Barbs and bouquets, but mostly barbs

This Chron overview of Chuck Rosenthal's career promised "barbs and bouquets" for the soon-to-be-former DA, but it was mostly barbs. Not that I'm complaining, mind you.

Rosenthal's performance in office predictably brought barbs and bouquets, with defense lawyers -- those most inclined to speak on the record -- offering the harshest assessments.

Attorney Earl Musick, though, may have the broadest view. He said he admired Rosenthal when he was a young prosecutor in Holmes' administration and still considers the district attorney "a friend," but laments the course the prosecutor's office has taken.

Musick, now a defense lawyer, spent a decade as a Houston policeman attached to the District Attorney's Office. He later obtained a law degree and became a prosecutor first for Holmes, then for Rosenthal.

Musick found the young Rosenthal an exemplary lawyer, a go-to man who would help police officers with paperwork and legal questions regardless of the hour. "Chuck was always available at 2 or 3 in the morning," he said. "He would come out of bed and meet you on the streets of Houston."

Now, though, he is more critical.

"The only thing that I truly believe, having worked on both sides of the bench, is that the DA's office has got to change. I think that for several years now that they've been going not down the right road but the wrong road. I think they need a sweeping change and that starts at the top."

It sure would have been lovely to know what Musick thinks the "right road" and "wrong road" are, wouldn't it? Is it a matter of philosophy, temperament, work ethic, judgment, putting results ahead of justice, what? Somebody needs to follow up with this guy and get him to expand on this. If I can make the time, I'll do it.

Typical of the incidents that trouble Musick were Rosenthal's 2003 oral arguments before the U.S. Supreme Court in defense of the state's challenged sodomy law. The case grew out of the 1998 arrests of two Harris County men who were arrested while having sex by officers dispatched on a burglary call.

Rosenthal opted to make the presentation himself. The result, as reflected in the national media, was a disaster.

Rosenthal, opined The New York Times, was a first-timer who made "first-timer's mistakes."

Three months later, the high court tossed out the Texas law.

Robert Fickman, a defense lawyer and past-president of the Harris County Criminal Lawyer's Association, commended Rosenthal for the experienced lawyers he's placed in key positions and acknowledged that much of the criticism that's levelled at him may not be fair.

But, he said, there's a general perception in the defense bar that "he doesn't rein in loose cannons on his staff, that he lets people on his staff engage in conduct that's aggressive to the point of being borderline behavior."

Well, that's at least one concrete thing. What else is there? Surely that can't be all of it.

Some of Rosenthal's biggest headaches -- the debacle of the police department's bungling crime lab, for instance -- were ones he inherited, Fickman said. But to those instances Rosenthal brought his own penchant for drama.

Despite repeated calls -- including those from 22 district judges -- for the crime lab to be scrutinized by independent investigators, Rosenthal refused to step aside. His first assistant Graham explained that the district attorney was fearful of establishing a bad precedent by opening the door to an outside probe.

The district attorney relented only when the second of three prisoners convicted with bogus crime lab evidence was exonerated.

He inherited those problems as DA, but of course he was a key part of the DA's office before then, so in some sense he's owned a piece of the crime lab problems all along. One can also point out (and indeed I have done so) that C.O. Bradford inherited a bunch of the crime lab problems, too.

But that's not Rosenthal's problem any more, though I suppose it may be Kelly Siegler's if she becomes the nominee. Which is good for Chuck, because he may have other things to worry about.

District Attorney Chuck Rosenthal admits that his decision to delete "some e-mail" from his office computer was "an error in judgment."

That assessment from a sworn affidavit he gave in a federal lawsuit contains at least one understatement.

According to his own office computer guru, "some" equals "approximately 2,541 e-mails deleted by Mr. Rosenthal."

The question is, if "some" equals 2,541, does "an error in judgment" equal a crime?

It's not an idle question. Six months ago Rosenthal's office filed a felony charge against Houston Community College District Trustee Jay Aiyer for tampering with a governmental record.

Aiyer accepted a plea bargain in which he pleaded guilty to a misdemeanor for replacing some pages in his campaign finance filings. He is on a one-year probation, paid a $750 fine, had to do 160 hours of community service and cannot work on any political campaigns while on probation.

Not surprisingly, Aiyer, a Democrat and a lawyer, thinks Rosenthal should face the full force of the justice system.

"It's much more severe," Aiyer said of Rosenthal's act. "There are multiple things. It's a public record, a government document. Also it would probably be an obstruction of justice related to an ongoing investigation."

I talked to other lawyers and public officials Friday, most of whom did not want to be quoted, about whether Rosenthal could face criminal charges.

There was a consensus that Rosenthal may be vulnerable to charges both of tampering of government documents and obstruction of justice, but there are two issues.

One is whether the charges would stick. A technical question arises as to what is a government document under the law. It is unlikely, for example, that an early-morning e-mail written on a government account to a secretary saying, in total, "Bet I could make you sleep," qualifies.

But clearly not all the 2,541 e-mails are so unrelated to official business.

The other issue is this: If someone is to investigate whether Rosenthal committed a crime, who would that be and how would it happen?

Honestly, I don't expect Chuck Rosenthal to ever become the subject of a formal investigation. It could happen if the January 31 hearing contains a bombshell, but I wouldn't bet on it. But I do wonder, if this were anyone else - in particular, if it were a Democrat - if Rosenthal wouldn't be investigating it. We'll never know the answer to that.

Posted by Charles Kuffner on January 06, 2008 to Local politics