Oops.
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.
For the second time, Republican District Judge Bert Richardson has ruled against former-Governor Rick Perry’s motions to dismiss the felony indictments leveled against him for abuse of power.
“Rick Perry, his high-priced legal team and out-of-state pundits have long argued that Perry’s indictments are so flimsy that they will not stand up in court. Today a top GOP judge again refused to dismiss the case. The prosecutor and a grand jury have said there’s compelling evidence against Perry. That evidence should be presented in court for all to see. The chances of that happening improved today,” said TPJ director Craig McDonald.
Texans for Public Justice filed a criminal complaint against Perry in June of last year. That complaint led to Perry’s indictment by a Texas grand jury on two counts related to his abuse of office.
Richardson’s order was spot on, except for the part where he allows for amendment of Count II of the indictment.
Since the Court sustained an exception to substance on the ground that no offense was actually charged in the indictment, article 28.07 of the CCP would seem to require complete discharge of the governor. (Such discharge would be without prejudice, since jeopardy has not attached, leaving the prosecutor free to go back to the grand jury.)
If the governor is not discharged, mandamus would appear to be a proper remedy.