Patterico's Pontifications


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.

Democratic Congresswoman Mans Up To Point Out The Obvious To John Kerry

Filed under: General — Dana @ 7:34 pm

[guest post by Dana]

A Democratic Congresswoman who expressed frustration with John Kerry and his refusal to identify the enemy has once again not only attacked the foolishness of his verbal gymnastics but the foolishness of his rationalization as well. Tulsi Gabbard points out the obvious:

“The first thing we have to understand, it’s not just about words, it’s not about semantics, it’s about having a real true understanding of who our enemy is,” Gabbard told Greta Van Susteren on Fox News. “A couple of days ago Secretary Kerry said in a speech that ISIS and al Qaeda are engaging in, quote, criminal conduct rooted in alienation, poverty, thrill seeking and other factors. Now if we really look at what he’s saying and if that’s really the cause, then the solution would be to give them a trophy, give them a hug, give them a good paying job, $10,000, and a skateboard so they can go and get their thrills.”

“Unfortunately we have people who are living in poverty all around the world, people who have this same feeling of alienation from their government but they’re not terrorists. So we’ve got to look at what their ideology is and how that’s fueling these tragic attacks that keep occurring.”


Hezbollah Attacks Israeli Patrol, Killing Two. . .

Filed under: General — JVW @ 4:39 pm

[guest post by JVW]

. . . and some members of Lebanon’s Tehran-allied puppet government claim it’s a ploy by Netanyahu in the run-up to the Israeli elections. You just can’t underestimate the level of paranoia that is entrenched in the anti-Israel mindset.


Judge Refuses to Toss Rick Perry Indictment

Filed under: General — Patterico @ 7:53 am

What a shame.

A Texas judge on Tuesday refused to dismiss a felony abuse-of-power case against former Gov. Rick Perry on constitutional grounds, ruling that criminal charges against the possible 2016 presidential candidate should stand.

In 44 pages of decisions and orders, District Judge Bert Richardson, who like Perry is a Republican, rejected calls from Perry’s pricy defense team to toss the case because its client was acting within his rights as chief executive of America’s second-most populous state when he publicly threatened, then carried out, a 2013 veto of state funding for public corruption prosecutors.

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

This prosecution is a joke. I’ll try to find the judge’s order tonight and comment on it.

Matt Lewis on Why Income Inequality Is Awful

Filed under: General — Patterico @ 7:29 am

And envy is awesome. But free markets are what help the poor. “[T]he poor not only earned the highest average income in the countries with the most economic freedom but also earned a slightly larger share of the income pie.” The only problematic income inequality is that caused by the government. Free the markets and poor people benefit, Matt Lewis. Here’s a bonus: Nineteen Neglected Consequences of Income Redistribution.

Hot Air: Romney to Rebrand Himself As “Authentic”

Filed under: General — Patterico @ 7:29 am

Well. “The secret of success is sincerity. Once you can fake that you’ve got it made.”

More Illegal Immigrant Criminals

Filed under: General — Patterico @ 7:29 am

Another murderer who should have been deported:

“The clerk says, ‘I can’t give you the cigarettes until I count the money,’ ” said Detective Steve Berry, a Mesa police spokesman. “At that point, the (man) shoots him anyway.”

. . . .

Altamirano was arrested on suspicion of first-degree murder, armed robbery, burglary, unlawful flight and misconduct involving weapons because he is a prohibited possessor. Court records show Altamirano initially was charged with burglary in 2012, pleaded guilty to an amended charge of facilitation to commit burglary and was placed on probation for two years. A court document said he was born in Mexico and was in the U.S. illegally. A judge had ordered notification of U.S. immigration officials.

Another illegal immigrant criminal (a burglar) was from the Middle East? But why would he come across the southern border? I am mystified. (Not really.)

Ace on The Mob

Filed under: General — Patterico @ 7:29 am

Ace on Jonathan Chait talking about political correctness.

The “speech” of a mob is emotionally abusive and personally intimidating — and it is hardwired into our brains to find it such, when directed at we ourselves.

On the other hand, we’re also hard-wired to really enjoy leading a mob against someone. It feels good. There is no denying that; I’ve felt damned good everytime I’ve joined up with a mob.

And it is precisely because it Feels So Good to engage in coordinated mob cruelty that thoughtful people must resist the lure and call out mobs where they see them.

I’ve tried that, Ace, and you know what? It’s a good way to get yourself mobbed.

President Obama Drops Plan To Raise Taxes On 529 College Savings Plans

Filed under: General — Dana @ 6:54 am

[guest post by Dana]

How great if any proposed tax increase became “such a distraction” that it, too, was abandoned:

President Obama on Tuesday abandoned a proposal to end a major tax benefit of popular college savings accounts used by millions of American families after the White House faced mounting criticism from lawmakers and parents.

White House officials said the backlash against the president’s plan became “such a distraction” that it was best to drop the proposal, which would have removed the ability of families to withdraw money tax-free from the savings plans, known as 529s.

The administration had tried to frame the elimination of the tax break as a way to redirect more money to middle-class families, arguing that the savings plans were being used disproportionately by wealthy families.

But the proposal proved to be a serious political miscalculation. With more than $1 trillion of outstanding student debt in this country, the 529 plan has become one of the best tools for families to save for college. About 12 million American families rely on the accounts.

Not even Democrats like Sen. Charles E. Schumer, House Minority Leader Nancy Pelosi or Rep. Chris Van Hollen were on board with the idea floated during the president’s SOTU address. The White House will instead pursue a plan that provides “education tax relief” with bipartisan support.


UPDATE BY PATTERICO: I put up a post on this before I saw Dana had done one, so I’ll throw in my two cents here. Which is:

Duh. “Close to 10 percent of 529 account holders have incomes below $50,000, and more than 70 percent of the total number of accounts are owned by households with incomes below $150,000.” It was an attack on the middle class, and why was that fact was not front and center in the GOP SOTU response? Because the GOP is incompetent.

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