rec

AHCL thinks that she and I are coming at the question of compassion from different starting points.

AHCL writes:

You know, I think the reason that I disagree with Marky Mark and some of the other posters on a lot of the issues is because we begin on different starting points when we make our arguments.

While I start off talking about how the community needs good, talented and aggressive prosecutors on cases, I'm envisioning the ax-murderer and the baby raper.

When they start talking about mercy, compassion and a lack of arrogance in prosecution, they are envisioning the poor schlub who is walking down the middle of the street where a sidewalk is provided and the police find a crack pipe on him.

It's true that we're coming at the question from different starting points, but I think the divide is much wider than she recognizes.

First, the vast majority of people being prosecuted are more like the poor schlub than the "ax-murderer and the baby raper". Sometimes people do really bad things; these really bad things make for good press, and scares the voting public into electing "tough-on-crime" judges and compassionless prosecutors and spending lots of money on law enforcement, but the great bulk of that money is then spent investigating and prosecuting (a) malum prohibidum offenses; and (b) piddly malum in se offenses.

Second, not everyone prosecuted for the really bad stuff has done the really bad stuff. Aggravated sexual assault of a child is a good example: some people charged with ASAC just flat-out didn't do it. There's often no physical evidence to back up a child's allegation of sexual abuse. The DAs adopt the attitude that children wouldn't lie about "things like that", but anecdotal and scientific evidence proves them wrong. A prosecutor -- especially a blindered prosecutor -- can't tell the difference between the bad actors and the falsely accused.

Third, even those few who done the really bad stuff are human beings. The prosecutor can't know how his brain is wired wrong, how he was treated as a child, how he has been affected by traumatic brain injury . . . as Clarence Darrow said,

We have heard talk of justice. Is there anybody who knows what justice is? No one on earth can measure out justice. Can you look at any man and say what he deserves -- whether he deserves hanging by the neck until dead or life in prison or thirty days in prison or a medal? The human mind is blind to all who seek to look in at it and to most of us that look out from it. Justice is something that man knows little about. He may know something about charity and understanding and mercy, and he should cling to those as far as he can.

(I recognize that this is an unpopular perspective. Here's the popular view, which is provably wrong. The proof is trivial.)

Because most people are poor schlubs, and because we often can't tell the poor schlubs from the bad dudes, and because we can't tell what even the bad dudes deserve, the better course (for our souls) is for all of us to cultivate compassion for all human beings (my friend Jon Katz will say "all sentient beings"; I'm not quite there yet).

But never mind the prosecutors' souls: won't society suffer if its prosecutors aren't playing sociopath in the courtroom?

No. Two reasons spring to mind: first, compassion doesn't make a trial lawyer worse; it makes her better. I've seen prosecutors lose trials in voir dire because of their lack of compassion. I've seen defense lawyers win trials in cross-examination because of their empathy for the witnesses testifying against their clients.

Second, consider the possible aims of punishment:

• General deterrence;
• Specific deterrence;
• Rehabilitation;
• Incapacitation; and
• Retribution.

The only aim of punishment that suffers at the hands of a compassionate prosecutor is retribution, which has been so generally discredited that people who want to see public retribution use code phrases like "hold him accountable" and "show how we value life".

A prosecutor with compassion for a defendant can still seek a sentence that deters the particular defendant, that deters the public, that incapacitates the defendant, and that rehabilitates the defendant. If life without parole is necessary, the compassionate prosecutor can seek it; if the compassionate prosecutor thinks that killing a defendant is necessary to incapacitate him and deter others, she can seek death. (In fact, I have seen compassionate prosecutors arguing for severe penalties; they are much scarier than the usual foaming-at-the-mouth ranters.)

So it's not just that AHCL is envisioning people who don't deserve our compassion, and I'm envisioning people who do. The divide between us is that between one who believes that compassion is something that only some deserve and one who thinks that compassion is something that should be given to all.

Prosecutors and Judges: How is this Possibly Okay?

Today (January 29th) I got a fax from the prosecutor on a misdemeanor case. The fax contained:

A Motion to Disclose Experts; and

An order granting that motion.

The motion carried a certificate of service claiming that the motion had been served on me on the day the motion was filed or before. It had not been served on me before today. In fact, the prosecutor had to call me this afternoon to ask for my fax number.

