Cherish Lewis Should Go Free

by Robin Sax

On July 24 2009, Judge Frederick Crow of Scioto County, Ohio, ordered 22-year-old Cherish Lewis, mother of five-year-old Jaelyn Rice, to turn over her child to the girl's father. But Cherish refused. Why? Because Cherish had information from Children’s Services that her daughter had been physically and sexually abused. Children's Services named the father, Stephen Rice, as the alleged perpetrator. For six months, Judge Crow has held Ms. Lewis in contempt of court for not producing the child. To add insult to injury, this judge has ordered Cherish Lewis to remain in custody until she surrenders the girl.

Little Jaelyn is in hiding (not wanting to return to her abusive father). And Cherish, the protective mother? She remains in jail today for trying to keep her daughter safe and away from the abusive father.

Are you confused? So am I. The facts of this case are beyond outrageous:

Evidence of physical and sexual abuse of Jaelyn has been presented to the court in Ohio. Pictures taken by law enforcement immediately following visitation with the father, Rice, depict dozens of bruises, indicating abuse of Jaelyn at different times. Why has this evidence been ignored by the court!? A Children’s Services case worker testified that the father initially said he didn’t know how the little girl sustained the injuries. He later said that the bruises came from an accident the little girl had had while fishing on a pier.

On two occasions, Children’s Services has substantiated the physical and sexual abuse—naming the father as the alleged perpetrator. There is also extensive testimony from Ohio medical experts, Scioto County Children’s Services, a guardian ad litem, and law enforcement validating the abuse allegations.

The little girl disclosed sexual assaults in Oceanside, California, and also in Tampa, Florida, while visiting with her father. Why isn't the court looking into the allegations? Both agencies failed to investigate the allegations of abuse and Oceanside Police stated that the father is a “likeable guy” and has chosen to ignore medical reports and Scioto County Children’s Services substantiation of sexual abuse so no actual charges have been filed against the father. Both departments keep pointing their fingers at the other, not wanting to take the lead in an investigation. Therefore, the father, Stephen Rice, remains free while the mother, Cherish Lewis, is in jail.

Judge Crow has ignored evidence of abuse in two separate hearings and each time ordered Jaelyn back to the father, the alleged offender. Judge Crow then granted custody to the father in February 2008. WHAT!?

At one point during a court hearing, the judge turned it around and suggested that Lewis had a condition called Münchhausen Syndrome by Proxy—a type of child abuse in which an attention-seeking parent fabricates or causes symptoms of various medical conditions in the child. This claim was later negated by testimony of a professional clinical counselor who spent time with Lewis.

On April 10, 2009, Ohio's 4th District Court of Appeals overturned the order granting the father custody—which just sent the case back to Crow.

Judge Crow ignored pleas from the mother, Cherish Lewis, to reconsider the evidence of physical and sexual abuse and to hear new evidence of sexual abuse substantiated by Children’s Services, of which Judge Crow had not heard. Crow issued an order that Lewis was to return the child to the father that day. Judge Crow then held Ms. Lewis in contempt of court for not producing Jaelyn. He ordered that Cherish stay in jail until she relinquishes her child. Again, Cherish remains in jail today. Meanwhile, Jessica Lewis (caption photo), Cherish's 19-year-old little sister and Jaelyn's aunt, faces charges of interfering with Rice's custody.

According to court testimony, when a minor, Stephen Rice was alleged to have sexually abused a four-year-old child. He is now twenty-five years old. Rice served in the Marines for two years, but was discharged. He says it was for failing a drug test. Since getting out of the Marines three years ago, Rice has moved twelve times.

There are several other cases on record where Judge Crow has granted an abusive or unfit father custody of the children. What is wrong with this judge!?

Judge Crow clearly has an unfounded bias in this case. During court proceedings, he said Cherish is “overly protective of her child.” I would be "overly protective" too if a judge were ordering me to give over my child to an abuser (even, and especially, if he was the father). The judge accused Cherish of having Münchhausen Syndrome by Proxy (defined above) and/or Parental Alienation Syndrome, which is defined as false or unfounded accusations of abuse against a parent—usually the father. But many of the therapists who treated both Jaelyn and Cherish testified in the various hearings that Cherish did not act in a manner consistent with Münchhausen Syndrome by Proxy or Parental Alienation Syndrome.

