Todd, Pat and Me on the TeeVee

(Pay no attention to the goofy-looking static frame. Google picks this automatically to make the uploader look as ridiculous as possible.)

It’s Tuesday, and Pat Lykos is Still Lame

On the heels of Kelly Siegler’s realization that it was time for Chuck Rosenthal to resign (which itself followed only a month after Jim Leitner’s call for Chuck to resign), DA candidate Pat Lykos has discovered that it’s time for a change at the DA’s office.

Now, if you’re running on Kelly’s “let the entrenched leadership of the Office correct its own problems” platform, and your goal is to convince the voters ultimately that Chuck Rosenthal was the whole problem all along, then it might make sense for you to take some time to make the momentous discovery that Chuck Rosenthal isn’t the best guy to be running the Office right now.

But if you’re running as an outsider, claiming to be the right one to fix a government agency that everyone outside the office can see is broken, should you really (never mind the ludicrous self-righteous posing) be the last serious candidate to realize that, whoever should be running the Office right now, it’s not Chuck?

Chuck is Going . . . Going . . .

I asked here, “Is the fix in? Did Kelly get word that Chuck’s resignation is in the cards?”

It appears that, indeed, the fix is in. Reports indicate that Chuck Rosenthal’s chief investigator (and right-hand man) John Ray Harrison was packing up Chuck’s office on Friday.

Business as usual, then, at the Harris County DA’s Office: Chuck, after getting his ass kicked on the stand in federal court, decides on Friday to resign, and tells Kelly so that on Monday she can call for his resignation and appear to have influenced his decision.

I surmise, for reasons I discussed here, that a deal has been cut for Governor Perry to appoint a non-candidate caretaker DA for the interim.

The prosecutors’ desired endgame: Kelly gets elected, claims that there was nothing wrong with the Office that Chuck’s resignation didn’t fix, and everybody but Mr. Harrison and Ms. Stevens gets to keep his or her job.

(News like this takes time to percolate down to me. AHCL and her prosecutorial readers could undoubtedly have reported that fact on Friday, but that wouldn’t help create the illusion that Kelly Siegler, by calling for Chuck’s resignation, acted as an agent of change.)

Morons.

Kelly Siegler, playing catch-up to Jim Leitner, has called for her boss’s, Chuck Rosenthal’s resignation.

Better a month late than never, I always say. But Jim and Kelly are not the subjects of this post.

The subjects of this post, referenced in the title, are DA candidates Doug Perry and Pat Lykos, who “said they were neutral on whether Rosenthal should remain in office.”

How can a candidate for DA, aware of the situation in the DA’s office and the CJC, be “neutral” on whether Rosenthal should resign? Suddenly both Lykos and Perry seem irredeemably unqualified for the post they seek.

Is the fix in? Did Kelly get word that Chuck’s resignation is in the cards? Has a back-room deal been cut for Governor Perry to place Kelly at the helm of the Office before the primary (one of the few things that might secure her the nomination)? All questions above my pay grade. Safe to say, though, that this will be an interesting week.

A Lesson in Federal Contempt

Here is a thought-provoking little piece on Tom Kirkendall’s Houston’s Clear Thinkers blog about whether Chuck Rosenthal is in fact facing jail time for contempt in Judge Hoyt’s court.

The contempt proceeding is for indirect criminal contempt. It’s “indirect” because Chuck didn’t commit contempt right in front of Judge Hoyt, and it’s “criminal” because the contempt is completed — Judge Hoyt can’t hold Chuck in jail until he complies with the order. Tom’s argument is that Chuck can’t legally be held in contempt because he

has been provided none of the protections that due process of law requires for a criminal defendant. Inasmuch as Rosenthal’s allegedly contemptuous conduct did not take place in the courtroom, the trial judge does not have the power to hold him in criminal contempt without a full-blown trial on the criminal contempt charges. Indeed, the trial judge cannot even be the judge in Rosenthal’s criminal contempt trial because the judge is a potential witness in that trial.

Likewise, the plaintiffs’ lawyer in the civil lawsuit cannot prosecute a criminal contempt case against Rosenthal. Rather, the contempt charge must be referred to the U.S. Attorneys’ Office, which then decides whether to prosecute Rosenthal based on an evaluation of the evidence and and the charges. If the U.S. Attorney decides to do so, then Rosenthal is entitled to the due process protections that any criminal defendant is entitled to receive, including notification of the specific charges, trial by jury, and confrontation of the adverse witnesses. The circus going on right now over in federal court doesn’t come close to fulfilling those Constitutional safeguards.

