Blessed and Bewildered
Ask Harris County District Attorney Chuck Rosenthal the ubiquitous informal question "How're you doing?" Chances are he'll give this straight-faced reply: "I'm blessed."
Those who wait for further explanation find that none is forthcoming. To Rosenthal -- the D.A. who replaced the legendary Johnny Holmes through the avid political support of Houston's two political pillars of right-wing Christianity, Second Baptist Church and the traditional Steven Hotze-Allen Blakemore team -- "I'm blessed" is a simple statement of fact.
In his two and a half years as D.A., however, it hasn't been blessings that have been falling on Rosenthal's head. It's been one shitstorm after another.
There's the debacle over the Houston Police Department's DNA lab, which was either inept or corrupt. The county's criminal district judges have asked Rosenthal to recuse himself from investigating the matter, since it involves cases that were prosecuted by the D.A.'s office. He's refused to do so, generating howls of protest.
There was the debacle of going after HPD Chief Clarence Bradford for perjury, a case that centered on whether Bradford lied about cursing. The case infuriated the city's black community and was so weak that a judge tossed it out after hearing the prosecution's side, not even waiting for the defense to put on witnesses.
There was the debacle of the sodomy arguments before the U.S. Supreme Court. Rosenthal, who's a much better trial lawyer than he is an appellate advocate, decided that he would be the one to argue on behalf of Texas's law against gay sex. Major papers across the country ridiculed his efforts: The New York Times said the arguments "proved to be a mismatch of advocates rarely seen at the court."
Three debacles in less than three years is pretty daunting. But that's not all. Rosenthal also ran into trouble when he added to Harris County's "hang 'em high" reputation by asking for the death penalty against Andrea Yates. He dithered before finally deciding to return a large campaign donation from a road builder his office was prosecuting. He angered another minority group, the county's Hispanics, when he threatened criminal action against hospitals who were treating indigent illegal immigrants. And he failed to get convictions in one of the more high-profile police misconduct cases in recent years, the Kmart mass-arrest incident.
The hits will keep coming, too -- Rosenthal may soon be forced to take the stand in a hearing to determine if he or other law enforcement officials failed to provide defense attorneys with potentially exonerating evidence they had in a 1989 capital murder case.
All this has come as Rosenthal has tried to step out of the shadow -- if not the halo -- of Holmes, who in two decades as D.A. developed a widespread reputation among attorneys, judges and the public as a straight-shooting nonpolitician. Whether you agreed or disagreed with him, there was no doubt about where he stood or the motives that led him there.
And since Holmes himself had replaced another longtime D.A., Carol Vance, Rosenthal was the first "new face" in the job since the Nixon administration. Even though Rosenthal won some high-profile cases as a prosecutor, most of Harris County knew nothing of him until he took the position. And the introduction has been brutal.
"Going back to 1977 when I started with the D.A.'s office, I can't remember that many things going wrong at the same time," says District Judge Mike McSpadden, a longtime friend of Rosenthal's.
To some, the unending missteps are completely predictable -- they say Rosenthal has always shown a lack of judgment; some say they don't trust him.
"Is Chuck Rosenthal honest? That's a tough question to answer," says defense attorney Kent Schaffer. "I'm not sure he subscribes to the same moral code as Johnny. Johnny was ruthlessly honest because he was beholden to no one, and his word was gold. Chuck has done some things that make you wonder whether he will enjoy the same reputation."
To others, Rosenthal is being unfairly painted by events, some of which are out of his control and none of which shows dishonesty on his part. He admittedly hates politics, and may have made some mistakes adjusting to the harsh spotlight of the D.A.'s office, they say, but he will grow into the job quickly.
"Stepping into the shoes of a legend is often an unenviable place to be," says defense attorney Chip Lewis, who worked under Rosenthal as an assistant D.A. "Johnny wouldn't be facing much of this criticism because he was untouchable; he had a record of 25 years of being beyond reproach I had many personal experiences with [Rosenthal] and I haven't seen anything to indicate he would be inclined to hide evidence, mislead attorneys or use improper evidence."
