This will never be a criminal matter, as it is not. Please see #12.
It’s also the wrong way to go in this matter.
I would not be surprised that two things happen.
#1; Peterson is “invited up to Austin to have a little chat with the AG.”
#2: It becomes a Federal Class Action civil matter, with Jeff Blackburn as lead counsel for the now-accused/future plaintiffs.
Why? Because even if it was a criminal matter, which it by no means is, what benefit is that to the Defs?
Secondly, as a civil matter, there can be compensation for the Defs. ( $ )
That’s where this will go, but they’ll let it cook for a while, to get all the potential criminal matters finished and the Defs adjudicated innocent before they move for damages as a federal civil rights Class Action matter.
Bottom line? Big $ damages and a deep pocket defendant in the State of Texas.
That’s the smart way for it to go, too.
-- This will never be a criminal matter, as it is not. Please see #12. --
-- @12 Seriously, Peterson could be criticized for excessive bail, but his act was certainly not unlawful. Even it he did it out of spite, or because he doesn't like motorcycles, or whatever, it's not "unlawful." --
I don't know if you consider "abuse of discretion" to be a "lawful" act or not, and rather than argue over the meaning of "lawful," here are a few principles that appear in Texas case law.
The standard you suggest, by way of example (setting of bail is allowed to be done on the basis of "he doesn't like motorcycles, or whatever") is the setting of arbitrary and capricious bail, without taking into consideration the elements set forth in Texas Code of Criminal Procedure for setting bail. In order for an amount of bail to be within the bounds of the court's discretion, courts must articulate an analysis in support of the amount of bail, with that analysis touching on the elements of Texas Code Crim. P. Art. 17.15. We don't know what analysis exists in Clendennen's record, if any.
If the record is void of the analysis directed by the statute, then Petersen abused his discretion.
It is also possible for a trial court to abuse its discretion within the statutory analytical framework. A couple examples. The first one illuminates the ramifications of setting a bail amount, as opposed to denying bail.
Appellant is presently incarcerated following his conviction by a jury for the offense of driving while intoxicated, third offense, for which the jury assessed punishment at imprisonment for four years and a $1,000 fine. ...Ex Parte Harris, 733 S.W.2d 712 (Tex. App. 1987)Prior to trial, appellant had been released on a $5,000 personal bond. Following his conviction and sentencing, the district court set bail pending appeal at $50,000, cash or surety bond. ...
Even if the State is correct in its assertion that the district court would have been justified in denying appellant bail on appeal on the ground that he is likely to commit another offense, a question this Court does not decide, the district court did not choose to so exercise its discretion. Rather, the district court elected to set bail, but in an amount calculated to be beyond appellant's means and to assure appellant's continued incarceration. The district court, by so doing, used bail as an instrument of oppression in violation of the constitution and statutes of this State. Tex. Const.Ann. art. I, Sec. 13 (1984); Tex. Code Cr.P.Ann. arts. 17.15 and 44.04, supra. The statutory authority to deny bail pending appeal in certain cases does not carry with it the authority to set excessive bail in such cases. Having decided to admit appellant to bail, the district court was obligated to set bail in a reasonable amount. Upon consideration of the factors previously discussed, this Court finds $10,000 to be a reasonable bail.
The next is an interesting example, in that the appellate court can't find probable cause! It does find abuse of discretion in setting $150,000 bail for conspiracy to commit capital murder.
This is an appeal by three appellants seeking relief from an order of the 147th District Court$ Travis County setting the bail of each at $150,000. Appellants are jointly under indictment for criminal conspiracy to commit capital murder, a first degree felony. V.T.C.A. Penal Code, Sec. 15.02. Due to their inability to furnish bail in the sum fixed by the court, each is now confined in the county jail of Travis County. ...Ex Parte Bufkin, 553 S.W.2d 116 (Tex. Crim. App. 1977)Although the indictment charges the appellants with the first degree felony of conspiracy to commit capital murder, we are unable, in the absence of evidence, to determine any of the circumstances under which the State expects to show the offense was committed. ...
... While bail should be sufficiently high to give reasonable assurance that the undertaking will be complied with, the power to require bail is not to be used so as to make it an instrument of oppression. See Art. 17.15(1), and (2), supra; Ex parte Kerr, Tex.Cr.App., 549 S.W.2d 6; Ex parte Clark, supra.
Taking into consideration all of the foregoing, we find the bail set by the trial court is excessive. It is ordered reduced, and bail is set for each appellant in the sum of $15,000.
Based on your posting history, my impression is that you are not remarking so much as what the law is, but on what the courts will do - that is, whether or not the courts will apply the law to the case at hand.
I am not predicting that the courts will follow the law, and have pointed out many instances where the courts openly defy the law while claiming to be upholding it. Pissing on the public's leg and telling us that it's raining.
None of the above remarks touch on the criminal offense of Official Oppression. As I am not in Paxton's head, it's difficult for me to gauge how his prosecutorial discretion will manifest. Sometimes prosecutors charge "to send a message" (see Angela Corey in the Zimmerman case), and sometimes they let serious crimes go uncharged as a political or friendly favor.
I will add to my previous remarks to USNBandit (IIRC), on the element of "knowing" in that offense, that the legal standard for "knowing" is a subjective one, that looks for good faith belief. The good faith belief (that he is following the law) can be inferred. If I was in Paxton's shoes and inclined to prosecute Petersen, I'd look to other cases where Petersen set bond, whether he followed the expected analytical framework, amounts of bond he set, etc., and contrast that with his treatment of the Twin Peaks and Don Carlos accused.
Finally, none of these legal actions by Broden on behalf of Clendennen are mutually exclusive. He doesn't have to choose between making an allegation that Petersen committed a crime, and filing a money damages claim based on Petersen (and others) depriving him of due process, setting excessive bail, and so forth.