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Bert Richardson

Sonia Cacy

A long-time-coming story of actual innocence.

A judge has ruled that Sonia Cacy, a West Texas woman convicted of setting her uncle on fire, is innocent of murder, basing his decision on new analysis of evidence presented at her 1993 trial.

“The cumulation of evidence supports Applicant’s claim of actual innocence,” visiting state District Judge Bert Richardson said in his ruling, filed Monday in Pecos County. “This court finds that Applicant makes a compelling case for actual innocence, given the overwhelming evidence.”

[…]

Cacy had served five years of a 99-year murder sentence for the 1991 death of her uncle, Bill Richardson. The two were living in his Fort Stockton home when it caught fire. Prosecutors said Cacy had set her uncle on fire, also burning the home, to get the money he left to her in his will.

But multiple experts — including the State Fire Marshal’s office — concluded that Cacy did not set her uncle ablaze. Some suspected that Richardson, a smoker, likely died of a heart attack and that the fire was accidental. Cacy was released on parole after The Texas Board of Pardons and Paroles received one of the reports, but her conviction was never lifted. The Pecos County District Attorney and the Bexar County medical examiner’s office had stood by the original investigation results.

Judge Richardson’s ruling was largely based on a 2013 state Fire Marshal’s Office report that discredited trial testimony that there was an accelerant found at the crime scene.

“The findings of the State Fire Marshal’s Office — a state organized and endorsed office — are the strongest evidence that no accelerant was present and that Bill Richardson likely died of a heart attack before being burned,” Judge Richardson wrote in a ruling that comes two years after Richardson first heard Cacy’s petition for relief in Fort Stockton.

I have to admit, this story is not one I was familiar with. The link in the quoted bit above is to a Trib story from 2010, but it goes back much farther than that. Texas Monthly adds some details to what happened this week.

Cacy’s journey through the legal system has been long, winding, and complicated. During at punishment retrial in 1996, her new attorney enlisted Dr. Gerald Hurst, the late Cambridge-educated chemist from Austin, to evaluate the forensic evidence that clinched conviction against her. Hurst discovered that the original tests, conducted by Joe Castorena of the Bexar County Forensics Lab, had been completely misread. The results didn’t find the indicators of an accelerant as he claimed. Castorena, a toxicologist by training, had in fact identified the products of pyrolysis—compounds created by burning plastic, which in many ways are similar to those of an accelerant.

Hurst was convinced these compounds came from rubberized curtains and a polyurethane foam mattress, both of which were found burned at the crime scene. Cacy’s uncle was a chain smoker who was notoriously careless with lit cigarettes, one of the most common causes of household fires. Yet in spite of the evidence, a jury affirmed Cacy’s conviction in 1996 and re-sentenced her to life in prison.

By 1998, Hurst had become obsessed with the case, and had enlisted a panel of at least a dozen respected arson experts and pathologists, all of whom concluded that the fire was accidental, and that Richardson—a man of poor health—had died of a heart attack, possibly while attempting to extinguish the flames. The Board of Pardon and Paroles was moved by the reports and promptly released Cacy that year. Now, they would go about the work of establishing her innocence.

Her attorneys filed a complaint with the Texas Forensic Science Commission in 2010, but they could not have encountered a more unsympathetic audience; the commission’s presiding officer, John Bradley, was the law-and-order Williamson County district attorney who spent years opposing DNA testing in the Michael Morton case, testing that later cleared Morton of the murder of his wife. Bradley petitioned then-state attorney general Greg Abbott for a legal opinion preventing the commission from reviewing Cacy’s case. Abbott delivered, opining that any cases prior to the formation of the commission in 2005 were out of bounds—namely Cacy’s.

Her attorneys turned to the newly reformed State Fire Marshal’s Office, whose scientific advisory panel conducted a lengthy examination of the case and concluded that there was no evidence of arson. Cacy took the report to the Texas Court of Criminal Appeals in 2012, along with some shocking new evidence: Castorena, the toxicologist, admitted in a letter to her counsel, Dallas lawyer Gary Udashen, that the clothing samples he’d tested had been contaminated in either the morgue or the lab. Thus, his baffling reasoning went, anyone who didn’t know about the contamination couldn’t accurately interpret the results. Asked why he never reported this, Castorena replied, “nobody asked me.”

It gets more ridiculous from there. Texas Monthly has three other stories about the history of the case, which as the second one notes was one of the driving forces in reforming how fire investigations are done in Texas and why old arson cases are being reviewed to see which ones relied on bogus, outdated investigative techniques. It’s a little jolting to see John Bradley’s name pop up in this discussion, but hardly surprising. And please, can we scrub the descriptor “law-and-order” from stories involving Bradley? We know full well by now that he was the opposite of “law-and-order” – he was an unscrupulous liar who worked tirelessly to keep innocent people in jail. The adjectives he deserves are all some variation on “disgraced”. Anyway, click on all the links and learn more about Sonia Cacy and how terribly wronged she was by the justice system. The fact that this wrong is finally being made right doesn’t change any of what happened in the past.

Case against Rick Perry officially dismissed

So there you have it.

Corndogs make bad news go down easier

Justice for corndogs

The criminal case against former Gov. Rick Perry was officially dismissed on Wednesday, weeks after Texas’ highest criminal court ordered that it be dropped.

Judge Bert Richardson, who presided over the case in Travis County and now serves on the Texas Court of Criminal Appeals, signed an order dismissing the abuse of power indictment related to a 2013 veto threat.

[…]

Michael McCrum, the special prosecutor in the case, said he still believed that Perry committed a crime — and had drafted and printed copies of a motion for an amended indictment. But on Tuesday afternoon, he decided to halt the effort, saying the high court’s ruling had “muddied” the criminal statute at issue.

“It was our position, and our feeling that the law had been so muddied that it was not the just thing to do with any citizen,” he said.

