Attorneys: Prosecutors Have Uphill Battle in Convicting Rick Perry

Aug 2014 // Texas Lawyer

By Angela Morris

Texas Gov. Rick Perry on Saturday blasted a Travis County grand jury’s indictment of him as a politically motivated effort “to rip away at the very fabric of our state’s constitution.”

Perry said political differences shouldn’t be settled with indictments. “This indictment amounts to nothing more than an abuse of power and I cannot and I will not allow that to happen.”

Criminal defense lawyers not associated with the case said prosecutors could have an uphill battle, in part because they will have to establish what Perry’s intent was when he vetoed funding for the Travis County District Attorney’s Office in the wake of D.A.

Rosemary Lehmberg’s drunk driving conviction in April 2013.

The indictment in State of Texas v. James Richard Perry says that between June 10 and June 14, Perry used “means of coercion” by threatening to veto Legislature-approved funding for the public integrity unit unless Lehmberg resigned as D.A. Perry intentionally tried to influence her in the performance of her duty “to continue to carry out her responsibilities as the elected District Attorney for the County of Travis,” alleged the indictment.

Lehmberg was convicted in April 2013 of driving while intoxicated. Video footage of Lehmberg in jail on the night of her arrest showed her yelling at jailers, making faces and kicking her cell door, and more.

The grand jury investigation started from a complaint against Perry by Texans for Public Justice, a nonprofit advocacy group in Austin.

Perry’s general counsel, Mary Anne Wiley, defended the governor’s actions. “The veto in question was made in accordance with the veto authority afforded to every governor under the Texas Constitution,” she wrote. “We will continue to aggressively defend the governor’s lawful and constitutional action, and believe we will ultimately prevail.”

Lawyers’ Reactions

Dick DeGuerin, a prominent defense attorney in Houston, said that the indictment against Perry is “hypocrisy” and “retaliation.”

“I think that Rick Perry had every right to do what he did. As governor, he had the right to call on an elected official to resign, and he had a right to cut the funding to the unit. He had the right to do that, and he should have called on her to resign,” he said. “This is about retaliating against Rick Perry.”

DeGuerin noted that his politics are “180 degrees” different than Perry’s and he is not a Perry supporter.

He noted that one charge against Perry, “abuse of official capacity” generally means that a person used his official capacity to do something illegal. There also must be “illegal coercion” for the other charge, coercion of a public servant, he said.

“This is not an illegal purpose. It is not illegal for the governor of Texas to request and demand that a district attorney who is arrested and convicted of drunk driving to resign. That is not against the law, and it is not against the law for him to veto funding for this special section of the district attorney’s office,” he said.

Michael Wynne, a former assistant U.S. Attorney, said he thinks the indictment against Perry is an “abomination.”

“With the power prosecutors have to impact lives of public officials, and more importantly their families, this indictment against our governor was clearly politically motivated and timed to do the most damage possible,” said Wynne. “Having been a federal prosecutor handling cases like this, I am personally embarrassed by it.”

The governor has the discretion to exercise his veto authority, and there’s no proof he exercised it improperly or misused his constitutional powers, said Wynne, partner in McDermott, Will & Emery in Houston.

“There is no crime here: he properly exercised his veto power,” he said. “Unless they have some type of smoking gun, I think sanctions should be imposed for the prosecutor.”

Wynne noted that he’s a registered Republican but he is not closely affiliated with the party.

Tom Ajamie, founder and managing partner in Ajamie in Houston, said Perry could use his veto power if he felt it appropriate for governmental reasons, but not to force Lehmberg to resign.

“You’ve got to veto for all the right reasons, and what the district attorney is saying here is he vetoed for the wrong reason. He vetoed as means of coercing someone to resign. Abuse of official capacity: it’s a statute meant to stop what I said earlier-absolute power corrupts absolutely,” he said. “There is nothing that gives him authority to threaten a veto to force someone to resign.”

Proving the case against Perry would depend on his “state of mind” or “intent” in the veto, he explained. He guessed that if the prosecutor was comfortable brining an indictment against Perry, he must have heard testimony from someone about a statement that Perry made about his state of mind-that he was “mad” at Lehmberg and was going to do something.

“Without getting into his mind, you have to have testimony from someone,” Ajamie explained.

When asked about this own political leanings, Ajamie said he donates to both parties and sees himself as “center,” but would “definitely lean more Democratic.”

Criminal-Defense Strategies

If he were Perry’s criminal-defense lawyer, DeGuerin said he first would “advise the governor to give himself a pardon.”

When asked if he was joking, DeGuerin replied, “No. He has the power of pardon.”

He added, “The second thing he should do is get the case out of Austin. Although Rick Perry is very popular in the state of Texas, he is not very popular in Austin, Texas.”

DeGuerin added that he would also ask that the court dismiss the indictment, arguing it doesn’t state an offense because Perry had a constitutional right for his action.

Wynne also said he would “seek immediately to have it dismissed on constitutional grounds.”

Ajamie said he would argue that although Perry might have been angry at Lehmberg’s drunken behavior, the governor’s veto decision was “completely separate.”

“His thoughts to veto $7.5 million for the public integrity unit was completely different. He was wanting to veto it for different reasons,” explained Ajamie.