Earle's last stand

He postponed retirement to prosecute Tom DeLay -- only to be hounded by the right as a crazy zealot. Does the Gary Cooper of D.A.'s have the goods to bring down the Hammer?

Published November 12, 2005 9:37PM (EST)

A ferocious dog barks and growls in an ominous ad that blares from TV screens in the Texas capital of Austin. "A prosecutor with an agenda can be vicious," a barbed voice intones. The commercial assails "liberal Democrat" Ronnie Earle, the district attorney of Travis County, which includes Austin, for prosecuting powerful Texas Rep. Tom DeLay for conspiracy to violate election laws and money laundering. "Bad, Ronnie! Bad!" the voice snarls before baying: "Tell Ronnie it's not a crime to be conservative."

Earle, a lifelong Democrat, has earned the wrath of Republicans by spearheading a criminal investigation into DeLay. He intends to demonstrate that DeLay helped funnel illegal corporate money to Republicans running for the Texas Legislature in 2002, which helped the party gain control of the Statehouse. With the GOP in the driver's seat, the Legislature rammed through a controversial redistricting of the state's congressional districts, which sent more Republicans to Washington, further consolidating DeLay's power in Congress.

In late September, DeLay was indicted by a grand jury for conspiracy and money laundering, forcing him to step down as House majority leader. (On Friday, the Washington Post revealed key new details of how Earle acquired some of his best evidence.) On Oct. 21, the pugnacious Republican known as the Hammer appeared for arraignment at an Austin courthouse. He smiled for the cameras and told reporters it was "a good day" that provided him "the opportunity to go before the court and refute these baseless charges that are the result of a political vendetta being acted out by Ronnie Earle."

Since Earle first cast a wary eye on the Republican power play in the 2002 Texas elections, and DeLay's role in it, he has been pounded by the Hammer. DeLay has tagged Earle a "rogue district attorney" and "unabashed partisan zealot." He has suggested his indictment is the result of a vast left-wing conspiracy involving Earle, California Rep. and House Minority Leader Nancy Pelosi, and the Democratic Campaign Committee.

Meanwhile, a Greek chorus of Republican supporters has echoed the attacks. Pat Buchanan has said Earle belongs "behind bars," and even former Bill Clinton campaign strategist Dick Morris has derided Earle as a "crazy" prosecutor who makes Jim Garrison -- the Kennedy assassination conspiracy advocate -- "look like a model of respectability."

In the Lone Star State itself, though, longtime political observers are scratching their heads over the vicious portraits of Earle, 63, who has won eight terms -- running unopposed for five of them -- and served nearly 30 years as district attorney. "Ronnie Earle?" wondered liberal heroine and Austin resident Molly Ivins after the first round of right-wing invective was fired at him. "Our very own mild-mannered -- well, let's be honest, bland as toast, eternally unexciting, Mr. Understatement, Old Vanilla -- Ronnie Earle?"

If Earle is any kind of canine, say folks in Austin who know him well, have worked with him for years and have even been indicted by him, it's not a snarling attack dog but a silent pointer, poised at the scent of crime and corruption.

"Partisan considerations don't enter into it with Ronnie," says Republican state Rep. Terry Keel, who worked for Earle in the D.A.'s office. "I don't think it involves political ambition or is a political vendetta," says former Texas Attorney General Jim Mattox, a Democrat who was indicted by Earle while in office in 1985 for felony bribery. (He was acquitted at trial.) Adds Joe Turner, who represents John Colyandro, one of DeLay's codefendants, and once worked for Earle: "I like Ronnie. He's a good person. I don't think he's an evil person. And I think he truly believes that what he is doing is correct."

Earle had planned to retire in 2004. But he couldn't leave the hunt after sniffing out what could be the biggest game in his career, during which he has investigated and prosecuted a gallery of state political figures. "I thought that this was too important to ignore," Earle tells Salon, referring to DeLay's alleged role in the campaign finance violations. "My job is to see that justice is done. Justice depends on the law. The law depends on democracy. Democracy depends on fair elections. And fair elections depend on nobody having a monopoly on the microphone."

