Rick Perry Avoids Justice For His Criminal Behavior

(Caricature of Rick Perry is by DonkeyHotey.)

This comes as no surprise to those of us living in Texas. Former Governor Rick Perry, who was charged with two felonies (abuse of official capacity and coercion of a public servant) will not have to stand trial for his criminal behavior.

The Republican-dominated Texas Court of Criminal Appeals has chosen to protect one of it's own -- and in a 6 to 2 decision, decided the charges violated the Texas Constitution. Perry can now ride off into the sunset -- assured he will not have to face a jury on those charges.

Here is how texaslawyer.com describes the ridiculous decision:

A divided Texas Court of Criminal Appeals has dismissed the criminal case against former Gov. Rick Perry.

The 6-2 majority opinion—accompanied by two concurrences and two dissents—dismissed Perry's charge of abuse of official capacity, and upheld the Third Court of Appeal's decision to dismiss his coercion of a public servant charge.

The high court found that Perry's case arose from a governor's threat to exercise a veto and his ultimate exercise of the veto.

The court ruled that it violated the Texas Constitution's separation of powers provision to prosecute the exercise of a veto under the abuse of official capacity statute. It determined there was a facial violation of the First Amendment to prosecute the threat of a veto under the coercion of a public servant statute. The court also decided—in an expansion of Texas habeas law—that Perry could raise his separation-of-powers argument as an as-applied challenge in a pretrial habeas application, followed by an interlocutory appeal.

"The nature of the constitutional right at issue entitles him to raise these claims by pretrial habeas corpus," said the majority opinion by Presiding Judge Sharon Keller.

Previously, courts would only grant a defendant pretrial habeas relief if he successfully argued that a law was unconstitutional on its face, not as applied to his situation.

Keller Hearing Starts Today

On September 25, 2007, Judge Sharon Keller of the Texas Court of Criminal Appeals decided to close the court offices at 5:00pm and go home. On a normal day that would be appropriate, but on that particular day an execution was scheduled in Huntsville.

Out of both tradition and good sense, the Court of Criminal Appeals stays open late on execution dates just in case of some kind of emergency. And an emergency happened that day. Attorneys for the condemned man had computer problems. That meant the only way they could file an appeal was to contact the court (which Keller had closed). The man was executed that night without his attorneys being able to file their last appeal.

Now it doesn't matter whether the man deserved to be executed or not, or whether the last minute appeal would have stopped the execution or not. The fact is that he should have had to opportunity to file that appeal, but the callous action of Judge Keller prevented that.

Today, Judge Keller goes on trial for judicial misconduct. The judge hearing the special trial will present a report to the Texas Judicial Commission. It will be up to that commission to dismiss the charges, censure her, or recommend her removal from the bench.

In her defense, she says no one ever told her of the computer problems. The problem with that argument is that if she'd kept the court open late as she should have, the attorneys would have been able to both tell her of the problems and file their appeal.

I think Judge Keller should be removed from the bench. Taking a life is the most extreme action the state can take, and it should be done right if at all, with the rights of the condemned man protected. We need to replace her on the court with someone who observes the rules and protects everyone's rights.

Texans deserve no less.