It’s become fashionable around Houston to be critical of outgoing Harris County District Attorney Chuck Rosenthal. Frankly, much of the criticism is deserved. But given what Rosenthal has been going through in federal court over the past couple of days, one has to wonder whether the media firestorm regarding Rosenthal has reached the point that otherwise rational observers have taken leave of their senses.
Take this latest Chronicle article on the hearing over Rosenthal’s destruction of emails that he had been ordered to turn over in connection with a civil lawsuit in federal court. The Chron article, which is representative of the newspaper’s vitriolic coverage of Rosenthal’s political demise, calls the hearing a “contempt hearing” in which the judge could “hold Rosenthal in contempt, . . .[and] put the DA behind bars for six months.”
H’mm. I don’t think so.
Although the plaintiffs in the civil lawsuit are having a field day excoriating Rosenthal in court and in the media, I can’t see how the judge could hold Rosenthal in contempt of court, at least at this stage. The plaintiffs’ motion (see here) essentially requests that the judge hold Rosenthal in criminal contempt of court because of Rosenthal’s destruction of email evidence and failure to comply with the court-ordered procedure for reviewing the emails. The motion doesn’t call for Rosenthal to be held in civil contempt. There is no need for the court to take coercive action and Rosenthal would not be able to take any action to purge the contempt, anyway. The destroyed emails are gone for good and Rosenthal can’t do anything about that.
Thus, Rosenthal — who isn’t even a party to the civil lawsuit — is accused of criminal contempt, but he has been provided none of the protections that due process of law requires for a criminal defendant. Inasmuch as Rosenthal’s allegedly contemptuous conduct did not take place in the courtroom, the trial judge does not have the power to hold him in criminal contempt without a full-blown trial on the criminal contempt charges. Indeed, the trial judge cannot even be the judge in Rosenthal’s criminal contempt trial because the judge is a potential witness in that trial.
Likewise, the plaintiffs’ lawyer in the civil lawsuit cannot prosecute a criminal contempt case against Rosenthal. Rather, the contempt charge must be referred to the U.S. Attorneys’ Office, which then decides whether to prosecute Rosenthal based on an evaluation of the evidence and and the charges. If the U.S. Attorney decides to do so, then Rosenthal is entitled to the due process protections that any criminal defendant is entitled to receive, including notification of the specific charges, trial by jury, and confrontation of the adverse witnesses. The circus going on right now over in federal court doesn’t come close to fulfilling those Constitutional safeguards.
So, I don’t think Judge Hoyt is going to hold Rosenthal in criminal contempt and throw him in jail. Even if Judge Hoyt were to do so, the Fifth Circuit would likely stay the commitment order and eventually overturn it. The Chronicle and Rosenthal’s many other detractors can continue to revel in the lame duck DA being filleted in a public court hearing, but at least provide Rosenthal due process of law. We in Houston have already seen what happens to the unpopular public figures of the moment when those protections are ignored.
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Tom,
Very interesting thoughts. I’ve responded here.
I think your analysis is flawed in several ways. If I disobey a federal subpoena, the party issuing the subpoena may make a motion to hold me in criminal contempt. If I disobey a written order, a party may ask that I be held in civil contempt until such time as I comply with the order.
In Rosenthal’s case if he had just failed to comply, they could have used civil contempt. Since he has already done something that cannot be undone the remedy would be criminal contempt.
He is of course entitled to due process. For instance the motion must be specific enough to warrant criminal punishment. Any defects in due process would give rise to a post conviction habeas action.
Hoyt can preside since it is indirect contempt. I’m not certain in federal court, but in state court the attorney bringing the motion acts in the place of the prosecutor.
Rosenthal’s case is one of those hybrid criminal contempt in a civil case that is a largely different animal than a prosecution for criminal contempt.
Ron, thanks for the comment and for reading HCT.
Take a look at Fed. R. Crim. P. 42, which controls criminal contempt actions. Mark Bennett quotes it in full in the link to his blog post in the comment above yours.
What should have happened is this. If Judge Hoyt thought that a criminal contempt had occurred based on the plaintiff’s motion, then he should have referred it to the US Attorneys’ office at that point. He could have gone ahead and issued his own order specifying the grounds for the criminal contempt and then referred it to the US Attorneys’ office. However, the better approach would have been to allow the folks who do that for a living prepare the criminal contempt charges from the start.
From that point on, the case should have been handled as a typical criminal case, with Rosenthal being allowed all the due process protections that a criminal defendant is entitled. As Mark’s post points out, he’s been afforded some — but not close to all — of the due process protections to which a criminal defendant is entitled. One of the most shocking aspects of all this is the speed to which the matter is being adjudicated. As we all know, a typical criminal case involving possible jail time would rarely be handled in the manner this case has.
Judge Hoyt also has no business adjudicating the case himself. Inasmuch as the charges (to the extent that the motion could be interpreted as “charges”) involve interpretation of Judge Hoyt’s prior orders and apparent agreements between counsel in his court, Judge Hoyt is a potential witness to the criminal contempt. He should recuse himself from adjudicating the case.
As Mark’s blog post notes, Rosenthal’s failure to object to much of the above may result in a waiver problem. But my sense is that the procedural defects in the way in which the matter is being handled are so pronounced that the Fifth Circuit will have little problem in reversing and remanding the matter to the trial court for proper handling.