Why is the judge villainizing the mother in this case and granting custody to an abuser? Lewis has tremendous evidence against Rice to substantiate that he is a sexual predator and also, clearly, has violent tendencies.

You might think that this is a one-in-a million case, where a judge grants an abusive parent custody. But you would be wrong. In a recent article by Kathleen Russell, "Child Abuse: When Family Courts Get it Wrong," Russell argues that many states too often award custody to the abusive parent. She says, according to one conservative estimate, that family courts order more than 58,000 children per year in the U.S. into unsupervised contact with physically or sexually abusive parents following divorce or separation. This is an unacceptable statistic!

Many groups, including Action Ohio, Bikers Against Child Abuse, NOW Ohio, PAVE Survivor Justice, The Justice League of Ohio, Kourts for Kids, and many individuals are rallying for Cherish Lewis. They have come together to demand Cherish be released and justice delivered for her and Jaelyn. The groups got together on the Ohio courthouse steps to protest her incarceration following the ruling in July 2009. Unfortunately, Cherish remains in jail today and was not reunited with her daughter for Thanksgiving, Christmas, or New Year's, and missed her little boy’s first birthday. This is a true tragedy.

If you are outraged, voice your protest by visiting http://www.cherishourchildren.net/

If you would like to send a letter of support to Cherish herself, here is the address:

Ms. Cherish Lewis

c/o Scioto County Jail

1025 16 Street

Portsmouth, Ohio 45662

You can find more information about this case at the Web site above, which is dedicated to Cherish Lewis and her daughter—as well as all other abused children who remain helpless, endangered, and denied access to justice.

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Your Dog Won't Get You Out of Jury Duty (unfortunately)

by Laura James

About 15 or so years ago, many states in the United States moved from voter registration to driver's licenses to choose jury pools. This decision has had terrible consequences for the criminal and civil courts. The worst: the quality of the average jury has plummeted.

It was an understantable move. In the interests of increasing racial diversity in jury pools, driver's licenses were seen as a way to broaden the pool.

But in doing so, they picked up every felon who isn't eligible to vote -- and every citizen (and non-citizen) who cares so little about current affairs that they don't bother to register. People who lack enough interest in government to cast a ballot get to cast ballots in murder cases. Go figure.

If you ever find yourself puzzled over some high-profile verdict, if you ever find yourself wondering about the quality of the average jury today, well, here may lie part of the answer.

It's very, very unfortunate. Yet the decision will probably never be reversed.

On the other hand, the excuses for getting out of jury duty may have gotten more creative since the switch. This gem recently emerged from the courts of Montana. It's an affidavit completed by someone chosen for jury duty who didn't want to serve -- and the resulting court order by a teed-off judge, and it's making the legal rounds of lawyers these days via email.

In it, a fellow declares: "Apparently you morons didn't understand me the first time. I CANNOT take time off from work. I'm not putting my familys well being at stake to participate in this crap. I don't believe in our "justice" system and I don't want to have a goddam thing to do with it. Jury duty is a complete waste of time. I would rather count the wrinkles on my dogs balls than sit on a jury. Get it through your thick skulls. Leave me the f**k alone."

And the resulting court order read as follows:

CITATION FOR CONTEMPT
THE FREEDOM AND LIBERTY THAT MR SLYE ENJOYS DEPENDS UPON THE VOLUNTARY SERVICE OF JURY DUTY, THEREFORE, IT IS HEREBY ORDERED THAT ERIC SLYE BE AND REMAIN IN THE COUNTY JAIL FOR 20 DAYS OR UNTIL HE RECANTS HIS CONTEMPTUOUS CONDUCT IN OPEN COURT. MR. SLYE'S FAMILY MAY VISIT HIM ON WEEKENDS BUT HIS DOG SHALL STAY AT HOME UNMOLESTED BY THE DEFENDANT.

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What Ever Happened to Jane?

by Vanessa Leggett

Last fall, I wrote about a writer friend of mine who'd found herself in a moral quandary. The subject of her first true-crime book was on trial for murder. Again. My friend's publisher wanted her to attend the second murder trial for an updated version of her book. That was all well and good—until my friend learned she would not be able to cover the proceedings. She had been named as a witness.