See here and here for the background. The Express News adds on.

Perry’s lead lawyer, Anthony Buzbee, suggested he might take action to hold the appointed prosecutor, Michael McCrum, accountable for what he called an improper pursuit of the case. As he told the Express-News previously, Buzbee said Wednesday he would seek a transcript of grand jury proceedings.

“We feel like Mr. McCrum must have said some things that are probably actionable to that grand jury based on the people that we know testified and the facts as we know them and we’re going to explore that,” Buzbee told reporters after the hearing where Judge Bert Richardson signed the dismissal order.

Buzbee didn’t say exactly what action he’d seek but mentioned there are professional responsibility rules for lawyers.

McCrum said that the law doesn’t allow the release of grand jury transcripts because it’s important to protect the integrity of the process and ensure evidence is fairly reviewed. In the process, he took aim at Buzbee, a prominent Houston trial lawyer with a history of handing high-profile injury cases yielding big awards to clients.

“The law guards the confidentiality of those proceedings very, very much for good reason,” McCrum said.”Mr. Buzbee should know that. I don’t know – he handles snake bite and car wreck cases.”

McCrum said he didn’t decide against trying to resurrect the case until late Tuesday because he believes Perry committed a crime.

“We believe that he did. Strongly believe that,” McCrum said.

But the Texas Court of Criminal Appeals ordered the case dismissed in February and in doing so, McCrum said, “so muddied the law” that he didn’t think it would be the right thing to do.

Perry’s legal team defended his actions and Buzbee said took issue with “the stuff that came out of his (McCrum’s) mouth.”

“If the law doesn’t support a crime was committed, then you don’t prosecute, period. That’s how it works,” Buzbee sad. “This has all been a colossal waste of time.

The presiding judge in the case, Richardson, said the case “has not been a pleasant experience for me either.” He said he felt like a “punching bag.”

“I didn’t ask for this job and I didn’t want it,” he said, pointing out that he was running for the Texas Court of Criminal Appeals while presiding over the case.

I feel for Judge Richardson, who I thought did a fine job with this mess. I still think what Perry did was wrong and that he was handed a gift by the CCA, one that would not be available to other mortal defendants, but it is what it is at this point. I don’t really believe that Buzbee will pursue a complaint against McCrum, but at this point nothing would surprise me. Go ahead and start cashing in on that sweet wingnut gravy train, Rick Perry. It is your due.

CCA dismisses remaining charge against Rick Perry

This would appear to be the end of the road.

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Corndogs for everyone!

The state’s highest criminal court dismissed the remaining indictment against former Gov. Rick Perry on Wednesday morning, apparently ending the case that started with his threat to veto state funding for a local prosecutor if she refused to quit her office.

[…]

A ruling earlier in the year by a state appeals court dismissed one of the two felony charges against Perry: coercion of a public servant. Perry’s lawyers challenged that decision, arguing that the Austin-based 3rd Court of Appeals should have also dismissed the abuse-of-power charge.

And that’s what the Texas Court of Criminal Appeals did on Wednesday. Two of the court’s nine judges dissented in that one ruling, while one abstained.

Tony Buzbee, Perry’s attorney, called the ruling a “long time coming,” and said the case should have never been brought in the first place.

“I said all along this case was foolishness and would be dismissed.”

Michael McCrum, the special prosecutor in the case, called the ruling “horrendous.”

“This is a situation where the Republican court carved out a special ruling to get Perry off the hook. It changes law for past decades and offers no laws for future courts to follow,” he said. “This is, from what I understand, a special ruling tailor-made for Rick Perry.”

Craig McDonald, executive director of Texans for Public Justice, the liberal-leaning watchdog group behind a complaint that led to the indictment, largely echoed that notion.

“A highly partisan court has handed Rick Perry a gift,” he said. “This decision is based on who Perry is rather than what he did.”

You could sort of see this coming when the case was argued last November, but it’s still a bit of a surprise. Clearly, there are limits to how pro-prosecutor this court will be, and Rick Perry joins Tom DeLay in being beneficiaries of that. I don’t feel like spending too much time thinking about it, so I will point you to the Associated Press, the AusChron, Trail Blazers, the Current, and the Press for more.

Perry’s day at the CCA

Now we wait to see if he comes out of this a free man or a man still under one or more indictments.

Corndogs make bad news go down easier

Never mind the corndogs, here comes the CCA

Lawyers for former Gov. Rick Perry fought Wednesday before the highest criminal court in Texas to finish off the 15-month-old indictment against him, while prosecutors argued it was far too early to let Perry off the hook.

At a critical two-hour hearing before the Texas Court of Criminal Appeals, both sides fielded a slew of hypothetical scenarios and skeptical questions as they tackled a ruling by a lower court earlier this year that dismissed one of the two felony charges against Perry, coercion of a public servant.

[…]

Two issues were at play Wednesday. One was whether the remaining charge, abuse of power, should also be thrown out, effectively ending the 15-month-old case against Perry. The other issue was whether a statute should be reinstated that was struck down by the Austin-based 3rd Court of Appeals in July when it dismissed the coercion charge.

Eight judges listened as those issues were aired out in hour-long blocks split between David Botsford, the lead attorney on Perry’s appeal, and State Prosecuting Attorney Lisa McMinn. Judge Bert Richardson, who oversaw Perry’s case as a district judge and now sits on the Court of Criminal Appeals, did not take part in the Wednesday arguments.

As Perry’s legal team has done from the get-go, Botsford cast the case as having serious implications for First Amendment rights and a chilling effect on elected officials down the line. The indictment, he said, violates three principles to which Perry was entitled as Texas’ longest-serving governor: separation of powers, free speech and legislative immunity.

“The danger of allowing a prosecutor to do this is mind-boggling,” Botsford said as he sought to convince the eight judges present for the arguments that they should immediately end the indictment.