Whether Earle can make the charges against DeLay stick, though, is another matter. Earle remains mum on the detailed evidence he will present against DeLay if and when the case makes it to trial. Attorneys for DeLay immediately filed after both indictments to have the charges dismissed. Although smart money is on Earle's getting his day in court, Texas political insiders wonder if he has the goods on DeLay in a complex case that could be difficult to prove without a smoking gun.

"This case will go to trial," says Keel. "But I'm telling you right now they're not going to convict."

"It's Earle's career capper," says Lou DuBose, coauthor (with Jan Reid) of "The Hammer: God, Money, and the Rise of the Republican Congress." "My guess is that he's going to try to get it right."

Earle faces a mighty foe in DeLay's lead attorney, Dick DeGuerin, who is widely acknowledged as the best criminal attorney in the Lone Star State. DeGuerin is no stranger to controversial and high-profile cases. He served as David Koresh's attorney during the 1993 standoff in Waco, Texas, between the feds and the Branch Davidians, and recently won an acquittal for cross-dressing millionaire Robert Durst in his Galveston murder trial. He also represented Texas Sen. Kay Bailey Hutchison, then state treasurer. Earle indicted Hutchison in 1994 for using state employees and resources for personal and political business, deleting state records to hide her activities and being abusive to her staff. Earle ultimately dropped the charges.

The fact that Earle indicted DeLay twice in one week raises questions about the validity of the first charge, albeit one with far lesser penalties than money laundering. The fact that Earle took the money-laundering charges before two grand juries has fueled speculation that the overall case is weak and that Earle was grand-jury shopping to nail it down.

DeLay v. Earle will be a royal Texas battle. To quote Robert Penn Warren from "All the King's Men," it's the "old drama between power and ethics." Time and again, Earle has spoken about ethics and morality in the conduct of public officials. So nobody expects the polite, principled Texan to budge an inch.

To those not steeped in Texas culture, Earle can seem like a walking, talking contradiction. He grew up in a Baptist church and was a high school football player, Student Council president and Eagle Scout. Yet he practices yoga and frequently quotes poets and philosophers alongside old-school Texas adages.

His tenure as a district attorney displays a similar duality between being hard-nosed about crime and taking a progressive approach to its causes. "Tough Prosecution & Smart Prevention" reads the banner on Earle's Web site.

A strong advocate of community justice programs, Earle started the first victims-assistance program in Texas in 1979. His other initiatives include forming a Family Justice Division and a Child Protection Team and founding a Children's Advocacy Center and Family Development Center. His office has been named one of the top 10 in the nation by the National District Attorneys Association.

On the other hand, Earle has not been hesitant to seek the death penalty for murderers. He likened the execution of serial killer Kenneth McDuff to "shooting a rabid dog." But when DNA evidence revealed that two men prosecuted by his office for murder and serving life sentences were innocent, Earle formed a Capital Murder Review Committee to reexamine the cases that had been tried under his jurisdiction.

Earle also risked the scorn of Austin's African-American and liberal communities when he tried 11-year-old Lacresha Murray -- the youngest murder defendant in Texas history -- not once but twice for negligent homicide in the death a 2-year-old child. (Both convictions were later overturned.)

The prosecutor believes the justice system should do its utmost to treat offenders fairly and rehabilitate those who repent. But if they don't, "God help them," he says.

Earle explains that his judicial philosophy is rooted in his youth "in the bosom of a large extended family" in Birdville, Texas, then a tiny town outside of Fort Worth. "We lived on a small ranch, but all my kinfolks were not far away and we were together a lot," he says. "That's where I came to appreciate the role of strong families, neighborhoods and communities."

In the kind of family-values talk that would charm many Republicans, Earle says crime prevention begins at home. "The law just catches those few who make it through the team of mamas and daddies and aunts and uncles and teachers and preachers and neighbors and cousins and friends," he says. "That's what prevents crime, that's what maintains the peace, not the law."

His prosecution of public officials has irked those on both sides of the aisle. Because if there is one public subject that Earle can be called zealous about, it's campaign financing.

