NO. DlDC-O5-900725 THE STATE OF TEXAS IN THE DISTRICT COURT OF v. TRA VIS COUNTY, TEXAS THOMAS DALE DELAY 331ST JUDICIAL DISTRICT THE BASIS OF PROSECUTORIAL MISCONDUCT 1 On Wednesday, September 28,2005, Congressman Tom DeLay was indicted on one count of conspiracy to violate the Texas election code and the 167th Grand Jury, its tenn expired, was discharged. 2. That night or early the next day, District Attorney Ronnie Earle detemrined that the indictment, which caused the immediate removal of Tom DeLay as Majority Leader of the u.s. House of Representatives, charged a crime that did not exist in Texas law. 3. During the five-day period of September 29, 2005 to October 3, 2005 Ronnie Earle and his staff engaged in an extraordinarily irregular attemp to contrive a viable charge and get a substitute indictment of Tom DeLay before the expiration of the Statute of Limitations on October 3,2005. During the course of this time period, the District Attorney and his staff committed the following acts of prosecutorial misconduct: a. unlawfully participated in Grand Jury deliberations and attempted to browbeat and coerce the 390th Grand Jury, before it had formalized its No Bill decision, to change its decision so that there would be no public knowledge that a No Bill had been found.
b. unlawfully attempted to cover up and delay public disclosure of a No Bill voted by the 390th grand jury that would have revealed that his, Earle's, first presentation of a new, contrived charge of Money Laundering had been rejected. c. unlawfully incited the foreman of the 167th grand jury, William Gibson, to violate his grand jury oath of secrecy by talking publicly, and on the record, to the media, in an effort to bias the public and sitting grand jurors. d. unlawfully, and in direct violation of the secrecy law, discussed ongoing grand jury matters with a few members of the discharged 167th grand jury to get their opinion of what they might have done had they known the indictment rendered by the 167th had no basis in law e. unlawfully, upon infonnation and belief, submitted this "additional information" that he gathered "over the weekend," to yet another grand jury, the 403rd, to persuade them to issue a replacement indictment. Such "additional information" is not evidence and thus its use before a grand jury violates Tex. Crim. Proc. Code art. 27.03, that prohibits a prosecutor from participating in a grand jury's deliberations by discussing the pros and cons of whether they should issue an indictment. ARGUMENT Texas has long recognized the important role of a grand jury, not as a rubber stamp for the actions of a myopic and detennined prosecutor, but as a independent protector of defendants from false accusations and oppression. See Stem v. State Ex Rei. Ansel, 869 S. W.2d 614, 619 n. 2 (Tex. App.-Houston [14th Dist. 1994, pet dism'd). 2
United States Supreme Court Justice Stevens discussed the prosecuting attorney's serious responsibility and high duty when communicating with a Grand Jury, saying...the prosecutor operates without the check of a judge or a trained legal adversary, and virtually immune from public scrutiny. The prosecutor's abuse of his special relationship to the grand jury poses an enormous risk to defendants as well. For while in theory a trial provides the defendant with a full opportunity to contest and disprove the charges against him, in practice, the handing up of an indictment will often have a devastating personal and professional impact that a later dismissal or acquittal can never undo. Where the potential for abuse is so great and the consequences of a mistaken indictment so serious, the ethical responsibilities of the prosecutor, and the obligation of the judiciary to protect against even the appearance of unfairness, are correspondingly heightened. United States v. John Williams, 504 U.S. 36, 62-63 (1992)(Stevens, J. dissenting) (citing Unites States v. Serubo, 604 F.2d 807,817 (3rd Cir. 1979)). Grand jury deliberations are to be kept secret and thus free from outside influences, including, as is the case here, influence from the prosecutor and from released members of prior grand juries. See TEx. CRIM. PROC. CODE arts. 20.02 & 20.03. Although a prosecutor representing the state is entitled to go before the grand jury and inform them of offenses liable to indictment, a prosecutor is not entitled to be present when members of a grand jury are discussing the propriety of finding an indictment or voting upon the same. ld. at art. 20.03 A. The Indictment Should be Set Aside Based on the District Attorney's Presence and Participation during the Deliberations of the 403rd Grand Jury. Tex Code of Criminal Procedure art. 27.03, states that "[i]n addition to any other grounds authorized by law," a motion to set aside an indictment may be based on three specifically enumerated grounds, one of which is "[t]hat some person not authorized by law was 3
