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May 19, 2005
Howard Dean's Personal Prosecutor?

With Democratic National Committee chair Howard Dean calling for Tom DeLay's immediate imprisonment despite a lack of a conviction or even indictment, one wonders how he can feel so confident about getting either one. Perhaps it helps when the Democrats have their own in-house district attorney with apparently no concern over any appearance of conflict of interest. The Houston Chronicle reports today that the supposedly non-partisan Travis County DA investigating charges of corruption among DeLay's staff spent last week fund-raising for the Democratic Party:

Travis County District Attorney Ronnie Earle, who denies partisan motives for his investigation of a political group founded by Republican leader Tom DeLay, was the featured speaker last week at a Democratic fund-raiser where he spoke directly about the congressman.

A newly formed Democratic political action committee, Texas Values in Action Coalition, hosted the May 12 event in Dallas to raise campaign money to take control of the state Legislature from the GOP, organizers said.

Earle, an elected Democrat, helped generate $102,000 for the organization.

In his remarks, Earle likened DeLay to a bully and spoke about political corruption and the investigation involving DeLay, the House majority leader from Sugar Land, according to a transcript supplied by Earle.

It seems like a breach of prosecutorial ethics for a district attorney to be discussing a potential witness or target in an investigation in public in any environment. It speaks to a pre-existing bias that should result in the disqualification of Earle and/or any indictment he files. However, using that rhetoric to raise money for a political party while investigations are ongoing not only strikes me as unethical but potentially actionable for Earle's status at the Bar.

In the ABA's Canon of Ethics, they make clear that attorneys should operate on behalf of their clients, "free of compromising influences and loyalties [EC 5-1]." As Earle represents the people of Travis County, his bald partisanship certainly creates the impression that his actions on their behalf intend to benefit the Democratic Party above the interests of Travis County residents. More to the point might be DR7-107 concerning trial publicity, which reads:

(A) A lawyer participating in or associated with the investigation of a criminal matter shall not make or participate in making an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication and that does more than state without elaboration:

(1) Information contained in a public record.

(2) That the investigation is in progress.

(3) The general scope of the investigation including a description of the offense and, if permitted by law, the identity of the victim.

(4) A request for assistance in apprehending a suspect or assistance in other matters and the information necessary thereto.

(5) A warning to the public of any dangers.

(B) A lawyer or law firm associated with the prosecution or defense of a criminal matter shall not, from the time of the filing of a complaint, information, or indictment, the issuance of an arrest warrant, or arrest until the commencement of the trial or disposition without trial, make or participate in making an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication and that relates to:

(1) The character, reputation, or prior criminal record (including arrests, indictments, or other charges of crime) of the accused.

(2) The possibility of a plea of guilty to the offense charged or to a lesser offense.

(3) The existence or contents of any confession, admission, or statement given by the accused or his refusal or failure to make a statement.

(4) The performance or results of any examinations or tests or the refusal or failure of the accused to submit to examinations or tests.

(5) The identity, testimony, or credibility of a prospective witness.

(6) Any opinion as to the guilt or innocence of the accused, the evidence, or the merits of the case.

Clearly, Earle has violated DR7-107(A) as well as (B)(1). He also has clearly violated EC8-8, which states that lawyers who serve as public officers "should not engage in activities in which his personal or professional interests are or foreseeably may be in conflict with his official duties."

Earle has made clear that his "investigation" of Tom DeLay is nothing more than a partisan fishing expedition meant to give rhetorical cover to Howard Dean and the rest of the Democratic Party leadership who fear DeLay's political skills. DeLay might have broken the law in Texas, but anything Earle turns up will necessarily be completely tainted by his naked partisanship in using his ongoing investigation for party fundraising speeches. The only investigation in which Earle should be involved is an ABA review of his Texas law license.

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Posted by Ed Morrissey at May 19, 2005 12:24 PM

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