Friday, March 16, 2012

'Flagrant Conduct': Remembering Lawrence v. Texas

See a NY Times review of Dale Carpenter's new book "Flagrant Conduct," telling the story of Lawrence v. Texas, the 2003 US Supreme Court case which decriminalized homosexuality in Texas. In the wave of overcriminalization sweeping through Texas law over the last two decades, this was a single, notable movement in the opposite direction, and one with far-reaching results. Seldom discussed is the extent to which the original criminal case was based on trumped up charges:
According to Carpenter, almost no one familiar with the incident believed the police report. The judge handling the case suspected that [Deputy Joseph] Quinn had either made up or embellished the sex charge, and the county’s top prosecutor seemed personally reluctant to pursue it. “I’m not sure I agree with government regulating private sex acts between consenting adults,” he told the press, “but it’s not my call.” What kept the case alive, Carpenter shrewdly explains, was relentless pressure from opposite sides of the political spectrum: Republicans seeking a “family values” issue, on one end; gay rights activists handed a good “test case,” on the other. 
What I remember most about this case was the man who argued it for the state before SCOTUS and miserably blew it - Chuck Rosenthal, who the Times review called "the flamboyant, if woefully unprepared, Harris County district attorney." His performance is described thusly:
It is impossible in this limited space to convey the sheer ineptitude of Rosenthal’s presentation. At one point, Justice Scalia had to warn the hapless district attorney that he was about to answer a trick question. “Don’t fall into that trap,” he scolded. Within minutes, the justices were ignoring Rosenthal’s inane responses and arguing the merits themselves, leading Chief Justice William Rehnquist to suggest that “maybe we should go through counsel.” The highlight came when a frustrated Justice Stephen Breyer innocently requested a “straight answer” from Rosenthal, sending waves of laughter through the room.
That's the image of Chuck Rosenthal which always comes to mind, for me anyway, whenever I read Murray Newman waxing on about the good ol' days at the Harris County DA's Office.

It's worth mentioning that Penal Code 21.06 banning homosexuality is still on the books in Texas, despite the Supreme Court striking it down. It's no longer good law, but since 2003 the GOP has held the majority in both chambers of the Texas Legislature, and it's so far been impossible to get Republicans to take an on-the-record vote for repeal, however meaningless, that could be construed by a primary opponent as in favor of homosexuality.

So the strangest conduct of all arguably has been by the government, especially Chuck Rosenthal, but also an allegedly mendacious police officer and special interests pushing to pursue charges nobody really believed for political reasons. A truly Texan tale.


Soronel Haetir said...

The main book title is "Flagrant Conduct" not Strange Conduct.

Gritsforbreakfast said...

Whoops, my bad; corrected and link to the book added. Thanks for catching it.

organic_veggie said...

If you don't have time to read, this makes for an interesting drive time listen.

Murray Newman said...

I may wax about enjoying my time at the D.A.'s Office, but I don't wax about Chuck.

We were all embarrassed about this case and the fact that he was arguing it in the Supreme Court. I find it wildly amusing that Chuck was described as "flamboyant". He was many things, but I don't recall flamboyant being one of them.

Gritsforbreakfast said...

Now, now, Murray, how many times have I read you telling us how much better run the office was under Rosenthal than Lykos? The guy was a clown (and clown shoes count as "flamboyant"), but you've rarely had a ill word to say about him or his administration, which on your blog is portrayed as the last of a Golden Era snuffed out by your Evil Nemesis. Indeed, if only Rosenthal's cronies could be brought back to power, your blog-story goes, the Trees in Narnia will return to life, animals will speak, flowers will bloom anew and we'll enter an era of Eternal Springtime, if only we could be rid of the Evil Witch. I don't buy the fairy tale.

However much you admire Kelly Siegler or Judge Anderson, voters in 2008 understood Rosenthal's inner circle needed to get busted up for the office to actually change its trajectory once Bozo left the building. Whatever happens in this election, having four years of a more moderate, less tuff-fer-tuff's-sake approach (a period which, for whatever reason, coincided with violent crime declining to four-decade lows) hasn't hurt Harris County a bit.

Peter Houston said...

Grits, as inept as Lykos has proven time and again, the office as a whole was far better run under Rosenthal. Just because he was a loose cannon in front of the SCOTUS and had an affair with his secretary does not mean he wasn't smart enough to leave the day to day administration of the DA's office to capable folks, the antithesis of what has happened since.

And while you claim the voters motivation was to bust up the past way of doing things, it might be wise to remember that Siegler got more total primary votes than Lykos; the reason Lykos won her primary was due to the extremely low voter turnout in the runoff.

Lykos, as a party hack, has long cultivated a small but loyal following that saw her through and enough of them voted for her on the runoff to make it happen but it was nothing to brag about. By al means sheck the numbers for yourself.

