Tuesday, January 22, 2008

Why I'm Concerned About Writing

In George Orwell's 1984, the author coined the term "Big Brother is watching you." At least, I always heard that's where the term came from, but in the interest of full disclosure, I never read the book. And it's always been my understanding that Big Brother was the government. (NOTE: I'm basing the remainder of my article on my above-listed understanding of the book. If my understanding is wrong, I'm really going to look like a dumb ass, here.)

Well, Big Brother is watching now, and the effects are being felt even by non-lawyers. In Peggy O'Hare's article this afternoon, she wrote the following statement:

In court papers filed Monday, (Lloyd) Kelley gave a list of people he plans to call to the witness stand, including Rosenthal; prosecutor and Republican DA candidate Kelly Siegler; Siegler's husband, Dr. Sam Siegler; Rosenthal's executive assistant Kerry Stevens; his chief investigator John Ray Harrison; his political consultant Allen Blakemore; and prosecutor Mike Trent.

Now correct me if I'm wrong, but didn't this lawsuit start over an issue with the Sheriff's Office? Now, I've got absolutely nothing to do with this law suit, and God knows I'm glad for that. I don't pretend to have the inner-understanding that the parties involved do (LOOSELY TRANSLATED: "Please nobody subpoena me."), but I'm having a hard time seeing how all these folks are getting roped into a case involving the Sheriff's Office, when none of them seem to work for the HCSO. Chuck subpoenaed? Maybe. But the rest? And can somebody explain to me how in HELL Sam Siegler got involved in this mess?

I just don't get it. I don't understand what the criteria is before your private matters become public.

And that scares me.

I'm hearing horror stories about more and more open records requests hitting the D.A.'s Office every day. Of course, the natural inclination is to say "Well, if they didn't write anything bad, then they don't have anything to worry about."

I guess, but do you remember when the Rosenthal e-mails were first posted on KHOU.com? I, like thousands of other people, clicked on the link that showed the e-mails, and I felt sick.

The first thing on there was a personal exchange between HCDA General Counsel Scott Durfee and (I believe) his wife. Were they discussing racism? No. Were they talking law? No. They were talking about a problem their child was having with another child in school. As husbands and wives talk, they discuss their opinion of some of the other kids in the class. Nothing racist or elitist, but clearly in terms that Mr. Durfee and his wife wouldn't have shared "with the rest of the class".

That's bullshit. I don't really know Scott Durfee, except in passing, but Good Lord, can you imagine how humiliating that must have been? Where's the media discretion in releasing that to the masses? And how did it get out there anyway? I just don't get it. That wasn't fair.

And what exactly is it about that law that lets Kelley get Sam Siegler's e-mails? I mean, I can see the stuff acquired through Rosenthal's account being fair game, but subpoenaing Siegler's stuff? And calling him into court as well? Whatever you believe about Kelly's husband from media reports, does that really sit well with the general public that personal e-mails are that up for grabs?

I know that Kelly Siegler put herself in the public spotlight when she decided to run for D.A., so I'm not expecting to find a wave of sympathy for her in regards to that, but damn, that woman has gone under some intense scrutiny that doesn't seem to have been focused on any of the other candidates. I'm not a political person, myself, and after watching all of the scrutiny she's gone under, I will never even think of running for office.

I'm not saying I'd even make a good candidate in a theoretical election, but think about this: how many excellent candidates do get run off from the idea of even running because they don't want their whole life under such scrutiny?

Even the prettiest picture doesn't look good under a microscope.

My concerns about posting aren't because I think the message isn't worth discussing. It's because I don't want the hell that seems to now come along with speaking your mind.

And by the way, it is just my mind that I'm speaking. My thoughts and beliefs in no way speak for criminal lawyers, whether they be defense or prosecution, or anybody else for that matter.


PJ said...

From what I've been able to discern from the media, the hearing is actually about Chuck Rosenthal's possible contempt of the federal court in deleting emails after a federal subpoena had been issued for their production. The cast of characters that has been subpoenaed in view of that hearing are, I suspect, thought necessary to attempt to reconstruct what Chuck may have deleted.