As for Rosenthal himself? He admits he "underestimated by 100 percent" how difficult the job would be, but has no qualms about doing it. Whether it's the no-quit doggedness his admirers cite or the obstinate political tone-deafness his critics complain about, he sees nothing much wrong with his performance so far, and no reason not to run for re-election in 2004 and beyond.
"I think I have the best job in the world," he says.
Blessed? If this guy is blessed, then Harris County doesn't need to see a D.A. that's cursed.
For someone who's had the same employer for 26 years and attended the same church for nearly 40 years, Chuck Rosenthal had a rootless youth.
"I'm oil-field trash," he says. His father was working his way up the ladder at the oil-field giant Schlumberger, and that meant relocating. A lot.
Rosenthal was born in the South Texas town of Alice but didn't stay long. The family moved to Louisiana, to Oklahoma City, to Wichita Falls, to Wyoming, to wherever his father's job took them.
As an only child, moving every year or two, Rosenthal never made a lot of young friends. "I think the only thing [tough] about growing up that way is that I made a lot of adult friends; I was kind of friends with my folks' friends rather than having a lot of kid friends," he says.
By the early 1960s, Rosenthal's father had made it to Schlumberger's corporate office in Houston, eventually becoming a vice president. The family decided to join Second Baptist Church and, hearing that the church was about to erect a complex in what was then Houston's unpopulated Wild West of Voss and Woodway, they built a home nearby.
Rosenthal went to Lamar High (as did his predecessors Vance and Holmes). He was a few years behind Holmes but dated the future D.A.'s sister and hung around some with his brothers. He graduated with no great career plans, but for lack of anything more interesting he went on to Baylor and got a degree in psychology.
As the Vietnam War heated up he decided he wanted to become a navy pilot. He went through all the tests, but when he arrived in Dallas for the final step -- his physical -- he was rejected because he had the skin condition psoriasis. (When he got a draft notice a few months later, he showed up for the physical and kept his condition a secret, but it was detected again and he was classified 1-Y, never joining the military.)
Rosenthal found himself back in Houston, again without any burning desire for any particular line of work. He had a degree in psychology, but that field didn't appeal to him. "I didn't like what psychologists did, so I decided to go into something else," he says. "It seemed everyone I knew had an MBA, so I went instead into law school."
He enrolled for night classes at South Texas College of Law, back in the days when the professors were all practicing prosecutors or attorneys moonlighting for extra bucks. To pay tuition, Rosenthal worked in the personnel department of Methodist Hospital and for a headhunter who tried to convince people to take jobs in Saudi Arabia and other Middle Eastern countries.
He graduated in 1977, at 31 years of age. "I still felt like I owed somebody some government service, so I decided I would come [to the D.A.'s office] and work for three years and then go out and make some money," he says.
Instead, he found another home and -- finally -- a calling. He discovered he loved getting in front of juries.
He claims he had never even been in a courtroom before his first day as a prosecutor. "After kind of signing the insurance papers and things, they sent me right to County Court at Law No. 8," he says. That court's two prosecutors were tied up, so within hours of walking in the door as a newly minted lawyer he was picking a jury for a resisting-arrest case.
"I got up there and started talking to these people in the jury pool and it just kind of felt like I was in the right place," he says. "I liked trying cases. I went around and if someone was sick or unable to try a case I'd kind of step in and do it."
"He is definitely a homicide detective's prosecutor -- he got into the mud with them and learned the job," Chip Lewis says. "He's always had a very close relationship with the police department -- the homicide detectives thought a whole lot of him and still do."
An affable, charming guy -- at least when he's not talking to the media in crisis-management mode -- Rosenthal was considered a loose cannon by some colleagues. There was an infamous incident when an after-hours office gathering resulted in fireworks exploding in a stairwell, and cops being called in to investigate.
"He always had these kind of harebrained, half-cocked schemes," says one former associate. "They weren't always the most well-thought-out things."
He also showed some aversion to taking care of the administrative side of his job as he moved up the hierarchy, obviously preferring trial work.