So that we're all on the same page, we'll revisit my first story, "Jane's Affliction," and then I'll fill you in on what happened with my friend:

Meet Jane

I have this friend. We'll call her Jane. She's a journalist and true-crime author. For reasons that will shortly become evident, Jane would prefer to remain anonymous. Actually, she'd rather be forgotten altogether, and by one person in particular: a prosecutor who recently tagged her.

See Jane Subpoenaed

I learned of Jane's predicament by e-mail. In my Inbox was a message with the subject line "Whoa! What does this mean?":

I just got my mail out of the box and found a big package from the [redacted] DA's Office. In it was the transcript of my interview with [the Defendant] and a note that said here are copies of your reports and transcripts of your involvement in the [redacted] case. . . . What does this mean? Is this a hint that I'm going to be called to testify?

It was more than a hint, she soon discovered, when the subpoena arrived. Prosecutors wanted Jane to testify in a capital murder trial in California.

During Jane's research ten years ago, she'd interviewed the man who would go on trial for his life a second time—not for the murder Jane wrote about, but for another killing. In the 2007 capital murder trial, the prosecution wanted Jane's testimony to show a consistent modus operandi in the separate slayings.

Problem was, this writer did not want to testify. The issue was not over a breach of journalism ethics; Jane never promised this particular source confidentiality. In fact, what she learned during her interview had already been published in Jane's book.

For Jane, the sticking point was that the prosecution stated its intent to seek the death penalty. Jane is against capital punishment.

See Jane on the Fence

Jane sought my advice because she remembered a subpoena I received in a murder case. I was practically in tears when I discussed my situation with her. So when Jane e-mailed me, she expected I would empathize. And I did, to a degree.

But my dilemma had been different from Jane's. My concern was with protecting my sources. Jane is bound to protect a core belief. And she is tormented by the thought of violating it:

The more I think about it the more uncomfortable I am. They're going for the death penalty. And I'm just not sure I can help put someone to death, even if he is a murderer. . . .

See Jane Suffer Subpoena Syndrome

Something about reading an official document that "commands" you to do something you consider fundamentally wrong messes with your mind. Reason tends to leave as abruptly as the subpoena arrives.

I suspected that Jane, a best-selling author with many years on me in the business, was suffering from something that afflicted me early in my writing career: subpoena syndrome.

I tried to break things down into terms she could live with. I reminded Jane that this type of proceeding, a capital case, contains two trials: In the first, called the "guilt/innocence phase," a defendant's culpability is determined, and if found guilty, the accused is convicted. In the second stage, known as the "punishment phase," a penalty is assessed.

Jane was told she would testify as part of the case in chief, not during the stage in which the death penalty is considered. This meant that Jane's testimony should have no bearing on whatever penalty was decided. Even if she were to testify during the punishment phase, the decision as to whether the man will live or die would not be left to Jane.

In my reply, I tried to ease Jane's conscience: "You need to put the death penalty out of your mind. Prosecutors may seek it, but it's up to the jury to choose death as a punishment."

The way I saw it, the decision would be out of her hands. But Jane could see nothing but blood on her hands if she testified.

See Jane Take a Stand(?)

Taking the stand at any stage of a trial where execution is an option, Jane reasoned, amounts to helping the prosecution put a man to death:

[I]n my heart, mind, in every limb of my body and soul, I think the death penalty is wrong, utterly wrong. So how can I grease the wheels to it? . . . Beyond my moral and ethical beliefs, I also disagree with their death penalty decision because it gives [the Defendant] what he wants. And it seems to me that to [him] the greater punishment, the more horrible punishment, would be life in prison since that's the very thing he did not want.

Jane never expressed doubt about the man's guilt. What she's uncertain of is her ability to testify, if doing so might result in the state taking a man's life. But if she refused, Jane could wind up in a jail cell for contempt of court.

See Jane ______________

So what did Jane do? . . . It's not a secret anymore, nor is the identity of my friend, Suzy Spencer. Today, her publisher re-released her first book, WASTED, and you can read all about the capital murder trial that Suzy was caught up in.

