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Rick Perry Indictment Stands—Again

Rick Perry Indictment Stands—Again

Another day, another roadblock

Rick Perry may have had a successful political weekend in Iowa, but when it comes to legal issues, the former Texas Governor’s troubles are just as real as ever.

Last year, a grand jury indicted Governor Perry on two felony counts over abuse of power allegations; since then, Perry and his legal team have made several futile attempts to convince a judge to dismiss the indictment—and they just lost another round, meaning that for the time being, the indictment stands, and the criminal case will be allowed to drag on.

From the Austin-American Statesman:

The ruling by Judge Bert Richardson, a San Antonio Republican, comes five months after Perry’s attorneys filed the writ of habeas corpus, a sign of the slow speed at which the case is churning through the criminal justice system. Immediately after the ruling, Perry’s attorneys filed formal documents appealing the ruling to the Austin-based 3rd Court of Appeals, a process that could take several months and stall possible resolution of the case.

Attorneys for Perry, who as of last month had spent $1 million in campaign money for his defense, had said in the request that Richardson should dismiss the charge and largely cited “Constitutional grounds.”

The petition contended the “Texas Constitution imposes no limits on the governor’s right and duty to veto; he exercises unbounded discretion in exercising his veto power, subject only to the Legislature’s right to override that veto,” among many other claims.

They also said the prosecution threatens to violate Constitutional separation of powers and said that Perry, in vetoing the money, was acting in his legislative capacity.

“Nothing in the Texas Constitution or law permits the judicial department to scrutinize Gov. Perry’s legal decision,” the September filing said.

Special prosecutor Michael McCrum replied in a written response that a jury should weigh evidence against Perry.

“The defendant argues he did not break the law. The state alleges he did. This is precisely why the justice system exists: to resolve these types of disputes,” McCrum told Richardson in a November filing.

Same story, different ruling.

Perry hasn’t let his legal troubles get in the way of his presidential aspirations. I wrote previously about how having Perry in the 2016 mix has actually raised the bar for other candidates:

Balance is key to building a foundational voter base, and Perry has it in spades. From his commitment to job growth, to his focus on implementing diversion programs for non-violent drug offenders, Perry has done a great deal of work over the past few years convincing people that, while talking points make for snappy Facebook posts, the real red meat comes from governing.

Still, Republicans enjoy the deepest bench they’ve had in at least two cycles, so an eventual Perry/[Choose Your Own Adventure] ticket isn’t anywhere near a certainty. But for now, conservatives should take comfort in knowing that at least one candidate circling the ring knows how to win friends and govern his way to success.

Could this indictment get in the way of a successful campaign? Absolutely. But for now, Perry’s team is doing a good job playing media ninja with what would probably have been a career-ending scandal for a lesser figurehead.

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Comments

I don’t get the charge. Even if everything the prosecution said was true, its still not a crime. There’s nothing for a jury to consider.

    Milhouse in reply to imfine. | January 29, 2015 at 12:47 am

    One problem the judge pointed out is that the charge says Perry misused public property, but it doesn’t say how. Without knowing what he’s specifically supposed to have done, the judge can’t rule on whether it would be illegal. And since the defense didn’t challenge this point, he can’t order the prosecution to rewrite it. That’s a gold-plated invitation to the defense to make the challenge, so he can make the order, and then see what the prosecution comes up with.

    retire05 in reply to imfine. | January 29, 2015 at 11:18 am

    The rule allowing the Travis County District Attorney’s office to hold oversight privileges over all Texas politicians came out of a Legislature that was Democrat held and under a Democrat Governor. It has never been changed, although it should have been. Hopefully, since the Ledge is now in session, and under Republican control, it will be.

    Also, Rosemary Lehmberg, the evil spawn of Ronnie Earle, should have been removed from office when she was convicted of drunk driving. Remember, it was Ronnie Earle that went after Senator Kay Bailey Hutchison, not once but twice, and drug Tom DeLay through 9 years of litigation, only to have DeLay’s conviction overturned by the Texas Supreme Court.

    Lehmberg is a classic example of a “D”; drunk, disorderly, disruptive, disgraceful, disrespectful and Democrat.

    Here is the law that should have applied to Lehmberg:

    LOCAL GOVERNMENT CODE

    TITLE 3. ORGANIZATION OF COUNTY GOVERNMENT

    SUBTITLE B. COMMISSIONERS COURT AND COUNTY OFFICERS

    CHAPTER 87. REMOVAL OF COUNTY OFFICERS FROM OFFICE; FILLING OF VACANCIES

    SUBCHAPTER A. GENERAL PROVISIONS

    Sec. 87.001. NO REMOVAL FOR PRIOR ACTION. An officer may not be removed under this chapter for an act the officer committed before election to office.

    Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.

    SUBCHAPTER B. REMOVAL BY PETITION AND TRIAL

    Sec. 87.011. DEFINITIONS. In this subchapter:

    (1) “District attorney” includes a criminal district attorney.

    (2) “Incompetency” means:

    (A) gross ignorance of official duties;

    (B) gross carelessness in the discharge of those duties; or

    (C) unfitness or inability to promptly and properly discharge official duties because of a serious physical or mental defect that did not exist at the time of the officer’s election.

    (3) “Official misconduct” means intentional, unlawful behavior relating to official duties by an officer entrusted with the administration of justice or the execution of the law. The term includes an intentional or corrupt failure, refusal, or neglect of an officer to perform a duty imposed on the officer by law.

    Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.

    Sec. 87.012. OFFICERS SUBJECT TO REMOVAL. The district judge may, under this subchapter, remove from office:

    (1) a district attorney;

    (2) a county attorney;

    (3) a county judge;

    (4) a county commissioner;

    (5) a county clerk;

    (6) a district clerk;

    (7) a district and county clerk;

    (8) a county treasurer;

    (9) a sheriff;

    (10) a county surveyor;

    (11) a county tax assessor-collector;

    (12) a constable;

    (13) a justice of the peace;

    (14) a member of the board of trustees of an independent school district; and

    (15) a county officer, not otherwise named by this section, whose office is created under the constitution or other law of this state.

    Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.

    Amended by:

    Acts 2009, 81st Leg., R.S., Ch. 37 (H.B. 328), Sec. 4, eff. May 19, 2009.

    Acts 2013, 83rd Leg., R.S., Ch. 508 (S.B. 122), Sec. 1, eff. June 14, 2013.

    Sec. 87.013. GENERAL GROUNDS FOR REMOVAL. (a) An officer may be removed for:

    (1) incompetency;

    (2) official misconduct; or

    (3) intoxication on or off duty caused by drinking an alcoholic beverage.

    (b) Intoxication is not a ground for removal if it appears at the trial that the intoxication was caused by drinking an alcoholic beverage on the direction and prescription of a licensed physician practicing in this state.

    Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.

    The fact that Lehmberg was not removed shows the absolute corruption of the Travis County’s DA’s office and the sway the Democrat Party of Travis County holds.

      Ragspierre in reply to retire05. | January 29, 2015 at 11:25 am

      Just one minor tick, retire.

      The Texas Court Of Criminal Appeals reversed DeLay’s conviction. Texas Supremes only review civil matters.

        retire05 in reply to Ragspierre. | January 29, 2015 at 11:55 am

        While you are correct, it is moot. It doesn’t matter which higher court overturned the original verdict. What matters is that a) a good man’s career was destroyed by an evil DA and b) the lower court decision was overturned, exonerating DeLay.

        Texans need to ask the question; why wasn’t Lehmberg held to state statute standards? Why wasn’t she removed from office once convicted of drunk driving. Another Democrat comes to mind, Gonzalo Barrientos, who wrote the Texas drunk driving laws and was arrested, not once, but twice, for drunk driving and resisting arrest. In my own county, a County Commissioner was removed from office after being arrested for drunk driving by the DPS.

        Holding elected officials to the standards applied to them by state law should be mandatory.

      sequester in reply to retire05. | January 29, 2015 at 6:20 pm

      By vesting oversight of State elected officials in a officer elected only by Travis County voters, the State of Texas may be in violation of the Equal Protection Clause of the 14th Amendment and the Voting Rights Act.

      Why should only Travis County voters get to choose who oversees State Officials.

      An action filed in a more conservative area of Texas would be very interesting to see.

“Texas law clearly precludes a trial court from making a pretrial determination regarding the constitutionality of a state penal or criminal procedural statute as the statue applies to a particular defendant.”
—via Policico

And that may be the whole deal. That ruling may be the only one the trial judge could make.

    I’m not sure that I buy that explanation.

    Basically it outright says that a Judge, acting in his capacity as Judge at the Trial Level, cannot make a determination of the Constitutionality of a Criminal Statute at anything other than a Trial?

    So, if my client is charged with a crime, if I file a Constitutional Challenge to a criminal statute that the Legislature passed in direct contravention to the Texas Constitution, I am unable to challenge it except at “Trial on the Merits?” What, do we bifurcate the trial into a “Constitutional” claim, followed by a “guilt-or-innocence” portion IF AND ONLY IF the State’s charge survives Constitutional scrutiny? That seems VERY inefficient.

    No. Judges under the Texas Constitution have more inherent authority than that (even though they rarely exercise it). That’s the point of the appeal’s system for pre-trial, interlocutory motions, to resolve challenges like that in ADVANCE, so that the Jury knows what the law IS (or at least can be told by the lawyers with some degree of certainty), and to be able to judge if an individual Defendant committed the acts and had the mental state necessary to violate said law.

