One year ago today, the Texas Court of Criminal Appeals, the highest criminal court in the state, heard oral argument in Cary v. Texas, an appeal consolidating two criminal cases involving a husband and wife, David and Stacy Cary.
And there the case has sat, with no ruling from the court. The wheels of justice grind ever-so-slowly, leaving important issues of political speech unresolved in the Lone Star State.
In 2008, the Carys worked with a political consultant, Stephen Spencer, to help elect Suzanne Wooten for judge in Collin County, Texas. The Carys did this because they wanted to replace Charles Sandoval, the judge overseeing a family law case involving custody of David Cary’s children from a previous marriage. They advanced money to Spencer, who used it to pay for Wooten’s campaign expenses and was then reimbursed by Wooten as she raised money from donors, most of it after she was elected.
The 1,000-plus page trial records in the Carys’ respective cases, along with thousands of more pages in exhibits, detail an admittedly shady scheme. It is likely that the Carys fronted the money to Spencer in order to avoid campaign finance disclosure and limits, and it is indeed arguable (but not certain) that this money—totaling $150,000—was an undisclosed campaign contribution to Suzanne Wooten, $145,000 above the contribution limits. Moreover, it is possible that Suzanne Wooten knew about the Carys’ effort and agreed to rule in David Cary’s favor after she became judge.
But the Texas Attorney General’s office, likely realizing it had nothing close to proof that the Carys bribed Wooten to rule in their favor or that they even knew her beyond casual meetings, instead crafted a case that the state could not possibly lose. The prosecutors presented the jury with three charges: the Carys bribed Suzanne Wooten to rule in their favor, bribed Suzanne Wooten to run for office, or bribed Wooten to continue running for office. Both David and Stacy were convicted in their trials, and neither jury had to determine (much less agree among themselves) which one of these “bribes” the Carys committed.
The question on appeal is whether the latter two options presented to the juries can be “bribes” under the law and, if so, whether such charges can be constitutional. The trouble is how to differentiate between a campaign contribution—political activity that is protected by the First Amendment—and a bribe. The prosecutors argue that since the money the Carys gave to Spencer was not disclosed (an act that might actually be legal and is, in any event, fairly common practice with political consultants in Texas elections), they could not possibly be campaign contributions, and so not excluded from the bribery law. On appeal, the state has never explained how it can differentiate between disclosure violations and bribes under this theory. The perception of unseemliness is all they can really rely on, but that is essentially an argument for lawlessness. Moreover, money spent on a political campaign cannot be excluded from First Amendment concerns simply because it is not disclosed, campaign reform rhetoric notwithstanding.
Pillar filed a friend-of-the-court (amicus curiae) brief in the case, detailing the serious First Amendment issues in both prosecutions. (In an earlier appeal that overturned David Cary’s conviction we also filed a brief for the Wyoming Liberty Group.) The Carys’ attorney focused on due process, and in light of the ruling by the Supreme Court earlier this year in McDonnell v. United States it is likely that this is a winning argument. But given that the Carys’ appeal is but the latest in a series of egregious cases in Texas over the past few years that pose serious threats to political engagement and speech, including the prosecutions of Majority Leader Tom DeLay and Governor Rick Perry, we believe it is important for the court to consider the First Amendment implications. The goal is for Texas prosecutors to cease bringing such poorly crafted cases in the first place, saving the justice system years of appeals just to recognize constitutional protections.
David Cary served about a year and a half of his 14-year sentence for bribery; Stacy Cary received a lighter sentence but is still under probation and fines. They cannot be made whole again, no matter the ruling from the Court of Criminal Appeals. But others were hurt in related cases. Suzanne Wooten lost her judgeship and her license to practice law in Texas after her trial, a conviction secured under the same dubious theory that convicted the Carys. Overturning the Carys’ convictions may allow her to practice law again.
In any event, appellate courts should not sit on important decisions. Governor Perry’s appeal was heard about the same time as the Carys’, and the court issued its ruling months ago. Outside of the Dallas area, the Carys’ case has received little notice, but it is just as important that political speech cases involving regular citizens receive the scrutiny given to those brought against established politicos. Hopefully a decision will come soon, and one that gives rightful rebuke to dangerous circumventions of due process and free speech.