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.
McCrum’s reluctance to seek recusal of Justice Pemberton is understandable. For the recusal gun has but two bullets. If you miss with the first, take the second and shoot yourself.