Chuck Rosenthal Clips

DISTRICT Attorney Ken Magidson says whether he or anyone else is investigating former DA Chuck Rosenthal is a secret.

The controversial e-mails written on Rosenthal's office computer that led to his resignation earlier this year included not only pornographic and racist "jokes" and pictures, but also messages to his staff and political consultant seeking information and assistance on his political campaign.

It is a crime to use government equipment for political campaigns. The level of the crime depends on the value of the use.

I asked Magidson because Bert Graham, who served as acting district attorney for a month before Gov. Rick Perry appointed Magidson to replace Rosenthal, had told me that the attorney general's office had offered assistance in a criminal investigation of the disgraced DA.

`Unethical and improper'

The attorney general's office had dropped an earlier investigation when Rosenthal had resigned, but that investigation was to determine whether he should be removed, not indicted.

"We are not going to comment on whether there is an investigation," Magidson declared forcefully. "It would be unethical and improper."

He said one reason was to protect potential targets. They are, after all, sometimes innocent. He said he would not ever comment on whether there even was an investigation unless a grand jury handed up an indictment.

It was a response rooted in Magidson's background as a longtime federal prosecutor. U.S. attorneys' offices tend to be much more secretive than the offices of state district attorneys.

`What's your fax number?'

Under many circumstances such secrecy is quite appropriate. For example, reports that corporate executives are under investigation can lead to a drop in the corporation's stock price. Even if the investigation turns up no wrongdoing, the reports can harm innocent stockholders.

But sometimes secrecy is not appropriate.

I suggested to Magidson that the Rosenthal controversy was a matter of public concern. The evidence that he had used his staff computer for his political campaign had emerged from court records made public in a federal lawsuit.

Some citizens might believe Rosenthal had paid enough of a price by losing his job and his reputation. But others might take the position that a district attorney, of all people, should be prosecuted if he committed a crime. Either way, the public has an interest in the decision and the reasons behind it.

"I don't care what the public thinks," Magidson retorted. "I will do what is right."

A few minutes after our conversation, a spokesman for Attorney General Greg Abbott returned the call I had placed to him asking for information on any Rosenthal investigation.

"What's your fax number?" he asked.

A few minutes later I had copies of an exchange of letters between Magidson and Eric J.R. Nichols, deputy AG for criminal justice.

That's one major difference between elected officials, such as district attorneys and state attorneys general, and appointed officials such as U.S. attorneys.

Elected officials care about what the public thinks.

The first letter, dated March 27, was from Nichols to Magidson, repeating the offer of "prosecutorial assistance" that had been made to Graham.

The second was an April 3 response from Magidson.

"After giving the matter considerable thought, I have decided to accept your offer on the following limited terms," he wrote.

Noting that he had come from the U.S. Attorney's Office "with an open mind and no personal interest in the outcome of an investigation of my predecessor," he wrote that he believes "the difficult decisions yet to be made in this matter should be made by an official with local accountability."

He wrote that he could "ensure that all relevant information will be discovered and preserved in an orderly manner for use in the investigation."

"For these reasons, as well as my constitutional imperative to prosecute all criminal offenses in this County, I will not recuse myself from this matter," Magidson wrote.

He said he would "like to deputize and appoint you and/or your designee as Harris County Assistant District Attorneys" to investigate Rosenthal's "alleged misuse of government resources," present a case to a grand jury if warranted, and to prosecute the case if a grand jury indicts.

The third letter is Nichols' agreement to Magidson's proposal.

So it appears Magidson is, indeed, conducting an investigation. His use of the assistance offered by the attorney general will spare his staff from the awkwardness (and possible conflicts) of assisting in the investigation of their former boss.

Whatever happens, he doesn't have to explain. A new DA will be elected in November and Magidson isn't on the ballot.

Lawyers for District Attorney Chuck Rosenthal abruptly halted a contempt hearing Friday after Harris County's top prosecutor acknowledged giving conflicting sworn statements that some observers believe exposed him to possible perjury charges.

U.S. District Judge Kenneth Hoyt granted the request for a recess and admonished lawyers on both sides against discussing the case with reporters. Hoyt did not say when the hearing, which has already taken up the better part of two days, might resume.

Attorney Lloyd Kelley, who has asked that Rosenthal be held in contempt for deleting thousands of e-mails subpoenaed for a civil lawsuit, said he was "stupefied" by the delay.

"I'm in the passenger seat in this," Kelley said. "This is taking up time and it's delaying my case."

Kelley was uncharacteristically tight-lipped because of the judge's order, but he did say Hoyt asked both sides to brief the issues surrounding contempt.

