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Blessed and Bewildered

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The DNA lab mess is surprising a lot of people who know Rosenthal. His refusal to recuse himself from the investigation, or to get some indictments, has puzzled others. "I expected he would have sought the head of any person found to have testified falsely," Downey says. "When the shit hit the fan, though, we didn't see any indictment. Maybe he hasn't found any wrongdoing yet, I don't know. But even if it's symbolic, you go after it."

McSpadden was one of the judges asking Rosenthal to allow an independent court of inquiry to investigate. He believes Rosenthal's refusal to step aside comes from being new in the job.

"It's like when you're a judge and you get your first motion to recuse," he says. "It's someone basically saying, 'You can't be fair,' and you take it personally. Now when I get them I can't wait to sign…It's the newness of the job. Maybe ten years from now he'd handle it differently."

Other judges aren't so forgiving. Although some won't speak on the record, Judge Jan Krocker is willing to go public with her gripes.

"I was disappointed that Mr. Rosenthal represented to me personally -- and to the media -- that his office was presenting evidence about the DNA laboratory to my grand jury," she says. "He had not initiated any such investigation. He misinformed me and he misled the community."

Kent Schaffer is one of many defense attorneys wondering why Rosenthal doesn't recuse himself. "Chuck is going to hurt himself trying to maintain control of the investigation," he says. "It could be that the D.A.'s office has done nothing wrong, and they didn't know what was going on with HPD, but probably no one is going to believe that if it's the D.A. running the investigation."

Rosenthal says he won't bow to political pressure to step aside in the probe. "It's my job to do it," he says. "It's my constitutional duty to follow through with it. If I had been a fact witness or someone in my office had committed a crime, I would be duty-bound to step aside, but since neither of those eventualities happened, it's my job. I took an oath to uphold the law, and by God I'm going to do it."

He says an outside investigator "wouldn't have any idea where to start looking" for cases that might be tainted by bad DNA evidence.

Isn't there at least the appearance of conflict of the D.A.'s office investigating cases it prosecuted? "Yeah, if you didn't have people of integrity going back to review these things," he says. "But we try to err on the side of caution."

Indictments are still a possibility, he says.

"I don't think anything would have been handled differently by Johnny Holmes if he were here," says Cindy Rosenthal. "He wouldn't have recused himself."

She also says the impression that her husband has gone from one fiasco to another is misguided. "We're in the fourth-largest city of the country, for crying out loud. Things happen. All this stuff would have happened under Johnny Holmes, too, but it would not have been under that much of a microscope because it was Johnny Holmes," she says. "We have had politicians [such as HPD chief Bradford] investigated and indicted before…We had [former county judge Bob] Eckels indicted for getting a driveway paved, and [former city councilman] Ben Reyes for stealing a magnolia tree, and a lot of things like that," she says. "It was tiny little stuff and some of it was tried to acquittals, and no one raised an eyebrow about all that. I don't understand it sometimes."

Holmes, for his part, isn't saying much about what he would have done as D.A. or what he thinks of Rosenthal's performance. "As for how [Rosenthal's] doing, I'm not going there," he says. "No one appointed me critic for the performance of successors, nor am I volunteering for the position."

When it comes to critics, Holmes's help isn't needed. Democrats are cackling about Rosenthal's performance. "He has single-handedly engineered a break in the great merger that Johnny Holmes created between the prosecutors' office and the judiciary," says David Jones, a Democrat activist and defense attorney. "With his DNA ass-protection device, he's done it -- to have 22 criminal judges tell you to get out of the way, it's the first crack in the Berlin Wall."

Jones, and others, say they see small signs of newly found independence among the judges, themselves freed from the specter of Holmes looming over them.

"They don't fear Chuck Rosenthal like they did Johnny," Jones says. "Motions to suppress are granted regularly, easily now, compared to the past. The judges are openly dismissive of D.A. policies that they weren't of in the past, like when a prosecutor says he can't make a recommendation of probation in certain types of cases…The prosecutors are not likely to get every break in the world when they're not ready."

Rosenthal says the slew of judges who are former Holmes prosecutors have always been tough on their former colleagues. As for the line prosecutors themselves, one says that there may be some merit to Jones's theory.

The prosecutor, who didn't want his name used, says there's been some eye-rolling over things like the Supreme Court argument, but that Rosenthal has done a better job getting to know the troops than Holmes did.

"He's got more people skills, I'd say," he says.

Cindy Rosenthal says that is a matter of policy, not just personality. "The D.A.'s in the office like Chuck personally more than they did Johnny -- Johnny was not real approachable or sociable," she says. "Chuck's trying to give more warm-and-fuzzies."

He's also opening the purse strings that Holmes famously hoarded -- the discretionary funds that the D.A.'s office receives from cases such as hot-check prosecutions. Rosenthal is using the money to pay for his employees' bar dues, parking, continuing education, even $100,000 for a computerized shooting range in the courthouse basement.

(He's also adding a full-time computer-graphics artist to jazz up courtroom presentations: "Now juries are made up of the MTV generation and people who watch television programs where entire cases are solved in an hour, and they solve everyone's sexual problems too," Rosenthal says. "So they're used to a faster-paced trial.")

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