In the order, dated January 25th, the judge wrote that the motion came on to be heard and considered "after proper and timely notice to the Defendant", and granted the motion, ordering me to disclose my experts by Friday.

So not only did the prosecutor not serve me with a copy of the motion before it was filed, but she didn't serve me with a copy of the motion until four days after the order had been granted.

My civilian readers need to know that this is not an unusual event. Indeed, this is pretty much par for the course when a prosecutor bothers to get such an order signed. They routinely file such motions without notice to the defense and routinely present them to judges who grant them ex parte. If there is a prosecutor or a judge who does not engage in this conduct, I don't know who it is.

Prosecutors:

First, what are you doing, presenting motions to judges without the other side present and, indeed, without notice to the other side? That's ex parte contact, which is generally unethical, and no exception to the general rule applies here.

Second, what are you thinking, filing documents with the court with fictitious certificates of service? Not only is that unethical, but it's also a crime: tampering with governmental records. Look it up. On second thought, don't bother. It's Texas Penal Code Section 37.10(a)(1). It's a class A misdemeanor unless you intend to defraud or harm another (arguable -- defrauding the court?), in which case it's a state jail felony.

(So congratulations: in the course of prosecuting a class B misdemeanor, you've committed a more serious crime. Call home and tell your mother; I'm sure she'll be very proud.)

I know that the Harris County District Attorney's Office has never bothered a whole lot with the rule against ex parte communications with judges, leaving such ethical breaches to the discretion of the prosecutors. I know that the Office takes a somewhat laissez-faire attitude toward the signing of pleadings as well. And I know that you guys feel bulletproof, because (a) nobody has ever held your feet to the fire to actually follow the Texas Disciplinary Rules of Professional Conduct; and (b) it would be the Harris County DA's duty to prosecute a tampering-with-governmental-records case, and everybody knows the DA's office is never going to prosecute a prosecutor for breaking the law in the course of her duties.

But the times? They are a-changin'. The public no longer holds the delusive belief that you can do no wrong; there's going to be a new DA a year from now, and there's a reasonable probability that it will be someone who doesn't approve of prosecutors and cops breaking the rules, someone who has no qualms about prosecuting prosecutors for the "little" crimes like this one that some of you commit every day. And the limitations period for even misdemeanor tampering is two years.

Maybe you guys will blame Chuck Rosenthal for this too. He keeps his own counsel, you'll say. I'm not buying it.

When such a fundamental rule (the foundation for fairness in an adversary system, so basic that we actually learn it in law school) as that forbidding ex parte judicial contact is so routinely ignored, that's proof that the rot spreads farther than just the sixth floor. It wasn't Chuck's job to teach this young prosecutor, and every other young prosecutor, that ex parte contact with the judges is a no-no.

Which brings us to the judge, who, as it happens, reads Defending People.

Judge, what are you thinking? When you sign an order on the ex parte motion of a party, you call your impartiality reasonably into question.

Every day you take it upon yourself to help the baby prosecutors in your court be better lawyers: you give them little hints and pointers about how better to prosecute people. Now, that's not really appropriate, but it's going to happen however much I fuss -- even if you don't care whether the state wins, you naturally want the state's inexperienced and poorly-trained lawyers who are in your court every day to become better lawyers. Right?

While you're making the effort to make them better lawyers, do you think you could spare a thought or two for their ethical training? You know that I don't think you should be taking it upon yourself to improve their litigation or trial skills, but nobody would consider you remiss in providing them with a little ethical guidance. Especially where the ethical rule involves the relationship between them and you, and is so critical to procedural justice and the appearance of fairness.

I realize that you probably didn't know that the certificate of service was false. You took the prosecutor's word for it. Clearly, that doesn't work. But it doesn't matter. You ruled on a motion ex parte, without giving the other side an opportunity to be heard. If you had made sure I had an opportunity to be heard, of course, you would have learned that the prosecutor's certificate of service was false, and I would have had a chance to respond.

The times are a-changin' for the bench as well. The Harris County Criminal Lawyers' Association has filed three bar complaints against sitting judges in the last two years. More grievances are coming. Will any of those bear fruit? Maybe, maybe not -- it takes more than just a righteous complaint for the Commission on Judicial Conduct to act against a judge. But it's indisputably easier to not be grieved than to be grieved and win.

