Will He or Won't He? Judge in Perry Case Faces Recusal Questions

More than a week after a judge who once worked for Rick Perry was tapped to hear an appeal in the former governor's indictment, it's still unclear whether he'll see the case through.

Legal experts say Justice Bob Pemberton's connections to Perry could put him in the tough position of having to decide whether to recuse himself. Pemberton is one of three justices who could decide Perry's fate at a crucial time; the former governor recently said he is within 30 days of announcing whether he will run for the presidency. 

"You're danged if you do, danged if you don't," said L. Wayne Scott, a law professor at St. Mary's University in San Antonio. "There's not a right answer."

Some court observers think it's inevitable that Pemberton, who served as a deputy general counsel in Perry's office before the former governor appointed him to the 3rd Court of Appeals, will step aside. 

"I think it's just a matter of time before Justice Pemberton recuses from the case," said Lillian Hardwick, co-author of the Handbook of Texas Lawyer and Judicial Ethics. "Even if a recusal motion has not yet been filed, it's likely in the works." 

But Pemberton hasn't made that move — and the court hasn't said whether he will. The case is advancing, legal filings show, and Perry lawyer Tony Buzbee has called Pemberton's appointment "not a conflict or a story." 

Meanwhile, Michael McCrum, the special prosecutor pursuing the charges against Perry, said Friday he was not planning to file a motion for recusal. Some legal experts say that is not entirely surprising: Lawyers do not want to risk getting on the bad side of a judge hearing their case unless they are 100 percent certain their motion will prevail.  

Without a motion for recusal, the decision is largely up to Pemberton, who, in addition to working for Perry, donated to the former governor's 2002 re-election campaign and clerked for Tom Phillips, the retired chief justice of the Texas Supreme Court who is now on Perry's defense team.

There has been a call for recusal from Texans for Public Justice, the liberal Austin-based watchdog group behind the complaint that yielded the indictment. Like others closely watching the case, the organization says Pemberton's connections to Perry are excessive, even in a state that has partisan judicial elections and where many jurists share ties to the longest-serving governor. 

Legal experts are quick to caution that the case is not black and white. There is not a "clear-cut standard" for when a judge should be recused, said Gerald Reamey, another law professor at St. Mary's University. 

The Texas Rules of Civil Procedure lay out a number of "grounds for recusal," many of them open to interpretation. For example, the first ground for recusal listed in the rules is when a judge's "impartiality might reasonably be questioned."

Putting themselves in Pemberton's shoes, the experts say recusal would be on their mind. 

“If it were me and it has the appearance, I would be very severely tempted to go ahead and recuse myself," said Scott, who during the 1960s was a briefing attorney for the Court of Criminal Appeals and the Texas Supreme Court. 

"I do think that this judge ought to step aside and let somebody else on the court who's seen as being more neutral — whether they are or not — take the case," Reamey added.

In any case, Hardwick cautioned against ascribing "impure motives" to Pemberton.

"As elected officials, judges and justices can feel conflicted on receiving a recusal motion, as they were elected to hear cases," Hardwick wrote in an email. "Also, no inference as to any bias for Perry should be inferred if Justice Pemberton self-recuses, as he could simply be assessing one of the recusal grounds — 'impartiality might reasonably be questioned' — from the perspective of a reasonable person."

Perry's lawyers are working to convince the appeals court to reverse a decision in January to let the overall case against the former governor move forward. That decision came from Judge Bert Richardson. 

Perry was indicted last year on charges he abused his power and coerced a public servant. The allegations stem from his threat to veto state funding for the public integrity unit, which handles ethics complaints against public officials, unless Travis County District Attorney Rosemary Lehmberg stepped down following a drunken driving arrest. Lehmberg's office oversees that unit.

Perry is forging ahead with preparations for a 2016 presidential campaign as the case drags on. He said Friday he would announce "around the first of June" whether he is making a second bid for the White House, a timeline that raises the specter of the former governor running for president while under indictment.