Letter From Houston
Chuck It
The only surprising thing about the self-destruction of the Harris County district attorney is that it took so long.
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In fact, Rosenthal’s own learning curve was pretty steep back then. A joke that made the rounds of the courthouse when he took over from Holmes was that “WWJD” actually stood for “What Would Johnny Do?” because the new DA seemed so clueless. In 2002 it was discovered that the DNA division of the Houston Police Department’s crime lab had hired poorly trained technicians and was literally falling apart—a hole in the roof allowed rainwater to leak in on evidence. After much prodding by the media, a handful of state and local politicians, and members of the defense bar, a $5.3 million independent investigation was launched, with the city picking up the bulk of the tab. The Houston Chronicle kept on the story for four and a half years. The city hired a former inspector general for the U.S. Justice Department, and he spent two years combing through the place.
Over and over, problems turned up in various departments, most seriously in ballistics, serology (the study of blood serum and its properties), and controlled substances. A more specific probe of the serology department followed, and failures there suggested that innocent people had gone to prison—or been sent to death row—because of faulty lab work. Hundreds of cases prosecuted by the DA’s office are now being reexamined. In the face of such challenges, Rosenthal was intractable. He refused to recuse his office from its involvement in the lab probe (see: fox investigates henhouse), even after all 22 of the county’s criminal district court judges, citing obvious conflicts of interest, urged him to do so.
There was more. In 1988 then—assistant DA Rosenthal had successfully prosecuted a man named Anibal Rousseau for the murder of an Environmental Protection Agency officer. Thirteen years after Rousseau was sentenced to death, however, the Houston Police Department’s ballistics lab discovered that the gun supposedly used by Rousseau had also been used in another crime—while Rousseau had been incarcerated. A co-prosecutor on that case told the Chronicle in 2002, “I’m terribly afraid the wrong guy is in jail.” Rousseau died behind bars while waiting for his appeal to be heard.
That verdict was not the only questionable one with Rosenthal’s fingerprints on it. In 2001 Andrea Yates confessed to drowning her five children in her bathtub. While it was clear to many mental health experts that Yates was, at best, suffering from severe postpartum depression or, at worst, some form of psychosis, the DA’s office—instead of negotiating an insanity plea—asked for the death penalty. The Yates trial was one of those times when Houston and Harris County were faced with a critical identity crisis: Would the old ways prevail, allowing the state to execute a very sick woman? The answer was yes and no. Yates was found guilty but sentenced to life in prison; it was only on appeal that her attorneys succeeded, and she was remanded to a mental institution.
Then there was Rosenthal’s embarrassing performance in front of the U.S. Supreme Court. Five years ago he fought to uphold Texas’s antediluvian sodomy laws. Many national legal reporters said that Rosenthal appeared unprepared and could not answer some questions from the bench. At times, his argument in support of the statutes was nearly unintelligible: “Even if you infer that various states acting through their legislative process have repealed sodomy laws,” Rosenthal told the justices, “there is no protected right to engage in extrasexual-extramarital sexual relations, again, that can trace their roots to history or the traditions of this nation.” (Maybe, some who read Rosenthal’s controversial e-mails would later suggest, he should have followed his own advice when it came to extramarital activity.)
And there were the feuds, impressive for their vindictiveness even by Harris County standards. In September 2002 Rosenthal saw fit to slap Houston police chief and potential political rival C. O. Bradford with a questionable perjury charge. Thankfully, the presiding judge—a former prosecutor—dismissed the case. (Bradford, a Democrat who is now running to succeed Rosenthal, is no angel either: He took an early retirement after documents surfaced showing that he had known of and tolerated the deplorable conditions at the crime lab for years.)
In other words, the scandal over Rosenthal’s amorous, offensive e-mails was the final straw, and it had the unusual effect of uniting previously disparate groups, like the NAACP and the GOP executive committee, in their zeal to get rid of him. True to form, Rosenthal at first dug in. In an interview with KPRC-TV, he explained that he wouldn’t have sent some of the e-mails if he had known that they would become public. He also confessed to deleting more than 2,500 other e-mails after news of the first missives broke, saying he assumed they could be retrieved by the department’s computer technicians. Rosenthal probably thought, with good reason, that the whole episode would blow over. Just like the crime lab scandal.
As of early February, Rosenthal was insisting he would serve out his second—and final—term. Yet some members of the defense bar believe that even Rosenthal’s eventual departure won’t change the culture of the district attorney’s office. “There’s an atmosphere among prosecutors that you can do or say anything—just win,” says venerable criminal attorney Dick DeGuerin. “The district attorney’s office used to be about finding the truth. Now it’s about numbers and how many people you send to prison.” The only surprising thing about Rosenthal’s downfall, DeGuerin says, is that it took so long. “There’s been a lack of leadership—and bad leadership at the top for a long time—and there needs to be a general housecleaning.”
Once Rosenthal withdrew from the March 4 Republican primary, many of his approximately three hundred assistant DAs scurried for cover. “We have all been painted with the same broad brush,” assistant DA Luci Davidson complained. “And that hurts pretty bad. It’s made it difficult for a lot of us to stay focused, and we need to stay focused, because the victims need us.” One of the most prominent assistant DAs, Kelly Siegler, may go down with the ship. Rosenthal’s flamboyant protégée—known for acting out gruesome murders in front of jurors—is running to be his replacement against a former police officer, a former state district judge, and another former assistant prosecutor, but she has problems of her own. The e-mail Rosenthal received that showed the women getting their clothes torn off was sent by none other than Siegler’s husband, a local doctor. A court transcript has also surfaced revealing that Siegler tried to keep a member of Joel Osteen’s Lakewood Church—the city’s largest house of worship, by the way—from serving on a jury because she believed many of the worshippers there to be “screwballs and nuts.” Hence the Republicans’ biggest worry is that the Rosenthal scandal will kill them at the polls in November. His fall could trigger a sea change in the composition of the 22 Harris County criminal district courts, all of which are now led by former Republican prosecutors.
Rosenthal, meanwhile, is doing his best to carry on what is, for him, business as usual: The defense attorney in the Medina case has asked that the two jurors who spoke out against the dismissal of the indictments be sanctioned, claiming they violated grand jury secrecy laws. Of course, Rosenthal may soon be too preoccupied with his own legal problems to investigate anyone else’s. As of press time, questions had been raised about whether Rosenthal had perjured himself while giving testimony about his e-mails, but his hearing has been postponed. The Texas attorney general’s office is looking into a request by the Harris County GOP to force Rosenthal to resign. So far, he shows no sign of making an early exit—but the people of Houston can always hope.
Steve McVicker has written for the Houston Chronicle and the Houston Press. The movie version of his book I Love You Phillip Morris, starring Jim Carrey and Ewan McGregor, is scheduled to begin filming in April.
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