The Texas Observer

Harris County District Attorney Charles A Rosenthal, Jr. has hit a rough patch. Even Houston Republicans want him to quit.

Just after Christmas, the country’s newspaper of record singled out Rosenthal as a lonely voice in a sea of change: Harris County is responsible for fully one-quarter of the executions in the United States since the death penalty was reinstated by the U.S. Supreme Court in 1976. And Texas is leaving the rest of the country behind in terms of the numbers of those put to death. Rosenthal has been Harris DA since 2001, and he has presided over a significant portion of Texas’ Death Boom. But that’s not why the local GOP wants to oust him.

Around the same time a federal court inadvertently released emails in which ‘Chuck’ alternately woos and declares his heart for his executive secretary (whom he has apparently been involved with before) — while his campaign site proudly touts his second marriage to a “former FBI Special Agent.” Death penalty, okay. Adultery, off with his head, ur, job!

In a front page piece on Dec. 26, the New York Times quoted Rosenthal’s defense of Texas’ outsized number of executions:

Charles A. Rosenthal, Jr., the district attorney of Harris County, Tex., which includes Houston and has accounted for 100 executions since 1976, said the Texas capital justice system was working properly. The pace of executions in Texas, he said, “has to do with how many people are in the pipeline when certain rulings come down.”

A separate article two days later most clearly described Rosenthal’s situation regarding the emails to his secretary:

The e-mail messages were attachments to a brief filed by Mr. Rosenthal’s lawyers seeking to keep the exchanges under seal. When Judge Kenneth Hoyt of Federal District Court in Houston ruled on a motion by KHOU-TV that Mr. Rosenthal’s pleading itself could be made public, the e-mail attachments were inadvertently unsealed briefly.

The filings grew out a civil lawsuit by two brothers, Erik Adam Ibarra and Sean Carlos Ibarra, who claimed that on Jan. 4, 2002, they were beaten after taking pictures of sheriff’s deputies abusing a family during execution of a search warrant. A lawyer for the brothers later claimed that Mr. Rosenthal and the sheriff’s office were looking out for each other, the filings said, as in ‘I’ll watch your back if you watch mine.’

In that brief filed on Dec. 19, the Ibarra brothers’ lawyer, Lloyd E. Kelley, claimed that Mr. Rosenthal had deleted at least 2,500 e-mail messages after they should have been turned over to the court in the process of legal discovery after Nov. 16.

In his court papers, Mr. Rosenthal has claimed that his e-mail messages came under ‘zones of privacy’ involving personal conduct recognized by the United States Supreme Court in Lawrence v. Texas, the 2003 case in which the court overturned the state’s anti-sodomy law.

The irony here is that Rosenthal argued for Texas in Lawrence v. Texas, urging the Supreme Court not to recognize the very privacy he now claims. (For more on Lawrence v. Texas, see here.)

So it’s perhaps not a shock that the Harris County GOP has voted to ask him to step aside, and reports suggest, if he does decide to run again, Rosenthal will see a challenge from within his own party. If so, that means this mystery candidate must file today, because candidate filing closes at 6 p.m. Wednesday, Jan. 2.

In any case, Rosenthal or his GOP replacement will face former Houston Police Chief C.O. ‘Brad’ Bradford in the general election. Bradford is an eloquent speaker and he is just one example of a surge of Houston Democrats that will take the reins of city and county offices as demographics change in Harris County.

Bradford said in his announcement speech:

This community… need not fear crime as long as there is a strong, but fair, justice system… Fairness is something the district attorney’s office sorely needs…

Bradford also called for “a truly independent crime lab” — independent, that is, of both the police department and the district attorney’s office.

Rosenthal has won and kept his office, arguably, by being pro-death penalty. It’s just an extension of the issue that keeps on giving in Texas: being tough on crime. Harvey Kronberg, back in 1999, printed the following about Rosenthal after he was the first to announce for Johnny Holmes’ job:

He has served his entire 22 year professional career in the D.A.’s office. He currently serves as Chief of Felony Division B supervising prosecutors in six district courts. He has tried more than 200 jury trials and sent fourteen offenders to death row.