But your concerns over privacy are misplaced. These aren't personal emails. Even employees of private companies have no privacy interest in email sent or received on their company email account. (The company has a privacy interest in it, but the individual does not, at least not one that will be taken seriously.) Government employees have no even arguable privacy interest in email sent or received with government accounts. Nor does anybody who sends an email to a government account, which is how Mr. Siegler got involved. (Chuck and Mr. Siegler are apparently good buddies; the emails were between them, not between Mr. and Mrs. Siegler.)

Had Chuck (or others) just conducted his personal business with a personal email account, he--and those private persons he allowed to communicate with him through his government email account--would not be where he is today. A subpoena requesting emails from a personal account would certainly have been quashed (and, really, never even sought to begin with).

It's not that sending private messages cannot be done while at work. It's just that it shouldn't be done through an email account that you don't personally own, certainly not when you work in an enterprise that makes litigation (and hence subpoenas for those communications) likely. Most ISP's make email accessible through the internet and web browsers, so you can check your personal mail account from wherever you may be and do not have to rely on government or company accounts to conduct your personal business.

(I do find it a little ironic that you are analogizing the situation to Big Brother and 1984 when its the government's email itself that is being inquired into.)

Anonymous C said...


So, what you're saying is that if Rosenthal had only used a personal e-mail account to conduct his personal business, this whole thing would be a non-issue?

A Harris County Lawyer said...

Hey PJ,
Thanks again for your post. Believe it or not, I was trying to be ironic in my Big Brother reference. It is apparently one of my few attempts to spit on an idea that actually came across as planned.
My understanding is that the subpeonas for Dr. Siegler expand past what he wrote to Chuck. However, I'm not certain of that (SO NOBODY SUBPOENA ME).
I guess my bigger problem with this whole situation is that it seems to have jumped out and beyond the original scope of the lawsuit.
It seems awfully political in nature at this point, and it seems to not have any signs of slowing down. It just concerns me.

Anon C, I think that PJ was saying that if Rosenthal had used a personal account that this would legally be a non-issue because the e-mails wouldn't be reachable under discovery. I don't think he is suggesting that it wouldn't morally be an issue. Of course, that kind of begs the question of if a tree falls in the forest . . .

anonymous c said...


I get it about PJ's comments. It was VERY stupid of Rosenthal to e-mail things of that nature via his professional account. Ridiculous, even, considering his profession. I'm a public high school teacher and even I know not to use my school e-mail for anything not school-related. Doesn't take a law degree to figure that one out.

I guess that what I was saying was along the lines of what you alluded to. The politics of it all. Clearly, the guy screwed up. Got too comfy and forgot that there are always wolves at the door. What he did was immoral, yes. Never right to cheat on your wife. Never right to delete subpoenaed e-mails. But to rise to this level?? Where it threatens to taint OTHER, hard-working people's careers?? People who work for relative peanuts compared to their counterparts on the private defense side. People who, for the most part, do what they do because they believe that they're fighting "on the side of good". I know! I know! I'm drastically simplifying (and probably romanticizing), but I honestly believe that ADAs do what they do because they want to defend the VICTIM, for a change. Hey! There's an idea!

Anyway, the whole thing stinks of politics. Dirty politics! Would NOT be happening in a non-election year, in my opinion. And I have a very good idea about who's behind it all. Doesn't take a genius to figure it out. Or a law degree...

Thanks for listening.

Leviathan said...

For what it's worth, I agree with PJ. County personnel policies permit de minimis use of electronic equipment for personal matters, but it is made clear that there is no expectation of privacy. The purely personal content would render many of the leaked e-mails inaccessible under an open records request, but they are fair game for discovery.

As for the why, chalk it up to gross stupidity. Without Chuck's sudden concern for server resources (or whatever bolt of stupidity struck him), there would be no contempt hearing. He would have been better off just taking whatever private lumps might have come his way.

As for politics, dirty or otherwise . . . sure. But the fact is that Chuck did something juvenile (he's not a first offender) and a clerical snafu put it into media hands. That's not politics, that's fate. The aftermath is certainly political and rife with the public slings and arrows that usually target real or perceived hypocrisy. The question of possible evidence destruction only exacerbated matters and taints all persons related.