More seriously, he got in trouble for authorizing an HPD cop to pose as a defense attorney while accompanying the wife of a kidnapping suspect to a jail visit. Defense attorneys were stunned at the move and filed complaints with the State Bar of Texas and the U.S. Department of Justice; both were dismissed without action against him.
Despite the mishaps, he continued to win cases that were high-profile at the time. However, he never -- significantly, to his detractors -- got tabbed as first assistant, the No. 2 position in the office under Holmes. But he headed up one of the four felony trial divisions and was thought of as a top prosecutor.
His personal life was also taking a turn. He met his wife, an FBI agent, when they were both working on a kidnapping case in 1986. The victim was a kid Rosenthal had coached on Second Baptist's basketball team.
"When he was rescued, I called the family and had them meet us down in the basement of the federal courthouse, and they put him in the closest car, which happened to be my [future] wife's car," he says. "And we were kind of there for the reunion, and I took her out to breakfast and fell in love."
He was married to someone else at the time, but that 19-year marriage was sputtering to a close. Five years later, he and new wife Cindy were married and now have two daughters, ages 11 and eight.
She is voluble where he is reticent. "Chuck's a pretty quiet guy," she says. "People say he married me because he didn't like to do the talking."
She says he takes the current deluge of bad publicity better than she does. "I'm the one who reads the paper and says, 'I don't need coffee this morning to get me going,' " she says. "There are days when you can see that it gets to him, though."
Things began to change for Rosenthal when Holmes asked him, apropos of nothing much, "What would you do if I decided not to run again?"
"I prayed about it," Rosenthal says. And he decided to run, filing the very day Holmes announced his retirement.
Holmes says he figures that Rosenthal, like himself, "ran for D.A. in self-defense."
By e-mail, the retired D.A. says, "I never wanted to be an elected official," but Carol Vance announced his retirement. "I knew if someone else became D.A. I would be either leaving or going down a few notches, either of which I saw as unsatisfactory. I suspect Chuck was in the same boat."
Rosenthal's campaign emphasized his tightness with Holmes. While his opponents didn't criticize Holmes, Rosenthal still encountered a brutal primary fight against former district judge Patricia Lykos and then-first assistant county attorney Mike Stafford, who has since become county attorney.
"I was not at all prepared for the divisiveness that there was within the Republican Party," Rosenthal says. "You were either automatically accepted in a crowd because of who supported you or you could walk into a room and almost cut the animosity with a knife because of who supported you. And I found that odd. I was not ready at all for that."
Rosenthal's key supporters were the Christian right -- the Hotze-Blakemore axis, which has been pushing conservative candidates for years, and the 20,000 members of Second Baptist, a "damn powerful machine on their own," according to veteran political consultant Nancy Sims. They carried him to a runoff victory for the nomination.
Some of Rosenthal's former colleagues recall no religious fervor from the man -- his wife calls him "a quiet Christian" -- but there's no doubt that he now often invokes his faith. To some, that's pandering, and also the reason behind his decision to argue the sodomy case. To others, it's just the way he is.
But it can be jarring talking to the head of the country's most vigorous death penalty prosecutors and hear him talk of the Bible justifying his work.
"Forgiveness, it's not up to me to forgive. It's in that covenant where God talks about 'man sheds another man's blood, you shed his blood.' And the only thing God can't do is contradict himself, and I believe that Jesus is God and when he says on the Sermon on the Mount that he didn't come to change the law but to fulfill it, he wasn't changing the rules."
He doesn't believe those who sincerely repent on death row should be spared. "Actually I take heart in people who say they find religion in prison before they're executed because as far as I know, the mortality rate for human beings is 100 percent, so it's gonna happen to us sooner or later anyway, and hopefully they meet their maker as a better person," he says.
It was Rosenthal's decision to seek the death penalty against Andrea Yates, the disturbed Clear Lake woman who drowned her five children in a bathtub. The jury instead gave a life sentence.
"It was not an easy decision," Rosenthal says. "But I felt like it was a situation where, given the savagery of the murders, that a jury ought to have the opportunity to consider the death penalty."
He says he received death threats after he decided to make it a capital case. "It would be mostly e-mails, and they'd be sent about three o'clock in the morning from Massachusetts or California," he says.
