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Recent Blog Posts
The Fifth
Twice recently I've had people - potential witnesses in criminal cases - tell me, "the prosecutor said I couldn't take the Fifth because I'm not testifying to anything incriminating." One of them, an alleged complaining witness, even told me, "the prosecutor said I didn't need a lawyer because he's my lawyer."
Hogwash.
First, the prosecutor isn't the witness's lawyer. He shouldn't be giving legal advice to the witness and he certainly shouldn't be claiming to represent her. The prosecutor represents the government, and if the government's interests clash with the witness's interests, he is going to do what his client, the government, wants him to do. The witness who listens to the government in those circumstances is looking for trouble.
Second, the prosecutor doesn't get to decide whether the answer to a question might be incriminating. Neither does the judge. Nor do the police, the FBI, or the DEA. Only the witness can possibly know what is in her head, and even she isn't competent to know whether what is in her head, if it came out, might incriminate her. For example, if you talk to federal agents, and they decide later that you lied (whether they are correct or not), you can be prosecuted for making a false statement.
Memo to Kelly Siegler: Blame Canada
More news from the Chuck Rosenthal / Kelly Siegler DA's office: a 2003 email has surfaced, from one ADA to the rest of the prosecutors and the investigators, congratulating a prosecutor on convicting a guy while overcoming "a subversively good defense by Matt Hennessey that had some Canadians on the jury feeling sorry for the defendant...."
You might well first ask, "well, so what?"
Then you might realize that Harris County is a terribly long way from Canada, and the chances of more than one Canadian making his way onto a Harris County jury are somewhere between slim and none.
Then, upon reflection, you might realize that "none" is probably the correct chance, since jurors in Texas must be U.S. citizens.
You might then wonder what "Canadians" means, and how it found its way into the email.
It just wouldn't make any sense to you until somebody told you that "Canadian" is cryptoracist slang for "Black".
Done
I'm declaring Chuck Rosenthal "done".
Sure, he can hold on to his office and his salary for a while. But the Texas Attorney General has opened an investigation into Chuck's alleged misuse of county property, and that sort of thing is seldom good for one's career in public service. At some point soon he's going to be the underdog, and I might even stick up for him then.
We all know he won't be DA in a year; we don't know whether he'll continue to set the tone in the office for the next 11 months as he has for the last 85. We also don't know whether what awaits him after his public service ends is (a) a cushy job with a big paycheck in a civil firm, or (b) criminal charges and eternal ignominy. (Even Chuck's control of the Harris County DA's secret George W. Bush file may not get him out of this jam.)
I can't help but think that if Chuck had looked to John 8 for the answer to the question abbreviated on the "WWJD" bracelet he always wears, rather than Exodus 21 (or Romans 13), he wouldn't be in this position today. Karma's a bitch.
Chuck to be Investigated?
Harris County Judge Ed Emmett (not a real judge, but the county's chief officer) has called for the Texas Attorney General to investigate Harris County D.A. Chuck Rosenthal. Chuck can, of course, rest assured that the investigation will be wholly apolitical and that his prosecution (if there is one - here at Defending People we presume Chuck innocent of using government equipment and time to work on his reelection campaign; we're certain that there's an innocent explanation for the appearance that he used his government email account to kick off his reelection campaign) will be handled with the tact, fairness, compassion and ethics that his office brings to its prosecutions.
If When Chuck resigns, the governor, Republican Rick Perry, will get to appoint someone to replace him. The Harris County Republican Party, which has promised not to endorse a particular Republican candidate before the primary, will break that promise and put a bug in his ear about its preferred candidate so that that candidate can run as an incumbent. The choices are Kelly Siegler (a prosecutor close to Chuck), Pat Lykos (a former cop and former district court judge who has never, as far as I can tell, tried a criminal case as a lawyer), some cop who has so small a chance that I haven't bothered to learn his name, and Jim Leitner (a former prosecutor and defense lawyer). That's a pretty broad spread; if the party thinks the voters want more of the same, it'll push for Kelly. In a primary race among those four I think there would be a runoff between Kelly and Lykos, which Kelly would win (unless the voters found some of the skeletons in her closet too distasteful).