Is it fair that others are painted with the same brush? Perhaps. Perhaps not. Life in the CJC (or any number of places within a half-mile radius) isn't always fair and we all have to work through it.

A Harris County Lawyer said...

Of course life isn't fair but I don't think that's every slowed anybody down from calling "bull shit" on something that they disagreed with. I'm watching a relentless assault against an Office that I have cared for a lot in my life, and I'm calling bullshit on some elements of it. The vast vast vast majority of prosecutors are down there because they want to be the "good guys", and quite frankly, they usually are. Now rapists and murderers are getting better P.R. than these poor folks.
I understand and agree with you and with PJ that all of this is fair game when you have a county e-mail account, but I would like to point out that it isn't "public integrity check" month. This is all political. I just thought I would throw that out there.

Leviathan said...

I've had similar feelings from time to time over the years at 1201 and 301, but it is what it is. Is it political? Sure. Much of what happens at the CJC is political; some of it unconscious, some overt and blatant. For now, the ADAs are not seen as individuals, they are seen as Chuck's loyal minions. The only thing that will begin to change that perception is Chuck's departure, and I don't know how much beyond pride is leading him to drag his staff through the mud. Would victory for Kelly make a difference? Given her high profile as a prosecutor and a member of Chuck's management team, and her husband's momentarily higher profile as Chuck's jester and dentist, I'd bet not. The media and the public can't see the trees (ADAs) for the forest (Chuck) and are anything but sympathetic.

The ADAs probably are best served by going about business as usual, trying to avoid attracting attention (e.g., at least creating the appearance of further investigation before getting an indictment dismissed), and facing the music publicly (e.g., Kate Dolan publicly accepting responsibility for the extension snafu). When the boss and the office are under attack, focus on the work.

A Harris County Lawyer said...

Well put. I agree with your post completely with two exceptions.
#1 - prosecutors have an ethical duty to not proceed with a case that they can't prove. Vic Wisner was bound by ethics to dismiss the case, and quite frankly, I think he's being blasted unfairly. I'm sure he was keenly aware of the media backlash over what the Medina dismissal would "look like" to the general public. But he did what was his ethical duty. I think it took some balls to do the unpopular thing and then face the consequences. It would have been nice to see more folks on both sides of the bar supporting his decision from an ethical standpoint.
#2 - Sam Siegler is general practitioner doctor, not a dentist.

Other than that, your post is right on the money.

Leviathan said...

My apologies to Dr. Sam. But whether dentist or internist, he remains well qualified to look for Chuck's foot.

I don't question that Vic was obligated to dismiss the case, but some members of the public (including me and at least one judge) apparently think it took a lot of balls to take the matter to a grand jury with foreknowledge (or "fore-belief") that the evidence was insufficient for prosecution. As no one else has done so, can you opine on the underlying rationale?

A Harris County Lawyer said...

There is a mechanism within the office which is the "Direct to Grand Jury" case. The purposes behind doing this can be one of several reasons. Sometimes it is to utilize the investigative powers of the grand jury. Sometimes, it is for the purpose of allowing the members of the community (the grand jury) review a case to remove any appearances of impropriety (theoretically). The last I heard, the policy of the Office was to take all cases where a person was killed into a grand jury for review, for example.
What can cause problems, however, is the fact that a grand jury only is there to determine probable cause, which is obviously way down the food chain from "beyond a reasonable doubt". A grand jury may very rightfully believe that probable cause exists to indict a case, but that means nothing in terms of reasonable doubt. Every standard felony jury charge contains language clearly stating that a grand jury indictment is not evidence of guilt.
The problem that made such an uproar on this case was the fact that the dismissal came immediately on the heels of the indictment. Clearly, the more politically prudent thing would have been to hold off on dismissing the case until some of the media scrutiny had eased off. But that would have been the wrong thing to do from an ethical perspective.

Leviathan said...

Understood. Thanks!

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A Harris County Lawyer said...

You know, I appreciate all the comments, but I think that Anon from 1/25/08 @ 12:32 a.m. is the only one of you who really "gets" me.

Jason said...

The way I read it, it started with a lawsuit against the sheriff's department and has turned into a personal, and public attack at Rosenthal. That is what seems more important to Mr. Kelly.