Runaway grand jury closes up shop

Yesterday the grand jury investigating the Harris County District Attorney's Office announced that it was not issuing any indictments. The news was greeted with a big yawn by folks around the Criminal (In)justice Center.

The grand jury foreman, Trisha Pollard, said the grand jury didn't find any evidence of a crime but that they were troubled by the actions of the DA's office. They singled out Rachel Palmer for her refusal to answer questions pursuant to her rights under the Fifth Amendment.

Left unsaid is why special prosecutors didn't offer Ms. Palmer immunity in exchange for her testimony. They went so far as to file a motion to compel her testimony that was denied by the judge. They claimed that none of the questions they wanted to ask were incriminating; but when given a choice between having Ms. Palmer answer the questions under a grant of immunity or not asking the questions at all - they chose to keep their mouths shut.

What information did they seek from Ms. Palmer? And if it was so damn important to the investigation that they were more than willing to ignore the Bill of Rights, why didn't they offer her immunity?

Whatever. Now Pat Lykos will stand up and declare victory and the Mike Anderson forces will stare down at their toes. The fact is the investigation is a black eye on Ms. Lykos and her administration. And, no matter how you want to spin it, Ms. Lykos and her office did their best to stonewall the investigation. That also doesn't bode well for a person who has the ethical duty to see that justice is done.

Given the public's notoriously short attention span and the fact that we don't know when the primary will be held, there's a good possibility that most of the folks in Harris County are going to forget all about this little affair before they step into the voting booth.

I'm not so certain that anyone in the DA's Office broke the law in the BATmobile fiasco. Withholding exculpatory evidence is a Brady violation and, at best, could get you a new trial - unless the error was determined to be (wait for it) harmless. There is no monetary or criminal sanction for not turning information over to the defense that the defense doesn't know about.

As such, there was never the possibility of anyone being indicted for not giving up the goods. The only thing that would have bitten someone in the ass was lying under oath to the grand jury.

So, go on, there's nothing to see here.

Grand jury subpoenas top county officials in DWI probe

Remember that "runaway" grand jury investigating the HPD BATmobiles? Well, they're baaack...

The county judge and two commissioners have been subpoenaed to testify before the grand jury. It is believed that the grand jury is looking into the contract the county entered into with the Texas Department of Public Safety to administer breath test machines in Harris County. The county entered into the contract after Harris County District Attorney Pat Lykos urged county commissioners to dump Lone Star College after former HPD crime lab technical supervisor Amy Culbertson spilled the beans on the malfunctioning breath test machines in HPD's BATmobiles.

First a word for those of y'all not from Texas. The county judge isn't really a judge, he's the head of the county government. The commissioners are the elected representatives who run the county.

Ostensibly, the reason for the change in maintaining the breath test machines was a cost-saving function. The county's contract with the DPS is $330,000 for the first year versus $342,000 with Lone Star College. But there's more to the calculation than that. Remember, DWI is big business in Texas and running the breath test program is no exception. For every DWI conviction obtained without the use of DPS technicians, the state reimburses the county $22. Doesn't sound like a lot on the surface but, between 2008 and 2010, the county was reimbursed $220,000 by the state. Do the math; the DPS contract will cost the county more money in the long run.

The change had nothing to do with saving the county money. The change was retaliation against Lone Star College for hiring Amy Culbertson after she left the Houston Police Department. The change was retaliation against Ms. Culbertson for testifying truthfully about the problems with the BATmobiles.

Ms. Lykos and her minions got caught withholding Brady material from defense attorneys handling DWI cases. Ms. Lykos has blamed Ms. Culbertson and she has blamed HPD for the fiasco. All of that is an attempt to deflect attention away from the actions of the Harris County DA's Office.

The plot thickens

It would appear that the shit has hit the fan over at 1201 Franklin.

Today, State District Judge Susan Brown appointed former prosecutors Stephen St. Martin and James Mount to serve as special prosecutors for the grand jury investigating the Harris County District Attorney's Office.

