Off the Kuff Rotating Header Image

Mike McCrum

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.

Is there anything more to the Rick Perry case?

I’m dubious.

Corndogs make bad news go down easier

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.

[…]

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.

CCA dismisses remaining charge against Rick Perry

This would appear to be the end of the road.

Corndogs make bad news go down easier

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.

Perry appeal briefs

The latest update on the appeals before the CCA in the Rick Perry matter.

Corndogs make bad news go down easier

Corndogs, nothing but corndogs

The 3rd Court of Appeals this summer tossed one of two counts against Perry, saying the coercion law underlying it violates the First Amendment. The 3rd Court agreed with Judge Bert Richardson, however, that Perry must face the charge of abuse of official capacity because it’s too early in the case to decide upon the issues he raised.

Perry’s legal team disagreed with the 3rd Court on the remaining charge, arguing in a brief filed with the Court of Criminal Appeals and released Thursday that the count could be thrown out under existing legal precedent before a trial.

And if that’s not so, said the team led by Houston lawyer Anthony Buzbee, the case should be tossed before trial anyway given the issues at stake and to prevent “the irremediable loss of constitutional rights.”

The briefs were filed as a precursor to oral arguments scheduled for Nov. 18 before the state’s highest criminal court.

Among its points, Perry’s defense team cited the separation of powers and argued that allowing “a criminal prosecution of a political decision where there is no allegation of bribery or demonstrable corruption undermines the basic structure of state government.”

The prosecution disagreed, saying the issues raised by Perry can’t be decided at this point in the case.

The defense brief said that even assuming for the sake of argument that Perry’s claims “were not of the type that this Court has already recognized as cognizable, the Court should clarify the law to permit immediate resolution of the merits of his challenges.”

“Governor Perry’s constitutional claims pose fundamental questions about any governor’s authority to exercise one of that office’s core constitutional responsibilities—the review of legislative acts, including the possibility of veto,” said the defense brief.

[…]

State Prosecuting Attorney Lisa C. McMinn said it’s clear that the claims raised by Perry would properly be decided in a trial.

“Whether Appellant’s conduct satisfies the elements of a penal statute is a question of sufficiency of the evidence to be decided at trial, not a pretrial determination that this issue cannot be decided or that he is immune from prosecution because a political question might arise at trial,” she wrote.

“Neither the constitutional separation of powers doctrine nor the political question theory of nonjusticiability creates a right not to stand trial or shields a member of the executive or legislative branch from criminal prosecution,” McMinn wrote.

McMinn also filed a brief urging the state’s high criminal court to rescind the 3rd Court’s decision that the coercion law, at least as applied to public servants, violates First Amendment protections.

She said that “there is no evidence that in the years since the coercion statute was enacted, any public servant … has abstained from any of the valid speech the court of appeals maintains is covered by the statute.”

See here, here, and here for the background. Both sides’ briefs are embedded at the link above – the State Prosecuting Attorney’s brief follows the defense brief and begins on page 127 – so go read them if you are so inclined. I have no idea how the CCA will rule, but I feel pretty confident saying that we won’t get a ruling till some time next year.

What is coercion, anyway?

It could be the defining legacy of Rick Perry’s career, depending on how things go in the courts.

Corndogs make bad news go down easier

This corndog has not been coerced in any way

The coercion law has been used only sparingly in Texas, according to records for the past five years, and some legal experts call it problematic.

Others, however, say its absence will be felt if the Texas Court of Criminal Appeals agrees with the decision to toss the law.

“I see it not just as a numbers game,” said Melissa Hamilton, visiting criminal law scholar at the University of Houston Law Center.

“To the extent you are taking away tools from prosecutors to charge as well as to plea bargain, they are going to be potentially deterred from bringing more cases. And I don’t see how that’s helpful to the citizens,” Hamilton said.

[…]

The state is appealing the 3rd Court’s decision to throw out the coercion law, saying it should stay on the books to hold public officials accountable. Perry still faces a charge of abuse of official capacity, which he is appealing.

Some agree with Perry’s team and the 3rd Court that the coercion law has problems.

“When something that could fit that coercion of a public servant statute would come in, it was almost always a better fit for bribery or for obstruction or retaliation of a public servant,” said Bexar County Assistant District Attorney Patrick Ballantyne, whose job includes handling public integrity cases.

“I think that statute needs to be more narrowly tailored by the Legislature for a lot of the reasons that the 3rd Court cited,” Ballantyne said. “Basically it encompasses too much constitutionally protected speech. Stuff that may just be impassioned criticism of a public servant may technically fall under the letter of that statute. So it’s a statute that’s just too broad a sword given the constitutional issues that are at play.”

The Texas Department of Public Safety criminal history database shows 23 convictions statewide under the coercion law in the past five years. The database is dependent on reporting by local entities.

The number of cases involving public servants such as elected officials or government employees – the category of the law targeted by the 3rd Court decision – is much smaller.

DPS doesn’t capture information on whether those convicted were public officials, according to a spokesman. Ballantyne said of three Bexar County convictions, none were public servants.

[…]

Professor Geary Reamey of St. Mary’s University School of Law said effects of the 3rd Court’s ruling will be minimal, and that lawmakers can move to address problems if need be. The Legislature previously amended the law after an appellate court found constitutional problems.

“I don’t think it’s a terribly big deal. We’ll always have statutes that try to address corruption and malfeasance and misfeasance by public officials,” Reamey said. “It may very well be that the Legislature will decide that they want to come back and address the concerns.”

See here, here, and here for the background. With all due respect to Prof. Reamey, I think the odds of the Legislature acting to clarify or rewrite the existing coercion statue are slightly less than the odds are of Dan Patrick being the grand marshal at next year’s Pride parade. It would be nice if they attempted to fix it, because I do think that what Rick Perry did should fall afoul of a coercion law. It’s not the veto, it’s the threat against another elected official. If what Perry did is okay, then what’s to stop Greg Abbott from threatening to veto every bill John Whitmire authors or sponsors unless he steps down? Again, it is well within the Lege’s capacity to tailor such a law in whatever way they think is best and to aim it at whatever behavior they think should be prohibited, but given that there’s zero incentive for them to do so, and plenty of incentive for them to not do so, I hope the CCA reverses the Third Circuit and leaves the current law standing. Oral arguments are for November 4, so we’ll have some idea soon enough which way they wind is blowing.

CCA will hear appeals of Perry’s indictments

It’s on.

Corndogs make bad news go down easier

Corndogs are very appealing

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.

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.

State files its appeal of Perry indictment dismissal

It’s official.

Corndogs make bad news go down easier

This corndog has done nothing wrong

State Prosecuting Attorney Lisa McMinn on Friday asked the state’s highest criminal court to reverse the decision by the Austin-based 3rd Court of Appeals, which tossed out the charge that Perry coerced a public servant when he tried to force Travis County District Attorney Rosemary Lehmberg out of office. The state’s involvement ratchets up scrutiny of the ruling, the first major breakthrough in the more than yearlong case for Perry, a Republican who is now running for president.

McMinn’s appeal also puts her in the company of Perry’s legal team, which has its own challenge pending before the Texas Court of Criminal Appeals. Recognizing the potential for an “unnecessary, significant expenditure of resources,” special prosecutor Michael McCrum on Monday requested a hold on all trial court proceedings while the case plays out at the Court of Criminal Appeals.

McMinn was expected to file her appeal, saying earlier this month that the state had an interest in the ruling because the 3rd Court of Appeals struck as unconstitutional a part of the Texas penal code that defines coercion.

In a filing with the Court of Criminal Appeals that became available Monday, McMinn argued the 3rd Court of Appeals “erroneously blended two different First Amendment doctrines” when it tackled the coercion issue. McMinn also suggested the court failed to take into account all the potential consequences of declaring the statute unconstitutional.