Aside from the criminal bar growing some much-needed collective backbone in recent years, there's something else for you to consider: Dallas County. It is possible that Harris County's Republican judges, like Dallas County's, will need more than the anointment of the kingmakers in the local party apparat to keep their jobs. Judges who create the appearance of impropriety are more likely to draw opponents than judges who avoid it by scrupulously following the rules. Will these opponents win? Maybe, maybe not -- the Dallasification of Harris County elections is purely speculative right now. But it's indisputably easier to run unopposed than to run opposed and win.

Ignorance is Strength

Prosecutor AHCL contributes to a vast sea of inanity -- inanity almost beyond belief; a sort of naive inanity that could only ooze from the keyboard of (dare I say it?) a prosecutor -- when she writes about Why I'm Concerned About Writing. After the Cliff's Notes version of George Orwell's 1984 (which she admits never having read), AHCL writes:

Well, Big Brother is watching now, and the effects are being felt even by non-lawyers.

Excuse me? Is this something new? What rock have you been hiding under for the last six years, four months, twelve days? Ever hear of the "USA PATRIOT" Act? And are you somehow under the impression that lawyers were more susceptible to being spied on by the government than non-lawyers?

She continues:

In PeggyO'Hare's article this afternoon, she wrote the following statement:

In court papers filed Monday, (Lloyd) Kelley gave a list of people he plans to call to the witness stand, including Rosenthal; prosecutor and Republican DA candidate Kelly Siegler; Siegler'shusband, Dr. Sam Siegler; Rosenthal's executive assistant Kerry Stevens; his chief investigator John Ray Harrison; his political consultant Allen Blakemore; and prosecutor Mike Trent.

Now correct me if I'm wrong, but didn't this lawsuit start over an issue with the Sheriff's Office? Now, I've got absolutely nothing to do with this law suit, and God knows I'm glad for that. I don't pretend to have the inner-understanding that the parties involved do (LOOSELY TRANSLATED: "Please nobody subpoena me."), but I'm having a hard time seeing how all these folks are getting roped into a case involving the Sheriff's Office, when none of them seem to work for the HCSO. Chuck subpoenaed? Maybe. But the rest? And can somebody explain to me how in HELL SamSiegler got involved in this mess?

I just don't get it. I don't understand what the criteria is before your private matters become public.

The elected District Attorney of Harris County, Texas was ordered to produce a number of emails in discovery in the lawsuit; instead of turning them over he deleted some 2,500 of them. The hearing to which Mr. Kelley intends to subpoena Mrs. and Dr. Kelly Siegler, Ms. Stevens, Mr. Harrison, Mr. Blakemore, and Mr. Trent is a contempt hearing.

Mr. Rosenthal could be fined and jailed for doing something other than the law allowed. An analogous proceeding with which AHCL is familiar is, naturally, a criminal prosecution. If Mr. Rosenthal's close friends and associates have relevant testimony -- if, for example (and this is just the first thing to pop into my head), they are able to shed some light on what might have been in the deleted emails -- Judge Hoyt will let Mr. Kelley question them about it. (If they are called to the stand and don't have anything to contribute to the court's understanding of Mr. Rosenthal's alleged contempt, he'll shut them down and shoo them off the stand. United States District Judge Kenneth Hoyt is not likely to let Mr. Kelley put on a political dog-and-pony show in his courtroom.)

Anyway, that's a roundabout way of showing that one circumstance in which your private matters may well become public is if you or your associates are accused of breaking the law.

Incidentally, does AHCL think that subpoenaing people to a hearing in federal court is such a great invasion of their privacy? Has she never requested that a judge sign a search warrant for a person's home? Called a reluctant member of an accused's family to testify? Issued a grand jury subpoena for someone's medical records? If AHCL stops thinking of her boss as just a witness in a lawsuit filed against the Sheriff's Office, and starts thinking of him as a witness who is accused of tampering with evidence, then Mr. Kelley's subpoenas might make more sense to her.

AHCL says that scares her. Well it should. It should even though the power being wielded by Mr. Kelley is tiny compared to that wielded by every felony prosecutor down at the courthouse. Our private lives are not private. They haven't been for years.

