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January 10, 2011

Texas law providing wide discretion in sentencing of former House leader Tom DeLay

As detailed in this local article, which is headlined "Sentencing hearing to begin in Tom DeLay trial," former U.S. House Majority Leader Tom DeLay could soon get life imprisonment or get merely probation as a sentence following his recent state corruption convictions.  Here are the intriguing details:

The former Houston-area Republican congressman will be back in court on Monday for the sentencing phase of his trial after his Nov. 24 conviction on charges of money laundering and conspiracy to commit money laundering in a scheme to illegally funnel corporate money to Texas candidates in 2002.

Unlike DeLay's trial, which lasted nearly a month, the sentencing hearing is expected to take about two days.  DeLay has chosen Senior Judge Pat Priest to sentence him.  Priest says he is likely to make a quick decision after both prosecutors and defense attorneys finish presenting witnesses.

While he faces up to life in prison on the money laundering charge and up to 20 years on the conspiracy charge, DeLay is also eligible for probation.  "Of course we will ask the judge to grant probation," said Dick DeGuerin, DeLay's lead attorney.  "This is not a matter of economic loss, not a matter of anyone being injured or of any evil intent."

Up to nine witnesses are expected to testify on DeLay's behalf, including former U.S. House Speaker Dennis Hastert and others who worked with him.  DeLay's lawyers also submitted more than 30 character and support letters from friends and political leaders, including Israeli Prime Minister Benjamin Netanyahu and eight current U.S. congressmen. Most of the letters ask for leniency in the sentencing.

Steve Brand, one of the prosecutors, said they planned on calling several witnesses. He declined to comment on what the witnesses would testify about or what sentence the Travis County District Attorney's Office planned to request.  Some legal experts believe DeLay will likely receive little, if any, prison time.

"Diehard Democrats will want to see the book thrown at him and his conservative supporters will feel (any) sentence will be unjust," said Bradley Simon, a New York criminal defense attorney who's followed the case.  "No matter what the judge says, he is unlikely to please anybody."

In this prior post, a number of commentors had a number of creative suggestions for the sentencing judge in this notable case.  Folks should, of course, feel free to make some more suggestions now.

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January 10, 2011 at 08:34 AM | Permalink


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I don't know a whole lot about the specifics of this case, but one thing I know for sure: When a defendant can get anything from life in prison to probation with no jail time, judicial discretion in sentencing has become bloated to the point of being grotesque.

I cannot imagine a clearer case for the return of mandatory and carefully cabined sentencing guidelines. A completely indeterminate outcome like this is utterly inconsistent within anything that could be recognized as law. What it is is roulette.

Posted by: Bill Otis | Jan 10, 2011 2:03:52 PM

You have to have tainted money first in order to have money-laundering. That did not happen here.

Posted by: federalist | Jan 10, 2011 4:39:55 PM

federalist --

I agree that the state is going to have its hands full on appeal. This was a novel use of the money laundering statute.

Posted by: Bill Otis | Jan 10, 2011 5:11:09 PM

Well, there was judicial discretion in the sentencing, but the prosecutor decided on the charges. It does seem a bit like roulette, but not just judicial.

Posted by: beth | Jan 10, 2011 8:37:49 PM

For someone of DeLay's age, facing a possible life sentence is no more daunting than the typical plausible threat of up to 30 years in prison that comes with virtually every federal prosecution on similarly wispy charges.

These vague, sweeping flypaper statutes linked to potentially draconian sentences help explain why prosecutors nearly always win the plea-bargaining game. But I wouldn't liken it to roulette. It's more of a turkey shoot, really.

Posted by: John K | Jan 11, 2011 9:35:06 AM

John K --

"These vague, sweeping flypaper statutes..."

For four years, liberal Democrats had complete control of Congress. They pushed through health care legislation vastly more controversial, and unpopular, than revisions in white collar criminal statutes would be. So they had all the power they needed.

Q: What did they do with it?

A: Zip.

That being the state of play, continuing to complain about these statutes seems a bit vacant, wouldn't you say? Who's going to change them now? Lamar Smith?

I agree with you to this extent, though. The particular prosecution here relies on a novel theory of money laundering, and I have a whole bunch of doubts whether said theory gave DeLay fair notice of what the law fobade, making his conviction ripe for reversal.

Posted by: Bill Otis | Jan 11, 2011 4:06:45 PM

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