McMinn argued more than once that the defense was “getting ahead of ourselves” with its discussion of dispensing with the indictment before trial, insisting that not all the facts are out. Botsford later countered that such disclosure is not required for the court to dismiss the remaining charge. The questions before the judges, Botsford said, are “issues of law, not issues of fact.”

McMinn specifically sought to poke holes in Botsford’s argument that Perry had legislative immunity because vetoes are legislative acts, an argument she said “strains credibility” when one considers, for example, a member of the Legislature cannot take the same action. In his remarks, Botsford argued Perry was clearly “wearing his legislative hat” and thus protected from prosecution, regardless of any threats that may have accompanied his veto.

This hearing was originally scheduled for November 4, but you know how it goes. What happens next is we wait. The CCA justices (minus Bert Richardson, who is of course the judge in the actual criminal trial) asked more questions of McMinn than of Botsford, but who knows if that means anything. The trial is on hold pending a resolution of these issues by the CCA, so one hopes we won’t have to wait too long. See Trailblazers, the Express-News, and this Trib story for more from before the hearing.

CCA will hear appeals of Perry’s indictments

It’s on.

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The Texas Court of Criminal Appeals on Wednesday granted requests by both Perry and the Office of the State Prosecuting Attorney to determine whether the indictment against Perry should stand. The court set oral arguments for Nov. 4.

[…]

Each side has until Oct. 21 to file briefs with the Texas Court of Criminal Appeals, which said it would not consider any requests for more time. Perry’s lawyers had pressed for an even more compressed timeline, asking the court to skip oral arguments altogether.

The Wednesday ruling is the first major development in the case since Perry dropped out of the 2016 presidential race last month. He has since cited the indictment as a reason his second bid for the White House never gained traction.

See here, here, and here for the background. This is what we’ve waited for, and now we’re going to get it. Note that one of the appeals is to have the indictment that had been tossed by the Third Circuit be reinstated, so there’s risk as well as reward for Perry. He could be cleared, he could wind up back at square one, or he could remain where he is. I can’t wait to see the briefs. Trail Blazers and the Current have more.

Perry’s pathetic pity party

There isn’t a violin small enough.

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At least the corndogs still love me

Rick Perry blamed his criminal indictment and exclusion from the Republican debate mainstage for his failed presidential bid in his first interview since suspending his presidential campaign on Friday.

“The indictment by the Travis County district attorney’s office, this drunk DA that had used this office, we think, for political purposes… it had a real corrosive effect on our ability to raise money,” he said on Fox News’ “Hannity.”

“The political opponents, they did their damage,” he later added of his legal problems.

But Perry also said his campaign effectively ended in early August, when he missed the cut for the Fox News GOP debate in Cleveland.

“The other thing that we knew had to happen was we needed to be on the main debate on Aug. 6,” he said. “We missed it by a few percentages of one point… It had a very negative impact on our fundraising through the summer.”

Poor baby. I was going to get all huffy about this, but Ross Ramsey saved me the effort:

Baloney.

Perry was indicted by a special prosecutor appointed by a Republican from San Antonio on charges related to his veto of state funding for Travis County’s public integrity unit — the part of the district attorney’s office that handles, among other things, ethical and other misdeeds of state officeholders. The then-governor had demanded the resignation of Rosemary Lehmberg, who was arrested for drunken driving and then spent a few days in jail after pleading guilty. But she didn’t resign then and didn’t quit when Perry demanded it. He vetoed the funding. The special prosecutor took that to a grand jury, which indicted Perry on charges that he misused his official powers.

The only overtly political thing about the indictments is the defendant himself, who has spent the last 30 years in one political office or another. It’s natural for him to attack his attackers, and putting it off as politics is the textbook response for someone in Perry’s position.

He goes on from there, and it’s all well deserved, but this is the point I wanted to make. Perry can whine all he wants about Rosemary Lehmberg. She had absolutely nothing to do with his current legal woes, other than being a focal point for his abuse of power. Perry may well eventually beat the rap, but he has no one but himself to blame for his predicament.

He also doesn’t understand his own party any more.

In Monday night’s interview, Perry revisited his numerous criticisms of real estate developer Donald Trump, who is leading in the GOP polls. But he also expressed frustration that public service, specifically as governor, is being overlooked on political resumes at a time when outsiders are dominating the polls.

“Donald Trump’s bullets going through Washington went through and hit people like myself, hit people like all the governors that are on the stage, for instance,” he said of his former rival. “I don’t believe this is the only profession in the world where your experience ought to be held against you.”

Dude. Remember that 2010 election? Remember how Republican politicians like you tapped into a deep vein of anger with your own voters, aimed as much at other Republican politicians as at Democrats? Your voters remember it, and they remember how politicians like you pioneered the message – since honed to a sharp edge by the likes of Ted Cruz – that Republican politicians were a spineless bunch of wimps and traitors who had sold them all out. Those same voters now say they want an outsider for President. For someone like Rick Perry to complain about that now is more than a little rich.

CCA gets ready to deal with Rick Perry

The action never stops.

Corndogs make bad news go down easier

Corndogs, nothing but corndogs…

The next move in the felony case against Rick Perry belongs to the state’s highest criminal court, which will decide as early as mid-September whether to accept or reject two appeals in the case.

The Court of Criminal Appeals’ decision could go a long way toward determining whether Perry, indicted by a Travis County grand jury in August 2014, will be tried on a charge of misusing his power as governor, which prosecutors classified as a felony with a maximum term of life in prison, though probation is common for similar white-collar crimes.

A second felony charge, coercion of a public official, was dismissed in July when a lower appeals court declared the coercion law unconstitutional because it violated free-speech rights.