How many of you think your medical records are private? When I argued that Texans' expectation of privacy in their medical records (there is little more private than medical records) was reasonable, the Harris County DA's Office sent someone down to argue that it was not, and won that argument on reasoning that would make Thomas Jefferson weep.

There are people who fight, at the expense of safety, for the individual's right to be left alone, and there are people who fight for safety at the expense of that right. The Harris County DA's Office (that'd be the Office that AHCL works for) is decidedly on the "safety" side of that fight. The thing about government interference in our privacy is that it seems like a reasonable price to pay for safety, until you see that it might affect you. Harris County prosecutors whingeing about the invasion of the privacy of their boss's inner circle might do well to reflect upon the times that they have successfully argued that the need to enforce the law trumps the individual's right to be left alone.

AHCL goes on: "I'm hearing horror stories about more and more open records requests hitting the D.A.'s Office every day." Horror stories? Open records requests should serve as a healthy reminder to government employees that the ultimate boss is the citizen, and that the boss is generally entitled to find out what his employees are doing with their time.

If I send you an email, it's no longer my private matter. It's between you and me. If someone then gets some reason to look into your emails or if you decide that you don't care and pass it on, there's not a damn thing I can do about it. If I didn't want to risk someone else reading it, I shouldn't have sent it. And if the employees don't want the boss to read their emails, they'd better not send them using company computers, or the company email server, or even the company internet connection.

If the boss asking more questions about his employees' behavior is a "horror story", there's something wrong with the way the company is being run. But we knew that.

The Prosecutor's Reply

The prosecutor whose "Canadians" email I wrote about here and here responds:

Vivian King knows NOTHING about "the real story." It is probably a waste of breath to defend my reputation since it sounds like a portion of the defense bar has made up their minds, but to me it is never a wasted effort to defend my reputation. So let's start with the factual inaccuracies in Vivian's version:

1. There were no numbers (3) and no quote marks in the original email. It said "some Canadians." That was the word that had been used by the trial prosecutor when I asked what the holdup was on his verdict, and I took him literally. More on that in a minute. Some folks may have seen the Fox News report that made it look like I used quotation marks, which, had I done so, would be highly incriminating since that often implies a double meaning, sarcasm, or some other intended emphasis. I did not.

2. Several black prosecutors did respond to the email with questions. Only then did I realize what I had inadvertently done. Prior to that, however, the prosecutor you speak of poked his head in my office, obviously upset, and asked me about it, then left. I called up to the courtroom later to ask the clerk something and heard his voice in the background. I asked what he was doing up there and they put him on the phone. He pretty much hung up on me. I didn't try to stop the clerk from doing anything -- I just wanted to know what was going on since I still didn't know the word had another meaning and could not understand his reaction at that point.

3. That prosecutor never confronted me. Instead, after I realized that he was offended and upset, I went to HIM and tried to explain in private that I was not a racist and had not sent the email out knowing the alternate meaning of that word. I apologized for offending him but attempted to assure him that it was inadvertent. He was initially unresponsive and would not accept my apology. We temporarily left it at that.

4. I did not report anything to my superiors about that issue, but I was called to the office of the trial bureau chief (Marie Munier at that time) to explain the email, which I did. She could see how upset I was and was satisfied with my explanation.

5. I later spoke to Joe Owmby and Troy Cotton about the situation. I wanted them to know that I did not harbor those beliefs and I wanted to make sure my reputation -- at least in the office -- wasn't damaged. I believe Troy probably spoke to the prosecutor who had been angry with me, because a week or so later, that ADA pulled me off the elevator and asked to speak with me. He acknowledged he had been wrong in his initial assessment, apologized, and said he should have accepted my apology sooner. I accepted his, we shook hands, and I considered the matter resolved.

6. I never reported any of that interaction to my superiors and no-one was blackballed on account of anything I did. That particular ADA, a talented trial attorney, was promoted on schedule and left the office on his own terms a year or so later. He may have had some other issues (assaulting an ADA from Dallas at a conference, getting into a verbal altercation with an HPD officer, etc.) but I have no reason to believe the email incident affected his career in any way.