"People talk about how money is the mother's milk of politics. It's also the devil's brew -- and we have to turn off the tap," Earle explains in "The Big Buy," a documentary film about the machinations of DeLay and his cohorts in the 2002 Texas elections, the source of the current imbroglio.

"He's militant about the whole issue of campaign finance," says former Texas Attorney General Mattox. "Campaign finance is destroying our democracy and Ronnie is determined to keep that from happening." Since the late 1970s, Earle has prosecuted 15 politicians, 12 of them Democrats. The onetime Boy Scout even filed charges against himself in 1982 for not reporting campaign contributions by the required deadline, earning a $212 fine from a judge.

Those who only know Texas politics by the Bushes might be surprised to learn that until George W. was elected governor, the state was largely dominated by Democrats. In 2002, Republicans won 17 seats and took control of the Texas House of Representatives. But as a result of what DuBose calls "a lot of hubris" on the part of DeLay and his associates, Earle cast a suspicious eye on how those results were achieved.

Shortly after the election, the Texas Association of Business outlined in its house organ, the Texas Business Report, how its efforts in raising corporate donations "blew the doors off" the election and helped Republicans take the Statehouse. Bill Hammond, TAB's director, also crowed about the role of corporate donations in the election in the Austin American-Statesman. Both accounts landed on Earle's doorstep. He was immediately alarmed by the mention of corporate cash, which, since 1905, has been forbidden by law to be used directly in Texas elections.

Meanwhile, up in Washington, DeLay's top fundraiser, Jim Ellis, was also bragging. "Ellis told Juliet Eilperin of the Washington Post exactly how they did it, and how he and DeLay planned this," notes DuBose. "Ronnie Earle was the one man that they didn't calculate on when they set about to do this. And now their defense is that it didn't happen."

It didn't take long for Earle and his staff to start connecting the dots. It came to light that the political action committee founded by DeLay, Texans for a Republican Majority (TRMPAC), had received some $600,000 in corporate donations for the 2002 elections. Texas law allows corporate funds to be used only for administrative expenses. The case alleges that the corporate money was funneled to campaigns.

As Earle investigated the matter and discovered how many political insiders were involved and the extent of their activities, it was like "watching clowns climb out of a Volkswagen," Earle told DuBose. "There are a lot more in there than I imagined."

The first legal moves in the matter came when five unseated Texas House Democrats filed a civil suit in May 2003 against TRMPAC and Colyandro (its executive director), Bill Ceverha (its treasurer) and Ellis (who ran DeLay's Washington-based Americans for a Republican Majority PAC and served on the TRMPAC board). In September 2004, a Travis County grand jury indicted Colyandro, Ellis and Warren Robold (a TRMPAC and ARMPAC fundraiser) on a variety of election code violations and money-laundering charges for their activities on behalf of TRMPAC. Eight corporate donors, including Sears, Cracker Barrel and Bacardi, were also indicted.

In May 2005, a judge hearing the lawsuit filed by the Democrats ruled that TRMPAC had violated Texas election laws and granted damages to the plaintiffs. On Sept. 13 of this year, Ellis and Colyandro were indicted again on first-degree felony money-laundering charges and other offenses.

Earle's case against DeLay hinges on a $190,000 check that had been sent, with DeLay's consent and support, from TRMPAC to the Republican National Committee in September 2002. The indictment claims that Ellis delivered the check to the RNC with a list of names of Texas House candidates and respective specified contributions to their campaigns. On Oct. 4, 2002, the RNC contributed a total of $190,000 from a state elections fund to the seven specified Republican candidates running for the Texas House.

Earle contends this was a swap of forbidden "soft money," or corporate contributions, for "hard money," or individual contributions. Election laws permit only hard money to be used for direct campaign expenses. The exchange of funds with the RNC is also the basis for the money-laundering charges against DeLay, which carry a maximum penalty of 99 years in prison.

The road to indicting DeLay has been a precarious one for Earle, and along the way, accusations have swirled around him like a Gulf of Mexico hurricane. His legal wrangling began in late summer of this year.