[…]

Perry has asked the Court of Criminal Appeals to dismiss the abuse of power charge, arguing that prosecutors cannot criminalize acts that are protected by the Texas Constitution — particularly freedom of speech and the separation of powers in the branches of government.

In a separate appeal, prosecutors asked the court to reinstate the law barring coercion of a public official, saying free-speech protections don’t apply “when a public servant illegally threatens to do indirectly what he does not have the power to do directly.”

The court could accept one or both appeals, or reject both. The first opportunity to make those decisions will be Monday, when judges will meet behind closed doors for the first time since the court’s new term began Sept. 1.

[…]

[State Prosecuting Attorney Lisa] McMinn has asked the Court of Criminal Appeals to schedule oral arguments in the case, but Perry’s lawyers have requested a ruling based solely on briefs, saying arguments would add an unnecessary delay.

Perry’s legal team also has a motion to dismiss the indictments that is awaiting a ruling by Richardson.

See here and here for the background. I believe this has to do with the other motion that Perry has before Judge Richardson, who as the story notes will not be a part of the appellate hearings in any way, but at this point it’s hard to say. I kind of hope that the CCA will do oral arguments and not just briefs, mostly because I think the issues involved should be fully heard if the court decides they’re worth hearing at all. We’ll know soon enough.

The cloud still hanging over Rick Perry’s head

Ain’t easy running for President when you’re under indictment.

Corndogs make bad news go down easier

A corndog in every deep fat fryer

Yet for all the implications of seeking the White House as a criminal defendant, Thursday’s announcement brings another far less political reminder: The case, quite simply, is still ongoing, unaffected by months of legal bickering and bluster. For Craig McDonald, head of Texans for Public Justice, the group whose complaint sparked the indictment, the judicial slog has been anything but surprising.

“We always thought it wouldn’t go away very quickly, and that still is the case,” said McDonald, who expects the case to continue for at least another year. “He’s not going to be able to remove this yoke from around his neck quickly.”

Perry predicted in February that the charges would be “put behind us, hopefully by the end of March-April timetable.” He also declared at the time the case is “never going to go to trial.”

So far, his lawyers have been successful in heading off a trial — but perhaps not in the ways for which they hoped.

“For nine months the parties have exchanged hundreds of pages of briefs on these issues,” special prosecutor Michael McCrum wrote in a court filing earlier this month. “We are no closer to a resolution.”

[…]

Backed by a high-powered legal team, Perry quickly sought to portray the two charges — abuse of power and coercion of a public servant — as a political witch hunt in the heart of Texas’ most liberal county. Fellow Republicans, including some potential 2016 opponents, rallied to his side, as did less likely supporters such as David Axelrod, a former top adviser to President Obama, and Alan Dershowitz, the famed liberal law professor.

Nowadays, however, the indictment has become more of a headache for Perry than cause célèbre.

Visiting Judge Bert Richardson, a Republican, has done Perry few favors. In November, Richardson refused to dismiss the indictment on procedural grounds. Two months later, he again declined to toss out the case, that time on constitutional grounds. And in February, Richardson denied Perry’s request to see a pretrial list of witnesses who appeared before the grand jury.

At this point, Perry’s best bet is a breakthrough at the 3rd Court of Appeals in Austin, where his lawyers are seeking to reverse Richardson’s second refusal to throw out the case. A ruling is expected any day now, but even it could have an asterisk next to the outcome: One of the justices, Bob Pemberton, used to work for Perry and has so far resisted calls for recusal.

See here for the background. Guess that means Justice Pemberton isn’t going to recuse himself. If the Third Court refuses to come to Perry’s rescue, then I don’t see how anyone can make the “partisan witch hunt” claim with any credibility again. I mean, by that point a Republican judge and an all-Republican panel of appeals court judges will have allowed the charges to stand. It would also greatly undercut the arguments made during this legislative session by Republicans about moving the Public Integrity Unit out of the Travis County DA’s office, not that that would make any difference at this point. If they do let Perry off the hook, then he’ll do a victory dance until we’re all sick of it, and Tom DeLay will crawl out from under a rock to add to the festiveness of it all. One way or the other, it will dominate the news cycle.

Prosecutors respond to latest Team Perry filings

Back and forth, forth and back.

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This corndog has done nothing wrong

The special prosecutor in the case against Rick Perry is asking a judge to deny the former governor’s latest two efforts to quash the indictment against him.

Perry, meanwhile, is once again showcasing a high-profile group of legal scholars who think the case against him should be dismissed.

The two filings by special prosecutor Michael McCrum of San Antonio – and the filing on behalf of Perry by lawyers from Republican and Democratic backgrounds – are the latest moves in a long court dance that has taken place since Perry was indicted last August.

[…]

Perry has maintained that he properly used his veto authority and that the indictment is improper, politically motivated and injurious to free speech and gubernatorial authority.

His high-powered legal team led by Houston lawyer Anthony Buzbee has said that misusing a veto “cannot constitutionally be considered a criminal act” under the statute cited by McCrum, and that McCrum’s effort to fix problems identified in the indictment is “woefully deficient.” Perry’s team also has said the indictment doesn’t give Perry enough notice to defend himself.

McCrum and Austin attorney David M. Gonzalez, who is assisting him in the case, said in a Friday filing that Perry’s third motion to quash the indictment should be denied because the indictment tracks the law, and that Perry doesn’t lack clarity about why he is being prosecuted. They said the matters raised in Perry’s indictment “may be appropriately addressed when evidence has been presented.”

McCrum and Gonzalez said in responding to Perry’s supplemental motion to quash in trial court, “Texas’ highest court for criminal cases has held that the State does not have to lay out its case in the indictment.”