7. I don't think Lyn McClellan was involved in this incident at all, to my recollection.

So Vivian concludes I "definitely" knew what the term meant, apparently in a deliberate effort to hurt the feelings of the black prosecutors in the office.

Mark, let's take a step back here. Do you guys think I'm crazy? Am I insanely stupid enough to send a racial slur to 250 LAWYERS? Litigious, complaint-ready lawyers, some of whom are African-American?? That is just absurd.

Some people have pounced on my explanation and said there's no way I could have meant the nationality literally. Some have said that Canadians couldn't possibly serve on our juries because they are not U.S. citizens. This is not true. All that is required to serve on a jury in Harris County is that you have a TDL and reside in the county. We also have people born outside the U.S. on our panels all the time. Some naturalized, some probably just residents.

Having said that, I agree it would be very unusual to have more than one Canadian on a jury and in retrospect I realize I should have questioned this more. But in one of those strange, unlucky confluences of events, I had just returned from a trip to Victoria, Canada, where I had read several news stories that had highlighted how differently (read: leniently) Canadians feel about crime. I had that in my mind when the trial prosecutor told me that the holdouts were Canadians. I repeated the term back to him because it struck me as odd, and he repeated it again without further elaboration. I then naively accepted it as literal, something that in hindsight I should not have done. But I will repeat what I have said over and over. I HAD NEVER HEARD THAT WORD USED TO MEAN ANYTHING OTHER THAN CANADIAN AND WAS UNAWARE THAT IT CAN HOLD A RACIST MEANING.

Can I prove this? The closest I can come is to tell you this: I did not delete that email or any others following up on it. One minute after I sent it out, one of our investigators responded "Damn Canadians." And I sent a reply to him that said "Hockey? Yes. Bacon? Yes. Law enforcement? No!" I was still talking about our friends north of the border, not blacks.

Do I feel silly? Yes. Stupid? Yes. Naive? Yes. Embarrassed? Yes. Ashamed? No, not really. I'm not ashamed to be ignorant of every "cryptoracist" word out there.

Mark, pretend I'm a criminal defendant and apply the same reasoning we use in trials to determine intent. Do my actions before and after the "offense" bear out a guilty mens rea? Just look at the efforts I went to, not only now but also five years ago, to undo the damage I unwittingly caused. Would a person jaded and insensitive enough to knowingly send out an all-prosecutor email with a racial slur in it really CARE about what African-Americans thought? Hey, even you agreed I was credible in the raw interview footage you saw. That's because I'm TELLING THE TRUTH.

I can't answer for anything anyone else has said or done, and I make no attempt to do so. Nor will I speculate on what the original user of that term meant. All I can speak for is my own words and actions. I DIDN'T KNOW WHAT IT MEANT. If I had, I would never have put it in an email. Under oath, as God is my witness, this is the truth: I did not know what it meant.

Vivan wraps up her comment by suggesting that I treat black defendants or black attorneys differently. I do not. I generally tend to be somewhat aggressive as a prosecutor, and I probably dig in my heels too much on some cases. Over the years I know that I've made enemies by some of the things I've said and done. I'm sure some defense attorneys think I'm an a**hole. If so, fine, but I'm an equal-opportunity a**hole.

Your recap is no more than a summary of the misinformation Vivian posted. It is disappointing that she and Alvin believe what they do about me. I don't have anything against either of them. At any time, they could have come to me and I would have given them an explanation and an apology for ever making them think badly of me. I guess it's easier to blindside people on TV and call for their firing, or post things secretly on message boards.

Well I'm not hiding from anyone. If anyone wants to hear it straight from me or still has an issue with me, they are welcome to email me. But don't claim to know my innermost thoughts and my "secret attitude" when you don't. That's every bit as ignorant as racism.

I take this prosecutor's points well, and have removed his name from the post that he says is inaccurate. First, I don't know the truth, and don't want Defending People to be an instrument for destroying reputations. Second, whether this prosecutor knew the secret meaning of "Canadians" or was just passing on the word used by the trial prosecutor doesn't matter. This isn't about an individual, but about the culture of the Rosenthal / Siegler DA's office.

