Thursday, March 20, 2008

An Open Letter to Judge Kenneth M. Hoyt

The Hon. Kenneth M. Hoyt is a United States District Court Judge for the Southern District of Texas. Judge Hoyt is expected to rule on whether to sanction former District Attorney Chuck Rosenthal for contempt of court. Rosenthal could receive six months in jail, a fine, or both. Read more about the case that led to the motion for contempt here and here.

Dear Judge Hoyt:

I was in your courtroom a few weeks ago, when you held a hearing on a motion for contempt concerning Chuck Rosenthal. I understand you are currently deciding if the former District Attorney should be punished for violating a court order to produce documents. I do not envy your having to determine whether to order the incarceration of a public official.

The decision could not have been made easier by a declaration Rosenthal recently made to the court, blaming prescription drugs for significant inconsistencies in his sworn statements. Perhaps you are aware that in a press release announcing his resignation from office he wrote this: "Although I have enjoyed excellent medical and pharmacological treatment, I have come to learn that the particular combination of drugs prescribed for me in the past has caused some impairment in my judgment."

A month earlier, you'll recall, he told a different story under oath during the contempt proceeding. "I'm specifically asking," you probed, "whether or not there is any medical or other condition that would prevent you from having any particular recollection."

Rosenthal hesitated, then said, "There is no medical reason that I would not have a recollection."

But now Rosenthal claims that prescription medication impaired his judgment. He has seized on the only lifeline his lawyers could extend—an intoxication defense—to keep their client from drowning in a sea of inconsistent sworn statements. In the contempt hearing, there was no mistaking that the District Attorney had repeatedly lied to you about material facts regarding destruction of potential evidence. He was making a mockery of the court.

At first, his story was, I was merely "cleaning" my desktop, freeing up storage space. But when presented with facts to the contrary—proof that he had selectively deleted e-mails and had done so willfully and painstakingly on the heels of a court ordered-subpoena—his theory went out the window. The District Attorney had committed perjury. The courtroom was stunned. The hearing abruptly halted. I learned it can be a defense to perjury to withdraw false statements if the retraction occurs before termination of the proceeding. You were merciful in allowing the hearing to be continued so that Rosenthal's attorneys could attempt to save him from perjury charges.

I'm sure there are many defendants who wish they could have withdrawn their false statements. In a court pleading to you, the plaintiffs' attorney in the underlying lawsuit named three: Martha Stewart, Barry Bonds, and I. Lewis "Scooter" Libby. Rosenthal may believe he is above the law, but he should be no more immune to fines and jail time than Scooter Libby, the former Chief of Staff for the Vice President of the United States of America, who was convicted and sentenced to 30 months in prison. (President George W. Bush commuted the sentence.)

I am only a writer. I was not so lucky. In 2001, your colleague, Judge Melinda Harmon, found me in contempt of court for my refusal to surrender confidential source material for a book. In a behind-the-scenes way, Chuck Rosenthal was instrumental in my jailing. Complying with the subpoena, which asked for my entire research archives, would have violated my confidentiality agreements with sources. I was incarcerated for 168 days. The court ordered my release when the grand jury completed its investigation. The government's target, Robert Angleton, was indicted without any confidential-source material sought from me.

Eventually, Angleton, who is the subject of my book, faced you in court for tax evasion. In 2005, I attended judgment day for him in your courtroom. To refresh your memory, Angleton was the bookmaker and murder-for-hire suspect who failed to pay all of his taxes to the IRS, reporting a $2.6 million gross profit when his business had taken in around $64 million for the three-year period in question. You may recall that after Angleton swore to the court that he had no money, agents found cash he had stashed in offshore accounts.

At Angleton's sentencing, you stated that his hiding cash and lying about it was "reflective of a continuing denial on your part that this is truly criminal. The psychology of this sort of escapes me. But I know that when people engage in this conduct over an extended period of time, their threshold level of conviction as [it] relates to their own wrongdoing is very, very, very high—meaning there is hardly anything that they can do that they believe violates the law. I've seen it in other crimes over these seventeen plus years, that it is very difficult, almost impossible for a person to believe that they have done wrong—that justice has been done—when the time comes to pay. And that's where we are at this point."

You have seen that sort of psychology again with Chuck Rosenthal. He has felt above the law for the thirty years he served as a prosecutor in Harris County. The "might makes right" mindset has warped nearly the entire office. A number of these public servants seem to have forgotten just whom they are supposed to serve. The level of entitlement is alarming. And personally disturbing.

During Rosenthal's contempt hearing, my jaw dropped when the general counsel prosecutor said this about the plaintiffs' demands for records: "It was such an unusual subpoena because it wasn't about a particular subject matter. [It was] overbroad. [And involved] onerous privilege and production issues." He maintained "the plan was we were going to assert undue burden." That did not work well in my case, Judge Hoyt, and I submit to you that my claim was legitimate. Rosenthal was asked for a few months worth of messages. My subpoena demanded four years worth of research in several states, countless documents, and taped interviews, any and all copies. My obligation was to protect sources I had promised confidentiality. That is why I asserted a qualified journalist's privilege. Rosenthal's "privileges" were all personal—to cover his own affairs, so to speak.

