Posted on 03/24/2015 8:59:45 PM PDT by SSS Two
Texas prosecutor Mike McCrum says the grand jury that indicted former Texas Governor Rick Perry has made two mutually exclusive factual findings. The grand jury, McCrum says, has alternately declared that Perry's public statement threatening to veto a spending bill was 1) An official act; and 2) Not an official act. The significance of this will be described below. First, though, recall that there are two Counts in the indictment against Perry:
COUNT ONE: Abuse of Official Capicity. This count alleges that Perry abused the office of Governor by "misusing" government "property" (the veto is the item Perry allegedly misused) when he vetoed the spending bill. This count has serious problems because the Texas Constitution grants the governor plenary veto power. (Even in the hypothetical event that a governor accepted an outright bribe to veto a bill, the acceptance of the bribe is the illegal act, not the veto.)
COUNT TWO: Coercion of a Public Servant. This count alleges that Perry coerced Travis County DA Rosemary Lehmberg to take an official action when he said he would veto the spending bill if Lehmberg didn't resign due to her abusive behavior and subsequent conviction for DWI.
In the original indictment, McCrum says that grand jury determined that Perry's veto threat was an official act.
The Coercion of a Public Servant offense was "committed by defendant, a public servant, while acting in official capacity as a public servant".
The language the grand jury used can be traced back to Section 1.07 of the Texas Penal Code, which defines coercion and requires:
(9) "Coercion" means a threat, however communicated:
(F) to take or withhold action as a public servant, or to cause a public servant to take or withhold action.
Mr. Perry's attorney's adroitly pointed out that Section 36.03 of the Texas Penal Code (the Coercion of a Public Servant statute) requires the prosecution to show that the act leading to the Coercion charge was **not** an official act. If the grand jury determined that Perry's threat was an official act, no crime has been committed.
It is an exception to the application of Subsection (a)(1) of this section that the person who influences or attempts to influence the public servant is a member of the governing body of a governmental entity, and that the action that influences or attempts to influence the public servant is an official action taken by the member of the governing body. For the purposes of this subsection, the term "official action" includes deliberations by the governing body of a governmental entity.
After Perry's attorneys showed that COUNT TWO does not allege a crime, Mr. McCrum amended the indictment. McCrum now says that the grand jury determined that the veto threat was not an official act after all.
"Defendant's influence and attempt to influence Rosemary Lehmberg by means of an unlawful threat to veto legislatively-approved appropriation of funds did not constitute an official action taken by the defendant as a member of a governmental body." (pp. 9-10)
It is not clear how the grand jury's finding was altered. A few possibilities come to mind.
1. The grand jury, which indicted Mr. Perry in August 2014, met again in January 2015 to amend the indictment. At the more recent meeting the indictment was amended to allege new facts that completely contradict the grand jury's previous findings. I have seen no evidence that the grand jury reconvened in early 2015, and in fact, I don't believe it did.Perry's attorneys have asked Judge Bert Richardson to look into this situation in an Opposition to the Amended Indictment. It will certainly be interesting to see how Judge Richardson handles this matter. I'm also interested if any attorneys on FR can -- in general terms -- describe how appropriate it would be for a prosecutor to tell the court that a grand jury made a factual finding that it did not actually find.2. At the time of the August 2014 indictment, the grand jury, just as Mr. McCrum asserts before the Court, simultaneously determined that the veto threat was both an official action *and* not an official action. Intellectual honesty be damned.
3. At McCrum's urging, the grand jury determined that the veto threat was an official act when it returned the indictment in August 2014. When Perry's attorneys made Mr. McCrum aware that COUNT TWO, as alleged in the indictment, didn't allege a crime, Mr. McCrum unilaterally changed the grand jury's findings in an amended indictment. Under this scenario, the grand jury did not determine that the veto threat was not an official act -- McCrum just changed it on his own.
Perhaps charges of abuse of power and coercion of a public employee should be brought against the Nifongist actions of the prosecutor.
Fool ... I’m beginning to think McCrum may face ethical allegations.
This stupid “case” hasn’t been dismissed yet?
I can’t stand Perry, but this whole farce of an indictment is bullcrap and should be dismissed ASAP.
25 seconds. :-P
Somebody needs to go to jail and it ain’t Rick Perry.
Great minds. ;D
Absolutely nothing wrong with what Perry did, as far as I can tell — and Lehmberg deserved worse than what happened.
Rats need to be Che’d
How the hell did this get to court?
I think it took over 5 years to clear the Tom DeLay case. This witchhunt will go on about as long. Forget it, Jake. It’s Travis CooCoo.
Democrat-Socialist stronghold.
My first thought, too!
Texas has a $hithouse in it, and it's Travis County. All this ballyhoo about Texas being such an upstanding conservative place is just that. What passes for the “legal system” in Texas is a joke! The place is just chock full of Ronnie Earle look alikes, abusing the legal processes to screw with people that they don't like.
Democrats thought it was a travesty of justice that you CAN indict a ham sandwich and yet the officer in the Ferguson case was not indicted.
It never occurred to them that it may be WRONG to indict a ham sandwich.
Travis County, is all anyone needs to know.
This is pure politics, with some history, likely involving the likes of LBJ, but largely used by retreating democrats to thwart elected Republican Texas Governors and other ranking politicians.
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