Justice on the Block

Is the D.A.'s office for sale to the highest bidder?

He'd like to be perceived as the Second Coming of Johnny Holmes. However, a few skeletons in Rosenthal's closet raise concerns that he may have the walk, the talk and the mustache of his boss -- but not the balance.

"When I had cases with Chuck," says Leitner, "I made sure I always checked out everything that was sent to me. Chuck is a guy that's prone to making bad judgment calls. One thing about Johnny, he didn't make bad judgment calls. When Johnny said something, you could take it to the bank."

Rosenthal's personnel file quickly establishes two points. His aggressive style of prosecution has won him the fealty of victims' families and community groups. Their letters fill the folder with plaudits and commendations. But he's also a supervisor's headache, as evidenced by a string of snippy notes from Holmes's first assistant Don Stricklin. Those reminded Rosenthal that he was lagging in his administrative duties, such as interviewing job candidates for prosecutorial positions.

The Fab Five: Rosenthal speaks, while (from left) Lykos, Stafford, Leitner and Kelley wait their turns.
John Childs
The Fab Five: Rosenthal speaks, while (from left) Lykos, Stafford, Leitner and Kelley wait their turns.

Stricklin and Rosenthal did not get along, with Stricklin playing the role of stern taskmaster to Rosenthal's creative, sometimes off-the-wall spirit.

That spirit is typified by an incident five years ago. Rosenthal capped an after-hours "social" in his office in the district attorney building by setting off several firecrackers in a stairwell. Coming as it did on the heels of the Oklahoma City bombing, the prank panicked other employees, who reported gunshots to HPD dispatch.

When another prosecutor rushed up and asked Rosenthal if he had heard the noise, Rosenthal said he had, without volunteering that he had been the source. When the police arrived, they found Rosenthal and his guests in the office and asked if there had been gunfire. Rosenthal answered no. In his statement to a D.A. disciplinary committee, Rosenthal recounted that the officer had asked, " 'Y'all having a party?' I told him yes. I believe he asked if there had been fireworks. I told him yes. At that point one of the officers said, 'I don't want to know any more.' "

It turned out that Rosenthal kept a stash of fireworks for such festive occasions and had set them off several times previously. "I realize that shooting fireworks within the city is illegal," Rosenthal confessed in his statement. "The stairwell was chosen for its reverberation effects, the fact there are no smoke detectors there, and the fact no property can be destroyed."

Holmes's reaction was blunt: "Whoever did this was not only acting foolishly but unlawfully. I also think we owe an apology to the police agency that responded to this stupidity." Rosenthal received a five-day suspension without pay and was ordered to submit written apologies to the Houston Police Department and co-workers.

His personnel file also refers to another incident in the mid-'80s, when he authorized a Houston police officer to masquerade as a defense attorney while accompanying the wife of kidnapping suspect Miguel Cortez to a meeting at the jail. According to Rosenthal, several kidnap victims had not been located and he felt it was a life-or-death issue to find them.

"The defendant asked for a lawyer to be brought along," recalls Rosenthal. "So I suggested that an HPD officer dress in a suit and go." Rosenthal says he told the officer that he couldn't provide legal advice, and if the suspect asked for help, simply to say he had not yet been appointed to the case. That way "you can send him as a listening post," reasoned the prosecutor. "Like a wooden Indian, and just say this guy is a lawyer."

The charade fell apart several days later when the wife and a real defense attorney, Dan Gerson, went to the police homicide division. She spotted the officer who had introduced himself as a lawyer. Gerson was outraged.

"I can see from a lawyer's standpoint he didn't want police officers representing themselves as defense attorneys," says Rosenthal. "And I'm absolutely, positively convinced he didn't in that case." Then Rosenthal laughs. "And we didn't find out any of the information we were trying to find out."

Rosenthal's action made him the target of complaints to both the U.S. Justice Department and the State Bar of Texas, though both were dismissed without action. "To take police officers posing as attorneys and send them into an attorney booth with a person who is charged with serious crimes is about as bad a violation of our Constitution by law enforcement and an assistant district attorney as I can imagine," says Gerson.

Asked whether he would condone such tactics as district attorney, Rosenthal offers no apology or assurance that he would do anything differently.

"Gosh, that's hard to say, because at the time, lives were in the balance," says Rosenthal. "Would I sacrifice my law license to save somebody's life? That's a tough call. I like practicing law, but if it comes down to my livelihood or a victim, I'd have to take it case by case."

Attorney Gerson says of Rosenthal's position, "I guess it shows he has no respect for the Constitution of the United States of America."

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