Patterico's Pontifications

1/28/2015

Analysis of the Judge’s Refusal to Dismiss the Rick Perry Indictment

Filed under: General — Patterico @ 9:00 pm

I said this morning that I would try to comment on the judge’s order regarding the Rick Perry indictment. Here you go. I’m going to keep this short, but in order to do so, I am assuming your familiarity with this detailed post of mine from August 2014 in which I pulled apart the indictment piece by piece. (Thanks to DRJ for providing a link to the order, by the way.)

The order is not crazy on its face, though the prosecution is.

The judge first makes the point that settled Texas law holds that “as applied” constitutional challenges cannot be raised before trial. That may be, but I don’t understand the logic, given that specific evidence was presented to the grand jury and the indictments were based on that evidence. Why can’t Perry argue that the statute is unconstitutional as applied to the facts as presented to the grand jury? I don’t understand why he can’t.

Further: as to Count I, the judge is saying that Perry is claiming that you can’t criminalize a veto in this way — but the judge can’t rule on that question now, because the indictment doesn’t specifically say they are bringing the charge based on the veto. They are, of course, as I demonstrated last August — this is beyond rational dispute. But the judge says as a technical matter, if they didn’t allege it, he can’t rule on the question right now. He does suggest that, if that is the prosecution theory, Perry can legally demand that prosecutors specify how he misused property, and make them allege that he did so by way of a veto. Then, maybe, the judge can rule on the question of whether a veto can violate this law. (Which, of course, it can’t!) But he can’t make such a ruling yet — not until the indictment says it is targeting the veto.

(Again, I don’t understand why the judge can’t examine the evidence presented to the grand jury and conclude that their only evidence of action by Perry on the date alleged is a veto. I guess this is some procedural quirk I don’t understand.)

As to Count II, as I explained last August, there is a statutory exception that clearly applies to Perry’s conduct. Perry said the indictment needs to explain how that exception doesn’t apply, and the judge agrees — but he says the remedy for that failure is amendment, not dismissal. I don’t see how they can validly get outside the exception, as I previously explained — so maybe once they amend, this too will be ripe to decide.

There is an interesting footnote that claims that Count II is really a misdemeanor because Perry did not threaten to commit a felony. I suspect McCrum would argue that Perry threatened to commit the felony described in Count I, which (as we know) is the veto. Apparently the judge doesn’t see it that way.

This decision could be read as a road map for Perry’s lawyers to place the case in a procedural posture where it can be dismissed. Once the indictment clearly says Count I is based on a veto, and makes its pathetic attempt to show how Count II survives the statutory exception, the judge may be saying, I can then finally toss this puppy.

But maybe not. As DRJ reminds us, this judge is the same judge who appointed McCrum to begin with — after McCrum gave him a donation (narciso reminds us) — and what’s more, the judge had to get special permission to rule on this motion, because he has been elected to an appellate court. To me, that all sounds wrong, but maybe I don’t understand Texas procedure.

But to me, it sounds like Perry’s lawyers should can the appeal, and get busy writing the new motions the judge has suggested they should write.

13 Responses to “Analysis of the Judge’s Refusal to Dismiss the Rick Perry Indictment”

  1. So says me.

    Patterico (9c670f)

  2. Do they have a Request for a Bill of Particulars in Texas? That’s the way to tie the state down on the veto thing.

    nk (dbc370)

  3. DRJ remkinds,special rules

    Steve57 (a04df5)

  4. So the prosecution has to spell out their theory for wrong doing before making Opening Arguments to the jury?

    seeRpea (1d44c7)

  5. Now that he has ruled, they can appeal it. However he had ruled, one side or the other would appeal it. And the appellate court can toss the entire case without reaching the subject of what the trial court can and cannot do, as I assume they are allowed to tread into constitutional matters.

    Kevin M (25bbee)

  6. I don’t understand all the nuances of Texas criminal law but when I read the opinion, I also thought the judge was explaining what was wrong with the defense as well as the prosecution’s argument. In that sense, the judge laid out a road map for both parties to succeed, but the problem for the prosecution is that I don’t think it can’t do what the judge says it has to do. If that’s true, then the judge should have been able to dismiss this case.

    But the judge chose not to dismiss this case, and my gut says he didn’t want to be the one to dismiss it. Texans don’t like judges who make law or get involved in political decision, and he knows this. If so, then I think the judge wants the Texas Court of Criminal Appeals to weigh in and take the focus off this one judge.

    DRJ (a83b8b)

  7. I absolutely agree DRJ.

    Steve Malynn (6b1ce5)

  8. Is the judge really a republican judge. I live in Dallas county (dallas tx) and a registered democrat – just so i can vote in the dem primaries, for the purpose of voting for the least bad dem on the ticket. – I might add to get watkins out as the local DA.

    joe (93323e)

  9. There’s also the possibility that, especially in such a high-profile case, the judge is being nitpicky because he doesn’t want to risk creating bad precedent. If Perry’s lawyers skipped a step in connecting the dots, then it’s best for the system to make them do that.

    I do like the mental picture of a judge doing what Mr. Incredible did when the old lady came to him trying to file a claim.

    Piedmont (433dfd)

  10. re #9: 😀

    seeRpea (9a7f2e)

  11. Again, I don’t understand why the judge can’t examine the evidence presented to the grand jury and conclude that their only evidence of action by Perry on the date alleged is a veto. I guess this is some procedural quirk I don’t understand.

    I think maybe on the theorythat not every element that might constitute a crime is in the indictment.

    But if the prosecution admits that an essential element of their charge is the veto threat, and without the veto threat, there is no charge, then you have the possibility of saying no crime is alleged.

    Remember, in pretrial rulings, every fact has to be assumed in favor of the prosecution.

    Sammy Finkelman (e806a6)

  12. maybe once they amend, this too will be ripe to decide.

    Or once they can’t or don’t amend it.

    Sammy Finkelman (e806a6)

  13. Why hasn’t this judge been disqualified for his prior connection to the matter before him?

    askeptic (efcf22)


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