More on the Fifth

In response to this post about prosecutors advising witnesses who wish to take the Fifth, an anonymous Harris County prosecutor wrote:

Before you are too hard on the D.A.s for telling a witness that they can't plead the 5th on the stand, you should realize how often that comes up for us. Too many witnesses believe that a lack of interest in testifying means that they can plead the 5th. Or the fact that they don't want to rat out their friend works for them too. I agree that if there is some true criminal exposure that we've got no business telling them that they can't plead the 5th. I don't know what everybody else does, but I will let a witness know if I think there is even a remote possibility that they need a lawyer.

In fact, a lack of interest in testifying is an excellent reason to plead the Fifth. The fact that you don't want to rat out your friend is another. So is a desire to make the prosecutor actually work. When a witness takes the Fifth, he doesn't have to justify it to anyone. You can take the Fifth and refuse to talk to the police and prosecutors because this is America.

That's not just my whacky radical defense-lawyer philosophy; it's the law. Here's how it works: if you take the Fifth, there's not a damn thing the prosecutor or the court can do, other than give you immunity. If you get immunity and testify, and it turns out that your testimony was in no way incriminatory -- even if it becomes apparent that you were just trying to protect your buddy -- there's not a damn thing the prosecutor or the court can do about it. If you don't get immunity and don't testify, there's not a damn thing the prosecutor or the court can do about it. In other words, you can't be punished for taking the Fifth, regardless of your secret reasons for doing so.

(For an excellent explanation of why immunity statutes are themselves violative of the Fifth Amendment, see Freedom Spent, which I link to below.)

If a prosecutor sees a remote possibility that a witness needs a lawyer, then it's a good idea for him to tell the witness that. But even when the prosecutor doesn't see that possibility -- and even when the witness himself doesn't see that possibility -- it might be there.

Richard Harris, from "Freedom Spent: Tales of Tyranny in America":

In legal terms, of course, what is a lie and what is not is up to a jury to decide. One may believe that one is telling the truth when being questioned [by agents or police], only to later recall events somewhat differently; if one then tells the revised cersion of those events before a grand jury or a court, one can be prosecuted for having lied in the first place. even as seemingly small an untruth as telling a government official that one doesn't know anything about what is being inquired into when one does know something about it is a criminal act . . . . some lawyers would argue that the only sensibly self-protective course for anyone, guilty or innocent of wrongdoing, is to refuse to speak to any government agent unless a lawyer is present. . . .

Generally a prosecutor's idea of what a witness will say comes only from the offense report and his own previous discussions with the witness. The prosecutor doesn't know (a) whether the witness really told the police what the police say he told them, or (b) whether the witness was telling the truth to the police or to him (and of course a witness with more than half a brain will not tell the prosecutor that he lied to the cops). If the witness gets on the witness stand and, under oath, tells a story different than the one the cops say he told before, he might face criminal liability for lying to the cops, regardless of whether he actually said what the cops claim he said.

(I say that the prosecutor doesn't know whether the witness was telling the truth to the police, but sometimes a prosecutor does know that a witness's intended testimony under oath will be different than her statements to the police. The prosecutor threatens to charge the witness with making a false statement to the police if the witness testifies that the police report was false. In this scenario, does the prosecutor give the witness the correct legal advice: "you need to get a lawyer"? I've never heard of it happening.)

A prosecutor doesn't know what the truth is, and doesn't know what possible exposure the witness might have. So a prosecutor never has any business telling a witness that he doesn't need a lawyer.

Le Procureur Soleil de la Republique?

KHOU-TV put up PDFs of some of Harris County District Attorney Chuck Rosenthal's emails here and here. It turns out that Chuck uses (or was using) the email address "l'etat@dao.hctx.net". How very Louis XIV.

Chuck's Apology

This came out today, in response to the events I discussed here:

For Immediate Release:

Contact: Chuck Rosenthal
Friday, December 28, 2007
713-755-5810

Statement by Chuck Rosenthal

Recently some Harris County District Attorney inner office emails have been released in the media.

I understand that I have said some things that have caused pain and difficulty for my family, my coworkers and friends. I deeply regret having said those things. Moreover, I am sorry for the problems I have caused anyone.

I also understand that sometimes things happen for a purpose. This event has served as a wake-up call to me to get my house in order both literally and figuratively.

