-- 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.
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991)"The test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court's action. Rather, it is a question of whether the court acted without reference to any guiding rules and principles. Another way of stating the test is whether the act was arbitrary or unreasonable. The mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred." Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-242 (Tex.1985), cert, denied 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986) (citations omitted).Thus, judicial rulings will be affirmed if the trial court follows the appropriate analysis and balancing factors, though the appellate court might disagree with the weight given to those individual factors. In short, a trial court judge is given a "limited right to be wrong," so long as the result is not reached in an arbitrary or capricious manner. See Rosenberg, Judicial Discretion, 38 Ohio Bar 819, 823 (1965).
I wonder if Petersen's setting of bail has even been the subject of an appeal. If it has, then he's going to have a difficult time showing that he had a good faith belief he could set bond outside of the prescribed framework. I'm not sure "good faith belief" is a moot point if Paxton doesn't prosecute, that is, if it's a moot point outside of being prosecuted criminally. The same element appears, I believe (possibly in slightly different form), in the tort of malicious prosecution and its cousin, false arrest.
Here are the problems you face:
There are courts to settle cases where laws, rights, parties etc are in conflict.
Every person who comes to court does so with the absolute belief they are right. So does the other side, whether it be the government/people or the other side in a civil litigation.
In virtually every case, each side can quote law that absolutely supports their side. Judges decide who is right, or at least which side will be honored in a specific case.
Every case loser always blames the judge or jury. They never give enough credence to the other side’s case. Now, here on FR and elsewhere, the excuse often is that The Guberment is conspiring against them.
In many ways, Conservatives are victims of this mental masturbation. Take a look at the Alex Jones website. It is a classic example of purposely creating false alarm so he can bring people back to his website, so he can charge advertisers for exposure. It’s all too rare that people depending on Jones look as his prior false doom and gloom predictions.
A current example; the fools who believe that military maneuvers in Texas are a cover for taking over Texas by the military. When it’s all over, who will stand up and say; “I was wrong.” It was all internet-inspired BS, and will happen again the next time too.
Finally, you seem to take offense when I point out what will happen, first because you don’t have the experience or training to fully understand the law, and secondly, because you want to believe your side and your side only.
The bottom line in these bail cases is very simple. If the JP thought these arrestees might be charged by a GJ with “murder by acting in consort,” he doesn’t have to prove to you was right. He doesn’t even have to be right. He just had to think he might be right. That’s the bottom line law.
If the bail was excessive, there was a legal remedy to have it reduced. That was exercised in some cases, but that does not in any way mean the original bail was excessive when it was imposed to the extent JP did anything unlawful.
Finally, as a matter “en practicum,” no JP / Judge is ever going to be charged with a CRIMINAL offense for setting a high bail, unless the STATE could prove that he did it for SPECIFIC PERSONAL GAIN. Judge puts $1,000,000 bail for a local offensive on a guy his daughter is dating who he does not like, judge has a problem.
If Judge says “’At time of arrest, LEOs did not know who fired shots or was in a conspiracy to fire those shots, and arrestees were believed to be members of organization defined by State as an Ongoing Criminal Enterprise, and that Enterprise may have organized that shooting, and arrestees were there at scene and time of crime” Judge has absolutely no criminal problem at all.
Murder by acting in consort is a wide ranging charge, and local LEOs have no responsibilities to cut everyone loose because so many of them were there.
As I said, this becomes federal civil rights class action matter. If you object to predictable outcomes, and to a full understanding of the law, and a full appreciation of the other side’s position in the matter, as opposed to standing on top of (internet) hill and screaming how right you are, so be it.
“50 years ago, we all pitied the Village Idiot.
20 years ago, TV put his sound bites on the air to create controversy and attract viewers.
Now, he has a keyboard, too much time, and is seen as a sage by the equally uninformed.”
-Rush Limbaugh