Rosenthal says on his campaign site, “Without safety, other rights and freedoms are meaningless.”

Come on… Meaningless? And can he point to any evidence that the death penalty increases safety?

I don’t think Ronald Taylor’s rights were meaningless, although they seemed as much in the pursuit of ‘justice’ when he was condemned to serve 14 years for a rape he didn’t commit (while the statute of limitations ran out on a suspect later identified by DNA). That’s just one instance where Houston’s notoriously faulty crime lab served up lab results that imprisoned the wrong person.

However, election results show that scandal or no scandal, a substantial majority of Harris County voters have backed Rosenthal again and again. In his initial primary run in 2000, he beat four GOP candidates, garnering 45.27 percent of the vote. The runoff thereafter was his last contested GOP fight. And, with George W. Bush at the top of the ticket in both general elections, Rosenthal beat his Democratic opponent handily — in 2000 by 54-46, and in 2004, by 55-45.

Even if Chuck Rosenthal is “damaged goods,” as the Harris County GOP County Judge Ed Emmett called him, he ought not to be counted out until he is down for the count. We’ll keep our eye on this one. That’s for sure.

Remember back during the regular legislative session when there was an outcry over Gov. Rick Perry running the Texas Data Exchange (TDEx), a massive data system for police officials that its operators hoped would one day contain information on nearly every Texan. Within days of the Observer’s expose on the database, a bill was filed to move it out of the governor’s office where it could potentially be used for political purposes to the Department of Public Safety, a professional law enforcement agency presumably insulated from politics. The governor’s office through Homeland Security Director Steve McCraw and legislative allies fought the move. Despite the hue and cry, by session’s end the authoritarian wing of the Republican Party emerged victorious. TDEx remained with the governor. As San Antonio Republican Rep. Frank Corte crowed, “The governor is responsible for public safety.”

Well, on October 10, the governor quietly gave TDEx to DPS. Interestingly, the October agreement ceding control of TDEx was not signed by McCraw but by Brian Newby, the governor’s chief of staff. The program will now be under DPS’s Texas Crime Information Center, where, according to a DPS spokesperson, “there are strict rules about how information is placed into the system and how it is accessed.”

Could Perry’s national ambitions have something to do with this dramatic reversal?

While attention has been focused on the inane border wall, immigration authorities have been weaving a much more insidious legal dragnet along the border. Bush’s Border Patrol announced today that it is expanding its “zero tolerance” policy towards undocumented immigrants from Del Rio and Yuma, Arizona to the busy Laredo sector. In a nutshell, that means the agency will try to throw every single immigrant they catch into jail. Doing so will require yet more detention centers, jails, and prisons. Zero tolerance likely won’t stop in Laredo. Border Patrol assistant chief Ramon Rivera was quoted in the Houston Chronicle as saying, “We’re hoping it goes nationwide.”

The courts in Laredo are already swamped. Public defenders I talked to two years ago for a story said it was all they could do to provide a basic legal defense for their clients. The courts then were corral-like, with dozens of defendants coming before the magistrate on a daily basis. Laredo had to build a new 1,500-bed detention center to hold them all. That year the Southern District of Texas (Laredo’s district) led the nation in the number of immigration-related convictions - 17,307 in 2005 - even besting Texas Western (where Del Rio is located) at 3,054. How in the world will defenders, prosecutors, and judges handle the caseload once every single illegal entrant is booked, charged, prosecuted, and jailed?

If the Bush administration, with the backing of a pliant Congress, is really intent on expanding zero-tolerance to the whole border and perhaps even moving the program into the heartland, it will necessitate another huge expansion in detention centers, jails, and prisons. The Immigration and Customs Service (ICE), which runs immigrant detention centers, is asking Congress to fund 40,000 beds - 14,000 over the 26,000 beds the nation has right now. Increased prosecutions will also increase the need for more jail and prison beds. Much of that demand will be met by for-profit prison corporations.