See here and here for the background. I have no idea what the CCA will do, and I have no idea how long it will take them to do it. I’ll just say that I’ll be surprised if Rick Perry’s fate in the Presidential race isn’t determined by the time they come to a decision.

Perry appeals his other indictment

More for the CCA to deal with.

Corndogs make bad news go down easier

Corndogs are never wrong

Lawyers for former Gov. Rick Perry are urging the Texas Court of Criminal Appeals to finish off the remaining charge in his indictment, ratcheting up their push to end the case against the presidential candidate.

The request comes a few weeks after a state appeals court dismissed one of the two counts in the case, delivering Perry’s team its first major victory in the yearlong legal saga. The remaining charge accuses Perry of abusing his power when he threatened to veto state funding for a unit of the Travis County district attorney’s office .

In a filing Tuesday, Perry’s lawyers argued that the state’s highest criminal court should toss out the rest of the indictment as a way of preventing the “judicial system from being complicit in undermining the very structure of Texas government.” Perry’s team sharply criticized how the Austin-based 3rd Court of Appeals arrived at its July decision letting the charge stand, accusing it of “drawing a wholly incorrect lesson” from previous cases and using an “erroneous framework” for assessing the charge.

Perry had one of his indictments tossed by the Third Court of Appeals, though that decision has been appealed to the CCA as well, by the Office of the State Prosecuting Attorney on the grounds that it invalidated a state law, and that’s not something a lower court should do. You can see a copy of Perry’s latest appeal in the Chron story. Both Judge Richardson – who of course now sits on the CCA and would presumably recuse himself from this hearing – and the Third Court of Appeals have rejected Perry’s claims not on their merits but on the grounds that it’s too early in the process for them to be properly evaluated. Speaking as a non-lawyer with no expertise at all in these matters, I kind of think the CCA will see it that way as well. But who knows? As they say in another context, this is why they play the game on the field. Trail Blazers has more.

Dismissal of Perry indictment appealed

By a new player in the game.

Corndogs make bad news go down easier

Maybe I could sell corndogs to pay for all this

Former Gov. Rick Perry didn’t need more bad news Tuesday, but a Texas agency is lining up against his legal team in the criminal case against him.

The Office of the State Prosecuting Attorney has decided to appeal a court decision declaring unconstitutional one of the laws under which Perry was indicted last year. He is accused of abusing his veto power while governor.

The involvement of the state prosecuting attorney, Lisa McMinn, adds more firepower to the case opposing Perry. The special prosecutor, Michael McCrum, has been outspent by a margin of 10-to-1 by Perry’s high-powered defense team.

McMinn emphasized Tuesday that her office is getting involved not because of the specific accusations against Perry but due to the 3rd Court of Appeals decision to toss out one of the state laws used to indict him, coercion of a public servant.

“I’m just defending the statute that the court has declared unconstitutional. That’s my only concern,” McMinn said in an interview.

Her small, independent agency has the responsibility of representing the state before the Texas Court of Criminal Appeals. She said that large district attorneys’ offices may handle their own appeals but her office also can get involved.

“We handle a fair amount of the cases ourselves, especially on issues that have statewide importance, such as the constitutionality of a statute,” she said.

McCrum, a San Antonio lawyer, said it made sense for McMinn’s office to pursue the appeal.

“The court wiped out a criminal statute that’s been on the books for decades and that has an effect upon many criminal cases, not just this one involving Mr. Perry,” McCrum said.

See here for the background. Raise your hand if you, like me, had no idea that there was such a thing as the Office of the State Prosecuting Attorney. It makes sense now that I’ve seen it described and given that we split our top court into two distinct entities, but still. The other good thing about this is it won’t add anything to the bill for the special prosecutor. As for what the CCA will make of this appeal, we’ll see. Nothing our courts do surprises me any more. Trail Blazers has more.

Perry wins one and loses one at the appeals court

He’s still under indictment.

Corndogs make bad news go down easier

This little corndog has only one felony charge against it

Former Gov. Rick Perry must face one criminal count in the abuse-of-power case against him but another would be dismissed under a Friday ruling by an appeals court.

The ruling by a three-judge panel of the 3rd Court of Appeals in Austin gives Perry a partial victory but, at least for now, leaves the cloud of an indictment over him as he seeks the GOP nomination for president.

[…]

The former governor repeatedly failed in efforts get the indictment dismissed by state Judge Bert Richardson. Perry then took his case to the 3rd Court.

The 3rd Court agreed with Richardson that it was too early in the case to decide whether one count against Perry, charging abuse of official capacity, was unconstitutional as applied to the former governor.

But the appeals court rejected the second count, coercion of a public servant, saying that the law on which it is based violates the First Amendment.

The count remaining against Perry has been presented and described as a first-degree felony, but [defense attorney Tony] Buzbee said Friday he believes it’s a misdemeanor.

“We believe the only remaining count is a misdemeanor, and raises the question of whether the exercise of a veto can ever be illegal in the absence of bribery. The appeals court is bound by precedent, meaning that the timing of this challenge they believe to be premature. We think when we put that timing question in front of the highest criminal court we will win on that. This thing is hanging by a thread, and in my view is very near to being over,” Buzbee said.

[Special prosecutor Mike] McCrum, of San Antonio, said he believes the remaining count is a felony.

“The bottom line is that he committed a crime, and you shouldn’t have sitting governors committing crimes,” McCrum said.

A 3rd Court decision can be appealed to the Texas Court of Criminal Appeals. Richardson was elected to the Court of Criminal Appeals after the case began but would recuse himself from deciding on the appeal as part of that high court.

In his opinion, Justice Bob Pemberton of the 3rd Court of Appeals pointed out that the case at this point turns on legal issues as opposed to the headline-grabbing facts.

“This appeal arises from an ongoing criminal prosecution that, as the district court observed, involves ‘unique circumstances’ that ‘have been widely reported, argued, and discussed by many with no standing in the case.’ Whatever the focus of such commentary, our disposition of this appeal turns on legal issues — primarily procedural in nature — that may be of somewhat less public renown,” Pemberton wrote.

A copy of the 97-page opinion is here. That post, by Robert Wilonsky, highlights the key bits of the ruling neatly:

To summarize the proceedings below, the appellant — James Richard “Rick” Perry, who until recently served as Governor of Texas — sought dismissal, through a pretrial writ of habeas corpus, of two pending criminal charges (“abuse of official capacity” and “coercion of a public servant”) that are predicated on alleged acts preceding or relating to his line-item veto of a proposed legislative funding appropriation. In seeking dismissal, Perry has contended chiefly that the statutes on which each charge is based, “as applied” to him, violate constitutional protections related to free expression and the separation of powers. Even while terming these “as applied” constitutional challenges “compelling,” the district court determined that it could not decide their merits at that juncture, let alone grant relief, due to procedural limitations the Court of Criminal Appeals has imposed on the ability of lower courts to address such “as applied” challenges when raised through pretrial habeas corpus, as Perry has attempted here. While Perry contends this ruling was error, we reach the same conclusion that the district court did—under the Court of Criminal Appeals’s binding precedents, Perry cannot bring his “as applied” constitutional challenges through pretrial habeas corpus.

Perry has also asserted that the statute on which the “coercion of a public servant” charge is based “facially” violates the First Amendment to the United States Constitution. While recognizing that defendants may bring such facial constitutional challenges through pretrial habeas corpus, the district court rejected Perry’s claims on the merits. As to this ruling we respectfully disagree with the district court—the statute on which the “coercion of a public servant” is based, as written, and as we are bound to construe it, violates the First Amendment and, accordingly, cannot be enforced.

