The Prosecutor's Reply

 Posted on January 14, 2008 in Uncategorized

The prosecutor whose "Canadians" email I wrote about here and here responds:

Vivian King knows NOTHING about "the real story." It is probably a waste of breath to defend my reputation since it sounds like a portion of the defense bar has made up their minds, but to me it is never a wasted effort to defend my reputation. So let's start with the factual inaccuracies in Vivian's version:

1. There were no numbers (3) and no quote marks in the original email. It said "some Canadians." That was the word that had been used by the trial prosecutor when I asked what the holdup was on his verdict, and I took him literally. More on that in a minute. Some folks may have seen the Fox News report that made it look like I used quotation marks, which, had I done so, would be highly incriminating since that often implies a double meaning, sarcasm, or some other intended emphasis. I did not.

2. Several black prosecutors did respond to the email with questions. Only then did I realize what I had inadvertently done. Prior to that, however, the prosecutor you speak of poked his head in my office, obviously upset, and asked me about it, then left. I called up to the courtroom later to ask the clerk something and heard his voice in the background. I asked what he was doing up there and they put him on the phone. He pretty much hung up on me. I didn't try to stop the clerk from doing anything - I just wanted to know what was going on since I still didn't know the word had another meaning and could not understand his reaction at that point.

3. That prosecutor never confronted me. Instead, after I realized that he was offended and upset, I went to HIM and tried to explain in private that I was not a racist and had not sent the email out knowing the alternate meaning of that word. I apologized for offending him but attempted to assure him that it was inadvertent. He was initially unresponsive and would not accept my apology. We temporarily left it at that.

4. I did not report anything to my superiors about that issue, but I was called to the office of the trial bureau chief (Marie Munier at that time) to explain the email, which I did. She could see how upset I was and was satisfied with my explanation.

5. I later spoke to Joe Owmby and Troy Cotton about the situation. I wanted them to know that I did not harbor those beliefs and I wanted to make sure my reputation - at least in the office - wasn't damaged. I believe Troy probably spoke to the prosecutor who had been angry with me, because a week or so later, that ADA pulled me off the elevator and asked to speak with me. He acknowledged he had been wrong in his initial assessment, apologized, and said he should have accepted my apology sooner. I accepted his, we shook hands, and I considered the matter resolved.

6. I never reported any of that interaction to my superiors and no-one was blackballed on account of anything I did. That particular ADA, a talented trial attorney, was promoted on schedule and left the office on his own terms a year or so later. He may have had some other issues (assaulting an ADA from Dallas at a conference, getting into a verbal altercation with an HPD officer, etc.) but I have no reason to believe the email incident affected his career in any way.

7. I don't think Lyn McClellan was involved in this incident at all, to my recollection.

So Vivian concludes I "definitely" knew what the term meant, apparently in a deliberate effort to hurt the feelings of the black prosecutors in the office.

Mark, let's take a step back here. Do you guys think I'm crazy? Am I insanely stupid enough to send a racial slur to 250 LAWYERS? Litigious, complaint-ready lawyers, some of whom are African-American?? That is just absurd.

Some people have pounced on my explanation and said there's no way I could have meant the nationality literally. Some have said that Canadians couldn't possibly serve on our juries because they are not U.S. citizens. This is not true. All that is required to serve on a jury in Harris County is that you have a TDL and reside in the county. We also have people born outside the U.S. on our panels all the time. Some naturalized, some probably just residents.

Having said that, I agree it would be very unusual to have more than one Canadian on a jury and in retrospect I realize I should have questioned this more. But in one of those strange, unlucky confluences of events, I had just returned from a trip to Victoria, Canada, where I had read several news stories that had highlighted how differently (read: leniently) Canadians feel about crime. I had that in my mind when the trial prosecutor told me that the holdouts were Canadians. I repeated the term back to him because it struck me as odd, and he repeated it again without further elaboration. I then naively accepted it as literal, something that in hindsight I should not have done. But I will repeat what I have said over and over. I HAD NEVER HEARD THAT WORD USED TO MEAN ANYTHING OTHER THAN CANADIAN AND WAS UNAWARE THAT IT CAN HOLD A RACIST MEANING.

Can I prove this? The closest I can come is to tell you this: I did not delete that email or any others following up on it. One minute after I sent it out, one of our investigators responded "Damn Canadians." And I sent a reply to him that said "Hockey? Yes. Bacon? Yes. Law enforcement? No!" I was still talking about our friends north of the border, not blacks.

Do I feel silly? Yes. Stupid? Yes. Naive? Yes. Embarrassed? Yes. Ashamed? No, not really. I'm not ashamed to be ignorant of every "cryptoracist" word out there.

Mark, pretend I'm a criminal defendant and apply the same reasoning we use in trials to determine intent. Do my actions before and after the "offense" bear out a guilty mens rea? Just look at the efforts I went to, not only now but also five years ago, to undo the damage I unwittingly caused. Would a person jaded and insensitive enough to knowingly send out an all-prosecutor email with a racial slur in it really CARE about what African-Americans thought? Hey, even you agreed I was credible in the raw interview footage you saw. That's because I'm TELLING THE TRUTH.

I can't answer for anything anyone else has said or done, and I make no attempt to do so. Nor will I speculate on what the original user of that term meant. All I can speak for is my own words and actions. I DIDN'T KNOW WHAT IT MEANT. If I had, I would never have put it in an email. Under oath, as God is my witness, this is the truth: I did not know what it meant.

Vivan wraps up her comment by suggesting that I treat black defendants or black attorneys differently. I do not. I generally tend to be somewhat aggressive as a prosecutor, and I probably dig in my heels too much on some cases. Over the years I know that I've made enemies by some of the things I've said and done. I'm sure some defense attorneys think I'm an a**hole. If so, fine, but I'm an equal-opportunity a**hole.

Your recap is no more than a summary of the misinformation Vivian posted. It is disappointing that she and Alvin believe what they do about me. I don't have anything against either of them. At any time, they could have come to me and I would have given them an explanation and an apology for ever making them think badly of me. I guess it's easier to blindside people on TV and call for their firing, or post things secretly on message boards.

Well I'm not hiding from anyone. If anyone wants to hear it straight from me or still has an issue with me, they are welcome to email me. But don't claim to know my innermost thoughts and my "secret attitude" when you don't. That's every bit as ignorant as racism.

I take this prosecutor's points well, and have removed his name from the post that he says is inaccurate. First, I don't know the truth, and don't want Defending People to be an instrument for destroying reputations. Second, whether this prosecutor knew the secret meaning of "Canadians" or was just passing on the word used by the trial prosecutor doesn't matter. This isn't about an individual, but about the culture of the Rosenthal / Siegler DA's office.