Another death penalty case could pose problems for Rosenthal. The state Court of Criminal Appeals on July 3 appointed former justice Michael McCormick to determine if Anibal Garcia Rousseau deserves a new trial after 14 years on death row. Rosenthal sat as second chair in that case because it was prosecutor Lorraine Parker's first capital case.
Rousseau was convicted of capital murder on the basis of eyewitness testimony; there was little physical evidence. After the trial, Rousseau's attorneys discovered that the gun prosecutors claimed to be the murder weapon bore no resemblance to the actual murder weapon, according to HPD tests. They claim either the police or the D.A.'s office knew of the discrepancy at trial but kept the evidence hidden.
It was news to Parker.
"I was pretty horrified to learn that the gun that had been recovered and was in the custody of the HPD did not match the eyewitness description," she says. "It's the obligation and the duty of all prosecutors to see that justice is done, not just to get convictions. It's clear to me justice was not done here."
Parker now practices civil law in Colorado and is a fervent death penalty opponent. She says she doesn't know enough about the case to lay blame for what happened.
Attorney Philip Hilder represents Rousseau, and he too doesn't say just who is at fault. "I'm lumping the two [HPD and the D.A.'s office] together -- they may share in the blame or not, but it doesn't matter who. It's just a critical failing to disclose critical evidence I want to get Mr. Rosenthal on the stand to answer some very tough questions as to why this information in 14 years was never communicated."
Rosenthal says he and his office did nothing wrong and passed on to the defense all they knew at the time of the trial.
But some defense attorneys say the case is worrisome because well, because they have doubts about it that they wouldn't have with Holmes. Many echo Dan Cogdell's concerns: "Johnny Holmes was more old-school, he was more black-and-white, right's-right-and-wrong's-wrong," he says. "You don't get that same sense from Chuck."
Others disagree. "Chuck always struck me as having a straight moral compass," says defense attorney Chris Downey, who worked under Rosenthal until 1998. "That's why I'm so surprised at what's going on with the DNA lab."
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.")
So if the troops are happy (even if some still miss the legendary Holmes) and his political right wing is happy (even if he did lose the sodomy case, egregiously), is Rosenthal ready to further the Harris County tradition of D.A.'s staying in office forever?
He'll likely have no trouble raising the $500,000 or so needed to run for re-election in 2004, thanks to the power of incumbency.
"That is the most distasteful part of running for public office I can't call people and say, 'I'm Chuck Rosenthal, would you give me some money?' " he says.
(His fund-raising has gotten him in trouble -- something that definitely never happened with Holmes, who not only was independently wealthy but never drew serious opposition. Earlier this year, after the Houston Chronicle revealed Rosenthal had accepted $2,500 from the owner of a construction company under indictment, he took two weeks before deciding to return the money.)
"That's the one real question I've had -- the delay was not really proper," says Judge McSpadden, a Rosenthal supporter. "Just give it back."
A GOP primary opponent may crop up. "If they run, they run," Rosenthal says. However, taking on the Hotze-Blakemore-Second Baptist axis would be a daunting task in a low-turnout race.
Democrats, of course, always dream of finding that perfect candidate. Political analyst Sims says a "significant minority candidate" might have a chance. Rosenthal has "definitely pushed the wrong buttons repeatedly in the minority community," she says.
It's difficult to predict what the electoral atmosphere will be in November 2004 in Harris County. As things stand now, the D.A.'s race might be the highest-profile fight among a slate of largely uncontested races. That could change if the GOP push for redistricting forces incumbents to face each other, but if that effort is tied up in the courts, then much of the voters' focus locally will be on Rosenthal's first-term performance.
He says he's ready to run on that record. "Having been a trial lawyer, I've been called every name in the book, so [criticism] doesn't bother me," he says. "I know what I do and I know what the facts are. I still feel I have the best job in the whole world."
And -- even after one shitstorm after another, after his integrity's been impugned, after being compared ceaselessly to the iconic Johnny Holmes -- you can still ask him "How're you doing?" and learn one thing: He's blessed.
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