As a consequence of these holdings, we affirm the district court’s denial of relief as to the “abuse of official capacity” charge, because Perry’s “as-applied” constitutional challenges cannot be addressed through pretrial habeas corpus under current Texas law. However, because the First Amendment bars enforcement of the statute on which the “coercion of a public servant” charge is based, that charge must be dismissed.

The good news for Perry, beyond the fact that one of the counts against him was dismissed – though that can be appealed by McCrum, and I expect that it will – is that the merits of his claims have not yet been decided. He can say, with some justification, that he still expects to get the charges dismissed, and he may be right. Of course, he’s still under a legal cloud, and the next step of the process could take months, by which time his Presidential campaign could be turned to dust. If he was hoping for a clean win, he didn’t get it. He’s still going to be paying those legal bills for the foreseeable future. Trail Blazers, Hair Balls, the Current, Juanita, and the Trib have more.

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.

To recuse or not to recuse

That is the question.

Corndogs make bad news go down easier

Corndogs are never conflicted

More than a week after a judge who once worked for Rick Perry was tapped to hear an appeal in the former governor’s indictment, it’s still unclear whether he’ll see the case through.

Legal experts say Justice Bob Pemberton’s connections to Perry could put him in the tough position of having to decide whether to recuse himself. Pemberton is one of three justices who could decide Perry’s fate at a crucial time; the former governor recently said he is within 30 days of announcing whether he will run for the presidency.

“You’re danged if you do, danged if you don’t,” said L. Wayne Scott, a law professor at St. Mary’s University in San Antonio. “There’s not a right answer.”

Some court observers think it’s inevitable that Pemberton, who served as a deputy general counsel in Perry’s office before the former governor appointed him to the 3rd Court of Appeals, will step aside.

“I think it’s just a matter of time before Justice Pemberton recuses from the case,” said Lillian Hardwick, co-author of the Handbook of Texas Lawyer and Judicial Ethics. “Even if a recusal motion has not yet been filed, it’s likely in the works.”

But Pemberton hasn’t made that move — and the court hasn’t said whether he will. The case is advancing, legal filings show, and Perry lawyer Tony Buzbee has called Pemberton’s appointment “not a conflict or a story.”

Meanwhile, Michael McCrum, the special prosecutor pursuing the charges against Perry, said Friday he was not planning to file a motion for recusal. Some legal experts say that is not entirely surprising: Lawyers do not want to risk getting on the bad side of a judge hearing their case unless they are 100 percent certain their motion will prevail.

Without a motion for recusal, the decision is largely up to Pemberton, who, in addition to working for Perry, donated to the former governor’s 2002 re-election campaign and clerked for Tom Phillips, the retired chief justice of the Texas Supreme Court who is now on Perry’s defense team.

See here and here for the background. I think it would be for the best if Justice Pemberton recused himself on “avoiding the appearance of impropriety” grounds, but unless Mike McCrum tries to make something of it that’s his call. I also think McCrum is wise to let things play out, at least for now. I’m glad to see that the Trib is staying on top of this.

Perry meets his appellate judges

He knows one of them very well.

Corndogs make bad news go down easier

Corndogs are great icebreakers

Rick Perry may be somewhat familiar with one of the judges picked to hear an appeal in the criminal case against him.

That’s because Justice Bob Pemberton has worked for the former governor, representing him in court as his deputy general counsel. After that job, Perry appointed him to the Third Court of Appeals, which is now considering a request from Perry’s lawyers to dismiss the abuse-of-power charges against him.

Pemberton also clerked for Tom Phillips, the retired chief justice of the Texas Supreme Court who is now on Perry’s defense team. Pemberton’s website features a photo of him being sworn in by Phillips — “his friend, supporter, and former boss.”

In addition to once working for Perry, being appointed by Perry and having clerked for one of Perry’s current lawyers, Pemberton has been a political supporter of the former governor. Pemberton chipped in $1,000 for Perry’s 2002 re-election campaign, according to state records.

The justice’s connections to Perry are unusual, even in a state under yearly scrutiny for a judicial system critics say is too tainted by politics. Judicial elections in Texas are partisan, and the Third Court of Appeals is controlled by Republicans.

Judges are bound to have some connection to Perry, the longest-serving governor in Texas history, but Pemberton’s relation is beyond the pale, according to some good-government experts.

“That court has always acted in a partisan manner, but in this case, Justice Pemberton should definitely recuse himself,” said Craig McDonald, head of Texans for Public Justice, a liberal-leaning watchdog group responsible for the complaint that led to Perry’s indictment. “There should definitely be a recusal.”

According to the Texas Rules of Civil Procedure, a judge must recuse himself or herself in any proceed in which “the judge’s impartiality might reasonably be questioned.”

Yeah, I think that might reasonably be the case here. I don’t know if this is specifically what Team Perry was hoping for when they filed their latest appeal to this court, but I’m sure it wasn’t a disappointment to them. What happens from here I couldn’t say, but if one wants to take an optimistic view of things, one could say that if Perry’s motion is denied by these judges, it will be very hard to continue claiming he’s a victim of politics. Yeah, I know, that’s pretty thin, but it is what it is. One way or another, some number of judges friendly to Rick Perry were going to get involved. That’s the state we live in. PDiddie has more.

Prosecutors respond to latest Team Perry filings

Back and forth, forth and back.

Corndogs make bad news go down easier

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 appeals to appeals court again

It had been a few weeks since his lawyers filed any paperwork, so I guess they were getting twitchy.

Corndogs make bad news go down easier

Corndogs make bad news go down easier

As the race for president shapes up, former Gov. Rick Perry is imploring a state appeals court to take quick action in the criminal case against him.

In his latest court filing, Perry said a decision is important not only for him but for his successor, Gov. Greg Abbott.

Perry believes that “time is of the essence because of the forthcoming conclusion of the legislative session and the corresponding minimal time frame afforded to Gov. Abbott to determine in which circumstances, if any, he can exercise his constitutional right to veto items of appropriation,” Perry’s legal team wrote.

[…]

In the most recent motion with the 3rd Court, filed Friday, Perry’s lawyers asked for expedited action without oral argument.

“I believe the issues are clear, and the setting of oral argument would unnecessarily delay matters,” Perry’s lawyer, Tony Buzbee of Houston, said Monday.

Oral argument was suggested as appropriate by the special prosecutor in the case, Michael McCrum of San Antonio. He said the complexity of the case warrants it and that argument would likely involve a discussion of the “limits – and abuses – of power in our representative democracy and how it can be regulated.”

Perry’s legal team said there’s no need for “the type of open-ended philosophical discussion” that it says McCrum is proposing.

If oral argument is necessary, “Gov. Perry implores the court to expedite this case and set that argument for the very earliest possible date,” Perry’s team said.

Team Perry had filed a motion to dismiss with the 3rd Court of Appeals on February 26. I guess maybe they were getting a bit impatient. Obviously, he wants to have this matter behind him before officially launching his Presidential campaign. The calendar is not his friend right now.

McCrum refiles charges against Perry

Here we go again.

Corndogs make bad news go down easier

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…)

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.

McCrum avoids contempt charge

Whew.

Mike McCrum

Mike McCrum, the special prosecutor in the criminal case against Gov. Rick Perry, was cleared Monday of an attempt to find him in contempt of court stemming from a separate case.

Visiting Judge Dick Alcala declined to find McCrum, a prominent local defense lawyer, in contempt after a daylong hearing.

The district attorney’s office here had accused McCrum of instructing a punishment-phase witness in an October 2013 intoxication manslaughter trial to “get lost for awhile” and turn off her phone to avoid testifying.

Alcala said he was troubled by two things — that the witness, Melanie Little, was kept for more than seven hours in a locked room under threat of prosecution herself when she gave her side of the story to a district attorney’s office investigator the day after she testified, and McCrum’s business practices regarding subpoenaing witnesses.

