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Houston Area DA Sanctioned for Contempt after Deleting E-Mails

Posted by rjbiii on March 29, 2008

The strange saga of Harris County District Attorney Chuck Rosenthal is, hopefully, winding down. If you weren’t aware, Rosenthal, has been in the news in Texas for a while, when e-mails containing racist and pornographic content, and love letters to his secretary were found on his work P.C.

In response to civil rights suit against the county, Rosenthal had produced over 1,500 emails to the court.

Newsweek described the situation like this:

Rosenthal is back in the headlines again. Last December, as part of a federal civil rights lawsuit into how justice is meted out in the county, he turned over the (partial) contents of his government e-mail account. And what a batch of e-mails it was. Black ministers called for the Republican to resign because of racist material, including a cartoon depicting an African-American suffering from a “fatal overdose” of watermelon and fried chicken. There were adult video clips and love notes from Rosenthal to his secretary, his mistress during a previous marriage.

Despite the copious production, the DA was found to have failed to have produced another 2,500 e-mails relating to the civil rights case.

A judge listened to testimony…to decide if Harris County’s top prosecutor should be punished for deleting more than 2,500 e-mails after he was ordered to produce them, KPRC Local 2 reported.
Kelley said he wants the judge to hold Rosenthal in contempt or sanction him for the destruction of the e-mails.

Rosenthal has said in court documents he thought the 2,500 e-mails he is under order to produce were backed up elsewhere and has called the decision to erase them an error in judgment.

As we all know, this is not something a party, especially a party who is an attorney, should do:

Harris County District Attorney Chuck Rosenthal should have known not to delete more than 2,500 e-mails that a court had ordered him to produce, the general counsel for his office testified Thursday in a hearing on whether Rosenthal should be held in contempt.

General Counsel Scott Durfee said Rosenthal was “crestfallen and surprised” when he found out the e-mails had not been backed up elsewhere and could not be recovered. But as an attorney, Rosenthal should have known that the e-mails were evidence and should not be deleted.

“This is not something that would be foreign to a practicing attorney?” U.S. District Judge Kenneth Hoyt asked Durfee.

“It would not,” he replied.

Rosenthal initially resisted calls for resignation, and calls for him to drop out of the next election. Ultimately, though, he found no sanctuary from fellow politicos, and announced his resignation, although he didn’t quite completely acknowledge his responsibility in the affair (no pun intended).

Rosenthal, 62, said a prescription drug combination had impaired his judgment and said media coverage of his e-mails — which included sexually explicit and racist content and affectionate notes to his executive assistant — had taken its toll on his family.

“Although I have enjoyed excellent medical and pharmacological treatment, I have come to learn that the particular combination of drugs prescribed for me in the past has caused some impairment in my judgment,” Rosenthal wrote in his resignation letter.

With respect to the emails, he stated:

“I now understand that I am unable to rely on my memory regarding the steps I took to manage the contents of my desktop and need to rely on reconstructing events from available documents and records,” Rosenthal writes in the declaration. “I have now consulted a medical specialist and am informed by him about conditions that have affected my perception and recollections of the past months. While I am seeking treatment to address these matters currently, I am concerned and wish to ask the Court to take into account that my prior testimony and Declaration must be considered in this context.”

Yesterday the Houston Chronicle reported that the Judge, unsurprisingly, was not impressed:

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.

Rosenthal was fined a total of $18,900; with the County’s General Counsel responsible for $5,000 of that for failing to properly advise Rosenthal on how to properly comply with the subpoena requiring production of the email. The county will meet later to decide how much, if any, of the fine they will assume.

The county has already had to settle the civil suit:

Harris County officials Monday settled a civil rights lawsuit that led to the district attorney’s resignation, KPRC Local 2 reported.
Harris County commissioners said they were approached with a $1.7 million settlement offer over the weekend.

“The county (Commissioners Court) is concerned about the liability,” Commissioner Steve Radack said. “We are trying to limit as best possible the exposure to the taxpayers in this lawsuit.”

The county will also pay court costs and the Ibarras’ attorney fees.

The newly appointed interim DA now has his hands full with trying to restore confidence in the integrity of the office.

Magidson will serve as interim district attorney until the end of December. During that time, Magidson promised he would restore public confidence
“We’re going to prosecute these cases zealously but they are going to be tempered with justice and we are going to make sure we are doing .the right thing,” he said

The only final comment I have is that the $18,900 is hardly excessive, considering the court’s “blistering” language. Perhaps the court considered the ex-DA’s current plight, and the large settlement amount, in its calculations. If this had been an attorney from a private firm, however, I wonder if the result would have been different?

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