Post by pavel on Mar 5, 2016 8:04:20 GMT -6
AUSTIN — 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.
One of two judges who dissented, Judge Lawrence E. Meyers, on Wednesday amended his dissenting opinion to take issue with Keller ordering that the case be sent back to the trial court "to dismiss the indictment."
"We have no authority to instruct the district court dismiss the indictment on remand, rather we should allow the trial court to decide how to proceed based on our opinion," wrote Meyers, the only Democrat on the court.
Perry's lead lawyer, Tony Buzbee of Houston, said Meyers' point wouldn't have any impact on the ultimate disposal of the case.
"The court was clear on what it wants done. The indictment has no merit, at all," Buzbee said. He said Perry's team will wait for the high court's order to become final, then ask the trial judge "for final disposition."
"As far as we are concerned, this farce is over," Buzbee said.
McCrum hasn't said whether he will ask the Court of Criminal Appeals to reconsider the case or otherwise attempt to revive the case against Perry.
The case turned on whether Perry, a Republican, improperly used his veto power to try to force out a Democratic prosecutor after her messy, high-profile drunken-driving arrest.
Nearly three years ago, then-Gov. Perry vetoed state funding for the public integrity unit overseen by Travis County District Attorney Rosemary Lehmberg, who served time but declined to resign after her drunken-driving incident. Perry said she had lost the public's confidence.
The watchdog group Texans for Public Justice filed a complaint over the veto, ultimately leading to Perry's indictment. The group said Perry had authority to veto the funding but that he had overstepped in trying to leverage that power to force out Lehmberg.
Perry said he acted properly and would do it again and that the charge against him violated separation of powers.
A coercion charge in the indictment was dismissed last year by the 3rd Court of Appeals in Austin, which found the law underlying it unconstitutional. The Court of Criminal Appeals agreed with that action.
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.
Judge Bert Richardson of the high court didn't participate in the decision because he presided over Perry's case at the trial court level, an assignment he got before being elected to the high court. He still is presiding judge for the case.
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.
One of two judges who dissented, Judge Lawrence E. Meyers, on Wednesday amended his dissenting opinion to take issue with Keller ordering that the case be sent back to the trial court "to dismiss the indictment."
"We have no authority to instruct the district court dismiss the indictment on remand, rather we should allow the trial court to decide how to proceed based on our opinion," wrote Meyers, the only Democrat on the court.
Perry's lead lawyer, Tony Buzbee of Houston, said Meyers' point wouldn't have any impact on the ultimate disposal of the case.
"The court was clear on what it wants done. The indictment has no merit, at all," Buzbee said. He said Perry's team will wait for the high court's order to become final, then ask the trial judge "for final disposition."
"As far as we are concerned, this farce is over," Buzbee said.
McCrum hasn't said whether he will ask the Court of Criminal Appeals to reconsider the case or otherwise attempt to revive the case against Perry.
The case turned on whether Perry, a Republican, improperly used his veto power to try to force out a Democratic prosecutor after her messy, high-profile drunken-driving arrest.
Nearly three years ago, then-Gov. Perry vetoed state funding for the public integrity unit overseen by Travis County District Attorney Rosemary Lehmberg, who served time but declined to resign after her drunken-driving incident. Perry said she had lost the public's confidence.
The watchdog group Texans for Public Justice filed a complaint over the veto, ultimately leading to Perry's indictment. The group said Perry had authority to veto the funding but that he had overstepped in trying to leverage that power to force out Lehmberg.
Perry said he acted properly and would do it again and that the charge against him violated separation of powers.
A coercion charge in the indictment was dismissed last year by the 3rd Court of Appeals in Austin, which found the law underlying it unconstitutional. The Court of Criminal Appeals agreed with that action.
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.
Judge Bert Richardson of the high court didn't participate in the decision because he presided over Perry's case at the trial court level, an assignment he got before being elected to the high court. He still is presiding judge for the case.