Did DeLay's Lawyer Just Screw Up?

by emptywheel

A bit of a chess game is developing in Texas, as Ronnie Earle attempts to make Tom DeLay pay for his sins. First, we had an indictment on conspiracy, a charge which carries a penalty of six months to two years in jail. "Conspiracy!" Republican operatives mocked. "This is just a conspiracy against Tom DeLay." And really, people said, conspiracy is just what you charge when you've got nothing better.

But then DeLay lawyer Dick Deguerin, who embarrassed Ronnie Earle in the Kay Bailey Hutchison case, files a motion to say the conspiracy statue didn't apply to campaign finance law in TX until September 2003, a year after DeLay dreamt up his little conspiracy.

Wham!! Just a few hours later, Earle (who seems to have snuck a new grand jury into his back pocket without Deguerin noticing) gets a jury to indict on money laundering and conspiracy to commit money laundering. Charges which carry sentences of up to life in prison for the money laundering charge, and twenty years for the conspiracy to commit money laundering.

An interesting chess game, so far. But what I'm really wondering is, did Deguerin just piss away the advantage he bought by waiving the statute of limitations on the conspiracy charge?

Update: Well, Deguerin didn't piss away this advantage alone. Apparently, he was brought in just before the indictments were issued. So the initial deal can't be his fault. How he has worked with that deal, it seems to me, can be.

You see, as at least two people have speculated, Deguerin may have had DeLay sign the waiver as part of a deal. He waives the statute of limitations. And then he only gets charged with conspiracy, not the more serious crime of money laundering. As Norm Pattis explains:

So why am I so sure he'll plead [guilty to conspiracy]? A line in the indictment notes that his lawyer waived the statute of limitations on the conspiracy charge during grand jury proceedings. Why would a competent lawyer waive a complete defense? Because worse was on the way if he did not.

Initiates know the practice as charge-bargaining. You see a funnel cloud barreling at you and you ask your local prosecutor, quietly, "on what charges are you willing to take my client if he pleads?" I suspect DeLay will enter a plea late in the year.

So Deguerin, thinking he's the smartest thing in Texas, waits for the first grand jury to run out, believing his guy is in the clear, then he starts attacking the lesser charge he bargained for.

Sometimes fancy lawyers can get just too fancy.

Comments

[dksbook]

I am hoping Ronnie Earle is the better chess player.

[emptywheel]

Apparently, Deguerin is already trying to revoke the waiver on the statute of limitations. Which makes me think I'm on the right track.

And yes, I do hope Earle is the better chess player. He has the advantage of having been humbled by this guy in the past--he knew he had to come loaded for bear. Whereas Deguerin? He hangs out with Tom DeLay. Which means his hubris might just bring him down.

Also, keep in mind that this is Earle's swansong. He's got nothing to lose and a whole lifetime of fame to gain.

[Mimikatz]

Some people learn from experience, particularly their failures. Others just try to repeat their experiences, particularly their triumphs. In a contest between two such people, I'd put my money on the one who can learn and adapt to changing circumstances every time.

[eriposte]

EW, I don't think DeGuerin was DeLay's lawyer when DeLay initially submitted the waiver. You may want to double-check that. Plus DeGuerin has filed for a retraction of the waiver.

[jonnybutter]

If you haven't heard it yet, the interview with the foreman of the first grand jury is priceless. Right out of "King of the Hill'.

[Kagro X]

Can somebody pull all those W. quotes where he yells at Gore, insisting he can't "unconcede?"

[emptywheel]

eRiposte:

You're right. Deguerin was just brought in to deal with the indictments. Still kind of his fuckup, though, if he was trying to have a previous lawyer's deal and break that deal too, right?

[Steve]

I'm not a criminal lawyer, but I think breaking a plea agreement just because the grand jury has expired and you think you're in the clear seems pretty ham-fisted and unlikely. Grand juries have limited terms and this kind of ploy would happen all the time if it were feasible - indeed, it would kind of ruin the whole concept of plea bargaining. I'm inclined to doubt that DeLay ever agreed to plead guilty to this charge.

[yam]

I don't think that DeGuerin realizes that things are different than the last time he played Earle. I think that Earle may have home field advantage now. The BugMan has few friends and they are leavin' fast...

[viget]

Steve--

I don't think Earle had a plea agreement with Delay, but rather a "charge" or "indict" agreement with Delay. Something along the lines, you sign this waiver of statute of limitations on the conspiracy charge, and I promise I won't indict on any other charges.

As I said on dKos, I think Earle's played Delay like a fiddle. He's got the goods on money laundering to be sure, but the charge agreement prevented him from letting the GJ handing down the indictment. Since DeGuerin wants to break the agreement (by fighting the conspiracy charge with his motion to dismiss) and have it too, Earle felt justified in bringing in the money laundering indictments (just in the nick of time too, the SOL expired today). I think DeGuerin is trying to renege on waiver, because he realizes that's one less charge he can get out of. The other indictments will probably stick.

Be interesting to see how the judge rules on all this. No matter what happens, I'm sure it will all be grounds for appeal, not that that matters, Delay's career is toast if he's convicted, plus if there's a trial, all the evidence will be in the public domain, arguably more important in unraveling the GOP culture of corruption.

[Steve]

You lost me. Waiving the statute of limitations does not waive your right to file a motion to dismiss on other grounds. In your scenario, it is Earle who would be in breach of the charging agreement.

If the prosecutor promises to indict on only one charge, and that charge is legally defective, that's his problem.