Monday, August 25, 2014

Rick Perry seeks habeas corpus relief

Via Mark Bennett, here's Texas Gov. Rick Perry's pretrial writ of habeas corpus (pdf) asking a district judge (and ultimately the Court of Criminal Appeals) to bar his prosecution for abuse of power in the Travis County Public Integrity Unit veto scandal based on constitutional grounds. See the Austin Statesman's coverage.

For habeas buffs, this is a particularly high-profile application. Rate the odds of its success (preferably sans partisan carping in either direction) in the comments.

21 comments:

Anonymous said...

Sans partisan carping, and I've never voted for Rick Perry in an election, the odds of success of this petition are very high.

The larger issue is, even neglecting constitutional issues, the indictment doesn't even allege an offense under state law. McCrum failed to negate the exception that Rick Perry acted as a public servant in his official capacity and failed to allege that Perry bribed Lehmberg in any way. If a governor can get railroaded this easily with a defective indictment in Texas, what do you think happens to black people?

Phelps said...

Extremely high. The courts are exceptionally loathe to get in between fights between elected officials, and this one even drags the leg vs executive into it.

The courts want no part in these shenanigans, and would toss this one out on the thinnest of rationales -- and instead, they have a nice, solid separation of powers issue to drape a complete dismissal with prejudice on. If they don't, they'll have one of these damned cases in front of them every time there is a veto and someone's ox is gored.

doran said...

Grits, your first two commentators may be correct. But if they are, the problems they see with the indictments can be "cured" by new indictments.

M. Kat Mason said...

It is likely the case will be dismissed with predjudice. It would be unlikely they would refile.

Anonymous said...

I'm no expert on TX-specific law, but I would expect a dismissal for a defective indictment to be without prejudice, contra to M. Kat Mason.

Anonymous said...

You know Governor Perry is no friend of mine and I would find it quite amusing to see him sitting in the prison system that he help place so many corrupt people in; however, I have had one state government employee and a state contractor tell me if I told on them they would go after my family. My point is that, there is a real problem and no punishment with threating retaliation against someone in the state of Texas by officials. At least he did not pull a knife on some one.

Phelps said...

I'm not arguing that they will find the indictment defective; I am arguing that they will accept the separation of powers argument and dismiss with prejudice based on that. The whole point is that the courts don't want to get tied up in partisan shenanigans (from either side) and don't want to be tied up with a criminal case every time a bill is (or isn't) vetoed.

Anonymous said...

Perry used his line item veto. End of story. As for forcing the incumbent da out, she should resign. She is head of a unit that investigates state employees conduct. Her conduct is unprofessional I don't care if she is gay, black white or green!

Anonymous said...

Can the governor THREATEN to line item veto the money in order to get rid of a prosecutor, judge, etc., who is investigating one of his cronies? If so, Texas will become the most corrupt state that it already is suspected to be by many. The indictment is not about the veto, but about the threat to veto to force out a District Attorney with the authority (if not now the money) to investigate the governor and his cronies. A silent veto would be constitutionally protected. Should a threat of veto for unjust purposes be so protected?

kramartini said...

The indictment is garbage, but this writ just adds to the trash heap.

Perry's lawyers should know better than to file a bunch of "as applied" constitutional challenges in a pre-trial habeas application.

The facial challenges look like they have a shot. But why go through all that work when a simple motion to quash pointing out that Count I fails to specify any property (since a vetoed appropriation is not property as a matter of law) and Count II fails because the Travis County DA's (non-existent) duty to continue in office is not a specific duty.

Phelps said...

Can the governor THREATEN to line item veto the money in order to get rid of a prosecutor, judge, etc., who is investigating one of his cronies? If so, Texas will become the most corrupt state that it already is suspected to be by many.

That's a terrible argument, because the governor already had the power to pardon. Why go through all these convolutions when he can just pardon them? The pardon is a much more abusable power than line item vetoing, and every state allows it, corrupt or not.

Anonymous said...

This whole thing pretty well sums up criminal justice in Texas.

Soronel Haetir said...

Phelps ,

Actually, the Texas governor does not have a free-roaming pardon power the way the US president and most other state governors do. In Texas clemency of any form can only be granted after a positive recommendation by a majority vote of the Board of Pardons and Paroles. From what I have read this arrangement came about after one governor was accused of using the previously unfettered power in just the way you describe.

Anonymous said...

This is our chance to take down Perry.

Anonymous said...

You're retarded.

Anonymous said...

Count II also should negate the exception of an official public act. It does not.

dfisher said...

Perry's troubles with the grand jury pales in comparison with the allegations currently being investigated by the FBI, which includes bribery.

What appeared to be a Perry moment in New Hampshire, where he stated the first count of the indictment was for bribery, was simply the weight of the FBI investigation on Perry coming to the surface.

Perry's threat to Lehmberg had nothing to her DWI, but that she would not interfere with a complaint about to be filed with the Public Integrity Unit, that could end any presidential run before it started.

If I have my facts correct, then both the indictments and the FBI investigation cross at one common point. The death of the Adopted Russian Boy, Max Shatto.

Phelps said...

Great, a Max Shatto conspiracy theorist. The nuts are really out in this one.

Anonymous said...

You already have your dirty prosecutors, like Shannon Edmonds at TDCAA, trying to go to bat for Michael McCrum. To people like McCrum and Edmonds over at TDCAA, the constitution is just a political document.

Anonymous said...

Extremely high probability of success is putting it mildly. Never have and never will had much use for Governor Good Hair but jeez, I didn't realize how much swiss cheese with really BIG HOLES was piled on this ham sandwich indictment.

Anonymous said...

Shannon Edmonds is a washed up liberal racist.