Power Corrupted and the Struggle for the Rule of Law

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair


Harris County District Attorney Pat Lykos recently announced that local defense attorneys will be provided with copies “offense report(s)’ prepared by police in criminal cases. This new policy in Harris County, which should have been standard practice for years, is slowing making its way to the court rooms.  Of course, the policy comes with caveats such as confidentiality agreements, redactions etc.  This disclosure policy removes another corrupt vestige from the era of former District Attorney Charles “Chuck” Rosenthal—an era when suppression of favorable evidence, perjured testimony, manufactured evidence, and corruption of forensic evidence passed for the “rule of law” as his assistant district attorneys competed in a “conviction at any cost” prosecutorial environment.


There is no way to gauge how many innocent people were sent to prison, or possibly executed, during the administrations of the two previous Harris County District Attorneys: Chuck Rosenthal and Johnny Holmes. What can be gauge, however, is that both district attorneys, especially Rosenthal, operated with such a “hang ‘em high” prosecutorial mentality that a sense of “above the law” entitlement existed in all ranks of the district attorney’s office. That “above the law” sense of privilege became so ingrained that Rosenthal himself saw nothing wrong with using his office computers to carry on an inner-office romance and share racist and pornographic emails with friends.


We recently opined in an article (posted Feb. 25, 2009) about how an unbridled exercise of judicial power led to federal district court judge Samuel Kent pleading guilty of an obstruction of justice charge and Court of Criminal Appeals Chief Judge Sharon Keller being charged with judicial misconduct. Both of these judges were renowned in the legal community for not only their disrespect of judicial decorum but their disregard for the established rule of law.


Power is indeed a dangerous thing in the hands of the wrong people.


This was made clear by the recent disclosure that five days before George Bush left the Oval Office and departed for the exclusive Dallas neighborhood where he now rides his bicycle, his Justice Department rescinded a 2001 legal memorandum prepared by one of its attorneys, John Yoo, advising the president that the military could search any home in America without a warrant if the homeowner was designated as a “suspected terrorist.” The Yoo memo essentially conveyed to President Bush that he, as the nation’s commander in a time of war, had the unlimited power to treat terror suspects as an “invading army.”

And Yoo further advised the president that, to make sure the press did not make too much of a “constitutional fuss” about images of the military storming public buildings or raiding family dwellings in the midnight hour in search of “terror suspects” believed about to detonate bombs,  the president’s power was so immense and absolute that he could impose restrictions on the press and free speech to gag the Fourth Estate.


“First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully,” Yoo wrote. “The current campaign against terrorism may require even broader exercises of federal power domestically.”


As if this was not enough, the Obama administration recently announced that the CIA destroyed 92 videotapes of “terror suspects” undergoing torturous interrogations in 2001. After repeated denials of torture by Bush, the CIA finally conceded in 2007 that there was once two videotapes revealing the “enhanced interrogation techniques” several terror suspects had been subjected to following the 2001 Twin Tower attacks but the tapes had been destroyed in 2003 to “protect the families’ of the agency’s interrogators from Al Qaeda reprisals.


“We can now identify the number of videotapes that were destroyed,” Assistant U.S. Attorney Lev Dasslin said in connection with a criminal investigation into the destruction of the videotapes. “Ninety-two videotapes were destroyed.”


It is no coincidence that the lawless prosecutorial conduct during the Holmes/Rosenthal era and the blatant constitutional abuses during the Bush presidency were justified by “war”—the “war on crime” and the “war on terror.” The old adage “power corrupts” is terribly misleading, and it certainly does not apply in either aforementioned context. Power is not corrupt. People are corrupt – and when we as a people bestow unlimited trust in the people who govern the affairs of our lives, whether in the government that is suppose to serve us or the financial institutions that are suppose to protect us, we will inevitably suffer the consequences of power corrupted.


It was often repeated during George Bush’s reelection campaign in 2003 that he was the “kind of man you’d want to share a barbeque with.” Well, the fact of the matter is that we don’t need a president with whom we can share a barbeque in our backyard. Nor do we need district attorneys who market themselves as “tough on crime” and who are “committed” to our public safety and well-being. Nor do we need bankers and investors who are “warm and engaging” and who operate with an “air of confidence” while handling our life savings.


What we as a people need is for the rule of law to prevail for every one. Law-and-order advocates have manufactured the “faces of crime” in this country as those horrible mug shots broadcast on “America’s Most Wanted,” “Cops” or local “CrimeStoppers” programs. But the true faces of crime are the distinguished images of Bernard Madoff, Sir Allen Stanford, and the countless mortgage peddlers who have caused more social harm and damage to individual lives than all the burglars and robbers currently incarcerated in state and federal prisons in this nation. People can replace a stolen entertainment system stolen from their homes or a GPS device ripped from their vehicles in a Wal-Mart parking lot but they can never replace their entire life savings entrusted to people like Madoff and Stanford who ripped off their investments to provide themselves with a billion dollar lifestyle.


And who allowed people like Madoff and Stanford to operate with absolute impunity? SEC officials appointed by the Bush administration and regulated congressional leaders who sucked up to the likes of Madoff and Stanford for “generous campaign contributions” maintain their stranglehold of power.


If there is any real lesson to be learned from America’s recent economic meltdown is that this nation does not need any more wars – regardless of whether they are wars on crime or terror – just as it does not need any more campaign slogans that encourage us to hate our own neighbors and people in other parts of the world we’ve never seen. These so-called “wars” distract people from the harm caused by Wall Street bankers, the criminal misdeeds of billion-dollar investors like Madoff and Stanford, and the institutionalized corruption of our elected officials, especially those elected on “law-and-order platforms.”


With the war in Iraq lies dormant on the political back-burner, some of our congressional leaders and certain loud-mouth “talk radio” commentators have created a “capitalism versus socialism” debate to keep middle and lower class people divided so that the upper class can remain the “ruling class.” It’s all socio-political smoke and mirrors. Unemployed American workers are pitted against immigrants and legal immigrants are pitted against illegal immigrants. In the midst of social chaos and uncertainty, it is relatively easy to divert people with hatred and distrust. The ruling class has used this tactic throughout history of mankind to “divide and conquer.”


Against the backdrop of all this social and political chaos, we are cautiously optimistic about District Attorney Lykos’ recent policy change favoring more disclosure to defense attorneys in criminal cases. But forgive us if we remain guarded and suspicious. The rule of law has been so frequently abused by the district attorney’s office over the last three decades that it’s hard to muster of a lot of trust for it.


And we suspect that criminal defense attorneys will have more reports to read as the nation’s economic crisis worsens. The flow of money has dwindled while the competition for the remaining dollars in circulation has intensified. Crime is on the rise nationwide. The Michigan corrections commissioner was quoted recently in the media as saying many homeless and unemployed individuals are now committing crimes to go to prison where there is a guarantee of hot meals, clean bunk, and fairly decent health care. One 85-year-old retiree who invested every penny he had with Bernard Madoff recently said as he was being forced to move out of his lost home and that he only had enough money for 60 days.


Criminal defense attorneys, like those practicing in Harris County, will certainly be called upon to salvage some of these desperate lives and continue the battle for the rule of law.


By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair