Earle v. Lawmaker, Take 1

Hutchison Beat 1994 Indictment

Posted October 17, 2005 at 6:29pm

A powerful GOP Texas lawmaker is indicted. In a campaign-style media blitz, Texas Republicans accuse Travis County prosecutor Ronnie Earle, a Democrat, of partisan political motives. Defense attorney Dick DeGuerin questions the validity of the indictments, tries to subpoena Earle’s records, and charges the veteran prosecutor with abuse of office and incompetence.

It sounds like the effort to defend Rep. Tom DeLay (R-Texas) against allegations that he conspired to violate state campaign finance laws. But it isn’t. In this case, the Texas Republican was Sen. Kay Bailey Hutchison, the charge was using her previous position as state treasurer for political purposes, and the year was 1994.

With the help of DeGuerin, who’s now also DeLay’s lawyer, Hutchison successfully beat her charges. But her ordeal was filled with many of the same legal ambiguities that surround the DeLay case today.

Though Hutchison eventually was acquitted, the verdict was not the kind of clear-cut victory most politicians under fire hope for. The trial ended only after Judge John Onion Jr. ordered jurors to acquit Hutchison because Earle refused to move forward without a bench ruling on whether evidence he had gathered was admissible.

“She was acquitted, but there was never a trial on the facts,” said Ross Ramsey, editor of the political newsletter Texas Weekly. He added, “There’s still the question of who was going to win that case. … It’s one of the great mysteries of Texas politics.”

Hutchison and her supporters have said the outcome proved not only her innocence, but also Earle’s political motives in bringing the case in the first place.

“There was no crime committed,” said David Beckwith, who served as Hutchison’s spokesman at the time of the trial and was until recently one of her aides on Capitol Hill. “The problems with the indictments … went to the basic competency of [Earle] and his political motivation.”

Beckwith bemoaned that Earle’s justification for refusing to move forward “managed to leave a little doubt in people’s minds that if only the judge had ruled differently, [Earle] would have nailed her.”

Steve McCleery agrees, for different reasons. McCleery, who served as Earle’s first assistant district attorney and lead trial attorney at the time, said the prosecution failed based on unfavorable rulings from Onion, not on the merits of the case.

“They’re going to call it exoneration, naturally, but I wouldn’t,” McCleery said. “Because of some other rulings [by the judge], the risk was too great that he would not admit the evidence” needed to secure a conviction. McCleery also complained that the judge rushed the case because of Hutchison’s ongoing 1994 Senate campaign.

Hutchison spokesman Chris Paulitz disputed that notion, saying, “Democrats had not been without a [Texas] seat in the U.S. Senate since Reconstruction. Ronnie Earle’s sham indictment was a desperate attempt to win back the Senate seat for the Democrats. And this is evident in Steve McCleery’s statements to the effect that the better part of a year spent preparing the case somehow wasn’t enough time.”

It all started with an April 1992 Houston Post story detailing how top Hutchison aide David Criss was allegedly spending almost all of his time at the state Treasury fundraising and doing other political tasks for his boss, despite being on the state’s payroll.

At the time, according to McCleery, Hutchison told Earle that Criss’ work was an isolated incident of which she had been unaware and that she was preparing to fire him. McCleery added that Earle, who was acquainted with Hutchison and trusted her, agreed to let her “clean her own house,” and the issue was dropped by the prosecutors’ office.

A year later, in the middle of a pitched 1993 all-party primary campaign for a special election to fill the Senate seat of newly installed Secretary of the Treasury Lloyd Bentsen (D-Texas), another former Texas state Treasury employee, Sharon Ammann, came forward to charge that Hutchison physically abused her employees and required them to perform personal errands and political business on the state’s dime.

The April 1993 allegations that Hutchison struck Ammann several times on the shoulder with a notebook in response to Ammann’s failure to find a political contributor’s phone number rocked the race at a point when Hutchison was pulling ahead of her Republican opponents.

Ammann, the daughter of former Texas GOP Gov. John Connally, acknowledged at the time that she supported the candidacy of then-Rep. Jack Fields (R) for the Senate spot. But the media hubbub did not quiet down because Texas reporters found several other anonymous Treasury staffers who made claims similar to Ammann’s.

Hutchison angrily denied the allegations, telling reporters, “I have never hit anyone in my whole life.” Hutchison also submitted to a private lie detector test, which her attorneys said proved that she was telling the truth when she said she was not violent toward employees, according to newspaper reports.

At the same time, another former Hutchison aide, Trilby Babin, came forward with claims that she had seen Hutchison violently pinch staffers who displeased her, often forcefully enough to leave bruises. Babin also accused Hutchison of misusing her elected office for political purposes.

“If she passed a polygraph, she must be a pathological liar,” Babin told the Dallas Morning News.

Babin and Ammann complained that they were asked to help arrange Hutchison’s attendance at political fundraisers and GOP events, send thank-you notes to political contributors and run personal errands for Hutchison on state time.

Hutchison said she was simply being responsive to constituents and that she and her staffers conducted political business on a phone line in her office that was paid for by her campaign. Hutchison also said she insisted that staffers either perform political work on their own time or make it up with overtime.