See here and here for the background. The first of the filings mentioned in the third paragraph was filed after the initial ruling by Judge Richardson, which denied his first motions to dismiss but which noted some issues with the indictments. The second filing came after special prosecutor Mike McCrum refiled the charges, in response to the questions Judge Richardson raised. Perry has also filed a motion with the Third Court of Appeals, which is a separate matter. There may be more filings to come – I presume McCrum will respond to the Third Court of Appeals motion if nothing else – and then we wait for rulings. Trail Blazers has more, including a copy of the latest paperwork.

On a side note, it’s interesting that this happened on the same day as the House passing the bill to move the Public Integrity Unit out of the Travis County DA’s office. The Perry indictments have been repeatedly cited as the fulcrum for getting that long-sought legislation through. A bit ironic, given that the action has been driven by a nonpartisan special prosecutor appointed by a Republican judge, but never mind that. At this point, I’d say that if Team Perry succeeds in getting the indictments tossed, that will be a lot of ammunition for the advocates of moving this function elsewhere. If it does go to trial, I don’t know that it changes any of the office-movers’ minds, but it may take some wind out of their sails. We’ll see who if anyone winds up feeling vindicated.

Perry’s lawyers try, try again

The circle of life keeps on keeping on.

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This corndog has done nothing wrong

Lawyers for Rick Perry asked the court on Monday to again end the prosecution of the former governor, saying the indictment is faulty and the actions he took in issuing a veto are allowed by law.

[…]

On Monday, Perry’s team attacked amendments that McCrum had added to the indictments that accuse the former governor of coercion and misuse of public office. The court had found that the initial indictments lacked enough specificity about the facts of the crime.

The defense team attacked the added facts, saying the “were not found by the grand jury.” The lawyers also asserted that Perry’s actions fall under an exception for “coercion.”

The law allows the governor to go back and forth, debate and in effect horse trade with legislators over bills. His lawyers are trying to argue that because his alleged criminal action involved a veto of legislative funds, that he is protected by that exception.

The prosecution is arguing that the person he supposedly coerced is not a legislator and Perry was illegally using his power because what he was attempting to control was an office beyond his scope and not connected to the Legislature.

See here, here, and here for the background, and see here for a copy of Team Perry’s latest motion. I said in my last update that I thought the prosecution was having to get mighty intricate with its explanation for why Perry’s actions were criminal, and that I thought it didn’t bode well for them. It looks like the defense is stretching a bit, too, so maybe their case is stronger than I thought. I’m still concerned that the law in question is enough of a misfit to bring the whole shebang down, but it’s in Judge Richardson’s hands again. At least, I assume it is; there may be more filings to come, and perhaps another hearing. We’ll see. The Trib has more.

McCrum refiles charges against Perry

Here we go again.

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This corndog has done nothing wrong

Former Gov. Rick Perry tried to force out a local district attorney because he wanted to stymie the work of a unit she oversees that investigates public corruption involving state officials, a special prosecutor alleged Friday.

The contention is at odds with Perry’s long-held assertion that he vetoed the funding for the Public Integrity Unit because Travis County District Attorney Rosemary Lehmberg had lost the public’s confidence after a messy drunken-driving arrest.

Perry lawyer Anthony Buzbee of Houston called the contention “total baloney. There is no evidence of that and won’t ever be.”

[…]

“The grand jury’s indictment charges, and the state will prove, that the defendant broke the law in two different ways,” said the filing by McCrum and his assistant, David M. Gonzalez of Austin.

The prosecution said Perry used a lawful power – his veto – “in an unlawful manner and for unlawful purposes,” constituting abuse of office. It said he also conveyed “an illegal threat in a similarly unlawful manner and for unlawful purposes,” constituting coercion of a public servant.

“The state will prove that defendant Perry did not approve of historical and current management decisions regarding the operation of the Public Integrity Unit and therefore wanted to coerce Ms. Lehmberg into resigning her elected position and/or stymie or obstruct the continued operation of the Public Integrity Unit under Ms. Lehmberg’s management,” said the prosecution.

McCrum in the filing said the prosecution will present evidence that Perry “is criminally responsible for the communication to Rosemary Lehmberg that unless she resigned from her official position as elected Travis County district attorney” that Perry would veto the funding.

[…]

[Judge Bert] Richardson in his previous ruling had instructed McCrum to add some wording that was missing from the original indictment, to address an exception in the coercion law for someone who is a member of a governing body taking an official action.

McCrum in his revised filing said Lehmberg and Perry were members of different branches of government, and that Perry’s attempt to influence her wasn’t an official one taken as a member of a governing body.

With regard to the abuse-of-office count, McCrum said that Perry “misused government property that was subject to his custody and possession” by using “the lawful power of gubernatorial veto for an unlawful purpose” – eliminating the unit’s funding when Lehmberg refused to resign.

“The prosecutor added more words but failed to correct the glaring deficiencies in the indictment,” said Buzbee. He said that McCrum did not negate the exception in the coercion law and failed to show Perry had custody of the funds in the abuse-of-office count.

“Throughout this case, Mr. McCrum has demonstrated a shocking misunderstanding of the budgeting process in Texas. Until the budget is approved and the taxes are collected, the funds do not exist. Thus it is legally and factually impossible for Governor Perry to have ever had custody or possession of any funding. It is our belief that both indictments should be dismissed,” Buzbee said.

See here and here for the background. The news about the Public Integrity Unit having investigations derailed by Rick Perry’s veto came out last month. That’s been an undertone to this saga all along, but this is the first time it’s become part of the official record. I have to say, though, that at this point in the case I’m less confident that the indictments will stand than I was prior to Judge Richardson’s ruling. I still believe there’s a clear story to tell about why Rick Perry’s actions were wrong and why this isn’t a simple matter of a veto being stigmatized. (Remember: Texans for Public Justice filed their complaint before Rick Perry issued his veto.) The problem is that the laws in question weren’t written to cover this sort of situation. That doesn’t mean they can’t be applied here. I’m sure that will be a critical part of the next motions to dismiss and Judge Richardson’s ruling on them. It’s just my general feeling that the more convoluted your explanation has to be for why something is true, the harder it becomes to believe it. I hope I’m wrong about this, because I do believe that Rick Perry’s actions were wrong and highly consequential. In a just world, he would face responsibility for what he did. In this world, well, we know how that goes. I’m not ready to despair, but color me concerned. The Trib and Trail Blazers have more.