As the Washington Post reported on Nov. 11, Earle acquired what may be his most damaging evidence from DeLay himself. On Aug. 17, DeLay met secretly with Earle. He intended to head off a felony indictment and offer a plea to a misdemeanor of violating state election laws. During the meeting, DeLay admitted that in 2002 he had expressed his support for transfers of $190,000 from his Texas PAC to the Republican National Committee.

To Earle, DeLay legally incriminated himself in a conspiracy to violate election laws. Earle then insisted that DeLay enter his plea in court right away. DeLay's attorneys said he would offer it only after Texas appellate courts had ruled on the validity of the state election law at issue. If the law was ruled invalid, then the charges, including DeLay's plea, would be dismissed. Earle responded that it was now or never for the plea, and so the deal fell apart. The prosecutor then took his new evidence to a Travis County grand jury, where on Sept. 28 he won a felony conspiracy indictment of DeLay.

Within hours, the Post reported, Earle learned that DeLay's lawyers might convince a court that state election laws would not legally ensnare DeLay for conspiracy. So the wily prosecutor took his evidence to another grand jury in search of a money-laundering charge against DeLay. But this time the grand jury didn't bite.

In the meantime, DeLay's lead lawyer, DeGuerin, accused Earle of inciting the jury foreman to discuss the case in public and of prosecutorial misconduct. He alleged that Earle had browbeaten the second grand jury to indict DeLay and reacted with anger when the jury returned a "no bill" on the charge and declined to indict DeLay. Earle insists that DeGuerin's claims against him "have no merit," and DeGuerin has since admitted that he doesn't have any evidence of misconduct by the prosecutor.

Earle, however, wasn't to be denied by the second grand jury's "no bill." Over the weekend of Oct. 1 and 2, DeLay gave interviews to Fox News in which he said he acknowledged, but didn't approve of, the money transfers. He said his head fundraiser, Ellis, would check in with him "because I was interested in how things were going, and how much money they were raising."

That was good enough for Earle, who on Oct. 3 took his case against DeLay, punctuated with the weekend Fox interviews, to a third grand jury, which returned a felony indictment for money laundering.

While DeGuerin was doing his best to body-slam the case in the courts, DeLay and his supporters continued to attack Earle, slinging anything that looked like dirt or partisanship from his past.

They charged that Earle had also violated Texas election laws by taking contributions from corporations and labor organizations for his campaigns. But in fact the corporate contributions to Earle's campaigns were by law firms, professional corporations exempt from the Texas ban on corporate donations. Similarly, a contribution of $250 reported by Earle from the AFL-CIO was in fact from the Texas AFL-CIO State Committee on Political Education Fund, a general-purpose PAC that raises voluntary contributions from union members and is also exempt from corporate and labor-union cash restrictions.

The TV ad attacking Earle cites three chinks in his armor. First is his 1994 prosecution of Sen. Hutchison. The ad states that the judge "threw out the case." In fact, Earle requested a pretrial hearing on the admissibility of evidence from the judge, who declined to give him a ruling. Earle then dropped the charges rather than proceed, even though his chief prosecutor remained ready to try the case. On the instruction of the judge, the jury acquitted Hutchison.

Earle's decision spared Hutchison potential embarrassment. Accounts portray her as a demanding and abusive boss who once smacked an underling with a notebook and used staffers to work on her political campaigns, find a new home and purge the department's computer files of possibly damning records. Chief George W. Bush advisors Karl Rove and Karen Hughes assisted Hutchison in a P.R. blitz against the D.A., dubbed "The Earle of Injustice."

"He up and decided to drop the case, which amazed virtually all of us at the time," says former Texas Attorney General Mattox. "They had all kinds of staff ready to testify against her -- electronic evidence, written evidence, all kinds of stuff. A prosecutor with only two years of experience could have prosecuted Hutchison and convicted her."

