Justice on the Block
Lawyer Michelle Leitner pensively studies the first lines of a script for a minute-long radio commercial being taped for her husband, Jim. "It just starts strange," she says, as they wait in a cramped production booth at the KPRC talk radio studio on the Katy Freeway.
"Concerned voters!" exhorts Leitner's message. "Who do you want for your next district attorney? Do you want your next D.A. to support the police -- or be the police? Or do you want your next district attorney to stand for integrity, leadership, independence, commitment and honesty?"
In this session, both Leitners are concerned that voters might not understand the message. Talk radio is not a subtle medium. Even a student of this race would have trouble reading between the lines of the ad Leitner had crafted and deciphering its thrust at opponent Chuck Rosenthal.
"You want the controversy," pitches KPRC account exec Dana Lee, who penned the script from notes provided by Leitner. "You want people to talk about it. You want it to spark some thought." Better to stir up comment among listeners, Lee advises her client, than to put out a boring résumé as a campaign pitch.
After mulling over the script with Lee, the candidate gives the go-ahead and cuts a required "bug" at the end of the message identifying it as a paid campaign commercial. The message will later be recorded by a KPRC reader.
Leitner has the lightest campaign war chest of the five Republican candidates, and this $5,000 ad represents his total budget for the electronic media. His opponents -- Rosenthal, visiting Judge Pat Lykos, first assistant county attorney Mike Stafford and former city controller and "road rage" indictee Lloyd Kelley -- are walking and talking their pitches in television ads far beyond the reach of Leitner's budget.
And KPRC is not the most logical choice as the vehicle for a message espousing greater separation among police, prosecutorial and judicial functions. On the overheated conservative talk shows that have become the station's bread and butter, a question like "Do you want your district attorney to be the police?" likely would draw a majority response of "Hell, yes!"
The stocky, mustachioed Leitner is a former Harris County prosecutor with seven kids, including a 24-year-old son on probation for theft. He has the best-balanced bio of the Republicans running to replace Johnny Holmes after two decades as district attorney. A defense attorney for the past decade who has defended death penalty clients, Leitner has earned endorsements from publications as disparate as the Houston Chronicle and the religious conservative Link Letter .
He also has the courage -- or foolhardiness, considering this is a suburbia-dominated GOP primary -- to publicly question whether law and order has gotten out of hand in Harris County. Like presidential contender John McCain's kamikaze attack on ministers Pat Robertson and Jerry Falwell, Leitner's ad might resonate in a general election among urban and minority voters, but it may well prove political poison in the primary Tuesday, March 14.
Leitner entered the race in January primarily because he was appalled that Rosenthal, a prosecutor he regards as unreliable and sometimes out of control, might inherit the helm of the most important criminal justice post in the county. While he supports the death penalty, Leitner believes the D.A.'s office has gone overboard in seeking the widest possible application of the statute. And that policy has made Harris County the death penalty capital of the nation.
Before entering the race, Leitner visited the retiring Holmes and got his assurance that he would make no endorsement, a commitment Holmes later discarded when he appeared in a Rosenthal television commercial pledging to vote for his subordinate. "First time I've ever seen Johnny talk out of both sides of his mouth," mutters Leitner, who says he would not have run had Holmes made his intentions clear at the beginning.
Leitner was particularly galled that Rosenthal wears a Houston Police Department jacket in the ad. Hence the reference to "be the police" in Leitner's radio counterattack.
"I have always been afraid of prosecutors who believe they're doing the Lord's work and the ends justify the means," says Leitner. "I'm not saying that Chuck is like that all the time, but I don't want a person to be district attorney who's like that any time."
While Leitner may be the conscience of the GOP field, Rosenthal, Lykos and Stafford are the financial heavyweights. Disgraced city politician Kelley serves as jester. At a Republican candidate showcase at Kim Son last week, Kelley had the audience tittering over his defense against his widely publicized road-rage assault charge.
It's hard to take a district attorney candidate seriously when he's facing trial for manhandling a motorist, and then claims he's being prosecuted because he's running for D.A. According to Kelley, he was the victim of a careless motorist and was only trying to see the man's driver's license. And the candidate's admission that he has been under treatment for depression after losing the 1997 controller's race to Sylvia Garcia will not boost his credibility in the contest.
Jim Dougherty, a former federal prosecutor, runs unopposed in the Democratic primary and will face the GOP nominee in November. He's making the high number of capital punishment prosecutions and the poor relationship between the D.A.'s office and minority communities his key issues.