No grand juror information for Perry

Sorry, Rick.

Corndogs make bad news go down easier

Don’t hate the corndogs, hate the game

A state judge Friday denied former Gov. Rick Perry’s push for a list of people whose grand-jury testimony led to his indictment on abuse-of-power charges.

Judge Bert Richardson said the prosecution is not required to produce those names, which Perry’s lawyers had said he was entitled to get.

[…]

Besides denying Perry’s motion to get the witness names, Richardson set a schedule for prosecutors to provide relevant information to Perry in advance of a potential trial in the case – including any information that may be favorable to the former governor’s case. The judge said the information should be provided as soon as possible, or at least 21 days before any trial if one is set.

Richardson also ordered that the prosecution have grand jury witness testimony transcribed if they may also testify at the trial.

Not really sure what Perry’s defense team would do with a list of grand jurors’ names if they had it. Is that something defense attorneys normally ask for and/or receive? I’m failing to come up with a strategic reason for that list. Be that as it may, this Statesman story has a bit more information of interest:

Judge Bert Richardson also revealed that prosecutor Michael McCrum will amend one of the counts against Perry, an expected development because Richardson had earlier ruled that the charge — coercion of a public servant — did not include enough information.

McCrum also indicated that he intends to amend other portions of the indictment by Feb. 13, Richardson’s order said without elaborating on the proposed changes.

[…]

Perry’s lawyers asked for 10 days to respond to McCrum’s changes, Richardson’s scheduling order said.

Afterward, a hearing will be set to address any remaining pretrial motions, the order said.

See here and here for the background. Judge Richardson’s original order denying the motion to quash the indictments is under appeal. Perry still has plenty of chance to skate, but as previously noted, the calendar is working against him.

Perry re-files motions to quash indictments

As expected.

Corndogs make bad news go down easier

This corndog has done nothing wrong

Following the cues provided in a judge’s ruling this week, lawyers for Rick Perry filed a request on Friday to get an indictment against the former governor dismissed.

The new request noted “serious, well-founded concerns” that Judge Bert Richardson had in his ruling on Tuesday regarding the wording of the two charges against Perry: abuse of official capacity and coercion of a public servant.

“Governor Perry asserts that the deficiencies set forth below constitute defects of form and substance,” says David Botsford, an attorney for Perry, in the new motion.

While Richardson has allowed the case to proceed, he noted in his ruling this week that both counts were vague. Richardson wrote that the first count failed to state how Perry misused the funds by exercising his power to veto legislation. And in the second, Richardson questioned how the coercion charge, as written, failed to account for an exception to the charge Perry is allowed based on his gubernatorial authority.

See here for the background, and here for the new motion. Judge Richardson more or less invited Perry’s legal team to make a new filing, but he also gave special prosecutor Mike McCrum the opportunity to refile the charges and clean up the issues he noted. I don’t know if there’s a specific deadline attached to that, but I’d guess sooner is better than later for an update from McCrum. Trail Blazers has more.

Perry still under indictment

Oops.

Corndogs make bad news go down easier

This corndog has done nothing wrong

A judge on Tuesday rejected former Gov. Rick Perry’s attempt to throw out a two-count indictment against him, saying it’s too early in the case to challenge the constitutionality of the charges.

Perry’s attorneys immediately filed notice that they will appeal the 21-page ruling, which was issued Tuesday afternoon by Bert Richardson, a Republican; the appeals process could take months. The appeal will be considered by the Texas 3rd Court of Appeals. All five justices elected to that court are Republican; a sixth justice, who has not yet run in a partisan race, was appointed by Perry before he left office.

[…]

Attorneys for the former governor have been trying to get the two-count felony indictment thrown out. Perry’s attorneys have argued that the indictments — one count of abusing official capacity and one count of illegally coercing a public servant — violate both the Texas and U.S. constitutions.

“Texas law clearly precludes a trial court from making a pretrial determination regarding the constitutionality of a state penal or criminal procedural statute as that statutes applies to a particular defendant,” Richardson wrote.

However, the judge agreed with Perry’s attorneys that the second count of the indictment – coercion of a public servant – did not “sufficiently” explain why Perry’s actions were not protected because he was acting in his official capacity as governor.

Rather than dismissing this count, the judge said state law allows prosecutors to amend that count, and he granted them permission to do so.

You can read Judge Richardson’s order here. It gets technical in places, but it’s worth your time to read it; it will make enough sense even if you don’t possess a law degree. Judge Richardson has clearly not foreclosed Perry’s claims about constitutionality, but unless the appeals courts grant him his wish – which my reading of the order suggests would be unusual – those would be questions to ponder after the trial concludes. Needless to say, Perry doesn’t want to wait that long; as this companion Trib story reminds us, that could take years to play out. My guess at this point is that we’re headed towards a trial. I welcome any feedback from the lawyers out there. The Statesman has more, and a statement from TPJ is beneath the fold.

(more…)

Judge Richardson will stay on the Perry case

Good to know.

Bert Richardson

The way is cleared for Judge Bert Richardson of the Texas Court of Criminal Appeals to continue presiding over former Gov. Rick Perry’s criminal case, under an order by the judicial region’s presiding judge.

The order was necessary to allow Richardson to rule on a pending effort by Perry’s lawyers to dismiss the case, because Richardson has stepped up to the state’s high criminal court since he first was assigned the case.

