What a Difference a Witness Makes

It's day nine of the trial. The judge is determined to stop by 5:00pm so the court reporter may tend to her sick child. Priest comes off as a truly likeable guy who's to be commended for keeping the proceedings fair and balanced — the old-fashioned kind of fair and balanced I mean. At times, onlookers numbered as few as eight or ten, including press, but today there are 35 or 50. Energy and interest seems to be increasing as the prosecution prepares to rest its case.

The first witness, Marshall Vogt, Sr. Forensic Analyst with the Travis County DA, starts slugglshly by presenting data summaries of TRMPAC's contributions, expenses, bank records, internal ledgers, as well as those from other PACs. His testimony also includes an analysis of calls made between the cell phones of Colyandro, Ellis and DeLay staff members.

The list of RNSEC contributions proves to be most compelling. Though the organization supports U.S. candidates at all state and local levels, from governors to city councilmen, Vogt's analysis focuses only on statewide leglslative races in order to compare apples with apples. Those contributions totaled $222,850 and were distributed to 70 candidates. More than 85% of those dollars were sent to the Texas Seven, averaging a donation of $27,146.86 to each.

The most interesting part of the phone call analysis was a debate that arose surrounding the identity of DeLay's cell phone number. Vogt claimed the defense never provided it to the DA's office. The defense denied his claim. Vogt subpoenaed several wireless carriers trying to locate the Congressman's number, and even tracked phone records of DeLay associates who may have had a phone registered in their name for him — concentrating on calls placed on DeLay's birthday. Very clever.

Vogt continued, explaining that he was able to identify DeLay's Majority Whip office number only after locating a copy of the Congressional Director for that Session at the University of Texas library. The appropriate pages had to be photocopied as evidence so the book could be returned to its rightful owner by the due date.

Things got more interesting after lunch. In the closest thing to a Perry Mason moment this trial has seen, the prosecution has requested a last minute witness, Austin American-Statesman reporter Laylan Copelin. He has reported on this story as far back as the indictment itself.

During a brief interview the week before, Copelin asked DeLay about the $190K check from TRMPAC. "I probably could have stopped it," claimed DeLay, "but why would I?" It's a quote that seems to contradict part of DeLay's own defense regarding his knowledge of the transaction. A negotiation between legal teams ensued in the hallway for nearly half an hour. In the end, Copelin will testify tomorrow.

The steam really picked up once the next witness, Steve Bickerstaff, took the stand. Bickerstaff is an expert witness who has written three books on political redistricting — a prime motive at the heart of this case. His most recent book chronicles the 2002 election and the civil and criminal charges associated with the redistricting that followed in Texas.

The state's constitution requires redistricting every ten years. It's the responsibility of the legislature, and is sometimes limited to just a portion of the districts rather than the whole state. But if the legislature fails to act, or their result isn't acceptable, the Federal court is to step in and resolve the issue. That's what happened in Texas in 2001.

In the same year, Republicans had a majority of only nine seats in the U.S. House of Representatives. Bills including the Patriot Act and Bush's 1st tax cuts were nearly defeated. With George W. Bush in the White House and DeLay serving as House Majority Whip, Texas was considered by many to be a tremendously efficient vehicle for increasing that majority.

The prosecution claims that an "off-season" redistricting by the Republican controlled Texas legislature, which would ultimately increase Republican representation in DC, was the prime motive for TRMPAC's money swap with the RNSEC.

Bickerstaff's testimony began with a PowerPoint presentation of the state's history of redistricting, starting in 1845 when Texas was first admitted to the union and apportioned two districts (it now has 32, and will likely gain more as a result of the 2010 census). "The DA isn't asking him any questions, your honor!" DeGuerin objected. Judge Priest sustained his objection, after which Cobb began interjecting "and then what happened?" into Bickerstaff's presentation.

"Was Tom DeLay involved in the redistricting plan?" asked prosecution. "Yes," responded Bickerstaff. DeGuerin objected. Bickerstaff then referred to the Republican plan as "a masterful stroke." DeGuerin objected again.

Unbeknownst to the jury, Bickerstaff was first contacted by DeLay's legal team in 2005 and asked to trestify as an expert witness for the defense. He declined, telling DeGuerin, "I'd be a liability to your client on the stand."

And the jury wasn't present with DeGuerin objected the previous day to the prospect of Bickerstaff even testifying. Based on the opinions in his book, DeGuerin felt that Bickerstaff's testimony might be peppered with partisan innuendo.

As it turns out, DeGuerin and Bickerstaff are colleagues as adjunct professors at the University of Texas Law School. They also have a personal friendship. "I shared our defense theories with you, Steve", said DeGuerin, expressing a sense of betrayal. "Now Dick, I consider you and Janie (his wife) friends", responded Bickerstaff, "but you asked me to serve as an expert witness on election law. That's not my expertise." Their exchange intensified.

DeGuerin continued, "Did you tell the DA that I had contacted you?" "Yessir", said Bickerstaff. "I originally declined their invitation as well. Then they sent someone to my class who asked me to reconsider."

"But I confided in you," DeGuerin persisted. A clearly agitated Bickerstaff came back with, "There's nothing about your strategy that wasn't already  in my book, Dick!" The exchange between two well-seasoned attorneys, on a first name basis, became surreal. And perhaps, in itself, serves as a prime example of the current divisiveness in our country.

At the end of that witness qualifying session, Judge Priest had ruled that Bickerstaff could indeed testify, but only on what had historically occurred with redistricting in Texas. I suspect two less holiday cards may be sent out this year.