Rick Perry’s lawyers file 60-page motion to dismiss case

[Laura PourMeADrink]

By Chuck Lindell and Tony Plohetski
American-Statesman Staff

The two-count indictment against Gov. Rick Perry defies common sense and should be dismissed “immediately if not sooner” as a violation of the U.S. and Texas constitutions, Perry’s legal team told the trial judge Monday.

The wide-ranging attack argued that Perry’s criminal charges were based on state laws that are unconstitutional or, at the very least, were misinterpreted — constituting an improper attempt to criminalize politics and limit gubernatorial power in “intolerable and incalculable” ways.

“Continued prosecution of Governor Perry on the current indictment is unprecedented, insupportable and simply impermissible,” said the 60-page filing by defense lawyer David Botsford.

The charges, stemming from Perry’s veto last year of state money for the Travis County district attorney’s office, also violate the Texas Constitution’s separation-of-powers clause by improperly inserting the courts into the functions of the executive and legislative branches, the petition said.

http://www.statesman.com/news/news/rick-perrys-lawyers-file-60-page-motion-to-dismiss/ng8WP/

“Allowing a criminal prosecution of a political decision where there is no allegation of bribery or demonstrable corruption undermines the basic structure of state government,” Botsford wrote. “It is no fault of the court that it has been asked to intrude on a political dispute; dismissal is the proper way to ensure that the judiciary plays no part in the separation-of-powers attack.”

The document filed Monday was a petition for a writ of habeas corpus — designed for constitutional challenges but rarely filed before a trial.

Special prosecutor Michael McCrum will be given time to respond — no deadline has been set — and Senior District Judge Bert Richardson can schedule a hearing to gather additional evidence or rule based on the legal briefs.

Either way, the losing side can — and most likely will — appeal Richardson’s decision to the 3rd Court of Appeals in Austin, which is comprised of five Republican justices and one Democrat. The Court of Criminal Appeals, with an 8-1 advantage in Republican judges, also can be asked to review the 3rd Court’s decision.

Even with a request for expedited rulings, the appellate court process will take weeks, probably months, to navigate.

If Monday’s petition fails to void the criminal charges against Perry, Botsford indicated that he will file a motion to dismiss the indictments for failure to adequately state a violation of state law.

“Those arguments will not be addressed now, because pretrial habeas corpus is not the remedy for factual inadequacy, even when that inadequacy is as blatant as it is here,” Botsford told Richardson in the petition.

A Travis County grand jury indicted Perry 10 days ago on felony charges of coercion of a public servant and abuse of official capacity.

He is accused of threatening to withhold $7.5 million in state money to the Public Integrity Unit unless District Attorney Rosemary Lehmberg resigned after her high-profile arrest for drunken driving. Perry carried out that threat when Lehmberg did not step down.

[lpbk2713]

1. I hope Perry loses big time and comes out looking like a sleaze.

And I hope it costs Perry and the Texas GOP a bundle in legal fees.

[gratuitous]

2. They filed for habeas?

That will definitely throw sand into the gears. If Perry's trying to get to the merits of the indictment (And of course he is innocent, so that follows, right?), his attorneys sure picked a funny way of doing it.

[Laura PourMeADrink]

12. Can you elaborate? They say it's an unusual move. nt

[gratuitous]

15. A habeas petition is usually filed on behalf of someone in custody

For a variety of strange reasons, Rick Perry continues to trod the earth a free man. A petition for habeas corpus is usually filed to bring a prisoner into court for a summary review of the legality of his detention. There will no doubt be a great deal of legal wrangling over the petition for habeas, mostly having to do with its appropriateness, and all of that argument will probably not get to the merits of the case against Perry.

That's why it seems odd that Perry, who is stoutly maintaining his innocence, would go through the diversion of a habeas proceeding, which will gum up the works for several weeks, if not months, without addressing the charges against him. Of which he's, like, totally innocent.

Maybe jurisprudence is very different in Texas, but it's unusual to go through a habeas proceeding for someone who isn't in custody.

[Laura PourMeADrink]

16. Thanks G ! I was thinking about the delay as well...but think

perhaps they decided it was worth the gamble. If it works, and the case is thrown out, huge reward. If not, he's only added a month or two and he's helped to push his PR campaign of polluting the jury pool by claiming the whole thing is ridiculous.

[3rdwaydem]

3. In any case, I doubt he'll be convicted

[napi21]

4. We'll see. At first I thought the same (that he woulldn't be convicted) but

after listening to a number of commentators, I think there IS a possibility that he just could be. A repub. nominated Judge believed there was grounds for the suit, so I'm going to continue to watch, listen, AND HOPE!

[3rdwaydem]

7. Me too

[Laura PourMeADrink]

13. It is really quite simple - best I can tell. the statute says he

can not coerce/threaten a public official while using the "powers of his office."

Guess they will have to prove that the veto is a "power of his office" GJ must have.

If you buy into that...then it is totally an open-shut case because Perry is on record to the effect that he was going to do just that and he did it.

Please correct me if I have misstated the issue. He has a right to veto - of course - but that is not the issue.

[Vincardog]

5. I say change of venue. Move the trial to California. The "conserva-criminals"

Have captured the TX judicial branch these are the Bastids 0hat are allowing Tom the Bug Man Delay off the hook

[conservaphobe]

6. There were too many so-called Dems coming out in support of Perry.

For whatever corrupt reason.

Now he has the 'even some liberals think this goes too far' line.

No one. Not a single Repuke would defend a Democrat in legal trouble.

[Laura PourMeADrink]

14. geez - if Dems think there is no case - they should have

kept it to themselves and said nothing.

[Rex]

8. Okay I'll bite...how do you do something “immediately if not sooner”?

im·me·di·ate·ly
iˈmēdē-itlē/Submit
adverb
1.
at once; instantly.
"I called immediately for an ambulance"
synonyms: straightaway, at once, right away, instantly, now, directly, promptly, forthwith, this/that (very) minute, this/that instant, there and then, then and there, on the spot, here and now, without delay, without further ado, posthaste; More
2.
without any intervening time or space.
"she was sitting immediately behind me"
in direct or very close relation.
"they would be the states most immediately affected by any such action"
synonyms: directly, right, exactly, precisely, squarely, just, dead; informalsmack dab
"I sat immediately behind him"
conjunctionBRITISH
conjunction: immediately
1.
as soon as.
"let me know immediately she arrives"

Why are all repukes so fucking stupid? Can anyone answer that?

[FSogol]

9. "How do you do something “immediately if not sooner” - Simple, just

use tachyons.

Of course, there is no way to answer your 2nd question: "Why are all repukes so fucking stupid?"

[Rex]

11. HAHAHAHAHA!!!

Blackholes? Quasars? Sun spots? Just WHAT makes GOPukers so fucking dumb?

Even Mr. Owl is baffled!

[joeybee12]

10. Lawyers get paid by the word...

So the obvious , well, diarrhea. Actually, it's by the minute, but it works out to the same thing...drag it out...