That defense appeared to work with the voters: She bested the other GOP candidates in the all-party primary in May.

Then, in late May 1993, Hutchison’s Democratic challenger, Sen. Bob Krueger, called on Earle’s office to investigate new allegations that Hutchison had given former state Treasurer opponent Tom Bowden (D) a job in her Treasury office in return for his endorsement of her candidacy in 1990.

An Earle spokeswoman said at the time that the D.A.’s office generally refrained from investigating public officials during a campaign.

Hutchison then easily trounced Krueger in the June special election runoff.

But a few days after her election to the Senate, according to newspaper reports, Wesley McGehee, a state Treasury computer programmer-analyst, went to the Travis County D.A.’s office with a bombshell: He alleged that he had participated in destroying the computer records of personal and political documents that had been created on Treasury employee computers. The order, allegedly from Hutchison herself, had come down just days after the Houston Post reported in 1992 on Criss’ alleged political activities on behalf of the Treasurer, McGehee reportedly said.

McGehee later told the grand jury that he waited to come forward until after the special election because “I didn’t want to be accused of political posturing or whatever,” according to a June 1994 Dallas Observer story that McCleery, in an interview, described as accurate.

While a copy of the data McGehee had saved reportedly was erased, another Treasury computer technician, R.T. Burkett, later led investigators to copies he had stored in a pizza box at his home.

About the same time, McCleery said, Criss came forward with a box of documents that allegedly indicated that Hutchison not only knew about, but also authorized, the political activity he had performed for her on state time.

McCleery said the way the evidence “came to us” proves that Earle and those in his office did not have a political agenda against Hutchison, or against other Republicans.

“Ronnie does not go looking for these cases. They are ugly cases,” McCleery said. “He doesn’t do them unless he has to.”

Earle then asked an investigative grand jury to subpoena documents from the Treasury, based on what he said at the time was a fear that more evidence might be destroyed. After three and a half months of testimony from the likes of Criss, Ammann, Babin and others, the grand jury handed down indictments against Hutchison for allegedly using her public office for unlawful political duties and for destroying government property as part of an alleged cover-up.

Hutchison appeared before the grand jury but asserted her Fifth Amendment right against self-incrimination, according to the Dallas Observer article.

Earle ended up having to dismiss the charges against Hutchison twice: once because the original grand jury had an ineligible juror, and again because the defense successfully argued that the indictments were too vague.

DeGuerin, for his part, defended Hutchison by relying heavily on the notion that “everybody does it.” In pretrial interviews, Hutchison supporters argued that in order to fulfill her duties she had to respond to contributors and constituents who wrote to her and that she needed to attend partisan and nonpartisan events in her capacity as an elected official.

“She was just doing her job. That’s what a public official does,” Beckwith said.

Beckwith said Ammann and Babin seemed to have a skewed view of what constituted political work, which they thought included routine speeches at community events. Indeed, Ammann reportedly told DeGuerin in a pretrial deposition that she considered scheduling Hutchison’s attendance at a baseball game one of the personal and political chores she had performed at the state Treasury. DeGuerin asked what Hutchison discussed at the game, and Ammann confessed that she did not know because she was not there, according to the Dallas Observer. (Ammann did not respond to a request for comment.)

Still, Ramsey said Hutchison’s political activity at the Treasury did appear excessive. “Other people do it, but she was doing it on steroids,” he said.

On the day the trial was due to start in February 1994, Earle asked Onion to declare that all the prosecution’s evidence — reams of documents and computer tapes seized from the state Treasury based on a grand jury subpoena — be admissible. Earle has indicated he made the request prior to trial because he knew DeGuerin was going to challenge the legality of the grand jury subpoena, arguing that the D.A. should have obtained a search warrant instead.

Onion, who did not respond to a request for comment for this story, refused and said he would rule on evidence on a case-by-case basis during the trial.

McCleery explained that without a pretrial ruling on the evidence, which is made in some cases but not in others, “I think Ronnie was probably suspicious that he was going to get ambushed.” In Texas, only pretrial rulings on evidence may be appealed to a higher court, McCleery said. Prosecutors cannot file appeals to rulings on evidence once a trial has begun.

If the evidence was not admitted, McCleery said, the case would have amounted to a “he-said, she-said” between the witnesses and Hutchison.

But Beckwith said Earle’s maneuver on the evidence was carefully calculated.

“He manufactured an excuse so he could lay off the failure of the case on the judge,” Beckwith said.

Without a ruling on the evidence, Earle moved to drop the charges against Hutchison before the jury was sworn in. DeGuerin objected and asked the judge to force the proceedings forward.

Onion again sided with the defense and promptly swore in the jury that already had been chosen. Onion then told Earle to proceed with his case.

When Earle refused, Onion directed the jury to acquit Hutchison of all charges.

“Basically, the judge just called his bluff,” Ramsey said, explaining that it appeared Earle asked to drop the charges as a way to reevaluate the case and perhaps get a more prosecution-friendly judge.