DeLay Case May Once Again Face Bias Issue

Houston Chronicle ^ | March 20, 2006, | R. G. Ratcliffe

[flattorney]

- - Several judges have conflicts similar to those of 2 jurists who had to step down

AUSTIN - The appearance of possible bias forced two judges out of the criminal case against U.S. Rep. Tom DeLay last year, and similar issues could taint some judges on two appeals panels that are now considering the charges against the former majority leader.

The two three-judge panels on the 3rd Court of Appeals in Austin are considering appeals that could effectively end the DeLay prosecution. One panel is scheduled to hear oral arguments in the case Wednesday.

Several judges on the panels have possible conflicts that are reminiscent of the ones that got state District Judge Bob Perkins, a Democrat, and Administrative Judge B.B. Schraub, a Republican, removed from the case. Texas law does not require a judge to be biased for or against a defendant to be removed. The judge only has to have conflicts that can create the appearance of possible bias.

While Travis County District Attorney Ronnie Earle could use that law to challenge some of the judges on the two panels, he has not done so. Earle on Monday declined to comment.

>>>On Wednesday, one 3rd Court of Appeals panel will hear Earle's appeal of a district judge's ruling throwing out charges against DeLay, R-Sugar Land, of conspiring to violate the state's election code.<<<

There are still charges pending against DeLay on money laundering that accuse him of participating in a scheme to convert illegal corporate cash into money Republican candidates could use in 2002 Texas House races. DeLay denies any wrongdoing in the case.

Two cases, similar issues - - The other 3rd Court panel is reviewing an appeal brought by DeLay's co-defendants, Jim Ellis and John Colyandro. It challenges the legal theory of Earle's original money laundering indictment brought against the men. The issues are so similar to the charges against DeLay, that if Colyandro and Ellis win, the case against DeLay could evaporate.

One 3rd Court judge who serves on both panels, Justice Alan Waldrop, was a paid lobbyist for Texans for Lawsuit Reform, or TLR, in 2002, according to Texas Ethics Commission records. That political committee worked closely with the DeLay-founded Texans for a Republican Majority, TRMPAC, in affecting the outcome of the elections for the Texas House that year.

And during the 2003 legislative session, Waldrop worked with TLR consultant Chuck McDonald in coaching Republican House members on how to pass major tort reform legislation. McDonald has been a grand jury witness in the case involving DeLay, Ellis and Colyandro.

Rep. Pete Gallego, D-Alpine, chairman of the Mexican-American Legislative Caucus, temporarily blocked the tort reform bill under House rules because of Waldrop's coaching. Gallego said Waldrop is "brilliant and a good jurist" but said Waldrop's ties to TLR make it inappropriate for him to be hearing anything related to TRMPAC. "There should be the same sort of discussion about Judge Waldrop as there was about Judge Perkins," Gallego said.

Another judge who is serving on the Wednesday panel hearing Earle's appeal, Justice David Puryear, gave $250 in 1996 to a Republican candidate who was seeking to oust Earle. At that time, Puryear was an elected Republican county court-at-law judge in Austin. The candidate, Shane Phelps, had been recruited by the GOP to run against Earle after the prosecutor failed in his effort to convict U.S. Sen. Kay Bailey Hutchison of misuse of office.

Houston attorney Dick DeGuerin represented Hutchison in that case. Now, DeGuerin is defending DeLay against charges Earle brought against him.

Perkins was removed from the case primarily because he made a $200 donation to a national political organization that opposed DeLay in Congress. DeGuerin contended that donation and others would make the public believe Perkins was prejudiced against Delay.

- - DeGuerin sees a difference - -

DeGuerin on Monday said Perkins' situation was unique because he was making political donations while sitting on the court. DeGuerin said the actions of the 3rd Court justices all occurred before they took the oath of office as a judge. "Everybody who becomes a judge has done something in their past. They've represented one side or another," DeGuerin said. "If they took the oath of office and believe in the oath and impartially administer justice, that's all you can ask for."

Puryear also was the target of accusations of partisan judicial favoritism from the Texas Democratic Party in 1997. Puryear, then a Travis County court-at-law judge, sentenced then state-Sen. Drew Nixon to 180 days in jail on a prostitution charge, but allowed him to serve his time on weekends only. Democrats complained that the weekend sentencing was preferential treatment for a Republican lawmaker by a Republican judge.

Additionally, Waldrop, Puryear and Justice Bob Pemberton, who is on the panel considering the Ellis and Colyandro appeal, all have one issue similar to the one that got Schraub to remove himself from the case: They originally were appointed by Gov. Rick Perry.

Schraub recused himself from naming Perkins' successor last year after Earle formally raised bias questions because Schraub was appointed by Perry, a DeLay ally on congressional redistricting. Senior District Judge Pat Priest, a San Antonio Democrat, was assigned to take over the case by Texas Supreme Court Chief Justice Wallace Jefferson.

Judges decline to comment - - Priest dismissed the charges that are subject to Wednesday's hearing. Waldrop and Puryear are both facing election challenges from Democrats this year. Pemberton, a former deputy general counsel to Perry, was elected to his position in 2004. All three declined to comment when contacted by the Houston Chronicle.

The third judge hearing Earle's appeal on Wednesday is Justice Bea Ann Smith, an appointee of former Gov. Ann Richards. Smith is not seeking re-election.

The third judge in the Ellis and Colyandro appeal is Chief Justice Kenneth Law. Law is a Republican who won his seat in 2002 with raising or spending any campaign contributions.

The only judge not assigned to either panel is Justice Jan Patterson, a Democrat who first won election to the office in 1998 by defeating Puryear.

[flattorney]

Posted by TAB

[Recovering_Democrat]

Nice to see an attorney in So Flo who is conservative. :) RD

[Iris7]

Ping list me, please.