Conventional wisdom has Lykos, Rosenthal and Stafford battling for the two tickets to an inevitable GOP runoff. By this reasoning, Lykos has the support of County Judge Robert Eckels and GOP women's clubs. Rosenthal has the law enforcement establishment and westside Christian conservative Dr. Steven Hotze in his corner. Stafford, meanwhile, has the county leadership that includes commissioners Steve Radack and Jerry Eversole, plus the financial heft of a host of contractors who do county business. That leaves Leitner with only a smattering of defense lawyers as potential contributors.
In GOP judicial politics, observes Leitner, "defense attorney" is a dirty term. When Hotze issued his sample ballot endorsements last month, he felt it a sufficient indictment to simply put the label of longtime defense attorney beside Leitner's name.
Over the past decade Harris County criminal justice has evolved into a system where all criminal district judges are Republican. And most of them are former assistant district attorneys, honor graduates from the Johnny Holmes finishing school for law-and-order jurists. From the defense perspective, it often seems that a relentless prosecutorial machine, stretching from the street cop to the presiding judge, has replaced the traditional American ideal of blind justice. In Leitner's view, the independent roles of the police, the prosecutor and the judge have become dangerously fused.
"The system of checks and balances with every entity being a distinct entity is the way it ought to be," says Leitner. "Sooner or later it's got to go back to the way it was meant to be, and I think this is a perfect opportunity. That's why we need a new face as D.A."
The one sacred cow in the D.A.'s race is, perhaps not surprisingly, the lame duck himself. Even when the candidates talk about what they would do to improve the office, invariably in the next breath they praise Johnny Holmes for his ethics and lack of favoritism in laying down the law in Harris County. Although Holmes has become famous throughout the country as the top practitioner of the revived death penalty, the candidates, with the exception of Democrat Dougherty, tiptoe gingerly around the issue.
Holmes has been less generous, making it clear that he's voting for Rosenthal and that he's troubled by an influx of special-interest money into the contest.
The race has drawn some highly unlikely contributors. They include architect Jack Linville, Houston Sports Authority chair Billy Burge and a battery of influential downtown law firms, all of whom do work for the county. All support Stafford, the first assistant county attorney under Michael Fleming and the man responsible for vetting the contracts of all of the above.
Stafford, an affable, sandy-haired University of Texas grad, began his career as an ARCO chemist, then returned to law school. After several years in private practice, Stafford was turned down for a position with the Harris County D.A.'s office, so he became an assistant county attorney in Liberty County.
In 1996 he ran a largely self-funded campaign for Harris County attorney, failing to make the runoff between Fleming and Mickey Lawrence. Stafford endorsed Fleming and was hired as his top assistant after Fleming took office. Opponents accused Fleming and Stafford of trading a future job for the endorsement, an allegation both deny.
After rejection of his prosecutor's application in 1980, Stafford is trying to enter the office through the top. His lack of experience in criminal prosecution is his most glaring handicap. He admits he has tried very few felony cases, and none of the capital variety. During a recent debate a questioner asked him about a basic criminal statute, one banning the use of illegally acquired evidence against defendants. Stafford was stumped about the law that would be rote knowledge for the lowliest of Holmes's prosecutors.
"If I had my druthers, I'd rather be able to point to my background and say, 'Yes, I have [that experience],' " says Stafford. "But I've tried complicated lawsuits before, both civil and criminal, and consider myself quite capable of trying any case I need to." Perhaps as a cover for his professional limitations, Stafford is billing himself as a good law firm manager rather than a litigator. The problem is that as the top prosecutor he would have to call the shots on cases where he has little first-hand experience.
Compared to his run for county attorney, Stafford now rides in a limousine of a campaign. Commissioner Radack lends his formidable political sign brigade, guaranteeing that anyone driving on county thoroughfares sees a numbing repetition of Stafford placards in the most advantageous, if sometimes illegal, locations.
Fund-raiser Sue Walden, the greenback collector for former mayor Bob Lanier and successor Lee Brown, shears the establishment sheep for Stafford. It's a development that outgoing D.A. Holmes finds troubling.
"When I was coming along I had the good fortune not to go out there groveling for people to support me," recalls Holmes. Governor Bill Clements appointed him to the office in 1979, to replace the retiring Carol Vance. "I was independent enough to say, 'You either like what you see or you don't, take your choice.' How many times have I said, time after time after time over different issues, 'If you don't like what I stand for, vote for the other guy, but get out of my fuckin' face'?"
During an investigation of former county judge Jon Lindsay's campaign finances in 1992, Holmes wired himself with a hidden microphone for a chat with Lindsay at the judge's office. Holmes now wonders how the current crop of candidates will be perceived in future situations when they might have to investigate a major campaign supporter.
