JONATHAN TURLEY

The on-going (never-ending?) prosecution of former U.S. House Majority Leader Tom DeLay has taken a bizarre twist as a serious disagreement between justices has broken into the open. Justice Jan Patterson, a Democrat, is asking the Texas Supreme Court to intervene after she accused Chief Justice Ken Law, a Republican (first picture), of refusing to file her dissent in a case looking at the possible bias of fellow Justice Alan Waldrop, also a Republican (third picture).

Patterson says that Law blocked the filing of her dissent to last week’s ruling on whether Justice Waldrop should step aside in the money-laundering case involving DeLay’s associates. Last month, Travis County District Attorney Ronnie Earle asked the court to remove Waldrop due to bias because
four years ago, before Waldrop became a judge, Waldrop called similar money-laundering allegations in a related civil lawsuit “politically motivated” and an attempt to “harass political opponents.” At the time, he was Ha political ally of DeLay’s, who met in campaign strategy sessions with DeLay’s associates. That seems pretty strong reason to step aside, but Waldrop has refused.

The court overruled Earle’s motion and issued only a a one-sentence ruling, saying the entire court, minus Waldrop, had considered the motion to remove Waldrop. Patterson said that her dissent should have been released and her filing offers more details on what occurred on the Court.
Patterson’s filing with the Texas Supreme Court late Friday afternoon revealed a few more details about the infighting among justices at the 3rd Court, which has four Republicans and two Democrats.

Patterson said she twice requested responses from the defendants regarding the recusal motion and Law refused to obtain a response and instructed the clerk not to seek one. That alone is a bit strange since usually such requests are honored as a matter of courtesy. When Patterson then said that she wanted to file a dissent, Law allegedly instructed the clerk not to file it.

Patterson then informed her colleagues that she would file a dissent to the ruling on Waldrop’s staying in the case. She wrote that Law instructed the court clerk not to file her dissent.

Keith Hampton, a Texas Criminal Defense Lawyers Association vice president and longtime observer of the Texas appellate courts, said he knows of nowhere in Texas law or court rules where the right to file a dissent is discussed.

However, Hampton said that dissenting opinions are important to developing a full record and registering all ideas and thoughts on legal issues. He said it is rare for appeals judges to be denied a chance to dissent.

“I cannot see how the other judges can prevent an elected judge from dissenting,” he said. “Dissent in the appellate courts is extremely valuable to the development of jurisprudence.”

The larger issue is whether money-laundering charges against DeLay and his associates will be dismissed because they used a $190,000 check instead of cash.

DeLay and his associates, John Colyandro of Austin and Jim Ellis of Washington, have been accused of laundering corporate money, which is generally banned from state campaigns, into political donations to Republican candidates in 2002.

But prior to any trial, Ellis and Colyandro have challenged the constitutionality of the law.
Previously, Waldrop, Law, and a third Republican justice wrote an opinion that said that charges should be dismissed against DeLay and his associates on a technicality: they used a check rather than cash and, until 2005, cash was needed under the statute.

To add to this Judicial Payton Place story, Court Justice Diane Henson, a Democrat, not only rejects this view but accused Waldrop, Law and Pemberton of sitting on the pretrial motions by the defendants for more than two years to frustrate prosecutors. She demaned a full rehearing by the court, but Law’s panel denied that request.

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