DeLay's Lawyer Lacking Evidence of DA Misconduct

Houston Chronicle

AUSTIN - U.S. Rep. Tom DeLay's chief lawyer says he has no evidence that Travis County District Attorney Ronnie Earle participated in grand jury deliberations, despite having made that allegation in motions to dismiss DeLay's indictments. But Houston attorney Dick DeGuerin said there have been enough public comments by grand jurors in news media reports to raise suspicions that Earle may have violated laws in his efforts to indict one of the most powerful Republican politicians in the nation.

DeGuerin is seeking access to grand jury records to develop possible evidence of misconduct on Earle's part. He has subpoenaed records from two of his assistant district attorneys related to their dealings with three grand juries that investigated DeLay.

Members of a grand jury that no-billed DeLay have told reporters that Earle was angry with them. DeGuerin also has focused on media reports that Earle's office telephoned former members of the first grand jury to indict DeLay, asking them if they might have returned other charges, and then presented the results of the poll to a third grand jury, which issued new indictments.

Seeking dismissal - - DeGuerin is asking a judge to allow him to question members of the grand juries. A prosecutor being present when a grand jury was deliberating or voting on an indictment is specific grounds under Texas law for an indictment to be dismissed. Lawyers for Jim Ellis, who was indicted along with DeLay on money-laundering and conspiracy charges, filed a similar motion to dismiss Tuesday, accusing Earle's office of "outrageous government conduct."

Earle has said he expects to prevail on the motions. He cited grand jury secrecy in refusing to comment further. A hearing on the motion to dismiss could come as early as Friday, when DeLay makes his first appearance in court.

The combination of a high-profile defendant and grand jurors who are talking about their experience has cast a spotlight on the process. Secrecy is a long-standing hallmark of grand jury proceedings. It is designed to protect innocent people under investigation as well as prevent those being investigated from fleeing or trying to bribe grand jurors or witnesses.

Legal experts on grand juries say it's unlikely that the defense team will be given access to the records or that DeLay will be able to prove anything serious enough to get his charges thrown out. "It seems an uphill battle to get access to grand jury material based upon things reporters have written in a newspaper," said Samuel Buell, a former federal prosecutor who now teachers criminal law at the University of Texas School of Law. Buell, who served as lead prosecutor in the case against Enron's former top executives, said the defense would have to show a "real serious claim of misconduct" to persuade a judge to allow questioning of Earle and grand jurors.