The Judge Who’ll Judge Rosenthal

January 31, 2008

Wednesday, the Houston Chronicle reported on the incident occuring with Disctrict Attorney Chuck Rosenthal.

Attorney Chuck Rosenthal may not sleep well tonight. Tomorrow morning he must go before U.S. District Judge Kenneth Hoyt to explain why he should not be fined or even jailed for contempt in connection with deleting e-mails that Hoyt had ordered him to produce in a lawsuit.

Some of the e-mails he deleted were racist jokes, at least one of which he passed on to a friend.
One showed a black man lying on a sidewalk surrounded by chicken bones and watermelon rinds. It was captioned: “Fatal overdose.”
Another offered the “wit” that Bill Clinton is like black men because he smokes weed, lives off his wife, gets a monthly check from the government and sleeps with ugly white women.

This is not the sort of humor Rosenthal should expect Hoyt to appreciate. Judge Hoyt is black.
Good news for Chuck

There is some good news for Rosenthal. Hoyt appears to be just the kind of black man Rosenthal’s prosecutors don’t want on a jury. He has a sense of mercy. Hoyt stunned some observers by sentencing Enron defendant Andy Fastow to six years in prison when Fastow’s plea bargain with prosecutors called for 10 years.

In his comments Hoyt mentioned not only Fastow’s cooperation with prosecutors, but also the public vitriol and anti-Semitism Fastow had suffered, together with the “particularly acrimonious hit” his family took, including his wife’s one-year incarceration.

“What moves the arm of justice is mercy,” Hoyt said.

In some senses, I suppose that makes Hoyt a liberal. But when conservative U.S. Sen. Phil Gramm persuaded President Ronald Reagan to put Hoyt on the federal bench in 1987, he described the then 39-year-old as an “outstanding young conservative” who “believes strongly in strict construction of the Constitution.” Hoyt had been a Reagan delegate to the 1984 Republican Convention. He was appointed to a vacant state district bench in 1981 by Gov. Bill Clements, but despite prominent Republican endorsements lost in the 1982 primary to a white man who had only recently joined the Republican Party.

In 1984 he won election to the 1st Court of Appeals after he declined to provide a photo for the brochure promoting the Republican judicial candidates.

He tasted racism again in 1992. Court records filed in a suit against Denny’s restaurants by a group of Secret Service agents quoted Hoyt’s wife as recounting a visit with her husband to a Denny’s in California. She said they were forced to wait an embarrassing length of time for service. Meanwhile, four rowdy youths were seated after them and treated well by their waitress while using the N-word.

Hoyt has at times shown himself to be a strict constructionist. In 1997 he ruled unconstitutional a federal law allowing citizens to receive a bounty for filing successful lawsuits that recover money defrauded from the government.

And in 2003 he ruled unconstitutional a federal law used to prosecute an anti-abortion activist for ramming his van into a Planned Parenthood clinic. He ruled the man was not part of any national “campaign of violence” and could be prosecuted by local authorities. The Supreme Court has upheld both laws.

But Hoyt has repeatedly hammered prosecutors and police for misconduct. In one case he removed an illegal Mexican immigrant from death row for killing a policeman, ruling that Houston police and prosecutors of actions that were “done in bad faith and are outrageous.” He ruled that police intimidated witnesses out of revenge, and that all the physical evidence indicated the officer was killed by the defendant’s friend, who was killed in a shootout with police. The defendant was later deported to Mexico.

In another case, Hoyt refused a motion by prosecutors to drop a civil rights case against a sheriff’s deputy after a jury had failed to reach a verdict.

Lawyers describe Hoyt as a gentleman who rarely shows anger, even as he rebukes lawyers in his courtroom. But his remarks in one case did cause lawyers to seek his recusal. Black residents sued Chevron, claiming illnesses because of pollution on what had been oil company land.

Hoyt refused to allow as evidence an Arthritis Foundation pamphlet saying blacks have higher incidence of lupus because, he said, “white people wrote it.” Hoyt also made some bizarre comments in the trial regarding the relative heights of Chinese and Africans.

“It’s environmental,” he said. “I mean, you don’t jump up and get a banana off the tree if you’re only 4 feet. If you’re 7-foot-tall and you’re standing in China, then you’re going to get blown away when that Siberian wind comes through.”

An appeals court flamed him for the remarks, which Hoyt admitted were “flippant” and “callous,” but refused to remove him from the case. He did recuse himself, however, when Chevron lawyers discovered Hoyt’s wife had worked for Texaco, which had owned the polluted land before it was acquired by Chevron. Don’t look for any flippant or callous remarks from the judge tomorrow. The question is, if he finds Rosenthal in contempt, what will his sentence be?

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