“I’m concerned with the circumstances” under which the DA’s office obtained Little’s statement, the judge said, adding it was difficult for him to believe they didn’t play a role in what she said.

McCrum said he felt gratified by the ruling.

“I’m glad that it finally came out in the open the horrendous treatment that Melanie Little and her colleagues were put through, being locked up for seven or eight hours — that’s just reprehensible,” he said.

He said he was pleased that Monday’s ruling came before District Attorney Susan Reed left office so it could be a comment on her administration. Reed, a Republican, lost a bid for re-election to Democrat Nico LaHood on Nov. 4.

“When you see the lack of evidence that they had and the circumstances under which it was done, certainly it calls into question the motives of the DA and her supervisors,” McCrum said.

See here for the background. Nice little twist of the knife on Susan Reed there. The contempt charge always seemed like a stretch, but you never know. Now McCrum can focus exclusively on the Perry prosecution. Which has now survived the motion to disqualify McCrum.

The special prosecutor pressing criminal charges against Gov. Rick Perry will not be disqualified from the case over questions around the oath of office he took. A judge ruled Tuesday that the prosecutor was properly sworn into office.

“This court concludes that [Special Prosecutor Michael] McCrum’s authority was not voided by the procedural irregularities in how and when the oath of office were administered and filed,” Visiting Judge Bert Richardson wrote in a 16-page ruling filed in Austin.

On Nov. 6, Perry watched his attorneys argue in court that McCrum was improperly sworn in as special prosecutor more than a year ago. Perry attorney Tony Buzbee said the Texas Constitution required McCrum to sign an anti-bribery statement before taking his oath. McCrum testified that he did the reverse, taking the oath first.

Buzbee said he and co-counsel David Botsford “respectfully disagree with the judge, but as always, will respect the court’s decisions and will await his further rulings.”

Buzbee also said he and Botsford were confident they will prevail on other challenges and “expect a favorable ruling ending this case hopefully by the end of November.”

That ruling is here. We are still waiting on a ruling from Judge Richardson on the other defense motions to dismiss the indictments. I guess we can now assume we’ll know something by Thanksgiving. The defense has filed yet another brief with the court, responding to McCrum’s response to earlier briefs. Hope Judge Richardson knows how to speed read.

Perry’s first day in court

Hopefully not his last, but that’s up to the judge at this time.

Corndogs make bad news go down easier

This corndog is a victim of politics

Gov. Rick Perry appeared in court Thursday to watch his attorneys, armed with plenty of theater, try to convince a judge that the prosecutor pursuing abuse-of-power charges against him was improperly sworn in.

“Why do we raise what some people say are technicalities?” asked Perry defense attorney Tony Buzbee, his voice booming as he guided Visiting Judge Bert Richardson through an elaborate PowerPoint that featured an enlarged copy of the Texas Constitution. “Because [San Antonio lawyer Mike] McCrum is attempting to prosecute a sitting governor.”

In his first court appearance since he was indicted Aug. 15 on two felony counts, Perry sat at the defense table quietly, occasionally whispering with his attorneys or rocking in his chair. Buzbee and co-counsel David Botsford made their case that McCrum, who is an appointed special prosecutor in the case, took his oath of office before signing an anti-bribery document required of such prosecutors.

That sequence was out of order under the rules dictated by the 1876 Texas Constitution, Buzbee said.

As a result of this timing error, Buzbee argued, it’s “game over.” McCrum has no authority to prosecute the governor, he said, and therefore the indictment he secured is invalid.

“It’s there and it’s in black and white,” Buzbee said. “You must first sign your oath saying, ‘I have not taken any gifts.’ It’s a very important sequence.”

[…]

McCrum, a criminal defense attorney from San Antonio who was once tapped to fill the U.S. attorney job there, countered on Thursday that there was nothing improper about the oath-taking. He was sworn in, he said, telling reporters after the hearing: “I’m not shying away from the facts. My position is that it just doesn’t negate my authority.”

Buzbee described challenges he and Botsford faced getting their hands on the paperwork detailing McCrum’s appointment — and the repeated times they said they asked the Travis County district clerk’s office for it.

McCrum countered that they were in the courthouse, just in a file in a courtroom.

“All of these documents were available for public inspection,” McCrum said. “There’s no question I took an oath.”

See here, here, and here for the background. The Chron notes one of the oddball aspects of this case:

Richardson, a Republican who was elected to the Texas Court of Criminal Appeals Tuesday, is in the odd position of having sworn in McCrum, and now deciding on issues related to his oath. He asked the lawyers on both sides whether they wanted a different judge to hear the motion, but they declined.

Richardson initially predicted Thursday’s hearing could be as short as 15 minutes. Instead it lasted close to two hours. Toward the end, Perry’s lawyers asked whether they could file more documents with the court on one of the issues before it.

“If you want a quick ruling, I could make one,” the judge told Buzbee. “If you want to bury me in paperwork, then I have to wait to get it to read it. My intent would be to read anything that either side wants me to look at.”

We’ll see if the urge to delay is greater than the urge to get a ruling, which according to the stories is expected next week. Place your bets on the outcome in the comments. Trail Blazers has more.

McCrum responds to Perry’s motions

Another story to distract us from the election results.

Corndogs make bad news go down easier

This corndog claims executive privilege

Special prosecutor Michael McCrum filed court papers on Monday, saying the governor, who was indicted for abuse of office, shouldn’t have access to grand jury testimony because he could intimidate witnesses.

McCrum filed two lengthy briefs in answer to a barrage of pre-trial motions filed by Perry’s attorneys. It is the first time the prosecutor has rebutted assertions by the governor’s vigorous defense team. But McCrum didn’t reveal many details in the case that led a grand jury to charge Perry with abuse and coercion.

The first pre-trial court hearing in which Perry will be present is scheduled for Thursday.

On the issue of whether Perry should be provided transcripts of grand jury testimony, McCrum cited centuries-old common law that uses secrecy to help protect all parties involved with criminal allegations.

“Indeed such a principle is even more compelling where the defendant seeking disclosure is a governor, a ‘ruler’ within our structure of government, possessing all the power that led to the initiation of the principle of confidentiality,” McCrum stated.

He cited that the issue of intimidation of witnesses is based on Perry’s own actions.

Not only was he indicted for abusing his power, but “the defendant’s own words have instilled a concern for all persons who participated in the grand jury investigation,” the brief states.

It then quotes “prepared, written comments” used in a press conference the day after the indictments were returned when the governor said, “this farce of a prosecution will be revealed for what it is, and that those responsible will be held accountable.”

[…]

McCrum, a former federal prosecutor from San Antonio who was appointed by a Republican judge, is fighting the unusual request. He asserted parts of the transcripts might be made available as part of pre-trial discovery, but the defense lawyers should not have unfettered access to the grand jury testimony nor have it this early in the process.

He stated in the brief that the Texas Court of Criminal Appeals already ruled “that illegal conduct is not part of the legislative process and is not deserving of privilege.”

McCrum pointed out that two other indicted governors – Marvin Mendel of Maryland and Rod Blagojevich of Illinois – both tried to use legislative immunity and their “appeals were flatly rejected.”

The prosecutor also pointed to Perry’s decision not to appear before the grand jury.

“Mr. Perry chose to not testify before the grand jury, therefore any privilege he now asserts necessarily rests on other witness testimony,” the brief states.

See here for the background. The original court date for this was last Friday, but it got rescheduled to Thursday. While he doesn’t have to appear in court in general, Perry will be there for this hearing. The other brief has to do with Team Perry’s claim that McCrum wasn’t properly sworn in. I have a hard time seeing that one gain traction, but I suppose it can be fodder for future appeals. The Trib, Texas Politics, and Bloomberg News have more.