It’s thought-provoking because for some reason I figured that Judge Hoyt and the lawyers involved knew what they were doing; silly me, that’s something I would never do if I were representing Chuck. I’m glad to be wrong because, more than I relish a prosecutor getting something he might well deserve, I enjoy seeing someone slip out of a jail cell by using procedure to his advantage.

Tom’s right in part and wrong in part. It appears (I’ve not yet had to defend anyone against contempt charges in federal court) that the rule that governs is Federal Rule of Criminal Procedure 42:

Rule 42. Criminal Contempt

(a) Disposition After Notice.

Any person who commits criminal contempt may be punished for that contempt after prosecution on notice.

(1) Notice.

The court must give the person notice in open court, in an order to show cause, or in an arrest order. The notice must:

(A) state the time and place of the trial;

(B) allow the defendant a reasonable time to prepare a defense; and

(C) state the essential facts constituting the charged criminal contempt and describe it as such.

(2) Appointing a Prosecutor.

The court must request that the contempt be prosecuted by an attorney for the government, unless the interest of justice requires the appointment of another attorney. If the government declines the request, the court must appoint another attorney to prosecute the contempt.

(3) Trial and Disposition.

A person being prosecuted for criminal contempt is entitled to a jury trial in any case in which federal law so provides and must be released or detained as Rule 46 provides. If the criminal contempt involves disrespect toward or criticism of a judge, that judge is disqualified from presiding at the contempt trial or hearing unless the defendant consents. Upon a finding or verdict of guilty, the court must impose the punishment.

(b) Summary Disposition.

Notwithstanding any other provision of these rules, the court (other than a magistrate judge) may summarily punish a person who commits criminal contempt in its presence if the judge saw or heard the contemptuous conduct and so certifies; a magistrate judge may summarily punish a person as provided in 28 U.S.C. § 636(e). The contempt order must recite the facts, be signed by the judge, and be filed with the clerk.

Chuck has received procedural due process: notice and an opportunity to be heard. He’s getting to cross-examine the witnesses against him, and is getting to call his own witnesses. He’s not constitutionally entitled to a jury trial because he’s not facing more than six months in jail.

Chuck’s statutorily entitled to a jury trial (see 18 U.S.C.A. § 3691), but only on demand. He didn’t demand a jury trial, so he gave up that right.

But Judge Hoyt didn’t request that the government prosecute the contempt, and the court’s show-cause order, entered on January 2nd, didn’t “state the essential facts constituting the charged criminal contempt and describe it as such” as required by the rule. Nor did Judge Hoyt disqualify himself from presiding at the contempt trial, which argualby involves disrespect toward him.

Chuck’s lawyers haven’t raised any of these issues. They might have had to do so before the hearing (which is a rule of thumb) or they might be able to lie behind the log and claim error afterwards.

Can they complain now that the notice was insufficient, or have they waived that complaint?

Can they complain after the hearing that the judge didn’t ask the Government to prosecute the contempt, or do they waive that complaint by not raising it before the hearing? (In the leading Supreme Court case, Young v. U.S. ex rel. Vuitton et Fils S.A., the defendant/contemnors objected before trial to the appointment of the plaintiff’s lawyers to prosecute the contempt; the Supreme Court agreed with them and reversed.)

Can they complain after a hearing that the alleged complaint involved disrespect toward Judge Hoyt, and that he was therefore disqualified from presiding, or did they consent to him hearing the case by not objecting?

If they can raise any of these issues after the hearing, this contempt trial may legally be a freebie for Chuck. But there’s no caselaw directly on point, and leaving this in the hands of Judge Hoyt and Lloyd Kelley on the chance that they can either a) win or b) get another bite at the apple if they lose seems like an exceptionally risky move, if they know what they are doing, or a startlingly ignorant one if they don’t.

[Edit: On a few moments' more reflection, I'm voting for "startlingly ignorant". The time to object to this entire proceeding was before subjecting Chuck to cross-examination under oath. None of the procedural errors would bar reprosecution, and Chuck's testimony at this hearing could be used at a later hearing. Because Chuck testified, and testified badly, this hearing was not a freebie.]

