Corruption in the Court of Appeals?

There has been a really interesting story the last two days in the local paper discussing allegations of potential corruption at the Austin Court of Appeals.

First, some background.  As most know, Travis County District Attorney Ronnie Earle had indicted Tom Delay and others for violations of the Texas Election Code.  The defendants challenged the constitutionality of the statute, and that claim has been on appeal for almost two years.  Last month, the Court of Appeals finally handed down a decision finding that the statute was constitutional.  However, the court went on and included additional opinions that may make it difficult or impossible for Earle to pursue charges.  (I could only find a Lexis cite for the case so I can’t do a link to the opinion.)

The statute is a confusing twist, but generally, corporations are not allowed to make political contributions in Texas except under specific circumstances.  It was not really disputed that the corporate contributions were improper.  Instead, the question was whether the individuals involved were subject to criminal liability.  As the opinion notes:

A person commits the offense of money laundering if he “conducts, supervises, or facilitates a transaction involving the proceeds of criminal activity.” “Proceeds” are defined to mean “funds” acquired or derived directly or indirectly from, produced through, or realized through an act.  The statute defined “funds” to include:

(A) coin or paper money of the United States or any other country that is designated as legal tender and that circulates and is customarily used and accepted as a medium of exchange in the country of issue;

(B) United States silver certificates, United States Treasury notes, Federal Reserve System notes; and

(C) official foreign bank notes that are customarily used and accepted as a medium of exchange in a foreign country and foreign bank drafts.

The Court interpreted the the categories of items listed in the “include” section as being exhaustive and concluded that checks were not “funds”.  And since the individuals were accused of passing corporate checks, then they didn’t violate the statute.  (The statute has since been amended to add checks.)

While the interpretation is interesting, to say the least, the most interesting thing to me is the uproar.

Delay is obviously a Republican.  Earle is a Democrat.  And the three judges that wrote the opinion are all Republicans.  And perhaps most at issue, the judge that wrote the opinion was affliated with Texans for Lawsuit Reform, a group that includes almost all of the same players involved in this case, before his appointment to the bench by Governor Perry.

In a filing earlier this week, in a motion for an en banc hearing, Earle complained of corruption in the Court.  He wrote:

The dark shadow of corruption of our system of justice looms over this case.  Every lawyer has a duty to raise questions of corruption that go to the heart of our judicial system, and it is in the discharge of that duty that the State pursues this effort.

Those types of allegations are almost never heard in filings before the Court.  And yesterday, they were ratcheted up a notch when Earle asked  the judge that authored the opinion to recuse himself. In that filing, Earle pointed to an article where the authoring judge discussed a civil lawsuit against almost identical parties making almost identical allegations.  In the article, the judge denigrated the civil case as “politically motivated” and suggesting that it was filed merely to “harass political opponents.”

This type of discourse is fascinating in a car wreck type of manner, and I’ll try to follow it here in the blog.

I also found one other item interesting.  On the recusal, the defendants argued that the prosecution waited too long to ask for a recusal.  The prosecution responded that they knew about the judge’s affiliation with TLR, but didn’t know about the article until recently.  One of the newspaper articles asked the question of whether the judge had an obligation to raise the issue of potential bias.  The article cited Lily Hardwick, a co-author of “Handbook of Texas Lawyers and Judicial Ethics,” was of the opinion that the judge didn’t have an obligation to disclose any affiliation if he felt he could have been impartial.  That strikes me as wrong.  As attorneys, we have a duty of candor to the court, but they don’t have a similar duty back to us?  While I’m sure a judge thinks he can be impartial, it would be nice if those potential biases could be examined in more depth and a neutral third party could decide whether recusal was proper.

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