The Harris County DA's Office at Work
A little peek into a world that most of us never get to see. Channel 11 got more of Harris County DA Chuck Rosenthal's emails, including some between Chuck and the husband of a Republican candidate for D.A. (how cozy!).
Ever wonder why Bill Clinton was "the closest thing to having a black man as president"? You'll have to ask Chuck.
Celebrate Open Records Week!
Robert Guest writes about the Dallas Police Department's response to his Texas Public Information Act request about incidents in which the DPD has entered the wrong house while serving a warrant since 2002. Danny Williams, a Lieutenant with the city's "Homeland Security and Special Operations Division", responded that there had been two such incidents, both within the last 12 months. The Lieutenant sent Robert the public portion (the first page) of the seven-page offense report in that incident.
I'm surprised. I would have guessed that, in a city of over a million, the police accidentally entered the wrong house while serving a warrant at least once a year.
In Texas, Public Information Act requests are simple: send a letter to the public information officer at the government agency, requesting the information you seek and referring to the PIA. If it's not produceable under the PIA, the agency has to seek an opinion from the Attorney General; if it is, they have to produce it (subject, of course, to payment for large batches of documents). For more detail, see Attorney General Greg "Call Me General" Abbott's Public Information Handbook.
My Train of Thought: Banishment... Transportation... Outlawry...
Ken Lammers notes that miscreants in Houston County, Georgia, might find themselves, like Romeo, banished from the county.
In Virginia, Ken found, banishment is legal: in Loving v. Commonwealth, Mildred and Richard were forced to leave Virginia for 25 years for miscegenation; the Virginia Supreme Court upheld the banishment. The U.S. Supreme Court reversed the decision on other grounds.
In Texas, banishment within the state (as in the Georgia cases) would at first blush appear to be okay - judges routinely require people to remain in a particular county as a term of probation; in an appropriate case that county could be one other than the court's jurisdiction. In Johnson v. State, though, the intermediate Corpus Christi Court of Appeals rejected banishment from the county as a condition of probation: "banishing appellant from the county, particularly when he is broke and unemployed is not reasonably related to his rehabilitation, and unduly restricts his liberty," and noted, "The State of Georgia apparently does permit one political subdivision to dump persons it considers undesirable upon another." There, of course, is an additional problem with intrastate banishment: if Harris County's banishees wind up in Montgomery County, Montgomery County is going to send its banishees screaming to Harris County.
Sometimes All a Story Needs is the Right Headline
Here's mine: Judge Enters Gag Order in Cannibalism Case.
Trial Insurance
Gideon wrote today about the cost of jury trial, noting that many citizens-accused with retained counsel can't afford to pay for a jury trial. He asked,
Who can do something to avoid this? Should clients always assume they will go to trial and hire only attorneys they can afford? Should attorneys not charge a subsequent trial fee, but merely a one-time flat fee? Should lawyers charge hourly rates instead?
The answer to the last question is "no", as Scott and I have both argued. Even if hourly billing on criminal cases were a good idea, it wouldn't provide the solution that Gideon seeks because clients would still, before trial, have to come up with enough money to cover all of the time that the lawyer might have to put into the trial.
Republican Party Disagrees...
... and is therefore wrong. Never go in against Troy McKinney when an election is on the line!
Channel 2 News picked up the story of Chuck Rosenthal's defective withdrawal from the Republican primary for Harris County District Attorney, but the other local news venues showed little interest; a reporter told me, "Party leaders checked with their lawyers and think it's fine."
They are, of course, legally wrong. But if the party doesn't mind and if the Secretary of State doesn't mind and if nobody else with standing to sue minds, the party's lawyers are correct as a matter of fact: Chuck is out and Kelly is in (unless Chuck declares today, in which case Chuck is in and Kelly is in, unless Kelly withdraws, in which case Chuck is in and Kelly is out).
According to my quick-and-dirty legal research, any candidate for the position has standing to sue: Jim Leitner, C.O. Bradford, or any write-in candidate.
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