This is all fine and dandy for some people, maybe even most people in this country. Some will say the law’s the law and, after all, THEY’RE ILLEGAL. This says something about our priorities. Because the reality is that resources are finite. Prosecutors must make decisions on what crimes they prosecute, administrations have to set budgets for law enforcement, and societies have to decide collectively what behavior to reward and punish. Just consider this: Immigration is now the number-one federally prosecuted crime - not drugs, weapons, white collar crime, or even terrorism. And the most prosecuted immigration crime is illegal entry, the simple offense of an economic immigrant, one that is committed hundreds of thousands of times every year.

Is there a war on children in this country? When we’re not denying them health insurance or leaving them to wallow in feces, we’re telling them that they have to suffer the sins of their parents - in prison.

Eye on Williamson County turned us onto a video of Williamson County Commissioner Cynthia Long explaining last week why she’s not overly concerned about the morality of the for-profit T. Don Hutto family detention center in Taylor. Long thinks the immigrant families, babies and pregnant women included, at Hutto got it good.

“The conditions at the facility are light years better than what many of these people have come from,” Long said to an audience packed mostly with employees of prison operator Corrections Corporation of America. One guy unironically held a sign that read “T. Don Hutto is the American Way.”

In fact, the conditions have improved recently. But that’s only because the ACLU and the UT Immigration Law Clinic successfully sued the government and people raised hell. Before, conditions stunk.

But do go on, Ms. Long: “The thing we forget is the adults that are being detained have broken the law, and unfortunately as children sometimes we have to suffer with the sins of our parents,” Long continued, digging her hole deeper. “Those children are probably not there by choice. But their parents have made a choice for their family, and they have to deal, they have to be — or suffer, if you can call it that, because of their parents’ choices. But I think the worst choice would be to take that child away from their parents and put them to a situation that would be even worse.”

Is this what Republicans mean when they talk about family values? Is this what Williamson County means when it talks about “gittin’ tuff on crime”? Where are we going and why are we in this handbasket?

Long says the kids “probably” didn’t choose to be at Hutto. They might have, though. One day they woke up and said, “Mommy, let’s go to America so we can be in jail at the T. Don Hutto detention center. Please, mommy, please.”

Aside from being asinine and fairly calloused, Long doesn’t really have her facts straight. The immigrant detainees at Hutto haven’t in fact broken any criminal law. At worst, they have violated civil immigration code. And many of them are asylum-seekers, including Chaldeans fleeing persecution and war in Iraq. If these families are sinners, as Long would have it, then blessed be the sinners. We should be grateful such brave people come to America.

Clemency on death row is rare in Texas, so it is rather historic that Gov. Rick Perry today commuted the death sentence of Kenneth Foster. Perry made his move on the heels of a 6-1 vote by the Texas Board of Pardons and Paroles to recommend the action.

Foster, whose scheduled execution was just hours away, had his sentence commuted to life without parole. That means he will move off death row, and for the first time in 10 years, he can hope to have physical contact with his daughter and wife.

Perry said in a statement the fact that Foster had been tried simultaneously with another capital murder defendant in the same case was a problem. He urged the Legislature to review the law.

Foster’s case has garnered international attention in recent weeks. He was convicted under the “Law of Parties,” which is unique to Texas capital murder cases. The statute allows prosecutors to charge a defendant with capital murder even if that person, like Foster, participated in a crime that resulted in a killing, but didn’t commit the murder.

Foster was driving the car when one of three cohorts robbed and killed Michael LaHood on a San Antonio street in 1996. The man who jurors agreed pulled the trigger was executed for the murder in 2006. The same jury condemned Foster to death.

The issue here, as University of Texas Professor Dana Cloud explains, is guilt by association. Cloud is a member of the Save Kenneth Foster Campaign as well as the Campaign to End the Death Penalty. She said Texas’ application of the Law of Parties in such cases is absurd.