An Austin Chronicle reviewer called the book "everything a true crime book should be: lean, fierce, and unsparing." The story is riveting. From the back cover:

In 1995, Austin, Texas was rocked by the brutal murder of a lesbian princess named Regina Hartwell. Even though Regina's body was burned beyond recognition, within days police had two suspects. One was the beautiful ex-cheerleader who was the object of Regina's desire. The other was a man who would take the fall for murder. . . . In this new edition of her bestselling book "Wasted", true crime master Suzy Spencer chronicles a fatal love triangle—and lives driven out of control by sexual desire, drugs, and shocking childhood demons. Four years after Regina Hartwell's murder, a new charge was brought against one of her suspected killers. Now, Suzy Spencer adds a new chapter to "Wasted"—detailing a killer gone wild, a nerve wracking legal standoff, the shocking twists that would take place in a second, explosive trial. . . .

Long story short, Suzy did not dodge the trial. She flew to California, not in compliance with the prosecution's subpoena, but at the request of the defense. Her presence meant she would have been available for questioning by either side, though she might have refused to answer for the State. She did not end up testifying at all. Court was canceled that day—in part, Suzy explained, because Justin didn't want any witnesses testifying on his behalf for fear it would ruin his chance of receiving the death penalty.

In the end, Justin Thomas was convicted and sentenced to death. Without putting Suzy on the stand, the State opted to use a portion of the transcript from her taped interview, which was introduced in the punishment phase. As it turned out, Justin's own words netted him a death sentence.

After Suzy's legal battles with this book and with BREAKING POINT, on the Andrea Yates case, she considers the 10th anniversary edition of WASTED her "good-bye" to true crime. Her entry into true crime—hitting the New York Times best-seller list with her first book—was as unconventional as her exit. The "true crime master" has converted to sex book mistress, working on a memoir of sex in America for Berkley. Few would blame her for trading Draconian courtrooms for Hedonism resorts.

As for Justin Thomas, he is now #G11032 at San Quentin State Prison, home of Scott Peterson and Richard Ramirez. Like most prisoners of California's Death Row, Justin will probably die waiting to be executed (assuming the current moratorium is lifted). If so, his "death sentence" will have been converted into what he feared more: the rest of his life in prison, with little hope of his suffering cut short.

That statistics indicate Justin Thomas will not be executed at all should bring Suzy some measure of relief. But not enough to stay in true crime.

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Freedom Behind Bars

by Vanessa Leggett

We all remember where we were on 9/11. I’ve often wished I could forget. I was in jail—Day 53 of an open-ended incarceration. That summer, a federal judge had found me in contempt of court for my refusal to give a grand jury confidential source material gathered for a book. Surrendering my research would have meant burning sources. I could not do it. And so the judge ordered me jailed for as long as the grand jury was in session. That turned into a 168-day stay at the Federal Detention Center in downtown Houston. When I rejoined society a few months after September eleventh, we were a nation at war and the world I had known was not the same place.

The morning the world changed, I was in my cell, nursing a cold and reading Omerta by Mario Puzo. It was my third day back in general population after a night in solitary. I had made the mistake of questioning the enforceability of a jail policy. Guards made sure I understood what enforcement was all about. The Bureau of Prisons calls segregation blocks the Special Housing Unit, or "SHU" (pronounced shew), fedspeak for what inmates know as "The Hole."

The day I emerged from The Hole was the freest I’d felt during my incarceration. A night in solitary showed me that I'd taken for granted simple freedoms allowed the general population in jail.

For example, outside of SHU, I was free to roam the common area during designated hours. From the dayroom and library, I had several windows with views to the streets below. I considered this privilege a kind of glass-partition visitation with the outside world.

Every day until 9/11, I had watched Houstonians talk on their cell phones, check their watches and PDAs, and sip coffee from Starbucks. (I could spot the cardboard-sleeved cups from blocks away.) By day's end on 9/11, there was little sign of life in downtown Houston, the fourth largest city in the nation.

Another window to the world unavailable to those in solitary was the television. The morning of 9/11, a fellow inmate summoned me to the lower recreation room minutes before the second jet hit the World Trade Center. The north tower was smoking from the impact of the first aircraft. We watched in stunned silence.

Later, I held hands with a group of women in a circle as a chaplain led us in prayer. I remember the inmate to my right squeezing my hand and not letting go immediately. Her home was in another country.