From the Houston Chronicle: 

The order appointing St. Martin and Mount, both former assistant district attorneys now in private practice, states that grand jurors are investigating “possible criminal conduct by members of the Harris County district attorney’s office.”

“After considering the grand jury’s request and the applicable law, the court finds the Harris County District Attorney and her office are disqualified from participating in the grand jury’s investigation,” Brown wrote.

Harris County District Attorney Pat Lykos manages her office through fear and intimidation (just read Murray Newman's posts on the warm and fuzzy feelings that Ms. Lykos evokes on the 6th floor). That might work on her staff - after all, with the current economic climate, hanging out your own shingle is a scary prospect - but it doesn't work with people outside the office.

Ms. Lykos is upset with Amanda Culbertson. She is upset with the Houston Police Department. Okay, I get it, but retaliating against Ms. Culbertson by subjecting her to a grand jury investigation was going a bit too far. Ms. Lykos' need for total control and her intolerance toward dissent may very well end up haunting her between now and next year's election - if she manages to hold on that long. Fear does not breed loyalty - and that's something Ms. Lykos should think about as the investigation continues.

This is not going to end well for Ms. Lykos and her minions.

Runaway jury

The original purpose of the grand jury was to have a body that could review a case to determine if there was enough evidence to proceed. The grand jury met in secret and if they chose to no-bill a case, no one ever knew the case had ever been considered.

The grand jury's role was to act as a check on the state in its prosecution of citizens accused of breaking the law. Over the years the grand jury has become a de facto rubber stamp for prosecutors. If the District Attorney wanted a case indicted, it was. If he wanted a case to go away because it was too hot a potato, all he had to do was let the grand jury know it was okay to no-bill it.

But someone, in Houston, a grand jury actually decided to take matters into its own hands. The grand jury was convened to consider whether anyone did something untoward regarding HPD's batmobile breath test machines.

You see, Amanda Culbertson kind of embarrassed Pat Lykos and her minions when she pointed out to her superiors in the HPD Crime Lab that the breath test machines in the batmobiles weren't, shall we say, very accurate or reliable. Then, to make matters worse, Ms. Culbertson testified under subpoena in a case and repeated her assertions that the breath tests conducted in the vans weren't all they were cracked up to be.

In the process of conducting its investigation, the grand jurors made it known that prosecutors weren't welcome in the room. Needless to say, this did not go over very well with Ms. Lykos. The DA's office asked the court of appeals to order the grand jurors to let prosecutors into the room but the appellate court thanked Ms. Lykos for playing but that she was not getting into the room - even if she said "pretty please or I'll indict someone's mother."

It stands to reason that the grand jurors are taking a hard look at the conduct of the DA's office in this entire sordid affair. Maybe someone gets indicted. Maybe (probably) not. But, I think it reasonable to assume that the grand jury is not going to indict Ms. Culbertson on some trumped up charge of telling the truth on the witness stand even thought it makes it harder for the state to prosecute motorists for driving while intoxicated.

Ms. Lykos has apparently forgotten that her ethical duty as a prosecutor isn't to coerce pleas or obtain convictions - it is to do justice. And that's even if it means dismissing cases because the machines used by law enforcement can't be relied upon to do what they are supposed to do.



H/T Murray Newman

Ask not for whom the whistle blows

For the past two decades the breath alcohol testing program in Harris County was run by Lone Star College (formerly North Harris Montgomery College). But no longer.

Yesterday Harris County commissioners voted to award the contract to the Texas Department of Public Safety. Harris County District Attorney Pat Lykos has been accused of pressuring commissioners to make the change in retaliation to Lone Star's hiring of Amanda Culbertson as a technical supervisor.

Ms. Culbertson, as you may remember, testified this summer about problems with the Houston Police Department's breath testing vans. She testified after being subpoenaed by a local defense attorney (and served by my brother). In her testimony she alleged that the higher-ups in the HPD crime lab had turned the lab into a hostile work environment because she dared to speak up about the problems.

County commissioners did Ms. Lykos no favors by deferring responsibility for the change to Ms. Lykos. She might want to get the license plate number of the bus she was thrown under.