“It was meant to apply to direct conspiracy,” she said Thursday. “It’s a law designed to sweep up whole groups of people. It’s kind of like punishing someone for not being psychic.”

Cloud says it’s an important day for death penalty foes, but added that the fight to get Foster out of jail will continue.

“It’s a historic thing that they decided to do this,” she said, contending it was even more surprising that Perry commuted the sentence, since Perry has presided over more executions than any other governor. She said Foster’s case shows “just how arbitrary and capricious” the system can be in Texas.

But the bottom line for Cloud and for Foster’s attorney Keith Hampton is recognizing the fact that “activism around these cases works.”

For a crowd that has seen loss after loss in the courts and death after death in Huntsville, clemency for Kenneth Foster comes as a rare, invigorating victory.

When in debt, borrow more. That’s the Willacy way! Not content with just $129 million in prison-related debt, the Willacy County Commissioners Court voted last week to finance its fifth or sixth (who’s really counting?) project. This time it’s a $50.1 million, 1000-bed addition to the privately-run 2000-bed “Tent City” for immigrants. With the new addition, the extremely poor county earns several bragging rights: more jail beds - 4,600 in all - than the country of Finland; the largest immigrant detention camp in the country; and more debt than any rural county in Texas.
(For details on the private prison craze in Raymondville see my October, 2006 story in the Observer.)

Willacy is an economic backwater in South Texas with a near-comically dysfunctional local government. For over a decade area leaders have been trying to dig their way out of the doldrums by building prisons, jails, and detention centers and turning them over to private outfits for management. Raymondville, the county seat that locals are calling “Prisonville,” is host to what’s probably the largest concentration of privatized jail facilities in the world. It’s a great deal for the companies. They assume virtually no risk and get to collect healthy profits.

Meanwhile the county has to worry about paying down its staggering amount of debt, approaching $180 million, or about $8,700 for every man, woman, and child in the county. At times, the government has struggled to make the payments. But instead of putting down the shovel, they just keep digging deeper. It’s the American way! In the case of the 2000-bed immigrant detention center, which was built just last year, the county needed an average of 1,800 detainees to make the $2.6 million in debt payments every month. The Valley Morning Star reports that the number of detainees has hovered around 1,500. It’s not clear how the county is covering its obligations to bondholders. Even less clear is how building another 1,000 beds will improve the situation.

“I look at it as an economic opportunity,” Commissioner Eddie Chapa told the Star. “It’s an opportunity for Willacy County to get additional employment for the citizens of the county and more income to the county.”

The county leaders argue that the jails bring much-needed jobs and secondary economic benefits to the area. In the jobs department, they arguably have met with some success. Unemployment has plummeted from 24.1 percent ten years ago to 8.7 percent today based on Census figures. However, it should be noted that surrounding counties, without prison-based economies, have seen a similar drop in unemployment over the same time period.

We hear Attorney General Alberto Gonzales was sighted at the Texas Capitol this morning. Folks under the pink dome saw the AG and his family pull up in a motorcade of black Suburbans and a white Hummer (because, of course, justice rides a white Hummer). A Department of Justice spokesperson told us that Gonzales isn’t here on DOJ matters: “There’s no official event going on. If he’s there, he’s there on personal business.”

Personal business, eh? Perhaps he’s reminiscing about the good old days or as so many do, just returning to the scene of the crime. Since Texas is scheduled to execute its 400th prisoner tonight, maybe Gonzales is here to commemorate his contributions to inflating that number. Maybe he’s looking for a job. (He’s loyal, unscrupulous, willing to lie at the drop of a fired attorney, and bend rules for his employer. Sounds like a perfect House parliamentarian.) Or maybe he’s on an errand for his boss, feeling out possible replacements. Seems like Justice Nathan Hecht has the necessary virtues to lead Bush’s Justice Dept.