Perry has a court date

Happy Halloween, Rick.

Corndogs make bad news go down easier

Mmm…pumpkin spice corndogs

Visiting Judge Bert Richardson of San Antonio on Monday set the appearance for Oct. 31. Richardson also gave special prosecutor Michael McCrum until Nov. 7 to respond to two motions to quash the case.

Richardson had excused Perry from appearing in court Monday. The governor is traveling overseas this week, leading an economic development delegation to England, Germany, Poland and Ukraine.

Anthony Buzbee, one of Perry’s lawyers, confirmed the governor will be present for the next court date, when Richardson will address two issues: whether McCrum was sworn in properly and whether he should be ordered to produce a transcript of grand jury testimony. The governor’s lawyers have brought up both matters as they aggressively seek to convince Richardson to throw out the case.

Speaking to reporters after a hearing Monday, McCrum said he has “every confidence that we’re going to move forward” once the court deals with the procedural issues.

Asked whether he thought Perry’s lawyers were throwing the “legal kitchen sink” at him, McCrum said, “There’s been a couple of dishes thrown into the sink, and so we’re having to go through them one by one, but I’m confident everything’s going to proceed in a good fashion.

See here and here for the background. The Trib addresses those motions a bit more.

During Monday’s hearing, Richardson — who had originally appointed McCrum as special prosecutor — insisted that McCrum was sworn in properly. He added that any missing paperwork regarding McCrum’s oath of office would be reconciled.

“Clearly some of the documents were available, but they were in the wrong file,” Richardson said.

After the hearing, Buzbee said he believed the issue was very much alive.

“I’ve seen some paperwork. I’m not sure it resolves the issue, but we’ll take it up on the 31st,” Buzbee said, adding that if McCrum were not properly sworn in, the entire indictment against the governor should be dismissed.

McCrum told reporters he had no doubt the he was properly sworn in.

“Everything was done appropriately,” McCrum said. “I have every confidence that we’re going to move forward.”

McCrum said the defense request regarding the grand jury testimony is the first such request he’s seen in his career. “It’s quite unusual,” he said.

Without a transcript of the witness testimony, “this court will be unable to ascertain whether a pervasive violation” of Perry’s right to carry out legislative activity with immunity from prosecution, as protected by the Texas and U.S. Constitutions, has occurred, the governor’s lawyers wrote in the filing.

The Perry legal team has also filed a request to dismiss the indictment because Perry was acting in his official capacity as governor. That motion will be the subject of a Nov. 7 hearing.

No word as to whether Perry will have to be in court for that hearing. By that time, Judge Richardson will know if he’s headed to the Court of Criminal Appeals or not. Assuming he doesn’t wind up tossing the indictments, he could be handing off quite the hot potato to some other judge after that. Juanita has more.

Complaint against McCrum dropped

Good.

Mike McCrum

Travis County Attorney David Escamilla said Wednesday he has looked into recent allegations by a Houston attorney against the special prosecutor in the case against Gov. Rick Perry and will not investigate further.

Escamilla said he found no evidence prosecutor Michael McCrum violated state laws or county policies regarding theft, abuse of authority or honorariums in the hourly rate McCrum is receiving from Travis County for his work in the case.

Houston defense lawyer David Rushing, former chairman of Young Conservatives of Texas, had alleged McCrum was illegally receiving more than he should by billing the county $300 an hour — a rate McCrum recently voluntarily reduced to $250 per hour after hiring a second prosecutor. That reduction came prior to Rushing’s complaint.

McCrum’s fees are higher than what court-appointed defense lawyers generally earn, but county rules permit larger hourly rates in unusual cases.

In a letter to Rushing, Escamilla said McCrum’s rates were approved by a judge in the case.

See here for the background. This felt like a nothingburger, especially given Rushing’s history of hackery, but it’s good to have some official confirmation. I’m not saying this couldn’t have been a point of contention, but honestly, you’d think someone might have brought it up before now. Given all the paperwork Rick Perry’s lawyers have generated so far, surely they would have jumped on this if they’d thought it would go somewhere. The next status hearing, the one Perry doesn’t have to attend, is today, where Judge Richardson will get to deal with yet another motion by Perry’s defense team. Looks like we’re back to our regularly scheduled programming on this now. Houston Politics has more.

Perry’s lawyers are earning their paychecks

You never know what might stick when you throw everything you’ve got at the wall.

Corndogs make bad news go down easier

These corndogs don’t come cheap, ya know

Lawyers for Gov. Rick Perry on Friday filed a request to dismiss the indictment against the governor, saying paperwork needed to properly swear in the prosecutor appointed to shepherd the case was not properly filled out or filed.

“Insofar as the records on file in these cases reflect, [special prosecutor Michael] McCrum, the purported attorney pro tem, is acting illegally because the basic procedural requirements have been overlooked,” attorneys Tony Buzbee, Tom Phillips and David Botsford wrote in their filing with Travis County’s 390th District Court. The lawyers wrote that their allegations were based upon the district clerk’s files in the case.

McCrum, who obtained the indictment against Perry in August, told The Texas Tribune that he was indeed sworn in.

“I don’t know what they’re talking about,” said McCrum, who was sworn in as special prosecutor in August 2013 and again in 2014.

[…]

According to the Texas criminal code, an oath by someone like McCrum, who is operating in the place of an assistant district attorney or a district attorney “pro tem,” must be filed with the clerk.

As for the forms and how they are supposed to be filled out, that’s not specified in the code.

However, Perry’s attorneys point to how the clerk’s office does not have paperwork verifying DA Rosemary Lehmberg’s recusal from the case and other paperwork.

An email to the clerk’s office regarding those forms was not immediately answered.

Here’s the latest motion by the defense, which joins the other two in awaiting a response from McCrum. I’ll leave it to the real lawyers to evaluate, but my layman’s interpretation is that this is either an egregious bit of straw-grasping by a squadron of attorneys that would really rather not have to face a jury, or an amateur-hour level oversight by someone whose reputation would seem to make such an oversight unthinkable. Perhaps we’ll get some insight into that on October 13, which is the date for the next hearing – you know, the one Perry doesn’t have to attend – though I suspect we won’t really know till well after that. You lawyers out there, what do you think? Trail Blazers has more.

Perry doesn’t have to show up at his court hearing

He’s excused this time. But don’t push it.

Corndogs make bad news go down easier

My corndog can’t be there either

Gov. Rick Perry does not have to appear at an Oct. 13 court hearing in his case, but that does not mean he has a pass to skip all future hearings, Visiting Judge Bert Richardson ruled on Friday, according to the special prosecutor in the case.

This week, Perry’s legal team asked Richardson, a Republican, to excuse the governor from the Oct. 13 hearing and every other pretrial hearing. Perry faces felony charges of abuse of official power and coercion of a public official. In that same motion, the lawyers noted that the special prosecutor in the case, lawyer Mike McCrum, had requested that the governor be present in every pretrial hearing. McCrum had responded that there’s nothing in the criminal code that allows a defendant to be excused from every hearing.

On Friday, Richardson notified lawyers in the case that he granted the Perry team’s request that the governor skip the Oct. 13 hearing because it is a status conference or a check-in by both parties. But the judge denied the request that the governor does not have to make any future appearances at pre-trial hearings.

See here for the background. This seems like a reasonable ruling to me, but we’ll see what it becomes in practice. I’m sure at some point Judge Richardson will have to set some guidelines.

In the meantime, this case takes yet another strange turn.

In a criminal complaint sent Monday to the Travis County district attorney’s office, Houston criminal defense attorney David Rushing says special prosecutor Michael McCrum is abusing his official capacity by billing the county $300 per hour, or more than three times the highest possible rate set by a state law.