    Without that certainty as to what actually constitutes a violation, or at least a standard of care, the whole system devolves into a pattern of a guessing game, which can never rise to the level of “Beyond a Reasonable Doubt”

      Outright challenges to a statute can be heard before trial. But “as applied” challenges can’t be. That’s Texas law, whether you like it or not.

        Could you pass along a citation? That seems like the kind of thing that the TCCA would be loathe to do, simply because of the increased workload that it would create upon the Courts of Appeals.

    DaveGinOly in reply to Ragspierre. | January 29, 2015 at 1:42 am

    If what Politico said is correct/accurate, then there’s a problem – they’re discussing a statute that applies only to procedure, not to the nature of the criminal statutes themselves and how they may, or may not, apply to certain defendants. Perry’s team is arguing that there is no crime (no violation of a penal statute) to try, not that there is a procedural problem per se. Politico may be wrong when it used the term “procedural statute,” but for its argument to work, they should have said, “Texas law clearly precludes a trial court from making a pretrial determination regarding the constitutionality of a state penal or criminal statute as the statue applies to a particular defendant.”

    Even if this were true, that’s not the sole argument made by Perry’s people. They have raised constitutional issues, yes, but they’ve also raised issues about the applicability of the statute based on an argument that no crime was committed. Even if those arguments are grounded in an argument concerning a governor’s constitutional authority, that’s not a challenge to the “constitutionality of a state penal or criminal statute,” it’s a challenge to the applicability of the statute to the defendant’s acts merely with regard to his constitutional authority. The defense isn’t claiming the statute is unconstitutional, they’re claiming it’s being applied improperly against someone who is constitutionally empowered to do exactly what he did.

    Ragspierre in reply to Ragspierre. | January 29, 2015 at 12:12 pm

    http://patterico.com/2015/01/28/analysis-of-the-judges-refusal-to-dismiss-the-rick-perry-indictment/

    My reference above was to Patterico, not Politico. My names curse, you see.

    Dunno if Patterico’s analysis moves the chip forward, as he admits to not understanding Texas criminal procedure. I know I don’t, being a civil law guy.

Prosecutor getting an indictment is a “dog-bites-man” story. Courts very rarely dismiss at this stage–it’s not like they get to go on vacation or something, the judicial system is in place precisely to consume resources in such endeavors.

Maybe indictment against Perry is balance against NY Gov. Cuomo’s impending vacation at Club Fed? 🙂

–Andrew, @LawSelfDefense

Karen Sacandy | January 28, 2015 at 7:59 pm

This is a specious case. They are out of control in Texas with these revenge prosecutions.

Without reading Texas law (I practice law in Georgia), under the general principles of constitutional law with which I am familiar, this should be thrown out, and the prosecutor severely admonished by the judge.

This should have NEVER been taken to a grand jury. Never.

This is sheer character assassination, made out of whole cloth.

I have not read the judge’s ruling, but a pre-trial writ of habeas corpus in Texas is a rather extraordinary, uncommon thing. It might be used, for example, if a statute is clearly unconstitutional on its face. If I had to guess, the judge held that it was just not the appropriate remedy.

Everybody knows this prosecution will ultimately fail. It should be thrown out before trial by the trial judge. But even if it goes to trial, and even if 12 Travis County idiots return a guilty verdict, and even if it survives the first appeals court, I would bet my house that it would be tossed by the Court of Criminal Appeals (the final court of appeal in criminal cases.)

But of course, a conviction is not the goal. It is a petty, vindictive prosecution meant to cause expense, inconvenience, political damage and embarrassment to Perry. In that, it will have been a success.

First, can we get a link to the actual decisions? I would like to read them for myself.

Second, I have seen exactly one comment on the internet from someone who appears to be both a lawyer, and to have actually read the decisions. He pretty strongly suggested that the decisions were more favorable to Perry than how they are being characterized in the media.

He basically suggested that the judge required the prosecutor to file an amended complaint, and then suggested Perry’s attorneys could renew their motion–and that he might grant it–once that happened. The judge also reportedly specifically reserved ruling on Perry’s 1st amendment claims, which I think as to the one count is his strongest claim.

Of course, this is just hearsay. Which is why I would like to read the actual decisions (and not just some ill-educated partisan media hack’s characterization of them) for myself.

Here is the link I was looking for: http://www.mysanantonio.com/file/984/984-perry%20ruling.PDF

I have read the decision. It is significantly more favorable to Perry than is being reported. However, it is not quite as described above.

When I get a chance, I may summarize the decisions in another post.

legacyrepublican | January 28, 2015 at 10:45 pm

If I am reading this correctly, Perry has been charged with using his office to harm another official.