[…]

Richardson has overseen the Perry case since 2013, when he was a visiting judge who presided over cases in different counties. He won the Texas Court of Criminal Appeals seat in the November election.

Richardson since last year has been considering a Perry effort to dispose of the indictment on constitutional grounds. He ruled against Perry in November when he sought to get the case dismissed on technical grounds.

Presiding Judge Billy Ray Stubblefield of the Third Administrative Judicial Region on Friday signed an order assigning Richardson to preside in the case. The step was necessary to authorize Richardson to make rulings in the case.

It was Judge Stubblefield who originally assigned Judge Richardson to the Perry case, so I suppose the circle of life is complete. I had wondered before if Richardson’s election to the CCA would force his removal here, but as a commenter on this post noted, Texas law allows for this, and so here we are. We’ve been waiting on that ruling regarding the motions to dismiss on constitutional grounds for quite some time now. At least now we know that it will be Judge Richardson making that ruling.

Profile of Bert Richardson

The Chron has a nice story about Bert Richardson, the well-regarded judge in the Rick Perry trial, though they manage to completely avoid addressing a key issue regarding him.

Bert Richardson

When Gov. Rick Perry was asked whether the criminal case against him could mar his potential presidential bid, he waved off the idea by saying he has no problem multi-tasking.

The same can be said of the state judge who holds Perry’s fate in his hands.

Senior Judge Bert Richardson is deciding whether to toss the indictment against Perry in a case being closely watched nationally because of its potential effect on Texas’ longest-serving governor.

But big as that decision is, it’s far from the only thing on Richardson’s plate.

As a visiting judge whose territory includes multiple counties, he has been handling everything from a regular prison docket in South Texas to high-profile murder cases.

He’s preparing for the next step of his career on the Texas Court of Criminal Appeals, a seat he won in November.

And in his spare time, he is a freelance photographer covering sports for a running magazine and capturing moments around his San Antonio home, at the Texas Capitol or in the counties he visits in his day job.

[…]

While overseeing the Perry case, Richardson has carried on with responsibilities that recently included a prison docket in Beeville in which an inmate slipped out of his handcuffs and started a fight outside the courtroom.

High-profile cases under his purview include DNA issues in the death-penalty case of convicted El Paso serial killer David Leonard Wood; the murder conviction of Sonia Cacy, seeking to be declared innocent after being paroled after the fiery death of her uncle in Fort Stockton; and the case of Darlene Gentry, a nurse seeking a new trial after getting 60 years in the 2005 shooting death of her husband in Robinson.

Richardson wouldn’t talk about the cases he’s overseeing, but indicated that he takes his responsibility as seriously in other cases as in the Perry indictment.

“I’ve tried lots of death penalty cases as a prosecutor and as a judge. To me those things are more stressful than this. … It’s a life-and-death decision,” he said, while emphasizing, “I understand the importance of this and I certainly want to make the right decisions based on the law.”

Richardson so far has ruled against Perry’s efforts to have the case dismissed on technical objections to the special prosecutor, San Antonio lawyer Michael McCrum, based on issues related to his oath.

Richardson appointed McCrum as special prosecutor after Lehmberg recused herself. Given that he had administered McCrum’s oath, Richardson asked lawyers whether they wanted a different judge to hear the matter, but they didn’t. He has yet to rule on broader challenges to the indictment.

That ruling on McCrum was back in November; I had expected a quicker ruling on the other motions, but I suppose Perry’s lawyers might have buried him in paperwork, thus drawing out the timeline. Be that as it may, I had been assuming that once Richardson was sworn in as a Court of Criminal Appeals justice that he’d have to drop the other judicial work he’d been doing. This article doesn’t address that point at all, though it does give the impression that Richardson will in fact keep on doing what he’s been doing, though presumably he would not take on any new cases. Can any of the lawyers out there help me understand this? I mean, if he does continue on whatever he rules will likely wind up before the CCA down the line, and he’d (I assume) have to recuse himself from those hearings. Is this normal? Has any other judge been in a similar position before? I have no idea. Grits has more.

On Mike McCrum and Pa Ferguson

There were two stories from Sunday about special prosecutor Mike McCrum that were worth flagging. First, here’s the Express News with an angle that I think has been underappreciated.

Mike McCrum

People who know McCrum said he is not the type to use a case to play politics. San Antonio defense attorney Patrick Hancock said McCrum is known for spelling out just the facts in court, while Alan Brown said McCrum does not care for politics and tries to steer clear of courthouse politics.

Brian Wice, who’ representing former House Majority Leader Tom DeLay, R-Sugar Land, in his appeal of money-laundering and conspiracy charges, looked askance at the indictment. But he simultaneously spoke highly of McCrum, saying he had “the utmost respect” for him.

McCrum, a former assistant U.S. attorney, was considered the frontrunner for a presidential appointment to be the U.S. attorney in the San Antonio-based Western District of Texas, which includes Austin, Waco and El Paso. But he withdrew his name from consideration in October 2010 after more than a year of waiting to be officially nominated by the White House, saying he had to get on with his career.

“I have not been able to take any cases for the past six to nine months, and as a result my practice has dwindled to almost nothing,” he told the San Antonio Express-News then.

At the time, he had the support of the state’s Democratic congressional delegation and both Republican senators, in addition to many local attorneys.

“I heard he was a hands-on kind of guy, kick the tires and get down in the weeds,” former Assistant U.S. Attorney Glenn MacTaggart told the Express-News when McCrum was being considered. “He pushed the proper due diligence in order to investigate and determine whether an indictment was justified.”

[…]

One of McCrum’s first jobs as an attorney was at the firm then known at Davis & Cedillo. Ricardo Cedillo described McCrum as “one of the best associates” he had ever hired, echoing others’ comments about McCrum’s thoroughness and analytical skills.