I did not need to speak her language to understand. Each of us wanted to connect with family, with those we loved, and with the people who loved us, to make sure they were safe, and to tell them we were okay. But visitation would be out of the question. For security, the entire detention center went into lockdown mode. My world shrunk to the size of my cell.

I've often thought of how my day on 9/11 would have been no different from my day on the tenth had I remained in solitary confinement. I would not have had access to television. Guards who checked on me would have had no obligation to tell me America was under attack. For my own safety, jail staff might have been ordered not to inform segregated inmates of the national disaster; it didn't take much to lose it in solitary.

Though I was in jail, separated from the world, at least I had been released from The Hole, and was able to see, however horrific, history unfold in real time. My only conduit to the outside world that day was the TV screen, which gave me a sense of connection to other Americans.

That connection was broken once the detention center went into lockdown. All I knew of what was going on in the world was what I had seen through the celluloid window that day: The World Trade Center, our twin trophies of commerce, had disintegrated. Our seat of military might, the Pentagon, had been hit. And another aircraft appeared to have been headed for the Capitol. When I saw members of Congress join hands and sing "God Bless America,” I must admit I feared the end was near.

It wasn't. My incarceration felt like it would never come to an end . . . but it did, eventually, when the grand jury disbanded in early January. For months I'd lived under fluorescent lights, without a single trip outside. As I emerged from the jail, the transition felt as disorienting as walking out of a matinée.

Over the next few weeks, I saw evidence of how the world had changed: metal detectors and pat-downs, building barricades, Middle Eastern cabbies whose well-worn taxis sported crisp, new American flags. Fear was everywhere.

It did not take long for me to realize I was about as free as I had been when I rejoined general population from solitary. Though I was part of the free world again, among my fellow Americans, none of us was truly free. Not like we used to be.

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Reporters on Trial - Why I Won't Testify in the Murder Trial of Neil Entwistle

by Michele McPhee

Martha's Vineyard is gorgeous this time of year. In fact, despite the real estate slump, the average hotel room on the island can still fetch upwards of $600 to $700 a night.

No wonder Neil Entwistle's attorneys want to move his trial to Edgartown Superior Court, a cozy, picturesque courtroom that serves Cape Cod and the islands of Nantucket and Martha's Vineyard. Entwistle is the Englishman charged with pumping a bullet into his 9-month-old daughter's belly, and his wife's head, on a cold winter's night in 2006.

After the killings, Entwistle (pictured below with wife and child) fled the country, according to prosecutors, who say he even left traces of gunshot residue on a kitchen knife, bolstering investigators' theory that the plan was murder-suicide. Only Entwistle didn't have the guts to commit suicide.

Why the change of venue? Well, Weinstein argued that my new book, Heartless, the True Story of Neil Entwistle and the Brutal Murder of His Wife and Child, released today, will make it impossible for him to defend his client from a prejudiced jury. And what better place to find a fair jury than a gorgeous seaside island at the height of the summer crush? After all, lodging for the accused British killer and his legal team would be picked up by the Massachusetts taxpayers – not by his attorneys, Elliot Weinstein and Stephanie Page.

The selection of the jury who will decide Neil Entwistle's fate began yesterday and will continue this week. On Friday, Weinstein asked the Honorable Diane Kottmyer to consider a motion to change venue, to move the Woburn-based trial to the Cape, arguing that the book and the publicity surrounding the case will make it impossible for Entwistle (attorney and client pictured right) to get a fair trial. (With the British invasion of reporters from the United Kingdom flooding into Massachusetts right now, he hasn't seen publicity yet. I remember all too well the trial of the English au pair Louise Woodward who was convicted of shaking a baby to death that was in her care. The British press corps resemble European soccer fans, crushing and often over-zealous.) After seeing the strip mall that the Entwistle trial will unfold in, I can see why Weinstein would rather spend the summer on Cape Cod than in Woburn.

But I believe that the judge recognizes the court would be hard pressed to find a reasonable alternate location where a jury has not heard at least some of the details of this gruesome murder. And I think she also realizes that Rachel Souza's devastated mother, her brother, and her step-father have every right to attend the trail – without having to endure the additional hardship of a ferry ride, expensive lodging, and a crowded courtroom. That's why Kottmyer denied Weinstein's request.

