By Jeff Balke
By Aaron Reiss
By Angelica Leicht
By Dianna Wray
By Aaron Reiss
By Camilo Smith
By Craig Malisow
By Jeff Balke
If Harris County District Attorney Chuck Rosenthal has a guardian angel, its earthly incarnation last week went by the name of state District Judge Brian Rains. Before the jurist mercifully pulled the plug on the trial of Houston Police Chief Clarence O. Bradfordfor aggravated perjury, the proceeding had produced an embarrassing swearathon with more potential to damage the D.A.'s future than that of his intended target.
Rains may be cut from the same prosecutorial cloth as Rosenthal, but the veteran criminal judge and Republican obviously has stayed closer to legal realities than his former colleagues in the district attorney's office. One prominent GOP courthouse source scoffed at what he called Rosenthal's "tunnel vision." "He looks and he doesn't really think about things. They got this thing called prosecutorial discretion, and you're not supposed to waste court time going after bullshit." The same source says he knows of no conservative Republicans of note who supported the flimsy case against Bradford.
"Rosenthal benefited from the fact he got short-circuited quickly," says Murray. He notes that the D.A.'s enthusiastic support of capital punishment already puts him on shaky ground in minority communities. "He's not in the world's greatest position for a local Republican officeholder in a county with a growing number of Hispanics and blacks. The worst possible outcome would have been a Bradford conviction here, but that wasn't going to happen."
The chief stood accused of lying under oath in a 2002 civil service hearing to cover up his cursing in an unrelated matter a year before that (see "Much Ado About Cussin," The Insider, September 26). During testimony nearly 100 invocations of "motherfucker" or assorted variations reverberated throughout Rains's courtroom on the 19th floor of the Criminal Justice Center. By the second day the obscenity had been so deadened through repetition it seemed about as offensive as motherhood and apple pie.
The only real entertainment of the trial centered on the highly successful gambits of celebrity defense attorney Rusty Hardin, who repeatedly mousetrapped witnesses for the state -- and on one occasion a prosecutor -- into misstating facts and previous testimony. Each time, Hardin reminded his targets that they, too, could fall victim to an overzealous prosecution for their innocent errors.
Bradford's other big-name attorneys, Mac Secrest and Bob Bennett, played on the same theme in their questioning. The lawyers suggested that people, just like the chief, frequently forget previous statements and inadvertently give wrong information without any criminal intent.
During the trial, lead prosecutor Don Smyth seemed oblivious to the obvious. "I think it's going really well," he muttered to fellow assistant district attorney Lester Blizzard, who frequently looked as if he desperately wanted to be anywhere but that particular courtroom. During conversations Blizzard often avoided eye contact entirely with his colleague. During a break, Smyth smugly advised The Insider to stick around for "surprises" that would presumably bolster his case. As it turned out, the only "expect the unexpected" moment came courtesy of Judge Rains's directed acquittal, which left both sides agape. "It dropped my jockstrap," cracked Bennett afterward.
In truth, the outcome was effectively decided before testimony even began. Members of the jury pool staged a rebellion of sorts, aggressively questioning both Rains and Smyth on such issues as selective prosecution and the waste of public resources on a trivial legal pursuit. At one point the frustrated Smyth declared defensively, "Nobody put a gun to my head to make me try this case."
Rains noted, "I don't have the luxury of deciding what is worth my court time and what isn't." Left unsaid was the fact that that role belonged to Rosenthal. In retrospect, that was the initial hint that the judge might bail at the first opportunity.
Prospective juror Thomas Mudder even cracked, "Hell, the president of the United States didn't get convicted of perjury." Smyth, in response, inexplicably compared himself to the impeachment managers who tried and failed to oust former president Bill Clinton. Likewise, Smyth's boss Rosenthal saw the case through impeachment-tinted lenses.
"I guess you could fall back to Bill Clinton days and say, 'Well, if it's about sex or about my private life, then it's free from scrutiny,' " the D.A. mused before the trial began. "I don't know that I believe that, and I think the proof will show [Bradford's testimony] was not a slip of the tongue."
Even after the case was thrown out, an unapologetic Smyth invoked Clinton and Monica Lewinskyand the Ten Commandments. He decried an era "where you parse every word."
In effect, Rosenthal and crew had embraced the most famous failed prosecution of a perjury case in United States history as their role model for going after Bradford. It was a curious legal strategy with a jury pool well represented with African-Americans, who overwhelmingly backed Clinton. The resulting panel included four blacks, whose skeptical reactions to the early testimony indicated a hung jury would be the best possible outcome for prosecutors. They were not alone. After the dismissal, jurors indicated that all 12 on the panel would have voted to acquit Bradford had it gotten that far.