DeLay's legal journey enters the 'punishment phase'

Tom DeLay, left, was convicted in November of money laundering and conspiracy; a judge will decide whether to sentence him to a jail term.
Tom DeLay, left, was convicted in November of money laundering and conspiracy; a judge will decide whether to sentence him to a jail term. (Ben Sklar)
By R. Jeffrey Smith
Monday, January 10, 2011

In the current movie "Casino Jack," a character playing former House majority leader Tom DeLay grins and smokes at the front of a private jet on the way to Scotland for a golf trip in 2000 while an attractive stewardess serves drinks to lobbyist Jack Abramoff and smirking former DeLay aide Michael Scanlon, several seats back.

"Are we all set?" Abramoff asks Scanlon. "Check," Scanlon says. "Eighteen holes St. Andrews. Five-star hotel. . . . Restaurant tour of Edinburgh. Two-day stopover at the Hyde Park Oriental in London. Oh, VIP tickets to 'The Lion King' for Tom." They laugh.

While the film is a fictionalized reconstruction, on Monday some of the real-life participants in that golf expedition - in addition to DeLay - may well be on hand in a Texas courtroom to provide a first-hand description to a county judge with the power to put the formerly powerful Republican politician behind bars for years.

The occasion is the opening of the "punishment phase" of a six-year state legal proceeding against DeLay, who on Nov. 24 was found guilty by a jury of money laundering and conspiracy for funneling corporate contributions to state candidates, considered illegal under a Texas law banning the use of such funds.

Under a quirk of the Texas legal process, the judge who decides DeLay's sentence can first hear presentations by a parade of witnesses about other supposedly "bad acts" by him. DeLay is also entitled to present witnesses to testify positively about his character and political legacy.

With the precise lineup still uncertain and heavily disputed last week by prosecutors and DeLay's legal team, the upshot may be something like the old hit television show "This is Your Life," with guests emerging from behind a curtain to surprise a celebrity they know.

One of the last-minute struggles involves whether to allow immunized testimony about the golf trip by Scanlon, former DeLay aide Tony Rudy, and Abramoff's former personal secretary, according to DeLay attorney Dick DeGuerin. That trip became notorious because some of DeLay's expenses were charged to Abramoff and another corporate lobbyist, contrary to House rules; DeLay has consistently said he was unaware of their financial role.

DeGuerin said the testimony of these witnesses would not only be compromised by the immunity grants, but also that it is inappropriate for Travis County District Attorney Rosemary Lehmberg to raise matters considered by the House ethics committee. "The House and Senate are sole arbiters of their rules," he argues.

But experts say the Texas criminal code appears to give broad latitude for prosecutors to present evidence at sentencing of almost any "extraneous crime or bad act," going well beyond written reports to judges elsewhere that typically focus on a defendant's prior criminal record and family or work history.

The practice stems from the local tradition of letting juries decide punishments as well as guilt. "This is the West," said University of Texas law school professor George Dix, in explaining what he called "a body of extraneous offense law that has grown up in the context of [Texas] jury sentencing."

DeLay waived the right to hqave a jury weigh his punishment in favor of letting the judge who presided over his trial - San Antonio native Pat Priest - decide whether he gets probation or years in the slammer from his convictions on two felony counts.

But even when a judge is making the decision, Dix said, "it would be absurd to ignore other misconduct by a defendant, just as a policy matter. We need to look [at whether] . . . he poses a continuing danger to society and others . . . [whether] he is likely to reoffend, or if the deterrent effect of the law will be furthered because he is a high-profile person. All those are legitimate considerations."

Besides delving into the golf trip, Lehmberg and her colleagues have sought to present testimony from a Texas plastics businessman, Peter Cloeren, who was fined for making improper political donations in the mid-1990s after getting what he claims were instructions from DeLay - another allegation DeLay has denied.

But Gary Cobb, one of the lead prosecutors, said most of the evidence presented would be about DeLay's activities in Washington. "There have been many media reports citing allegations of Mr. DeLay engaging in unethical conduct that violated House rules," he said. "Those things are fair game to us."

Priest, 71, who will announce on Monday morning what he is willing to hear at a session expected to last two days, was pulled into the case in 2005 after two other judges were pushed out of it by rival claims of bias by DeLay's attorneys and the prosecutors.

Texas judges are mostly elected, and they also often make political contributions that open the door to claims of partisanship in legal disputes over political acts. But Priest, who has taught at a law school and helped found the state's criminal defense lawyers association, was welcomed by DeLay's team despite having donated to three Democratic state representatives in 2004.

Early on, he quashed part of the state's indictment against DeLay and two others involved in the 2002 money transfers at issue. His decision to let other parts of the case proceed was upheld by higher state courts.

"He has an amazing reputation for being fair," said Ann Zaragoza, the San Antonio branch manager of the Texas RioGrande Legal Aid Office. "I have never heard anything bad said about him, ever."

© 2011 The Washington Post Company