decided on a ruling of prosecutorial misconduct: if he decides there was, the remaining charges become moot.

I think that is in the last para of the NYTimes article.

Isn't it the case that the second grand jury was only called after Delay's lawyers argued that the first charge was bogus because it would be an ex-post-facto prosecution (i.e., not illegal until after Delay's actions)? And that the second grand jury handed down an indictment just a day before the statute of limitations ran out? So aren't Delay's problems now due to his own lawyers' incompetence, and/or Delay's demand to fight the charges aggressively and immediately, to maintain political viability? (If so, an understandable response, but still foolhardy in a case where jail time is possible.)

I get confused by all this legal minutiae. Aren't the underlying and undisputed facts that:

1) Texas has a law against direct donations to candidates from either corporations or unions.

2) A group connected with Tom Delay sent $190,000 of corporate contributions to the RNC (out of state) with instructions to make an equivalent contribution of RNC funds back to Texas candidates.

Aren't the questions:

1) Does this action violate the letter of the Texas law, or is it a loophole that can be used to get around the law?

2) If it violates the law, did Delay have anything to do with it?

All the rest seems like arguing about smoke and mirrors.

JayHub,

You are essentially right about the key facts and relevant questions. However, at least this much is disputed: that there were "instructions to make an equivalent contribution of RNC funds back to Texas candidates."

Further, the "list" of Texas candidates that Earle originally cited as evidence does not exist; he has only a "similar" list (not the one sent to the RNC, and cited in the indictment), and not all the names on it even got contributions.

Also, one other relevant question is whether this was common practice among both parties, and whether this is a selective prosecution. As in tax cases, campaign finance is a technical field, where lawyers give out advice based on what is commonly done.

DWP, thank you for the clarification, it's very helpful.