Veteran Austin attorney Joe Crews disagrees. "I think Ronnie ultimately determined that she might be innocent," he says. "Yeah, he could take her to trial and he had evidence he could put on and the jury could find against him. But I think that as a prosecutor he felt that the goods he had against her were a little weak, and he wasn't sure that she did it. But I don't think there's any dispute in his mind about Tom DeLay and his activities."

The ad also accuses Earle of helping "make a movie hyping the [DeLay] case" -- "The Big Buy" documentary. In it, Earle makes the provocative statement that the use of corporate funds in elections is "as insidious as terrorism."

Mark Birnbaum, one of the filmmakers, explains that even though they had Earle's cooperation, "we never had any more true access than anyone else in the press. We never got to see a document before anyone else. It's absurd to think that we might have been privy to any secret grand jury testimony or anything like that."

The ad's third accusation is that Earle has "even exploited the DeLay case to raise money for liberal politicians." In May 2005, Earle did give a rare fundraising talk at an event for the Texas Values in Action Coalition, a north Texas organization that seeks to "return fair-minded, honest, and progressive officeholders to all levels of Texas government." In the 15-minute speech, Earle spoke about the integrity of public officials and the influence of corporate and big-money interests in politics, and reviewed some of his investigations of politicians, including the TRMPAC case.

But Earle only mentioned DeLay in two short sentences. "This case is not just about Tom DeLay. If it isn't this Tom DeLay, it'll be another one, just like one bully replaces the one before."

Late last year, Earle began making plea agreements with the indicted corporations, offering to drop the charges in exchange for their cooperation with his investigation. Earle's critics complain that in his settlements with the corporations, he stipulated that some of them make contributions to university programs studying the effect of corporate funds in electoral politics, which his accusers have characterized as a prosecutorial shakedown.

"It's done all the time," says Mattox, who made similar settlements as Texas attorney general. "It was pioneered on the national scene by the National Association of Attorneys General and I don't think there's anything wrong with it."

Earle dismisses the TV ad and says he finds the media maelstrom surrounding him to be "a surreal experience. These questions will be debated in the political arena, but they will also be decided in the law and the facts," he says.

Whether Earle's charges against DeLay will stick has become a lively parlor game in Austin, with lawyers and scholars from all sides of the political arena tossing their opinions on the table.

A main point of debate is whether the initial charge of conspiracy to violate the election code is valid. The question is further complicated by the fact that the Texas Legislature amended the election code in 2003, the year after the offenses in question were committed, to specify that conspiracy charges can apply to election law offenses.

"I think it's a winner for the defense," says Turner. "I think Ronnie realized how bad it was too, and that's why he was desperate to get the thing reindicted. You gotta ask yourself: The first grand jury heard all this evidence. Why didn't they include money laundering when they indicted for the election code?"

Republican state Rep. Keel contends that the initial conspiracy charge to violate the election code is a stretch, since the law didn't specify that offense until 2003. He also believes that the money-laundering charge is "a weak case." "I think they indicted it as the backup in desperation and in haste. Money laundering has a particular meaning in criminal law: that the funds themselves were derived from criminal activities."

George Dix, a professor of law at the University of Texas, insists that Earle's first conspiracy charges are valid and that the legislative change to the election code is merely a clarification. "My reaction is, if push came to shove and this matter were to come up before the Court of Criminal Appeals, they would say it does apply."

Austin attorney Crews represented the Democratic state representatives in their suit against TRMPAC. Although some contend that the civil victory doesn't reinforce the merits of the criminal case against DeLay and others, Crews believes it does apply.

Civil cases are usually based on a standard of negligence and the damage caused by it. But the TRMPAC suit was decided on a violation of the prohibition against using corporate funds in the Texas election code. "It's the same law for both civil and criminal," Crews points out. "Yeah, there are different standards to be applied. But the constitutional analysis is the same in both the civil and the criminal side of the fence."

DuBose notes that the judge who decided that case, Joe Hart, is "a conservative judge who deliberated for weeks and weeks and came to a very clear conclusion that what TRMPAC did was a violation of Texas law."

"For the judge to find that it was a violation of the election code was the stake in the heart that opened the door. I doubt that whoever hears this case will ultimately see that issue in a way that is significantly different from Judge Joe Hart," says Crews.