“He had street smarts as well as legal knowledge,” Cedillo said while McCrum was under consideration for the U.S. attorney position. “That’s a very rare combination in young lawyers. That goes to who he is and where he’s from.”

McCrum’s clients as a defense attorney have included former NFL star-turned-drug trafficker Sam Hurd; Dr. Calvin Day, who is awaiting a new trial after McCrum successfully lobbied to have his jury conviction for sexual assault of a patient thrown out; fellow lawyer Mikal Watts, a Democratic Party stalwart who has hosted President Barack Obama at his home; and Mark Gudanowski, the former driver for District Attorney Susan Reed accused — and acquitted — of illegally selling Southwest Airlines vouchers.

We were briefly introduced to Mike McCrum when he was named special prosecutor for this case, but that was much more cursory. What this story reminds us is that McCrum isn’t just a prosecutor. He’s also been a very successful defense attorney. As we saw yesterday, there are a lot of quotable defense attorneys out there poking holes in the indictments. One would think – at least, I would think – that someone like Mike McCrum, who has been on that side of the courtroom, would have analyzed this case and the evidence from that perspective as well, to better prepare himself for the courtroom battles to come. It’s certainly possible McCrum has missed the mark or gotten caught up in the job and focused too much on an end result, but I wouldn’t count on that. If he’s as diligent and as smart as people say he is, he’s got to have considered all this.

The DMN takes a more political angle.

Solomon Wisenberg, a Washington lawyer who has known McCrum since 1989, when they worked together as assistant U.S. attorneys, said his friend is not partisan.

Referring to Perry’s indictment, Wisenberg said: “There are people who are politically motivated who are probably happy about it. There are people on the other side who think it must be politically motivated.

“I know Mike well and I don’t think he would be that way. He is not readily identifiable as a Republican or a Democrat.”

Gerald Reamey, a professor at St. Mary’s University School of Law in San Antonio, taught McCrum criminal law and procedure.

“In his personal life and his professional life, there is some evidence that he is a fairly conservative person,” Reamey said. “He was prosecuting high-profile drug offenses. At the same time, he fits well into the criminal defense role.

“He’s very fair-minded and balanced, the kind of guy who would prosecute something only if he thinks the evidence is there,” Reamey said. “When I think of overzealous prosecution, he is not someone who comes to my mind.”

[…]

According to campaign finance records, McCrum has made only a handful of contributions to state and federal candidates.

He gave $300 in 2007 to Steve Hilbig, a Republican judge on the state appeals court based in San Antonio.

Also that year, McCrum donated $500 to U.S. Rep. Charlie Gonzalez, a San Antonio Democrat.

The next year, he contributed $500 to Republican Robert “Bert” Richardson, a Bexar County district court judge. Richardson assigned McCrum as the special prosecutor after a watchdog group filed its abuse-of-office complaint against Perry.

A little history here. When the complaint was filed by Texans for Public Justice against Perry, Travis County DA Rosemary Lehmberg recused herself from investigating it. That sent the complaint to the district courts of Travis County, where it was assigned to Judge Julie Kocurekof the 390th District Court. Kocurekof, a Democrat, recused herself as well. That kicked the case to the 3rd Circuit Court of Appeals, where presiding Judge Billy Ray Stubblefield got it. Stubblefield then assigned the case to Senior Judge Bert Richardson, who I presume will be the judge from here on out barring anything weird. Richardson named McCrum as special prosecutor, since the Travis County DA had taken itself out, and the rest you know.

Well, actually, there’s one more thing you might not know. Both Judge Stubblefield of the 3rd Court of Appeals, and Judge Richardson, who is a Senior Judge after losing election in 2008, were originally appointed to their positions. By Rick Perry. Quite the liberal conspiracy working against him there, no?

One more piece of history, from the Trib. Rick Perry isn’t the first Texas Governor to run afoul of the law in this way.

A Travis County grand jury’s allegations on Friday that Gov. Rick Perry improperly threatened to veto funding for the state’s anti-corruption prosecutors marked the first time since 1917 that a Texas governor was indicted. That year, Gov. Jim “Pa” Ferguson was indicted by a Travis County grand jury on allegations that he meddled with the state’s flagship university amid a squabble with its board of regents.

In Ferguson’s case, he vetoed $1.8 million over two years (about $34 million in today’s dollars) for the University of Texas; in Perry’s case, it was $7.5 million for the Public Integrity Unit, which is overseen by Travis County District Attorney Rosemary Lehmberg. After Lehmberg pleaded guilty to drunken driving, Perry threatened to pull state funding from her office unless she resigned.

Ferguson’s indictment led to impeachment by state legislators in September 1917. That’s highly unlikely for Perry, a lame duck with an overwhelmingly conservative Legislature who is facing felony charges for his threat — one he made good on — to veto funding for of the unit charged with investigating public offices in Texas, including that of the governor.

But there are striking similarities. Ferguson, a Bell County native who worked as a rancher and a banker before becoming governor in 1914, got in trouble for trying to remove public officials who had opposed him. Two of the articles of impeachment that removed Ferguson from office accused him of having “invaded the constitutional powers of the [University of Texas] board of regents” and “sought to remove regents contrary to law,” wrote Cortez Ewing in the journal Political Science Quarterly in 1933. Ferguson’s veto of the university’s entire legislative appropriation also prompted outrage, though he was not impeached on that point.

And the regents were goading a legislative investigation into embezzlement of state funds and improper campaign finance by Ferguson, while today, some believe Perry wanted the Public Integrity Unit gone because it was investigating possible corruption of state programs — including the Cancer Prevention and Research Institute of Texas. Perry has adamantly denied that, saying that he was entirely motivated by Lehmberg’s bad behavior.

I wouldn’t read too much into any of that, but it’s an interesting piece of history. We may as well learn as much as we can about this case, because for sure they’ll be teaching it to our kids and grandkids some day.