Now we wait to see if he comes out of this a free man or a man still under one or more indictments.
Lawyers for former Gov. Rick Perry fought Wednesday before the highest criminal court in Texas to finish off the 15-month-old indictment against him, while prosecutors argued it was far too early to let Perry off the hook.
At a critical two-hour hearing before the Texas Court of Criminal Appeals, both sides fielded a slew of hypothetical scenarios and skeptical questions as they tackled a ruling by a lower court earlier this year that dismissed one of the two felony charges against Perry, coercion of a public servant.
Two issues were at play Wednesday. One was whether the remaining charge, abuse of power, should also be thrown out, effectively ending the 15-month-old case against Perry. The other issue was whether a statute should be reinstated that was struck down by the Austin-based 3rd Court of Appeals in July when it dismissed the coercion charge.
Eight judges listened as those issues were aired out in hour-long blocks split between David Botsford, the lead attorney on Perry’s appeal, and State Prosecuting Attorney Lisa McMinn. Judge Bert Richardson, who oversaw Perry’s case as a district judge and now sits on the Court of Criminal Appeals, did not take part in the Wednesday arguments.
As Perry’s legal team has done from the get-go, Botsford cast the case as having serious implications for First Amendment rights and a chilling effect on elected officials down the line. The indictment, he said, violates three principles to which Perry was entitled as Texas’ longest-serving governor: separation of powers, free speech and legislative immunity.
“The danger of allowing a prosecutor to do this is mind-boggling,” Botsford said as he sought to convince the eight judges present for the arguments that they should immediately end the indictment.
McMinn argued more than once that the defense was “getting ahead of ourselves” with its discussion of dispensing with the indictment before trial, insisting that not all the facts are out. Botsford later countered that such disclosure is not required for the court to dismiss the remaining charge. The questions before the judges, Botsford said, are “issues of law, not issues of fact.”
McMinn specifically sought to poke holes in Botsford’s argument that Perry had legislative immunity because vetoes are legislative acts, an argument she said “strains credibility” when one considers, for example, a member of the Legislature cannot take the same action. In his remarks, Botsford argued Perry was clearly “wearing his legislative hat” and thus protected from prosecution, regardless of any threats that may have accompanied his veto.
This hearing was originally scheduled for November 4, but you know how it goes. What happens next is we wait. The CCA justices (minus Bert Richardson, who is of course the judge in the actual criminal trial) asked more questions of McMinn than of Botsford, but who knows if that means anything. The trial is on hold pending a resolution of these issues by the CCA, so one hopes we won’t have to wait too long. See Trailblazers, the Express-News, and this Trib story for more from before the hearing.