Chuck’s Very Bad Day?

This came after I shut my laptop because of low battery power:

Judge Hoyt: Aren’t there rules about preservation of documents at the state level?

Chuck Rosenthal: Yes.

Hoyt: In fact it can be a crime. It’s called obstruction of justice at the federal level. What do you call it at the state level?

Rosenthal: Tampering with evidence.

Hoyt: And you’ve prosecuted people for that. Your office has prosecuted people for that.

Rosenthal: Yes.

The line between ordinary citizen and felony indictee is grey and exceedingly fine. None of us — no matter how law-abiding — are more than one Very Bad Day from being charged with a felony. Chuck would probably have done well during his career in the DA’s office to remember this, and to treat every person whose life or future was in his hands with the compassion and fairness that he would want if he were in their shoes.

For the universe is implacable in its settling of scores, and today may well have been Chuck’s Very Bad Day.

Chuck’s on the Stand . . .

. . . being questioned by Judge Hoyt, and he just played the good ol’ “no independent recollection” card:

I have no independent recollection of having read anything that Mr. Kelly filed.

Untitled 1

Our local ABC affiliate, KTRK, interviewed me about the Chuck Rosenthal contempt hearing (which may still be going on right now; I had hoped to live-blog it, but the needs of actual clients intervened). This morning a prosecutor came up to me in the courthouse and actually thanked me for not bashing the Office. Here’s the story (with video).

Why Chuck Won’t Leave — Another Data Point

Apparently Allegedly the difference in Chuck Rosenthal’s pension if he leaves now and if he leaves after completing his second term is something on the order of $90,000. A year.

[Update: So far I have been unable to confirm the truth of this allegation.]

Why Chuck Won’t Leave

Hypothetical question:

If Chuck Rosenthal resigns, who is in charge of the DA’s office?

Answer: First Assistant Bert Graham.

For how long?

Until governor Rick Perry appoints a new DA.

Well, who does he appoint?

Maybe Pat Lykos.

So?

So whoever Perry appoints goes into the primary with an advantage.

Again: so?

So the general feeling among prosecutors is that Lykos would be a disaster as a DA.

Why?

Well, first, they’re concerned that she’ll come in looking to prove that she’ll change the office, and will gut it. Second, Lykos has a bad reputation for dishonesty from when she was a felony court judge.

How so?

Here’s an anecdote: Judge Lykos took long lunches. After at least one such lunch during a jury trial she came back late, keeping the jury waiting. Judge Lykos told the jury that she had admonished the lawyers for coming back from lunch late and keeping the jury waiting.

Is that anecdote true?

I couldn’t swear that it is fact, but I’ve heard it from two independent and reliable sources, one of whom is a criminal district court judge.

Anything else?

She is reported to have referred to a lawyer’s father as an “asshole” and then, when the lawyer filed a motion to recuse her, claimed under oath that she never used such language. A prosecutor in her court swore that she used such language all the time.

Why is a DA’s honesty important?

That’s a stupid question.

How does the defense bar feel about Lykos?

Mostly, they seem to feel about the same about Judge Lykos as the prosecutorial bar.

Why?

Same reason, I guess.

What about you?

I don’t know Judge Lykos personally, but I’m reconsidering my former ordering of candidates to raise Kelly Siegler above last place.

Why?

Because things could always get worse. A DA who lies to juries and lies under oath would set the wrong example for the office, and might well be worse than another four years of the Rosenthal-Siegler regime.

So what does that have to do with the title of this post?

Ah. If Chuck still cares about the Office, he might see himself as a better caretaker for the next two months than Judge Lykos would be.

The next two months?

After the primary, the governor is likely to appoint the primary winner to the DA’s office if given the opportunity.

And what if Judge Lykos is the Republican candidate?

Let’s cross that bridge when we come to it.

Is there an alternative to Chuck staying in office till after the primary?

Sure. He could negotiate the governor’s promise to appoint a caretaker interim DA.

Like who?

There are several viable candidates who know how to run a DA’s office and don’t aspire to do so. Former DA Carol Vance and former DA Johnny Holmes come immediately to mind.

Any chance of such a negotiated resolution?

Sorry, that’s way above my pay grade.