Travis County’s guidelines for the law, however, make it possible for an attorney in McCrum’s situation to earn less or more per hour if the circumstances are unusual. Perry, who has characterized the case against him as politically motivated, is the first Texas governor to be indicted in nearly a century.

“These attempts of character assassinations against our great governor here is bad enough on its own, but when you really analyze it, it’s not just a political game but lining the defense’s pockets at the taxpayers’ expense,” Rushing told the Chronicle.

The district attorney’s office confirmed it received the complaint but declined to comment further. McCrum did not respond to a request for comment Thursday evening.

Rushing’s argument is based on the Texas Code of Criminal Procedure and Travis County’s guidelines for the Fair Defense Act, a state law dealing with the right to counsel. The guidelines say appointed attorneys should be paid an hourly rate of $70 to $100 for time spent in court and $60 to $90 for time spent out of court. The guidelines also say an appointed attorney can be paid less or more in an “unusual case.”

[…]

Acknowledging some may see the complaint as a political ploy, Rushing said he has not been involved in Texas politics for nearly a decade. He served until 2005 as the chairman of the Young Conservatives of Texas, a group of college students that has backed Perry for governor and had him speak at its annual convention.

If the name “David Rushingsounds familiar to you, this would be why. I’m delighted to know that some things never do change. As for his complaint, I’m not a lawyer, but it seems to me that McCrum’s hourly rate and the invoices he submits will have to be approved by Travis County Commissioners Court, one of whose members is a Republican, and you’d think they might have noticed if McCrum’s fees were illegally high. (Who had his own role to play in this ongoing saga, not that it matters now.) My guess is that the main effect of this complaint will be the need to appoint another special prosecutor, since I’m sure the Travis County DA won’t want any part of this investigation, either. I doubt it gets any farther than that, but who knows? I’m sure we have not seen the last surprise this story has for us.

And then if that wasn’t enough, this happened late Friday.

An Austin lawyer with Democratic ties has sued Gov. Rick Perry and Comptroller Susan Combs, arguing that the Republican leaders had no authority to spend taxpayer money on criminal defense attorneys for the governor, who is fighting an abuse-of-office indictment.

Larry Sauer, an Austin defense attorney who specializes in drug cases, is asking a state district court in Austin to declare the expenditures unlawful and to slap an injunction on the governor’s and comptroller’s offices to prevent future spending on outside criminal lawyers for Perry.

“State law is clear that public officials cannot use taxpayer or other state funds to defend a criminal charge, unless and until the official has been found not guilty,” the lawsuit said. It was filed Thursday and issued a docket number Friday afternoon, an attorney for the plaintiff said.

The lawsuit is being waged by attorneys with deep Democratic connections. Sauer has made numerous contributions to Democrats, according to state ethics records. He also gave $300 to Travis County District Attorney Rosemary Lehmberg, according to a 2008 story in the Austin American-Statesman.

[…]

When it comes to paying the legal bills incurred in connection with the grand jury investigation, Perry has never wavered from his argument that he has the right to use taxpayer money to pay for criminal defense lawyers.

After his aides said last month that Perry would pay for the attorneys out of his flush state campaign account, the governor said during a stop in Midland that he decided to use political funds only because people complained about it.

“I look at this as an appropriate defense of a state official,” Perry told reporters, according to news reports. “But just to keep from having folks grouse about it, we’ll pick up the cost as we go forward.” That statement is a central feature of the lawsuit.

Because Perry has asserted a right to tap taxpayer money for the legal bills, the lawsuit says taxpayers have no way to stop it from happening again.

“Governor Perry claims the right to pay criminal defense attorneys fees and expenses out of taxpayer funds at his whim, and Defendant Combs claims she must pay such expenses if Perry makes such a request,” the lawsuit alleges. “This leaves the taxpayer without the ability to prevent them, without judicial review.”

No doubt there are partisan motives here as well, but at least the legal question is more interesting. State Rep. Joe Deshotel requested an AG opinion about what the limits and requirements are for an indicted Governor billing the state for his or her legal fees. According to the Trib story, then-AG John Cornyn opined in 2000 that public servants who bill the government for criminal defense lawyers must be declared innocent first. So whatever the motivation, it seems fair to say that the issue here is not settled. Any thoughts on how this one might play out?

McCrum slaps back at Perry

Interesting legal strategy.

Corndogs make bad news go down easier

You can’t afford this corndog’s hourly rate

The special prosecutor in the criminal case against Rick Perry said Tuesday that the governor is asking for “special favors” and that his activities, including a rally when he was booked, are making a mockery of the justice system.

“I don’t think there’s any reason why Mr. Perry should be treated any differently from any other citizen who’s required to be in court,” special prosecutor Michael McCrum said of a request by Perry’s lawyers that he be allowed to skip a pretrial hearing.

“He’s asking for special favors, and as far as I’m concerned, he’s not entitled to it,” McCrum, a San Antonio lawyer, said in an interview.

Besides looking askance at Perry’s courthouse booking rally, McCrum referred to him “smirking.”

“I’ve never seen a defendant make such a mockery of our system of justice,” he said.

I basically agree with McCrum’s assessment of Perry, but I don’t see the point in airing these opinions publicly. It’s wrestling with a pig, with the same likely result. I think McCrum is better served playing it right down the middle and leaving the grandstanding to Perry’s team. Make your case to the judge and leave it at that.

Despite his complaints, McCrum is apparently willing to work with Perry and his travel schedule, at least for future hearings. The request for an all-purpose get-out-of-attending-the-hearings pass, however, doesn’t fly with McCrum.

“The state does object to Mr. Perry’s request to be permitted to not appear in court at all ‘future non-evidentiary hearings’ in this case,” wrote Mike McCrum, the San Antonio lawyer who was appointed special prosecutor in the case. “From carpenters to lawyers to judges accused of anything from tickets to federal felonies, all are expected to appear in court.”

McCrum’s statements came in a three-page response to a request by Perry lawyer David Botsford to Visiting Judge Bert Richardson that the governor be excused from an Oct. 13 court hearing and all other hearings before his trial.

[…]

“It is certainly not unusual for a judge to waive a defendant’s presence at a non-evidentiary pretrial hearing,” the Perry legal team wrote. “This is normally addressed by a verbal request to the Court, and in 37 years of practicing criminal defense, Mr. Botsford has never encountered a prosecutor who opposed such a request, in state or federal court. However, due to Mr. McCrum’s opposition, this motion is being filed.”

McCrum rejected the Perry team’s assertion that having the governor excused from pretrial hearings was nothing out of the ordinary.

“The common practice in Travis County, Texas, is that defendants must appear at all pretrial court settings, regardless of whether it is anticipated the court setting will be ‘evidentiary’ in scope,” McCrum wrote.

McCrum also accused the governor’s legal counsel of asking for “special favor” by requesting a “blanket” waiver of appearance to all pre-trial hearings for the governor.

Game on. I can understand McCrum’s frustration, but I still think he should stifle the urge to express it publicly in the future, at least outside the courtroom. In the meantime, McCrum has hired Austin attorney David Gonzalez to assist on the case, presumably pending approval from the judge. The next hearing in this case is October 13. We’ll see if Rick Perry is there for it or not. Trail Blazers has more.

McCrum asks for help

Because many against one is not a fair fight.

Corndogs make bad news go down easier

My corndog can beat up your lawyers

The special prosecutor in the case against Gov. Rick Perry is asking for some help.

San Antonio lawyer Michael McCrum, who guided the case to last month’s indictment, filed a motion Friday asking a state court to fund a co-counsel.