Rosenthal's latest sworn statement that prescription drugs caused him to violate your court order is disingenuous at best and criminal at worst. The fact is, Chuck Rosenthal has always been intoxicated. And I'm not referring to his pills or the bottle of whisky he kept in his desk at the office. "Prosecution [is] in his blood," Rosenthal once said, comparing himself to a colleague. "When you experience the joy of helping people who have been victims and get to do something about the perpetrators of crime," he told the Houston Chronicle, " it's so rewarding that it's intoxicating." To Rosenthal, the means always justified the end. In this case, the end—law enforcement getting off the hook for committing egregious civil rights violations—is an injustice. The deputies were not the victims here. The court has already exonerated the real victims whose civil rights were trampled upon.

In another Chronicle interview for an unrelated case, Rosenthal acknowledged that he "go[es] to extremes" when victims are threatened. "I wouldn't do anything illegal," he said, "but I would take very strong measures." I don't need to tell you that Rosenthal's willful violation of your court order was illegal. But I was surprised that this needed to be pointed out to Rosenthal at the contempt hearing. "It could be a crime to destroy documents," you noted. "It can be obstruction of justice. You prosecute people for that."

Your examination of Rosenthal revealed his illegal act was deliberate. He not only selectively deleted 2,000 messages he did not want the court to see. He then deleted all those erased messages from his Deleted Items folder to ensure they would never be recovered. He succeeded. Now he thinks he is above the law because he understood that absent the contents of those messages, there would be no way to prove that evidence was destroyed. And that is precisely why he did it.

I sat in your courtroom as the district attorney's perjury came to light. He has now submitted yet another sworn statement to you, this one stating why the previous statement was false. "While I believed the Declaration to be correct when I signed it," he wrote, "I now understand that I am unable to rely on my memory regarding the steps I took to manage the contents of my desktop and need to rely on reconstructing events from available documents and records." Maybe I'm missing something here, but if he's claiming his memory is unreliable because of medication and he acknowledges destruction of records, how can any events be reconstructed?

The former District Attorney for Harris County is acting like a knowledgeable criminal covering his tracks. No different from Angleton, as you recognized at his sentencing for tax evasion:

"The recordkeeping that was being done was being destroyed so that there would be no way that anyone could ever successfully determine what the true bookmaking business was earning."

Like Angleton, Rosenthal has destroyed evidence. Now the ex-D.A. is claiming an intoxication defense, resorting to criminal defense tactics to reduce his punishment. Angleton did the same thing by claiming he needed treatment for alcohol abuse. His problem was not with alcohol, but with sentencing. Angleton was advised that claiming dependency would shave time off of his punishment. It saved him a little time, but he spent the first part of his sentence at the Federal Detention Center. The same jail that held me for contempt of court. The same facility where Chuck Rosenthal would serve his sentence for contempt, if he is jailed.

I can tell you from personal experience that Rosenthal would be fine at the Federal Detention Center in Houston. I'm certain you are aware that even without a recommendation from you, the Bureau of Prisons will see that he is housed in administrative segregation for his own protection. He'll even get whatever medication he'll need, compliments of taxpayers. I don't know whether that will ease your mind. I doubt it would ease Rosenthal's, but perhaps his family would take comfort in that knowledge.

Deliberating on sending a former D.A. to jail for any reason is difficult enough. But a district attorney should be held to a higher standard. The public deserves reassurance that elected officials are not above the law. Whatever your decision, I expect you will state it eloquently and that your order will reacquaint Chuck Rosenthal with two key concepts he seems to have lost touch with: Justice and Mercy.


Vanessa Leggett


Kathryn Casey said...

I hope you're sending this to the Judge, Vanessa. He should read it.

Donna Weaver said...

Vanessa, I am standing and applauding -both you and your letter! You are a voice of reason and justice.

I wonder-has Rosenthal's computer been seized for forensic examination? That is an enormous number of e-mails, and although deleted, there should be a significant amount of fragments left on the hard drive. And what about the recipients of those e-mails? Did they delete them too?

Jan said...

What a double standard. When does one stop pursuing criminals and become one themselves? And how is this justified? The "I was on medication" defense? I wonder, does he believe the things he is saying? Or is he only concerned, now, with staying out of prison? How heartbreaking to lose a champion of justice when we are sorely in need of a hero.

Anonymous said...

Fantastic post Vanessa. I was very happy to see your editorial in the Houston Chronicle (04/06/08), as well. Rosenthal’s arrogance and sense of entitlement are disgusting and I agree that he should’ve spent at least one night in jail. I pray that you’re right and that the Justice Department will deal him the punishment he deserves. In case anyone missed the editorial, here’s the URL.