In terms of the general election, her Democratic opponent was a man well known for his ineptitude on a scale that at the time made Lykos look almost reasonable. Under his watch, the city police built up thousands of rape kits that went untested, he was in charge for the infamous KMart raids, and was himself brought to trial on criminal charges while in office as police chief.

Anonymous said...

Scott, I read Newman's blog frequently, it's how I found out about yours, which I also read frequently. I have never gotten anything like you describe in your response At 7:19am out of what I've read at LHCCJC.

Anonymous said...

Very well said, Peter Houston.

Gritsforbreakfast said...

Yes, Peter, I've read Murray's blog so I understand the entire fairy tale narrative. I don't know if you realize this, but you judge who won an election by who holds the office once it's over. Siegler was Rosenthal's heir apparent and a majority of voters didn't want her, which is why there was a runoff.

In any event, for the same reason I mentioned (Rosenthal burnout), even if she had won the GOP primary, Bradford would have defeated her in November. Look at the judges races on the same ballot that all went D.

Truth is, Siegler would have likely done better in this cycle because the Anthony Graves case has diminished the win-at-all-costs reputation burnished under Rosenthal's watch, and time has let folks like you forget (or at least publicly diminish) how bad Rosenthal's reign really was.

Finally, if you think Lawrence and an affair with his secretary were all Rosenthal had going against him (I suspect it's intentional understatement and you know better), you've got another think coming. The most damning stuff out of his Email-gate wasn't the affair but the racy, borderline racist email exchanges with Siegler's husband. If Siegler had bee nomininated, the whole election would have been about that stuff. Complain about Lykos if you must, but IMO the office was lucky voters granted them a clean slate.

Mike McNulty said...

Grits, it is a fantasy to suggest the election went the way you claim other than the final outcome. Peter's summary was a lot more accurate than your own, your insistence that voters grouped together to rid the office of all remnants of Rosenthal simply not supported by the numbers.

Siegler received many more votes in the primary than Lykos. This is a fact that all your revisionist beliefs can't change. As such, it makes no sense to claim voters acted to remove her. Had the run off numbers been much higher, you'd have had a point but they were miniscule by comparison, of course a perennial candidate for the office like Lykos would have more hardcore followers built up over decades in office than first time candidate.

In a run off with Siegler, I summit that Siegler would have won over Bradford, the evidence that exists showing that even in a democratic sweep, he managed to lose because of his name recognition. If you truly live in Austin, you cannot fathom how unelectable Bradford is outside of narrowly drawn racial lines. There were numerous stories about Bradford being one of the few to lose in the sweep but you had to live here to feel it as deeply.

Anyone would have won against Bradford but only a real party hack like Lykos could ruin the office in the process.

Anonymous said...

Bradford's name was mud in Houston back then and anyway running against him would have won. Lykos won only because she ran against him, her runoff numbers so small that some even wondered if she would do the impossible and get Bradford elected. Lykos has run for different offices and lost in the past, even party loyalists getting tired of her antics that drag the rest of the ticket down, one kingmaker paving the way for her to win in 2008 by paying off the right people to endorse her. Hint: they wouldn't take her money this time because she was so bad a choice.

Gritsforbreakfast said...

Say it loud with me, Mike: "I do believe in fairies! I do believe in fairies!"

Y'all can pretend if you like that Siegler inherited no baggage from Rosenthal or that her connection to him wasn't the reason a majority of voters (including in the first round of voting) wanted the DA Office's ship to change course. I've read enough of yall's commentary on Murray's blog to understand his fairy tale has many adherents. The reality is Chuck's baggage sank Siegler. She'd be DA today if she hadn't been Rosenthal's heir apparent and her husband connected to the email scandal.

That's not revisionism, that's what happend in real time, when the details were all still fresh in the papers and the public's mind! It's Murray's spin, and yours, trying to delegitimize Lykos' election that amounts to "revisionism." If voters had wanted to continue Rosenthal's legacy, a majority would have elected Siegler in the first round. They did not, nor the second round either. Truth hurts sometimes, but there it is.

Jennifer Laurin said...

Also a really enjoyable review of the book in the most recent New Yorker.

Anonymous said...

Scott, the belief that voters rejected Seigler en masse just doesn't pan out or she would not have received so many votes in the primary- many more than Lykos (14000+). If there was a major push to get rid of legacy candidates, there would have been scores of voters in the runoff but Lykos won by a couple thousand votes, hardly a landslide of disgruntled voters looking to clean house.

The dirty campaigning by Lykos and allies to tie Siegler to Rosenthal was certainly a factor in the end result but a few thousand votes out of a voting pool approaching two million?!? I think you had something other than grits for breakfast the days you came up with your conclusion...