Amid the speculation, there is little indication that Earle has a smoking gun with DeLay's fingerprints on it. He recently conceded that he has only a "facsimile" of the list that specified which candidates were to receive the $190,000 in contributions, and not the actual document. Not having the document itself could cripple a key aspect of the case.

However, Crews says that Earle is sure to have all the same evidence that he had in the TRMPAC civil trial. Coupled with other evidence that Earle has gathered since then, that's "quite substantial and more," he says.

One truism of conspiracies is that the greater the cast of players, the more likely the conspiracy is to unravel. And a host of figures were involved in TRMPAC's activities during the 2002 Texas elections. Has one of them flipped and turned state's evidence?

After the judgment in the civil suit, TRMPAC treasurer Ceverha declared bankruptcy. The move certainly raises questions about whether the former TRMPAC treasurer could end up as a potential witness against DeLay. "Apparently what this means is that Ceverha's Republican friends, and the people who got him into this spot, have dropped him in the grease and not come to his aid to help him through this litigation process," notes Crews.

And then there are DeLay's indicted co-conspirators. "Ronnie's challenge now is to tie DeLay to Jim Ellis and John Colyandro," says DuBose. "When these guys are on the stand looking at 99 years, are they going to be in jail with a guy named Bubba for Tom DeLay?"

Observers also wonder why other participants in TRMPAC's activities, such as TAB executive director Hammond and Texas House Speaker Tom Craddick, a close DeLay ally, have not been charged with any crimes. Does this mean they will show up at the trial as witnesses for the prosecution?

DuBose believes that one or more of the indicted corporate contributors might also provide crucial evidence. "Why would Sears want to go to jail for DeLay when he basically was running an extortion operation and shaking these people down?"

DeLay's own public statements may come back to haunt him, especially those regarding an Oct. 2, 2002 meeting between him and Ellis, just before the $190,000 from the RNC was sent to the Texas Republican candidates. The meeting could well be a linchpin in the case. "DeGuerin, DeLay and Ellis' attorney all have three different stories about whether or not the check came up in that conversation," notes Jim Schermbeck, one of "The Big Buy" filmmakers.

Whatever cards Earle may have in his hand, few think that the motions to dismiss will succeed and the case won't go to trial. "Nobody really believes that any criminal district judge is going to dismiss any of this stuff," says Crews.

"Conspiracy and money laundering are going to be difficult to prove," says DuBose. "But it seems to me that Ronnie has the facts and the law on his side. When you have the law, you pound them with the law. And when you have neither, you pound the table, and that's what DeLay and these guys are doing."

When DeLay was arraigned on Oct. 21, DeGuerin requested that Bob Perkins, the Democratic judge presiding over the case, recuse himself from trying it. Perkins referred the matter to another judge to decide, and DeLay won an early round Nov. 1 when retired district Judge W.C. Duncan booted Perkins off the case. Then Earle got a Republican presiding judge set to appoint the trial judge to step aside because of his contributions to GOP candidates. Ultimately, a retired Democratic judge from San Antonio, Pat Priest, was named to try the case by Texas Supreme Court Chief Justice Wallace Jefferson, a Republican whom Earle had tried but failed to challenge from appointing the trial judge because of what Earle claimed were Jefferson's ties to DeLay.

DeGuerin also filed for a change of venue, as Travis County is a decidedly blue district in the red state of Texas, another motion likely to be decided in DeLay's favor. But a recent request to move the trial to Fort Bend County, DeLay's home turf, will no doubt be vigorously opposed by Earle.

DeLay has said he wants to see the case in court before the end of the year, no doubt to speed his way back to Congress if he's acquitted. But every legal move pushes a possible trial date farther into the future. And Earle isn't going anywhere. He could have ridden off into the sunset a year ago and called it a distinguished career. As he says in his laconic fashion, "It ain't over yet."

By Rob Patterson

Rob Patterson is a freelance journalist in Austin, Texas, who writes a column on entertainment and politics for the Progressive Populist.

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