I think it is important to recognize that this official discredited herself. She showed willingness to harm law enforcement through the use of her office and her connections.

The real facts of the case are that if Perry has been charged, why hasn’t the drunk DA been charged also.

It think that this is selective prosecution. In prosecuting the case against Perry, the prosecutor is in a way guilty of the very crime he is charging Perry with.

So, why doesn’t one of the other counties have a grand jury investigation of the prosecutor?

Now that would be interesting.

A democRAT prosecutor indicting a GOP candidate is a sign the GOP candidate is a winner.

On the other hand, consider the democRAT’s favorite GOP candidate, Boehner — a compliant loser.

Anyone taking odds that this one will or won’t be prosecuted?
http://www.al.com/news/birmingham/index.ssf/2015/01/alabamas_first_openly_gay_legi.html

She’s attempting to influence public officials concerning a policy issue with outright blackmail.

I don’t know anything about law, but this doesn’t seem to be about law. There needs to be repercussions for this kind of BS to make people think twice about filing crap like this on taxpayer’s dollars. If you have unlimited money, no accountability, and no ethical compass, this is what happens.

I’m with wisewords on this one, having read the judge’s opinion. There are two counts – a felony and a misdemeanor. The judge has no authority to dismiss either in a pretrial habeas action for being unconstitutional as applied, and put in bold letters that his hands were tied.

As to the felony count, the prosecution alleged in the charging instrument that Gov. Perry misused property and specified what property (the appropriation), but never stated what action Gov. Perry did that was supposed to be a misuse. However, Gov. Perry never challenged the failure to specify the action that was the alleged misuse, but instead assumed that the alleged wrongful action was the veto, then argued that a veto was constitutional. The court could not consider the constitutional challenge as applied, but seemed to leave the door wide open to challenge the charging instrument as defective (or for the prosecution to amend the charging instrument). If the prosecution does not amend the charging instrument, then that challenge will have to wait for trial. If it does amend, then there may be another bite at the apple for the Governor on that point, but that defect will probably have been corrected by the amendment, so there would not be any relief for that reason. If the Governor had raised a challenge, the pretrial remedy would likely just have been to allow the prosecution to amend the charging instrument anyway, not a dismissal.

As to the misdemeanor count, the court noted that there was an exception to the statute for members of a governing body. The prosecution stated in the charging instrument that Gov. Perry and DA Lemberg were not members of the same governing body, but the court ruled that was not a proper negation of the exception. He gave the prosecution leave to amend the charging instrument to negate the exception, but as I read the statute, Gov. Perry falls well within the exception if it applies to a member of any governing body. Therefore, if it does not apply only to members of the same governing body, the misdemeanor count cannot stand and the prosecution will have to dismiss it. I do not see the prosecution appealing this point as an interlocutory pretrial appeal. That means, I predict, that the prosecution is going to have to drop the misdemeanor count.

So they will probably amend the defective charging instrument as to the felony count by specifying that the veto was the wrongful action, then after presentation of evidence by the prosecution at trial, Gov. Perry will move to dismiss on Constitutional grounds (technically, for failure to state a crime, even assuming the prosecution’s evidence) and the motion will be granted.

Is that how you see it, wisewords?

2nd Ammendment Mother | January 29, 2015 at 11:30 am

IMHO… you solve a lot of this by relocating the public integrity unit to a more geographically interesting county in Texas. Let’s pick “Winkler”. No tv cameras, no airports, no malls, and no fancy eateries – I’m not even sure they have a Starbucks. I’ve got nothing against bringing public integrity cases, but I’m guessing the less hospitable the accommodations, the more likely that cases don’t get strung out for years just to keep a pol on the sidelines and bankrupt them along the way.

Oh…. and the case against Perry is obvious BS.

Is everybody in Texas an outlaw?

The real story here is the willingness of the left to put innocents in jail on bogus charges over politics. They would commit murder in their quest for communist domination over the rest of us.

Ropes and lampposts may be all that is left someday. I think someday is a lot sooner than later.

The progressive fascists are using the law as a political weapon with bogus charges being used to defeat the political enemies. That’s what they did to Alaskan Senator Stevens and that’s what their attempting to do to Governor Perry. The Republicans are too honest to fight back against the progressive fascists politicians such as Hillary Clinton the Lying Incompetent. She should be charged with murder by depraved indifference for denying our people in Benghazi any effective security.

    Barry in reply to ConradCA. | January 30, 2015 at 2:09 am

    “The Republicans are too ,honest pussie to fight back against the progressive fascists politicians such as Hillary Clinton the Lying Incompetent.”

    Fixed it for you, Conrad. Honesty has nothing to do with it…

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