"I didn't have any ties," says Holmes. He even refused to later endorse Clements, the man who had appointed him to his job. "You all speculated that I went over and was wired when I interviewed Jon Lindsay on his matter. Would you think someone with close ties to someone would have the intestinal fortitude to do that?"
And even if they did, Holmes believes, the district attorney's authority would be weakened by the appearance of cronyism. Had Lindsay been a major Holmes backer, Holmes says, people would have automatically assumed that he was pursuing a halfhearted investigation. "While it may be absolutely false," says Holmes, "the appearance there makes some people believe it, and thus harms the credibility of the office."
Holmes also believes that the long-running feud between Commissioner Radack and Judge Eckels is taking precedence over a concern for the independence of his office.
"Stafford's running because Radack's getting him to and Fleming's pushing him," contends Holmes. "It's Eckels supporting Y and Radack supporting Z. I don't think it makes a tinker's damn who it is from their perspective. I don't think it's any secret that Radack can't stand Eckels, and it probably works the same way the other way around."
Radack is assisting Stafford "in any way he asks for me to help," the commissioner says. "Raising money, helping him with volunteers, with my own time, and [I] certainly have financially assisted him as well."
But he claims he simply responded to the candidate's appeal, and is not acting out of any extended feud with the county judge.
"I think it's kinda funny that people try to say there's some kind of a political war between me and Eckels," snipes Radack. "If you're going to have a war, it would be fair to have a worthy opponent, and I don't consider him as being one."
As for battlefield predictions, Radack has only one.
"I don't know who the next D.A. is going to be," says the commander of the sign brigade, "but I can tell you it's going to be one hell of a runoff."
In recent months former Houston Sports Authority chair Jack Rains has charged that county government is controlled by a circle of self-enriching good ol' boys centered on Radack, who is pushing Stafford.
"It does not surprise me at all that the people who are employed by the county and contract with the county in a major fashion are supporting the county insider, Mike Stafford," comments Rains. "That's the way the clique operates."
Rains is backing Lykos, who has promised to vigorously prosecute public integrity cases.
Stafford denies that he's a tool of anyone's, including the contractors and politicians who are backing his campaign.
"I think they are concerned with having good government, having somebody in there that has demonstrated an ability to run a large public law office," says Stafford. At the same time, he acknowledges he has worked with most of them before. "I think they've all directly or indirectly had dealings with me on big projects where they know I can get things done."
At least one fellow candidate doubts Stafford will be as easily manipulated as some of his supporters might think.
"I never knew Stafford before this race," says Leitner. "I have gotten to know him pretty well during this race, and I have been nothing but impressed by Stafford as a person. I think that whatever the motives are of the crew that put him up, I think they chose the wrong person. I don't think Stafford would ever be the kind of puppet I think they want him to be."
Holmes recalls that when he announced his resignation, he told the Houston Chronicle he would not get involved in the race to replace him "unless some nincompoop ran." According to Holmes, Stafford called him and said, "Look, I'm being speculated as running for D.A., and I want to tell you personally that I'm not running for D.A. just because I don't want you to have to take a position because some nincompoop's running."
Asked about it, Stafford says, "He's right. I called him. Then I changed my mind." He didn't say whether he changed it about running, being a nincompoop, or both.
It's 30 minutes before a Pachyderm Club campaign forum in west Houston, but feisty Pat Lykos is already pumped. "Ask me more questions," she demands of an interviewer, working out on her issues like a boxer bashing a punching bag. If enthusiasm were the sole criterion, the curly-haired, bespectacled Lykos would have the race sewn up.
Lykos likes to have the last word, and she generally gets it. She's a former cop ("Angie Dickinson was a policewoman; I was an HPD officer") and jurist who comes across in private more like a salty yellow-dog Democrat than a lifelong Republican. Her heritage is Greek, but she doesn't revel in it. "If you want to hyphenate me," she declares, "just call me a Texan-American."
In a series of campaign forums, Lykos consistently delivers a strident sermon preaching old-time law and order, leavened with an appeal for better prosecution of child abusers and perpetrators of family violence. She's easily the most forceful and articulate speaker of the five candidates.
Lykos got her start with an appointment by commissioners to a county criminal court bench in 1980. During her ten-year tenure as the judge of the 180th District Court, Lykos accumulated a long line of detractors, both defense lawyers and district attorneys.
"She will be a walking disaster," predicts a former Holmes assistant. "No one who ever practiced in her courtroom will work under her. She is the only judge who could put [assistant district attorney] Ira Jones and defense attorneys on the same side. She's abusive and she's petty."
She is a bit of a control freak. During early campaign speeches, Lykos would stop in mid-word if someone tried to take her picture, admonishing the shutterbug that she did not want to be photographed with her mouth open.