“Mr. Perry has filed several pleadings attacking the legality of the Texas statute that underlie the criminal charges the grand jury filed against him,” McCrum wrote. “After due consideration, it is the opinion of undersigned counsel that an additional counsel is necessary at this time to adequately respond to motions and applications filed and otherwise prepare for trial.”

Perry’s legal team has filed at least two motions to quash the indictment for allegedly being vague, unconstitutional and politcally-motivated. The team headed by Houston trial lawyer Tony Buzbee includes several well-known national attorneys and a former Texas Supreme Court justice.

Surely this is a reasonable request. If McCrum were a DA instead of a special prosecutor, he’d have plenty of attorneys at hand to share the workload. One would think Rick Perry’s defense team would not oppose this request, since it would better enable the prosecution to respond to their blizzard of motions in a timely manner, and surely they would like this to be resolved in a timely manner. Right?

It’s possible there’s another factor in play here as well.

Nearly seven months after the 4th Court of Appeals ruled prosecutors had missed the deadline to file a contempt claim against local defense attorney Michael McCrum, the decision was reversed Wednesday by Texas’ highest court for criminal matters.

The Court of Criminal Appeals opinion again opens the possibility that McCrum — currently serving as special prosecutor in the case against Gov. Rick Perry, who is also accused of professional misconduct — could spend up to six months in jail if found in contempt of court.

McCrum has denied any wrongdoing.

The Bexar County district attorney’s office filed the contempt motion against McCrum in January, several months after a trial in which his client, Taylor Rae Rosenbusch, was convicted of intoxication manslaughter. Prosecutors alleged McCrum had instructed Melanie Little, a punishment-phase witness who had served as Rosenbusch’s addiction counselor, to “get lost for awhile,” turn off her cellphone and take a long lunch to avoid coming back to testify.

He was also accused in court documents of having told her “the DA was out for blood” and “wanted Taylor to be put away for a long time.”

A contempt hearing began in January, but it was halted after McCrum’s attorneys took the case to the San Antonio-based 4th Court of Appeals, arguing that the state missed its deadline. The 4th Court agreed, ruling in February that the state was five days late.

It is not yet clear when contempt proceedings will resume.

“The 4th Court was given 30 days by the Court of Criminal Appeals to withdraw their order, and then it’s always possible McCrum could seek a rehearing,” First Assistant District Attorney Cliff Herberg said. “It’s a few months out before things get rolling.”

I know nothing about the details here, though one could certainly speculate about partisan motives on the part of the Republican-dominated CCA here if one were so inclined. Be that as it may, one can certainly imagine this playing out in a way where it might be uncomfortable for McCrum to continue as special prosecutor. If that were to happen, and assuming the Perry indictments haven’t been tossed, it would be nice to have a backup prosecutor in place that could step in without having to learn the whole case from scratch. I’m speculating, of course, but I don’t think I’m way out on a limb here. Anyway, just something to keep in mind. Link via PDiddie.

Perry’s lawyers ask again for indictments to be tossed

Stop me if you’ve heard this one before.

Corndogs make bad news go down easier

Buy one corndog, get one free

Attorneys for Gov. Rick Perry, indicted last month on charges related to his veto threat of money for the Travis County District Attorney’s office, have filed another request for a judge to throw out the case.

The motion to dismiss the indictment filed Monday makes many of the same claims as a previously filed writ of habeas corpus and largely cites “Constitutional grounds.”

The petitions contend 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 contend that 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 Governor Perry’s legal decision,” the Monday filing said.

Yes, there was a similar motion filed last month. The Trib explains the logic behind the double filing.

“They say the same thing but they’re very different things,” explained Philip H. Hilder, a Houston defense attorney. “The writ is saying the judge doesn’t have the authority to move forward on the indictment, while the motion to dismiss is acknowledging that the court has the authority to act on indictment but it ought to be dismissed as a matter of law.”

In effect, the lawyers are asking the judge to toss the indictments no matter how he rules on the court’s authority to proceed.

Paul Coggins, a Dallas attorney said filing both challenges is just good lawyering.

“If you can’t get through the front door, you go through the back door,” Coggins said. “I think they’re covering their bases.”

Yes, it’s good lawyering. And those hours ain’t gonna bill themselves, if you know what I mean. But wait, there’s still more.

While both challenges — the motion to quash and the habeas writ — may make the same arguments, but the order in which siting Judge Bert Richardson considers could make a big difference in the pace of the proceedings.

“We hope the court will consider them both at the same time,” Buzbee said. “The grounds are essentially the same but this filing gives the court the ability to dismiss completely both counts of the indictment if he feels some issues are better addressed via a dismissal motion rather than a writ.”

The judge’s decision on the motion to quash cannot be appealed by the defense, Hilder said. His decision on the writ can be and an appeal could freeze action on the case for months.

“The danger of filing the writ here is the losing party will appeal, and that is going to slow matters to a griding halt for a while,” Hilder said, adding that all action in the trial court would stop until the appeals court makes its ruling on the writ.

So settle in and get comfy, because this could take while. The next hearing is October 13, and while special prosecutor Mike McCrum will file a response to this motion, he doesn’t have a specific deadline and may well not get to it by then, since there’s not much expected to happen on that date. The Chron and Trail Blazers have more.

Rick Perry was actively searching for Rosemary Lehmberg’s replacement

The plot thickens.

Rosemary Lehmberg

Gov. Rick Perry personally called a well-known Austin Democrat to discuss her interest in replacing Travis County District Attorney Rosemary Lehmberg days before the public learned Perry was threatening to withhold state funding from Lehmberg’s office unless she resigned.

Austin defense attorney Mindy Montford, who previously ran as a Democratic candidate for state district judge and district attorney in Travis County, confirmed her conversation with Perry — which took place in early June 2013 — to the American-Statesman and KVUE-TV on Sunday.

She said Perry informed her he intended to veto money to the Public Integrity Unit unless Lehmberg stepped down following her high-profile drunken driving arrest. Under the law, Perry, a Republican in his 14th year in office, would have named Lehmberg’s replacement pending an election.

“I think I told him, of course, it would be an amazing opportunity, and I thanked him for considering me,” Montford said. “The fact that I am a Democrat was surprising, and I think I mentioned that to him. I told him I would think about it, and thanked him.

“There was no acceptance because I didn’t feel like it was timely at that point,” she said. “We never spoke again because it became irrelevant when she did not resign.”

[…]

The revelation shows the level at which Perry was directly involved in attempts to force Lehmberg’s resignation and appoint a successor in the days leading up to his June 14 veto — rather than high-level aides coordinating the effort and briefing the governor.

To be clear, this information doesn’t add anything to the first round of legal arguments over whether or not the indictments are valid. Perry’s high-priced lawyers are arguing that the statute is unconstitutional, and if that’s true it’s true whether or not Rick Perry was behind the curtain trying to shove Lehmberg off the ledge. What it does is definitively ties Perry to the alleged criminal action of trying to coerce Lehmberg’s resignation. Remember that in the Tom DeLay case, one of the weaknesses of the prosecution’s case was the lack of direct evidence that linked DeLay to the money transfer. Mindy Montford provides that evidence for the Perry case quite nicely. No question, if there’s a trial, she’ll be a star witness.

This also brings up a point that Christopher Hooks in the Observer illustrates. Perry kind of needs the indictments to go away quickly, because the longer this plays out, the more revelations like this we’re likely to get, and the more dots that can be connected. Ed Sills in his email newsletter riffed off that Statesman piece to show the lengths that Perry spokespeople went to back in April to avoid saying anything that would later prove to be false. Hooks elaborates:

Separately, the story of the indictments is set to give new life to old stories about Perry’s improprieties, in much the same way Chris Christie’s bridge-related indiscretions gave rise to a narrative about his temper and vindictiveness toward political opponents. And Perry’s personality—best suited to offense—was well tailored to the first stage of this ordeal, but may trip him up going forward.