"He just wants to know what the law is," Kelley said. "Any time somebody's misbehaved, the court wants to know what is the possibility and what's the range?"

Rosenthal acknowledged in testimony that he made some "errors" in previous sworn explanations for why he deleted the e-mails.

Defense attorney Brian Wice, who isn't involved in the case but observed the hearing, guessed that Rosenthal and his lawyers asked for the recess to get a copy of the transcript.

"They want to go over it with a fine-tooth comb for any statements that need to be retracted or corrected before the hearing ends to avoid a possible charge of aggravated perjury," Wice said. "You don't have to work really hard to perjure yourself."

The inconsistent statements made by Rosenthal in affidavits and depositions filed with the court made for a contentious round of questions as the embattled DA came under fire while defending his Nov. 5 deletion of more than 2,000 e-mails from his office computer.

Kelley established in court that Rosenthal swore that he deleted e-mails from his inbox, his sent box and his trash box in bulk by their dates.

Rosenthal testified that he selectively deleted e-mails as he read the subject line on each one. He said he opened a few of the e-mails to reread them before deciding whether to delete them.

Kelley also established that Rosenthal said in a deposition that he had tried to delete all but the past month's e-mails.

"If that was true, then this is false," Kelley said pointing to a large notepad on an easel in the courtroom on which he wrote out Rosenthal's prior statements.

Rosenthal said there were "errors" in his affidavit. He also said that some of his statements were false when confronted with the inconsistent statements.

Rosenthal's attorney, who was also admonished not to discuss the reason for the recess, declined to comment at length.

"I asked for the recess and it was granted," Ron Lewis said. "Recesses are granted all of the time."

And while the reason for the recess remains a mystery, lawyers observing the hearing speculated on different possibilities for the delay, including settling the underlying civil case and defending against charges of perjury or obstruction of justice.

Will Outlaw, who has been a lawyer for 33 years, sat through most of the hearing and said Rosenthal opened himself up to allegations of perjury.

"I'm not saying he perjured himself, but he opened himself up to those allegations," Outlaw said. "It's pure speculation, but if there has been perjury, this would be an opportunity to clean it up."

Criminal defense lawyer Todd Dupont said he was surprised Rosenthal didn't invoke his Fifth Amendment right not to incriminate himself.

"If he was my client, he would have pleaded the Fifth," Dupont said. "It didn't make any sense."

Dupont said Rosenthal's testimony amounted to an admission of a material misrepresentation of a fact in a sworn affidavit - the definition of perjury.

In court, Rosenthal also told Hoyt that he understood that his actions could be likened to obstruction of justice or tampering with evidence.

Hoyt ordered the hearing to determine whether to hold Rosenthal in contempt for willfully disregarding a subpoena by destroying evidence.

If Hoyt decides to hold Rosenthal in contempt, he could put the DA behind bars for six months and fine him.

Rosenthal said he had been asked by his information technology department to periodically clean out his e-mails because of dwindling storage space. He said he decided to delete e-mails after his general counsel, Scott Durfee, printed a log of all his e-mails.

That log has been the guide in determining how many e-mails Rosenthal permanently deleted.

Rosenthal told Hoyt he thought his e-mails, even deleted, were infinitely retrievable on the system. He said he has since learned that his office's capabilities only hold deleted e-mails for five to 10 days.

Rosenthal said he's had minimal training with computers and often asks his secretary or his IT department to fix mistakes he makes with computers.

He said he has never paid bills online, never made a chart or graph on the computer, and the letters he writes are short.

"I still don't know how to type," Rosenthal said.

The civil rights case charges that sheriff's deputies took a camera and wrongfully arrested Erik Adam Ibarra and Sean Carlos Ibarra, who were filming deputies executing a search warrant. The brothers were later cleared of wrongdoing.

Rosenthal's e-mails were subpoenaed to flesh out a legal theory about the DA's investigation of the deputies.

Hundreds found their way into the court record and were made public late last year. Some contained racist jokes, sexually explicit images and affectionate notes.

A federal judge on Friday ordered former Harris County District Attorney Chuck Rosenthal to pay $18,900 in sanctions after finding him in contempt of court for deleting more than 2,500 e-mails that had been subpoenaed for a federal civil rights lawsuit.

Additionally, U.S. District Judge Kenneth Hoyt determined Scott Durfee, general counsel for the district attorney's office, was jointly responsible for paying $5,000 of that, finding Durfee failed to appropriately advise Rosenthal on how to comply with the subpoena.

