Corndogs are not subject to double jeopardy
The special prosecutor in the abuse-of-power case against Rick Perry said Thursday he still hasn’t decided whether to drop the matter a week after the state’s highest criminal court ordered that the indictment against the former governor be dismissed.
Special prosecutor Michael McCrum of San Antonio said he and his co-counsel, David Gonzalez, “are looking into it, because we owe that to the people of this State, and because we just witnessed an activist court create new law for a public official indicted for public corruption. So, we must take time to carefully review this.
“As expressed by the judge’s dissent filed this week, however, the (high) court’s opinion offers little, if any, direction to the district court on how to react to this new law. So, we owe it to the people to be careful and prudent as to how we respond,” McCrum said.
The Texas Court of Criminal Appeals ordered the indictment to be dismissed last week in a decision by Presiding Judge Sharon Keller, who said the charge violated the constitutional separation of powers because it stemmed from a Perry veto — an executive power.
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The state had said — and lower courts agreed — that it was too early in the case to address Perry’s arguments against another charge alleging abuse of official capacity, saying according to precedent, that only could occur after evidence was heard at a trial.
That’s because Perry’s arguments in general said the abuse-of-power law was unconstitutional as applied to his circumstances.
Keller’s opinion, however, put Perry’s separation-of-powers complaint in the same special category as claims against double jeopardy — being tried twice for the same crime.
Such claims are allowed to be raised before trial “because the rights underlying those claims would be effectively undermined if not vindicated before trial,” Keller wrote.
In Perry’s case, she wrote, “When the only act that is being prosecuted is a veto, then the prosecution itself violates separation of powers.”
Her opinion ordered the indictment dismissed, an outcome joined by five other justices on the nine-member court and opposed by two.
See here for the background. McCrum hasn’t said what his next step might be, and it’s not clear to me that there is one other than finishing up the paperwork. I’m not a lawyer, though, so maybe there is still a rabbit in the hat somewhere. I think the CCA got this decision wrong, but like it or not they are the end of the line. At some point we need to accept that and move on.