Opponents also point to figures by Holmes's office rating Lykos poorly for a high number of probations granted by her court in 1993. Then there were her consistently low rankings by attorneys in bar association polls. Those criticisms of her were first aired in Lykos's unsuccessful statewide race for the Republican nomination for Texas attorney general. Another local judge, Don Wittig, was in that race, although Lykos carried Harris and surrounding counties.
Lykos calls the accusations deceptive and dishonest. On the issue of the high probation totals, she points out that many criminal judges grant deferred adjudication, which is a form of probation that does not include a final conviction. Lykos says that in her court she refused to grant deferred adjudication for several categories of crimes, including embezzlement and fraud, in order that there be a final judgment in those cases.
"If you add my totals for both, I think I rank 18th out of 22 judges. This is pure demagoguery."
Likewise, Lykos dismisses low bar polls and the consistent charge she is abrasive and difficult to work with.
"I have never sought the approval of lawyers, and I have never associated [with] or courted them. If there's a bar poll, don't look for my name at the top, 'cause it's not going to be there."
While Lykos campaigns for tougher prosecutions of some violent crimes, she delicately steps around the subject of the high number of death penalty convictions churned out by Harris County. "As far as [the] death penalty," says the former judge, "I feel it puts a value on life: the life of the victim."
Lykos now works for Eckels as an adviser on criminal justice projects, a position that has played into the perception that she is Eckels's surrogate.
"I'm not backed by any faction," says Lykos. "I'm proud of the support of the judge, but I have not asked him to endorse me. I think it's improper for these endorsements. After all, the district attorney is the one in charge of maintaining public integrity and investigating any allegations. And you simply cannot have these entanglements."
After declaring for the D.A.'s race, Lykos says, she was indirectly offered the county civil bench left vacant by the death of Eugene Chambers. Commissioners Court would make the appointment to fill that position.
She turned down the offer.
"I thought that was very flattering that I was so popular," she says, making reference to the criticism that she is abrasive and widely disliked. Asked whether the offer was an inducement to get out of the race, she laughs.
"That's one view. The other is that I'm a good judge. A very good judge."
"If you like the way we've done law enforcement in Harris County over the last 40 years," tall, tanned and mustachioed Chuck Rosenthal told a UH law school audience two weeks ago, "you'll like me." Asked by a panelist if he would handle death penalty cases differently than Johnny Holmes, Rosenthal snapped off "no" so sharply it left the audience murmuring.
To say Rosenthal is the candidate of the status quo would be an understatement. Ever since his days at Lamar High School hanging out with Holmes's younger siblings, Rosenthal has been walking in Johnny's footsteps.
He has spent virtually his entire professional life as a Harris County prosecutor. Married to an FBI agent, Rosenthal refers to his career as a "calling" rather than a job. Early in the campaign he described his prosecutorial role as "the Lord's work." He refers to the death penalty as "a biblical proposition." And he's a devout member of the politically influential Second Baptist Church congregation.
There's no doubt Rosenthal is Holmes's anointed successor. Holmes tipped off Rosenthal about his retirement in plenty of time so that his felony division chief could position himself for the race.
Rosenthal remembers that day, September 8. He was chatting with Holmes about family matters and was getting up to leave when Johnny popped the question: "Say, what would you do if I decided not to run again?"
Rosenthal quickly decided in the affirmative. Several weeks later Holmes officially announced his retirement, and Rosenthal walked across the street to the county clerk's office and filed a campaign treasurer designation for the race.
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.
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."
Attorney Katherine Scardino recalls her defense work for Joseph Vincent Durrett in 1995, when he was twice charged with the capital murder of his estranged wife and her sister. The case first seemed open-and-shut; hairs found on the body of the victim were tentatively identified as those of the suspect. But an assistant medical examiner, Elizabeth Johnson, found through DNA testing that the hairs did not match. Prosecutors questioned Johnson's results and sent the evidence to an independent lab, which verified her findings. Scardino says Rosenthal wrote a letter instructing the lab to withhold the findings from the defense.
"It was clear," says Scardino. "I have a copy of the letter. He said, 'Do not talk to the defense,' and they didn't for a long time." Her client was eventually acquitted, with the help of the corroborating evidence she says Rosenthal tried to suppress.
"I think Chuck is known in the defense bar for walking the fine line to do whatever is necessary to get it done for the prosecution," says Scardino. "If he is elected D.A., I think it will be worse than what it is now for the defense bar."
It's the same message Jim Leitner is sending out in his KPRC radio ad. The question is whether there is an audience in the GOP primary tuned in to receive it.
E-mail Tim Fleck at email@example.com.
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