We have it in Texas already. We have it in Texas for cases that are outside the Penal Code, basically. It was just applied in the Tom DeLay case, okay, in which the Court of Criminal Appeals used it to interpret a statute 180 degrees differently than the Texas Supreme Court interpreted the same statute in the Elections Code. And the Court of Criminal Appeals applied it because it was a crime outside the Penal Code. And the result is, they said the tie went to the defendant in that case rather than in the Texas Supreme Court case, then-Justice Abbott had found that someone could sue under the same Elections Code provision, and it all had to do with mens rea.Shannon said the rule of lenity is an "obscure legal issue" that "egghead appellate lawyers" argue about in court after the fact and that existing statutory construction case law covers what Levin wants done. He cautioned specifically against applying the rule of lenity to penal code offenses. Elizabeth Henneke from the Texas Criminal Justice Coalition followed Edmonds and offered effective, lawyerly counterpoints to his position, for those interested in the specifics. See her written testimony.
Grits emailed DeLay's attorney, Brian Wice, to ask his opinion of Shannon's comments. He responded:
His comments about the rule of lenity being "an obscure legal issue" marginalize a tenet of the criminal law that is a fail-safe mechanism in cases such as DeLay where prosecutors were permitted to manufacture an illegal act out of a series of perfectly legal ones and to not merely prosecute Mr. DeLay but to turn his life upside town for almost a decade before the CCA put an end to their legally bankrupt persecutorial ploy.You can listen to the hearing here. The discussion of the rule of lenity is the first item, with Edmonds comments on the topic coming at the 49 minute mark and Henneke following after him.
And his half-hearted snarky remark about "eggheaded appellate lawyers" was, simply put, bush league. He can say what he wants. At the end of the day, the vote in DeLay was an 8-1 smack-down against the good folks he shills for. He can have the soapbox. We got scoreboard.