present when the grand jury was deliberating upon the accusation against the defendant Texas courts have long held that the term "deliberating upon the accusations against defendant" means the act of discussing the reasons for and against finding a bill of indictment as opposed to the mere examination of witnesses and giving testimony. See Harris v. State, 450 S.W.2d 629 (Tex. Crim. App. 1970); Johnson v. State, 95 SW.2d 697 (Tex. Crim. App.1936); McGregor v. State, 201 S.W. 184, 185 (Tex. Crim. App.1918). In fact, McGregor dismissed an indictment which was handed down after the county attorney or district attorney discussed with members of the grand jury the character or sufficiency of the evidence necessary to justify a prosecution. McGregor, 201 S.W. at 184-185. The court held that the prosecutor was present when the grand jury was deliberating, i.e., weighing and examining the reasons for and against a choice of measures and engaged in careful discussion of reasons for and against a prosecution. Because the prosecutor violated the secrecy of the grand jury deliberations the court quashed the indictment. [d. at 185, B. The Indictment Should be Set Aside Based on the District Attorney's Public Disclosure of Secret Grand Jury Matters to the Detriment of the Defendant. The District Attorney violated his own oath of secrecy when he discussed the matters he presented to the 390th grand jury with fonner members of the 167th grand jury. As noted above, grand jury proceedings are to be held in secret. See TEx. CRIM. PROC. CODE ANN. arts. 19.34 & 20.02. The duty to maintain the secrecy of grand jury proceedings not only applies to members of a grand jury who take an oath to keep them secret, the duty of secrecy also applies to the Id. prosecutor. Stern v. State held that "prosecutors have a clear statutory and a common law 1 Of course, Article 27.03 does not provide the exclusive means for quashing an indictment. The commentary to the statute makes clear that the phrase "[i]n addition to any other grounds authorized by law" was added to accommodate the many ways that the U. S. Supreme Court might suggest as reasons for quashing an indictment. 4
duty to keep secret the proceedings of the grand jury." Stem, 869 S.W.2d at 623 (emphasis in original). Article 20.02 of the Code of Criminal Procedure. provides as follows: a) The proceedings of the grand jury shall be secret. b) A grand juror...who discloses anything transpiring before the grand jury, regardless of whether the thing transpiring is recorded, in the course of the official duties of the grand jury shall be liable to a fine for contempt of the court, not exceeding five hundred dollars, imprisonment not exceeding thirty days, or both such fine and imprisonment. c) A disclosure...prohibited by Subsection (b) or Article 20.16 may be made by the attorney representing the state in performing the attorney's duties to a grand juror serving on the grand jury before whom the record was made, another grand jury, a law enforcement agency, or a prosecuting attorney, as permitted by the attorney representing the state and determined by the attorney as necessary to assist the attorney in the performance of the attorney's duties.... (Emphasis added). g) The attorney representing the state may not disclose anything transpiring before the grand jury except as pennitted by Subsections (c), [and Subsections (d) and (e) (which apply when a defendant petitions the court for disclosure)]. The Court of Criminal Appeals has suggested that a violation of grand jury secrecy is itself a basis for quashing an indictment when the defendant can show harm resulting from those See Ray v. State, 561 S.W.2d 480,481 (Tex. Crim. App. 1977); see also Hicks v. disclosures. State, 630 S. W.2d 829, 838 (Tex. App-Houston [1st dist.] 1982, pet. refd)(finding no basis for dismissal of an indictment for violation of art. 20.02 absent a showing of harm). Stem discussed the importance of maintaining the secrecy of grand jury proceedings in protecting an innocent accused who is exonerated from disclosure of the fact that he has been under investigation. Stem, 869 S. W.2d at 622. The court stated, "[s]uch a consideration is particularly important in light of the fact that an elected official's reputation may be irreparably "
harmed by public disclosure even though investigation of the allegations reveals no basis for prosecution." Id.2 Clearly those same considerations apply to the District Attorney's disclosure of information related to Congressman DeLay, who is an elected official and who will stand for reelection in approximately one year. CONCLUSION: Based on the misconduct of the District Attorney and his staff interference in the deliberations of the 390th and 403rd grand juries and disclosure of secret grand jury information to the public to the harm of Congressman Tom DeLay, the Defendant requests that the indictment against Congressman Tom DeLay be set aside. Respectfully submitted, DeGUERIN DICKSON & HENNESSY Di~du~= Texas Bar Card No. 05638000 1018 Preston Ave., 7th Floor Houston, Texas 77002 Telephone: 713-223-5959 Facsimile: 713-223-9231 LEAD COUNSEL FOR DEFENDANT TOM DELAY CO-COUNSEL FOR DEFENDANT 2 Stem ultimately held that a prosecutor's public disclosure of secret grand jury proceedings was sufficient evidence to remove the prosecutor from his position for official misconduct and incompetence. [d. 6
LA W OFFICE OF Wll...LIAM A. WHITE William A. White 608 W. 12th Street, Suite B Austin, Texas 78701 Telephone: 512-476-1494 Facsimile: 512-476-8050 WILLIAMS & FORSYTHE Stephen W. Brittain 1100 West Ave. Austin, Texas 78701 Telephone: 512-477-9959 Facsimile: 512-477 -9262 OF COUNSEL: NICKENS KEETON LAWLESS FARRELL & FLACK LLP Richard Keeton 600 Travis Street, Suite 7500 Houston, Texas 77002 Telephone: 713-571-9191 Facsimile: 713-571-9652 7
CERTIFICATE OF SERVICE I hereby certify that a true and exact copy of Defendant's Brief in Support of Motion to Quash the Indictment on the Basis of Prosecutorial Misconduct has been served on the following by facsimile: District Attorney Ronnie Earle, fax #512-854-9695 Attorneys for Defendant Jim Ellis J. D. Pauerstein, fax #210-354-4034 Mark Stevens Attorney for Defendant John Colyandro Joe Turner, fax #512-474-8252 on this the 11th day of October, 2005. ~~,f2, -r Dick DeGuerin 8