January 31, 2008
Is today the day Chuck testifies about the deleted emails?

Could be. In the meantime, before that happens, the guy who actually runs the DA's email servers got himself grilled.

Gary Zallar answered technical questions from U.S. District Judge Kenneth Hoyt for more than hour about the backup capabilities of the e-mail server in the district attorney's office.

The hearing, in which plaintiff's attorney Lloyd Kelley has asked Hoyt to hold Chuck Rosenthal in contempt, relates to a federal civil rights case lodged by two brothers against the Harris County Sheriffs Office.

Kelley and Rosenthal's attorney, Ron Lewis, each had 45 minutes to question Zallar, who estimated that about 2,000 e-mails that Rosenthal deleted are unrecoverable.

Kelley's 45 minutes were marked by yelling and furious scribbling on a large pad of paper on an easel in front of Zallar, to do the math on how many e-mails remain unaccounted for.

"Is that a lie, or is there some process in your office that you haven't told us about?" Kelley shouted.

Lewis brought laughs from the gallery when he objected to Kelley, asking the judge to instruct Kelley to stop yelling his questions at Zallar.

Much more quietly, Lewis tried to nail down the differences between sent e-mails and received e-mails, Rosenthal's public e-mail box and his internal e-mail box.

"It's confusing, isn't it?" Lewis asked.


I know what questions I'd have asked Mr. Zallar - questions about backup frequencies, deleted item retention, what the backup policies are for other server drives, where personal folders might be kept, and how long it is before backup tapes got reused, among others. I'd like to see the transcript when it's available, to see what actually got asked and how it was answered.

Although Kelley has subpoenaed Rosenthal's executive assistant Kerry Stevens; Republican district attorney candidate Kelly Siegler; her husband, Dr. Sam Siegler; his chief investigator, John Ray Harrison; his political consultant, Allen Blakemore; and prosecutor Mike Trent, the tenor of Hoyt's order suggests that he only wants to hear from those with direct knowledge about the e-mail deletions. In scheduling the hearing, Hoyt told attorneys not to even file briefs.

Well, that certainly reduces the potential for fun. I'm still looking forward to hearing what Rosenthal has to say for himself. I'm expecting some kind of lame excuse, but I'm prepared to be surprised. It's not like anything else about this saga has been predictable.

Elsewhere, KTRK did a story on the background of the case, which as we know started with a raid by the Sheriff's department that led to the arrest of two bystanders who were taking pictures of it. The wrongful-arrest lawsuit that stemmed from that is what ultimately led to the discovery of the deleted and embarrassing emails.

This is all about Chuck Rosenthal. The thing is Rosenthal didn't know about the raid beforehand six years ago, he certainly wasn't there six years ago, in fact his name doesn't even come up in this lawsuit. So then why is Chuck Rosenthal going to court facing jail time in the morning?

"I think something should happen to him," said attorney Lloyd Kelley.

Lloyd Kelley is the Ibarra's lawyer. Kelley wanted Rosenthal to investigate the way sheriff's deputies behaved at the raid.

Kelley claims the DA's didn't conduct a proper investigation so he subpoenaed Rosenthal's emails to see what the DA was saying about the case.

Under court order, Rosenthal turned over hundreds of messages, but deleted 2,500 more. That's why Rosenthal has to face a federal judge.

"He destroyed evidence," Kelley said. "You can't do that in our system."

There wasn't anything in the recent emails about the Ibarras, but there sure was enough in there to cause Rosenthal a lot of trouble and help Lloyd Kelley's friend Clarence Bradford who happens to be running for DA.

Something Lloyd Kelly quickly dismisses.

"You would have to give me power of clairvoyance to know what he had," Kelley said. "I was looking for stuff about my case. What falls out is evidence of illegal activity, racism - sexism, all sorts of horrible stuff."

"I'd hate to see a political hit job ruin a guy's career, but Chuck Rosenthal has a lot to answer for here," said attorney Mark Bennett.

Houston defense lawyer Mark Bennett is the president elect of the Harris County Criminal Defense Lawyers Association.

Bennett believes Kelley had political, as well as legal motives, for exposing Rosenthal's email. In a federal contempt hearing, motive just doesn't matter.

"I don't know if he belongs there, but he's there and when you're in federal court and a federal judge tells you to do something, you do it," he said. "If I had a client who did the same thing, I would remind the client it was an exceptionally stupid thing to do. The question is was it contempt of court and was it a criminal violation?"

We should know by the end of the day what Rosenthal had to say, and perhaps what will happen to him. Stay tuned.

Posted by Charles Kuffner on January 31, 2008 to Scandalized!