EARLIER THIS WEEK I righteously shamed the Houston Chronicle for its biased and pathetically unprofessional front-pager on Rick Perry's legal victory last week. On further review, the coverage was even worse than I thought.
The Travis County D.A.'s office, remember, is prosecuting Mr. Perry, our former governor, for alleged crimes associated with the exercise of his veto power over taxpayer money for -- wait for the punch line --
. . . the Travis County D.A.'s office.
(Yes, I know there's a special prosecutor. He's a cutout for the Travis County District Attorney. A puppet.)
Last Friday Austin's Third Court of Appeals kicked out one of the two charges against Mr. Perry, but left the other one standing, to be resolved in a lower court.
The essence of my charge against the Chronicle's coverage is that it improperly -- in both a journalistic sense and a moral sense -- downplayed the substance and importance of Mr. Perry's appellate victory and improperly treated the dismissal of Mr. Perry's appeal on the second charge as the real news and a rousing victory for the Travis County D.A.
That's still true, but the newspaper's felony against good journalism is even worse than I thought. That's because the Travis County D.A.'s win was merely procedural while the governor's victory was substantive -- namely that the dismissed charge was unconstitutional on its face.
Under the most elementary tenets of Journalism 101, is it possible to report that a criminal charge has been dismissed because it was unconstitutional without using the word unconstitutional?
Not at the Dallas Morning News (where violated his rights to free speech is the functional equivalent of unconstitutional):
A state appeals court tossed out one of the charges against former Gov. Rick Perry on Friday, saying that the indictment on a count of coercion of a public official violated his rights to free speech.
Later in the same story (my emphasis):
Three of the court’s six judges considered the case and ruled unanimously that, as written, the state statute governing coercion of a public official is an unconstitutional restraint on free speech rights.
Not at the Washington Post:
AUSTIN, Texas — One of two felony indictments against former Texas Gov. Rick Perry was tossed out Friday, giving the Republican presidential candidate a potentially huge legal victory in the face of flagging polling numbers for the 2016 race.
The 3rd Court of Appeals in Austin sided with Perry’s pricy legal team, stating in a 96-page ruling that the charge of coercion of a public servant constituted a violation of the former governor’s free speech rights (my emphasis).
And not at the Austin American-Statesman, CNN, or any other mainstream news provider I checked. Not even the New York Times ("violates his right to free speech under the First Amendment").
But the miserable Houston Chronicle managed to report the story without ever once clearly explaining how Mr. Perry had won.
No violated his right to free speech.
No unconstitutional except once -- get this -- to say that it was too early, procedurally, to decide whether the abuse of official capacity charge against Mr. Perry was unconstitutionally applied to the former governor.
Not that the dismissed charge was unconstitutional. But that the remaining charge cannot yet be said to be unconstitutional. So there.
At a real newspaper, this sort of journalistic malpractice would be grounds for firing or demotion of both the reporter and the editor who was responsible for approving this abomination.
* * *
A friend touted me to law professor Eugene Volokh's clearheaded explanation of how, on the merits, the remaining charge against Mr. Perry also must fall. (Eugene Volokh, "The remaining count of the Rick Perry prosecution, and how it unconstitutionally intrudes on the governor's veto power," washingtonpost.com, July 24, 2015)
Why trust Mr. Volokh's analysis? One reason is that last August he wrote that the first charge should fall on precisely the same grounds used by the Texas court last week. Volokh is honest and smart. When courts disagree with him, it's usually the courts that are wrong.
Mr. Volokh's recent essay about how the remaining count is also unconstitutional -- under the Texas Constitution this time -- is based on the substance of charge against Mr. Perry.
The law professor confesses "that I don't know enough about Texas procedures (my emphasis) to opine on whether the argument [for dismissal before trial] is likely to succeed."
It's a timing issue for him: whether Mr. Perry can get the charge dismissed ahead of trial or whether he can appeal (and presumably win, on Mr. Volokh's arguments) if convicted at trial.
For the record, Mr. Volokh is co-counsel of an amicus brief "on behalf of various professors, former prosecutors and former judges" who believe Mr. Perry should never have been indicted.
UPDATE. Thanks for the link from BlogHouston.
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