Both Rosenthal and Durfee have until April 30 to pay their respective fines, according to the judge's order released late Friday afternoon.

Neither Rosenthal nor Durfee could be reached for comment.

Whether the county pays those sanctions with taxpayers' money is a question to be decided by Commissioners Court. The court must determine whether paying the sanctions would serve a public purpose, said County Attorney Mike Stafford.

"They have to be able to articulate a public purpose and decide that's worth paying it. That's the general rule of law," Stafford said, adding that he does not know what the Commissioners Court will do.

Mark Bennett, president-elect of the Harris County Criminal Lawyers Association, said he cannot see what public purpose would be served by the county paying the sanctions.

"I don't have any reason to think the county's going to do the right thing here, which is to say, `Look, you got yourself into this mess, you pay it yourself,' " Bennett said.

Bennett noted the county has already approved spending $227,000 to defend Rosenthal in court.

The sanctions to be paid by Rosenthal will be awarded to Lloyd Kelley, the attorney who subpoenaed the e-mails, and Kelley's support staff for fees they accumulated working on the case.

Hoyt also reserved the right to award "reasonable and necessary appellate fees" if Rosenthal and Durfee appeal his order.

Rosenthal - who resigned last month after a public furor ensued over the content of his e-mails, which included some sexually explicit images and potentially racist content - could have faced jail time in addition to a fine.

Hoyt could still refer actions by Harris County officials involved in the case to the U.S. Department of Justice for investigation, Kelley said.

Kelley said he was surprised by the strength of Hoyt's order and its powerful language.

Wrongful arrest lawsuit

The court order followed a contentious hearing earlier this year to determine if Rosenthal should be held in contempt for deleting more than 2,500

e-mails from his work computer after the documents had been subpoenaed for a $5 million federal lawsuit filed by Kelley's clients against Harris County.

Brothers Sean and Erik Ibarra claimed they were wrongfully arrested by the Harris County Sheriff's Office when one of them took a picture of an officer during a drug raid at their next-door neighbor's home.

The Ibarras later settled their case for a record $1.7 million after nearly two weeks of testimony in Hoyt's court.

In blistering and scathing language, Hoyt's court order rebuked Rosenthal for knowingly violating an Oct. 31 subpoena seeking his e-mails.

Hoyt criticized Rosenthal for showing "an intentional willfulness" to disobey the law.

"This conduct reveals a man confident in his status, entrenched in his brand of law," Hoyt wrote. "He would not or could not acknowledge an authority beyond himself."

Various contradictions and misrepresentations made Rosenthal's testimony unreliable and incredible, Hoyt said. "The court views his conduct as venomous and hostile to the judicial process," Hoyt wrote.

Rosenthal gave several explanations for why he deleted the

e-mails, Hoyt noted, such as believing his general counsel had printed hard copies of the documents and claiming he thought the documents were preserved on the computer network's backup tapes.

Rosenthal also later testified that he deleted the e-mails to increase his work efficiency and to free memory space on his computer, Hoyt said.

"There is no evidence that Rosenthal's computer memory space was threatened by additional e-mails or that, in fact, it was short of space. Hence, these reasons - all implausible inconsistencies - defy the law of common sense," Hoyt wrote.

`Deliberate indifference'

The judge's comments about Rosenthal, though stinging, were accurate, said Pat McCann, current president of the criminal lawyers association.

"When you get to this point, I don't think the judge had any choice but to make it clear to Harris County officials that they are not beyond the reach of the law," McCann said.

While Hoyt said there is no evidence Durfee committed obstructive acts, he found the evidence is "abundant and compelling" that Durfee failed to advise Rosenthal as his professional and ethical duties required.

Durfee showed a "deliberate indifference" to the court's orders and the subpoena by not advising Rosenthal to preserve the subpoenaed documents and remaining silent when he learned that Rosenthal had deleted the e-mails, Hoyt said.

By failing to bring Rosenthal's actions to light upon becoming aware of them, Durfee violated the rules of professional conduct that apply to all attorneys, Hoyt said.

"In sum, while it is undisputed that Rosenthal deleted the e-mails sought by the subpoenas, it is also apparent that copies of many of these e-mails were belatedly produced and/or lost as a result of Durfee's dereliction of duty," Hoyt wrote.

McCann said he was saddened by Durfee's punishment.

"I think it is, at best, difficult to deal with a client who believes that he is smarter than a federal judge," McCann said, referring to Rosenthal. "When that client is not only a client, but your actual boss who hires and fires you, I think that puts a very different take on your relationship."