Charles A. “Chuck” Rosenthal
Harris County District Attorney

I commend Chuck for owning up (not the best apology, but not bad for a politician), and hope that "get my house in order" means "stop punishing others for violating morals that even I (being, after all, human) can't follow" rather than "redouble my efforts to hold myself to the moral standards that I impose on others less fortunate."

(By the way, "literally"? Doesn't "get my house in order" literally mean "tidy up my living space"? Also by the way, might they have been interoffice emails rather than inner office? And, while I'm picking nits, the parallelism in the second paragraph is incomplete -- should be "my friends". Mayhap Chuck was kissing his secretary behind her right ear while dictating the letter?)

Okay, but why the RIGHT ear?

I am not one inclined to judge the morals of others. Who a prosecutor is lusting after (committing "adultery in his heart", as Jimmy Carter might say) is not something I consider to be my business, or anyone else's, except . . .

Except that the prosecutor in question is the individual who orders the DA's office's policy not to agree to less than 10 days in jail for any person (hooker, hustler, or john) charged with prostitution. The prosecutor in question? Elected Harris County District Attorney Chuck Rosenthal (who, incidentally, describes the path to lethal injection as "the pipeline").

According to an article by the Houston Chronicle's Brian Rogers, Chuck is fighting in federal court to keep secret his emails (from his county email account, which would make them generally subject to the Texas Public Information Act), in which he kanoodles virtually with his executive secretary, with whom he had an affair in the 1980s. (Chuck says that he told his current wife, whom he married in 1991, about the affair before hiring Stevens as his executive assistant when he took office in 2000.)

"While the 51 e-mails between the two contain the phrase 'I love you' more than a dozen times," the Chronicle writes, "and Rosenthal asks Stevens to let him hold her, the messages are not explicit." An example in the Chronicle article: "The very next time I see you, I want to kiss you behind your right ear."

Morals aren't on my beat. Hypocrisy, however, is. When the prosecutor who has made himself and his office responsible for enforcing the morals of consenting adults (Rosenthal is also the prosecutor who, arguing the constitutionality of Texas's sodomy statute in the Supreme Court, was "outclassed") is publicly revealed to be no more moral than the rest of us (including those he persecutes), I smell karma in the air. It smells like . . . victory.

(See also: Chuck's Apology and Le Procureur Soleil de la Republique?)

Welcome Prosecutors

Defending People had a lot of traffic yesterday from Harris County computers; last night at the HCCLA Holiday Party a prosecutor asked me if I was really blogging during trial. From these two data I conclude that Harris County prosecutors are reading my blog from the office. Welcome, prosecutors! If you see any unnamed prosecutor in here whom you believe to be you, you're wrong. Anonymous prosecutors are at least partly fictionalized. If you think you recognize a case that you have against me in a blog post, likewise, you are incorrect. All open cases, and most closed cases, are at least partly fictionalized. Descriptions of named prosecutors, however, are entirely accurate.

I hope that you will comment (anonymously, if you like) when you read something that inspires or outrages you.

P.S. Should you really be reading Defending People from the office during work?

"We Will Show that the Defendant is a Con Artist"

I don't know what to say. This was supposed to be Assistant U.S. Attorney Eric Smith's opening statement -- a time not for argument but for describing what the evidence is expected to show.

The accused is not charged with being a con artist. Rather, he's charged with possession of cocaine, at issue is whether he knew that he possessed a controlled substance, and he didn't try to con anybody into believing that he didn't know.

So why would Mr. Smith, prosecuting a drug case, argue to the jury in a drug case that the accused is a "con artist"? It has nothing to do with the facts of the case; might it have something to do with the nationality of the accused?

Might the prosecutor be trying to stir the jury's prejudice by equating the accused (a Nigerian citizen) with the Nigerian con artists who fill our inboxes with offers of easy money?

Is that right? Appealing to the jury's biases and prejudices that way?

Since the jury is entirely white and hispanic, you might even call it an appeal to racism; if Mr. Smith were a white man, you might wonder whether he shared the racism that he was trying to foment in the jury.

Do you wonder the same thing of a Black man?

Hit Me Again, Baby!

Today while cross-examining my client, the prosecutor took two verbal swings at me personally. He suggested that I was responsible for my client's account of the facts and suggested that I was calling the state's witnesses liars.

What does that mean?