Knowing what I know about Ms. Lykos, I don't find it a stretch to believe that she was behind the move. It would appear to be par for the course (for more on Ms. Lykos and her gang that can't shoot straight, check out Murray Newman's Life at the Harris County Criminal Justice Center blog).

The other day I wrote that I had a few problems with local criminal defense attorneys coming to Ms. Culbertson's defense. I still find it disturbing and short-sighted. Ms. Culbertson was a true-believer until she ran across problems with the batmobiles that she couldn't defend.

But, Ms. Culbertson was not a whistleblower. She never went to the media to let them know about problems with the breath test machines in the vans. She never volunteered that information at trial. The only reason she testified about those problems in open court was because Dane Johnson had made an open records request and had obtained e-mails documenting the problems. She had no choice but to testify that the machines were unreliable in that environment.

If Ms. Culbertson left HPD because she felt intimidated for raising questions about the batmobiles, then it's shame on HPD for allowing it to happen. But if we're supposed to be up in arms because the county decided not to renew the contract with Lone Star, let me off the train. It would seem that we're forgetting that what the government giveth, the government taketh away.

When your job depends on government largesse, you must understand that what's here today may be long gone tomorrow. So maybe it was retaliation and maybe it wasn't. That's just politics.

The wreckage of the batmobile

I've written at length about the problems with the Houston Police Department's BATmobiles and I've written about the departure of every technical supervisor from HPD's "Crime Lab." It would appear that our stories have intersected.

Amanda Culbertson, the former technical supervisor for HPD's breath test machines, told a judge on Thursday that she and the others left the city's employ because of their concerns with the BATmobile program. Ms. Culbertson said that she left because she feared retaliation from HPD over her criticism of the program.

According to the Houston Chronicle's Brian Rogers:

[Amanda Culbertson] and others worked to train technicians to keep air conditioning units on to regulate the temperature of the breath machine that measures blood alcohol levels in suspected drunken drivers. She also said an electrical glitch that was never fixed meant the sophisticated measuring machines would reset every time the van's air conditioner was turned on. 

She said she supported the idea of a mobile testing site, but that HPD did not work to maintain the accuracy of the test results. 

"In theory it's a great idea, but it depends on who is in charge of the environmental conditions," Culbertson said.

If Ms. Culbertson's story is true, I would like to know whether the folks charged with DWI who blew into machines in the BATmobiles were informed of her concerns over the accuracy of the test results. The prosecutors, as to be expected, threw up their arms and told the judge they had no knowledge of any of this.

As an aside, the article notes that the attorneys subpoenaed Ms. Culbertson after she finished testifying in another court. Well, that's not exactly true. While the attorneys may have drafted the subpoena, Ms. Culbertson was served by none other than my brother, Dan, who is a private investigator and process server.

And this brings us back to the bigger issue - why are the labs running these tests and maintaining these machines operated by the same folks who are out there arresting motorists for driving while intoxicated? There can be no objectivity in such a setting. What does it say when the person in charge of the machines feels so threatened by her employer that she walks away from her job? If the folks in charge of the crime lab were interested in the quality of the science, why would they ignore the concerns of Ms. Culbertson?

The folks in charge should have been happy that she came to them with her concerns. They should have welcomed the opportunity to correct problems with the program. Instead, because she wouldn't stick to the script, they ran her off.

This is not to absolve Ms. Culbertson from blame, however. If she was aware of the problems back in 2009, why wasn't she testifying that she had grave concerns over the accuracy of breath tests conducted in the BATmobiles? Why wait until she's taken another job as a technical supervisor overlooking machines used in the county?

The mission of science is to discover the truth. Science is misused when it's made to fit the facts of the state's case.

And then there were none

First it was Jano Chu who left back in the fall of 2010.

Then it was Jorge Wong's turn to go in March.

And now Amanda Culbertson is heading out the door.

Maybe it's something in the water over there at 1200 Travis that's causing area Technical Supervisors to flee for other grounds.