Still, the lawyer is expected to ask again this week – armed with a copy of my book. Earlier this month, he hit me with a subpoena with a plan to compel me to reveal a confidential source regarding a suicide note his client had penned him from the slammer. That case was found to be moot after prosecutors said the suicide note would not be used in the Entwistle trial.

So the case that will unfold this week is not just a horrible allegation of domestic violence. It's a case for First Amendment lawyers to watch closely so we can finally bring a reporter's shield law to Massachusetts. Thirty-two other states have laws protecting reporters from being forced – under the threat of jail or financial penalties – from revealing their sources. It's a critical First Amendment issue and one that could continue to unfold as the Entwistle trial gets underway.

Why? Because Weinstein has told other reporters that he could hit me with another subpoena about the sourcing in the book. And, again, I will answer with the same refrain I have used as a crime reporter for two decades:

I have never revealed a source, and I never will.

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The Chuck Stops Here

by Vanessa Leggett

Several months ago, the Harris County District Attorney’s general counsel gave his boss some bad news. A federal judge had issued an order compelling D.A. Chuck Rosenthal to produce copies of all e-mail correspondence for a designated period. The order was issued in relation to a civil rights lawsuit filed by two brothers in Houston.

Back in 2002, Harris County deputies conducted a drug raid on their street. During the raid, the brothers and their family watched the activity next door and observed what they considered abuses of power. The brothers decided to document the raid with a video camera. A deputy noticed and demanded the camera and film. The brothers refused. Without a warrant or any evidence of probable cause, deputies entered the brothers’ home, assaulted them, seized the camera and film, which was ultimately destroyed, and hauled the brothers to jail for “resisting arrest.”

After their arrests, the brothers asked the D.A.’s office as well as the Sheriff’s Office to investigate the deputies for civil rights violations. Their requests were ignored. During the discovery phase of the lawsuit, the brothers’ attorney asked for all e-mail correspondence regarding the matter. He believed he would find messages between Chuck Rosenthal and the Sheriff that would establish an agreement between the two lawmen to ignore the brothers’ requests for an investigation of official oppression. A federal judge deemed it a valid inquiry and ordered the production of all e-mail correspondence.

What happened next landed the D.A. in the hot seat for contempt of court. Last November, the prosecutor who serves as general legal counsel for the D.A.’s office personally informed Rosenthal that the court had issued the order for the e-mail messages. The discussion took place in Rosenthal's office. Rosenthal gave him permission to check the index of e-mails on the District Attorney's computer to get a sense of the scope of what they might have to produce.

"He sat at my chair,” Rosenthal later testified at the contempt hearing. “I sat behind him and he performed some manipulations on my desktop computer.” Those "manipulations" consisted of a half hour of the assistant district attorney taking “screen shots” to capture images of the skeletal index of messages. The contents of the messages were not read or printed. As the backseat driver of his own computer, Rosenthal would have seen that no messages were opened or copied. The only document printed was the index, which displays limited information regarding e-mail transmissions, i.e., dates and times messages were sent and received. The real manipulations took place as soon as the assistant district attorney left Chuck Rosenthal's office.

That same afternoon, Rosenthal recently admitted, he sat in front of his computer and went through around four thousand e-mail messages, selectively deleting more than 2,000. Unfortunately for Rosenthal, his general counsel provided a copy of the screen shots of the e-mail index to the plaintiffs’ lawyer. When the e-mail messages Rosenthal finally produced fell short—by a couple thousand—of the number displayed on the index of messages, all hell broke loose.

Did any of those missing messages suggest a conspiracy between the D.A.’s Office and the Sheriff’s Office to stonewall the brothers whose rights were violated? It’s impossible to tell, since none of those 2,000 messages was recovered. At least the brothers have been exonerated of any criminal wrongdoing. Recently, the county settled with the brothers for $1.7 million dollars. Rosenthal has since been forced from office. But he has yet to face justice. A critical piece of business remains: a ruling on the plaintiffs’ motion to hold Rosenthal in contempt of court for his destruction of potential evidence.

Ironically, I found myself in a similar situation in 2001, when a federal judge held me in civil contempt of court for my refusal to surrender confidential source material for a book in which Rosenthal is a character. In fact, the day that I was released from jail is the same day Rosenthal's current problems began, when the brothers' civil rights were violated. Thus my open letter here.

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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.

Sincerely,

Vanessa Leggett

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