Here’s Perry’s story about the indictments, as outlined in a video released by his political action committee, PerryPAC: He saw a damaged public official, a woman who shouldn’t possibly hold office or any kind of responsibility, and took firm, narrowly targeted action to try to remove her. Now he’s facing political retribution from Democrats.

Parts of that narrative fall apart as soon as you look at them closely—particularly the notion that special prosecutor Michael McCrum, appointed to the case by a Republican judge in San Antonio, is an agent of Battleground Texas. But much of the rest of it could fall apart over the course of a trial, too.

Perry says his veto was about unseating Lehmberg, but it had significant consequences. As the Quorum Report’s Harvey Kronberg wrote on Thursday, Perry’s veto of the funding for the Public Integrity Unit “derailed more than 400 felony level tax and insurance fraud investigations allegedly committed against the State of Texas.”

In other words, Perry’s action didn’t just punish Lehmberg for her refusal to step down—it punished the state as a whole and Texas citizens generally. Think about that: Perry zeroed out the funding for more than 400 felony investigations because a local official wouldn’t step down when he wanted. Kronberg:

The Travis County Public Integrity Unit is the most under-appreciated law enforcement apparatus in the state. Fully 95% of what it does is pursue white collar crime in Texas and on behalf of the State of Texas – motor fuels tax fraud, insurance fraud and legal support for the smaller of Texas 254 counties that do not have the funding or expertise to pursue white collar crimes in their jurisdictions.

When Perry derailed the unit, the Travis County Commissioners Court stepped in and restored a portion of the funding—but the PIU had to slash staff and caseload. The state’s side in serious criminal cases that had nothing to do with Lehmberg’s troubles—or even, politics generally—suffered needlessly.

But the PIU investigates political corruption too. Kronberg dismisses the relevance of the investigation into the Cancer Prevention and Research Institute of Texas as a factor in Perry’s motivation for wanting a friend in control of the DA’s office, but points to other possibilities.

“It is far more interesting to look at the Public Integrity Unit investigation of Republican AG candidate Ken Paxton and Perry Regent appointment Wallace Hall,” Kronberg writes. “Had Lehmberg resigned, it is doubtful Perry’s appointed replacement would be very interested in either criminal referral.” There’s no shortage of possible motives for Perry’s intervention in the PIU, even if those motives don’t necessarily matter to the legal case against him.

If the trial gets going, there’s really no telling what’s going to get dredged up in the discovery process. What internal communications, what private conversations will we become privy to? This trial might be the most penetrating look at Perry’s workshop in the 14 years since he took office. There’s no politician that comes away from that level of scrutiny looking good.

Some of this will come out anyway, but in the context of a trial, it’s going to look worse. And Perry may not get to hide behind privilege as much as he usually gets to. There are a lot of rocks to look under, and who knows what we’ll find. Harold Cook and Grits have more.

Perry’s legal team to try to get indictments tossed

It’s what any defense attorney would try to do.

Corndogs make bad news go down easier

This corndog has done nothing wrong

A lawyer for Gov. Rick Perry said Friday he will challenge felony charges that the governor overstepped his authority when he said he would veto state funding for Travis County prosecutors if District Attorney Rosemary Lehmberg would not resign her post.

David Botsford, an attorney for Perry, informed Visiting Judge Bert Richardson he plans to file a writ of habeas corpus challenging the constitutionality of the laws underlying the two-count indictment against Perry.

“It will speak for itself,” Botsford told reporters. He said his challenge would be based on the governor’s power to veto and his First Amendment rights.

[…]

Both Botsford and Michael McCrum, the San Antonio defense attorney who was appointed the special prosecutor in the case, met with Judge Richardson Friday. After a 35-minute meeting in the judge’s chambers, the two attorneys came out and Richardson informed the court Botsford would turn in his challenges to the indictment by Aug. 29.

Once those objections have been filed, McCrum will file his responses and the first full hearing in the Perry criminal case will be scheduled.

Outside the courtroom, McCrum declined to talk about his strategy or address criticism about the indictment returned against the governor.

“I think it’s appropriate to approach this case in a court of law,” said McCrum, who anticipated that a trial in the matter would not take place until next year.

Novel idea, that. Just as a reminder, the complaint was filed before Rick Perry vetoed the Public Integrity Unit funds, so we’ll see how far that gets with the judge. Costs them nothing to try, and hey, you never know.

An earlier story about the defense strategy contained some interesting legal analyses.

“If I was on the Perry defense team, I would be asking for the quickest trial date I could get,” said Paul Coggins, a defense attorney with the Locke Lord law firm and a former U.S. attorney in Dallas. “Let’s load it up in 30 days. Let’s go.”

Coggins, a Democrat, said the next thing to watch for is Perry’s team challenging the Texas statute behind the two felony counts.

“They’ll take a swipe at the statute,” he said. “The statute is too vague. You’re going to do that at least. I think the judge is going to have some real issues with the statute.”

The two-page indictment gave few clues as to how grand jurors were convinced Perry may have done something illegal. And Coggins said that unless McCrum can prove to jurors that Perry’s veto threat was illegal, it will go nowhere.

“Based upon what we know so far, if there isn’t some incredibly powerful, smoking gun that we’ve heard nothing about, then I don’t think this case should have gone to the grand jury,” Coggins said.

Not so fast, says Bill Mateja, a defense attorney in the Dallas office of Fish & Richardson. Mateja is a former federal prosecutor who knows McCrum, the San Antonio defense attorney tapped by Richardson, well.

“I’ve worked with Mike McCrum,” Mateja said. “I cannot believe that Mike McCrum decided to indict Rick Perry based solely on Rick Perry playing politics. I can believe that Mike McCrum indicted Rick Perry because there is something more than we’ve seen.”

Mateja, who described himself as a conservative Republican and a Perry supporter, said that if McCrum’s case doesn’t show more than what is already known, then it’s a “bad indictment.”

I think we all agree on that. As for McCrum, he had a few things to say as well.

McCrum said he would respond in court to Perry’s filing.

“At this time, I feel confident of the charges. I feel confident of the facts as applied to the law, and I will move forward,” he said.

McCrum said he expects the case to go to trial because “I anticipate that Mr. Perry will never plead guilty.” He said he thinks a trial would not be until next year.

[…]

McCrum was asked by reporters about the drumbeat from Perry and his team that the case against him is politically motivated.

The San Antonio lawyer said he didn’t plan to discuss strategy or evidence in the case, pointing out that Perry’s lawyers are “talking about the theories of law and whether or not the facts support those theories.”

“On this situation, I think it’s important that I approach it with dignity and respect for our system of justice,” McCrum said.

He also declined to supply his own political affiliation.

“I don’t feel that anything about politics is relevant to this case insofar as my politics are concerned,” McCrum said in response to a reporter’s question. “And so with all due respect, sir, I can’t dignify the question because by answering it, I give it relevance, and I don’t think it has relevance.”

It shouldn’t have any relevance, but you know how that goes. Going back to the earlier story, Mateja also predicted the defense would try to get the indictments tossed. If that happens, that would be a huge victory for Perry and an equally huge egg to Mike McCrum’s face. Again, I’m not a lawyer and I have no expertise in this matter, but again there’s nothing in Mike McCrum’s history to suggest that he’s gone off half-cocked. There’s plenty of evidence to suggest that McCrum has more up his sleeve than he’s shown so far. Maybe that won’t be enough. We’ll get some idea of that this week.

On a side note, the two-man team at Texans for Public Justice wrote a piece for Politico that called out various liberal pundits for their embarrassing ignorance in the Perry matter. They didn’t break any new ground, but at least the word is getting out there that the indictment isn’t about what a lot of people leaped to conclude it was about.