Chuck It

The only surprising thing about the self-destruction of the Harris County district attorney is that it took so long.

March 2008By Comments

Court of Limited Appeal: Rosenthal has been criticized in a number of cases, including the prosecution of Andrea Yates, in 2002.
Photograph by James Images

January 17 was a great news day in Houston. Texas Supreme Court justice David Medina and his wife, Francisca, were indicted by a Harris County grand jury for charges related to a fire that torched their McMansion in the suburb of Spring. But it became an even better news day when district attorney Chuck Rosenthal quickly asked that the indictments be dismissed and two grand jurors went to reporters to complain of hanky-panky—that is, political favoritism—by the Republican DA on behalf of the Republican jurist. Pretty much overnight, the Medina case became a story about Rosenthal and added to the hysteria (if you were an R) or euphoria (if you were a D or a defense lawyer or both) over the ongoing meltdown in the infamous Harris County DA’s office. Three weeks earlier, the release of scandalous e-mails by a judge in a separate case had led to calls for Rosenthal’s head. Rosenthal admitted that the messages were inappropriate, but in an e-mail to Ed Emmett, the county’s chief executive officer, he downplayed them by saying that “thankfully, stupidity [was] not grounds” for resignation.

Stupidity is an understatement. After three decades of dealing with arrogant behavior—first as an assistant prosecutor and the past seven years as the DA—everyone is more than willing to concede the point. Rosenthal, who grudgingly ended his plans to run for reelection this November, has seen his professional life slip through his fingers, and it’s his own damn fault.

No place in the entire state sends more people to death row than Harris County, and no public institution has brought Houston more embarrassment than the DA’s office. This near-flawless system works like—depending on which analogy you prefer—a conveyor belt, an assembly line, or a stacked deck. The DA’s office, located in an imposing criminal justice center downtown, has nearly unlimited resources to prosecute; defendants have little money, less political clout, and, usually, negligible legal representation. Yet—unsurprising in this day and age—the scandal that took down Rosenthal had nothing to do with something as substantial as capital punishment. Instead, he was done in by his own e-mails, which were unsealed by a judge in a civil case involving the Harris County Sheriff’s Office. They revealed to the public that the man who wrapped himself in piety the way Ronald Reagan wrapped himself in the flag was a less-than-devout follower of the Ten Commandments. “The very next time I see you I want to kiss you behind your right ear,” the married DA wrote to his longtime executive assistant Kerry Stevens. “You own my heart whether you want or not,” he wrote in another, perhaps in reference to their affair during Rosenthal’s first marriage, in the eighties.

But that wasn’t the really bad stuff. An ostensibly humorous video in one e-mail he had received from a friend showed unsuspecting women getting their clothes ripped off. Others contained plans for Rosenthal’s reelection, even though it was against the law to use government computers for political purposes; in some he told co-workers they could take time off from work to campaign for him. Yet the most disturbing e-mail that was sent to him contained a photo of a black man passed out on a sidewalk, surrounded by partially eaten watermelon slices and a bucket of fried chicken. The title read “Fatal Overdose.” The furious response from the public showed that Houston had finally had enough. Local Republican leaders called an emergency meeting and asked Rosenthal to remove his name from the March primary ballot. Initially, a defiant Rosenthal refused. After that meeting, Harris County GOP chairman Jared Woodfill tried one more time to change his mind. “His response was, ‘What part of “no” don’t you understand?’ ” Woodfill recalled.

Eventually Rosenthal did remove his name from the ballot, via a letter hand-delivered by one of his staffers with just minutes to spare before the deadline to withdraw. A sigh of relief was heard countywide. Then he stopped talking to the media—his habit whenever storm clouds started gathering.

It is reasonable, however unsavory, to wonder whether communities get the DAs they deserve. Ever since the U.S. Supreme Court reinstated capital punishment, in 1976, Harris County has been dominated by law-and-order types who have viewed the prosecution of death penalty cases as a birthright. In the past 32 years, it has sent 284 men and women to death row, by far the most of any county in Texas. (According to the Texas Department of Criminal Justice, the next three counties with the most death penalty sentences since 1976—Bexar, Dallas, and Tarrant—have sentenced only 234 convicts to their deaths combined.) The person most responsible for this formidable achievement is Johnny Holmes, who served as DA from 1979 to 2000. He was a River Oaks boy with a handlebar mustache who evoked Wild Bill Hickok in more ways than one. When asked if he believed that the death penalty served as an effective deterrent, he said, “It might not deter everyone, but it certainly deters the man about to be executed.” That sentiment became the justification of those who followed in Holmes’s wake. All claims that the system discriminated against the poor, underprivileged, and underrepresented—like those, for instance, who’d been assigned defense attorneys who slept through court—were summarily dismissed.

When Holmes decided to retire to his farm, Rosenthal, one of his key lieutenants, stepped forward as his replacement. It was a natural transition: Rosenthal, like Holmes, was a true believer in the death penalty. He even resembled his old boss. Both were large, dominating men. Both had white hair. Rosenthal even had a white mustache.

It wasn’t long, however, before a major difference between Holmes and Rosenthal appeared. Holmes was a religious man but did not wear his faith on his sleeve. By contrast, Rosenthal was a devout Baptist who liked to say “I’m blessed” and often wore a bracelet engraved with “WWJD,” as in, “What Would Jesus Do?” He shared his faith-based thoughts on the Web site of Second Baptist Church, one of Houston’s largest, most politically influential institutions. In answer to the question “What are some of the common challenges confronting Christians in today’s workplace?” Rosenthal wrote, “My wife and I have tried to show our children what it is that we do and why it is important for moms and dads to do meaningful work.” He added that he brought his kids to the office so that he could show them what he did.

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.

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