Runaway grand jury: The aftermath

Not content to sit down while the grand jury investigated the doings-on in her office, Harris County District Attorney Pat Lykos decided to arrange her own investigation. Of the grand jury.

According to the Houston Chronicle, Ms. Lykos ordered investigations into the grand jurors, two judges (Marc and Susan Brown) and Mike Anderson, her opponent in the GOP primary. According to Ms. Lykos, it was a "cursory internet search."

Locked in her shell up on the sixth floor of the Criminal (In)justice Center, Ms. Lykos has apparently lost touch with all semblance of reality as she just can't understand what the problem is.

Just how would it go over if it turned out a defense attorney was conducting an investigation into the backgrounds of the grand jurors? Would Ms. Lykos and her minions have such a relaxed attitude if that were the case? I think not.

"The purpose of the Internet search was to simply try and determine what were the reasons for this grand jury's radical, erratic and what we believed to be unlawful action." -- Pat Lykos

Of course rule number one when you get caught in a bad situation is to minimize it. Rule number two is to shift the blame. The unspoken rule is to avoid any responsibility for your actions. And don't forget the corollary, when in doubt, throw someone else under the bus.

Lykos said she relied on assertions from Don McWilliams, her chief investigator, that there was no "investigation." 

However, according to three sources familiar with the situation, McWilliams was asked by the district attorney's first assistant, Jim Leitner, to "investigate" at least two grand jurors "for the boss." The sources did not want to be identified because they were not authorized to discuss the situation.

Poor Jim. He had the audacity to run against Ms. Lykos in the 2008 Republican primary and, after finishing third in a three horse race, swallowed his pride and went to work for Ms. Lykos. His reward for his loyalty to Ms. Paranoid are the tire marks on his back.

Now here's where it gets interesting. Jack Abercia, the former constable for Precinct One, got himself indicted because either he used, or allowed someone in his office to use, a website available only to law enforcement agencies to run background checks on people. Did Mr. McWilliams' "cursory internet investigation" involve the use of such a website or did he just google the names?

McWilliams went to his courthouse office and used two websites that collect personal information for use by law enforcement and others, according to the sources. He called Lykos with his results and left a voicemail. 

A week later, Leitner directed McWilliams to expand the investigation to state District Judge Susan Brown, her husband who also is a judge and Mike Anderson, a former judge who is running against Lykos in the Republican primary, according to the sources. 

On Thursday, Lykos said confidential law enforcement databases used by authorities to check criminal records were not used. It is illegal to use those websites for unauthorized investigations.

These revelations raise serious concerns about the ability of Pat Lykos to serve as Harris County District Attorney. While her actions may or may not have been legal, they certainly add to the stench emanating from  1201 Franklin. A grand jury is supposed (and I stress the word "supposed") to be an independent body determining whether or not there is probable cause to believe someone committed a criminal act. What message does it send to grand jurors when the sitting District Attorney is using her office to investigate members of a grand jury while it conducts an investigation?

And what was the purpose of the investigation - to intimidate or to blackmail? Ms. Lykos and her minions have some serious questions to answer. But don't hold your breath waiting to her them.

Graffiti, courthouse style

Handiwork of an unknown artist on the 2nd floor of the Harris County Criminal (In)justice Center.

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.

Crisis? What crisis?

Yesterday my colleague Murray Newman serenaded us with word that there was a serious shortage of grand juries in Harris County because Pat Lykos and her minions dropped the ball.

Murray seemed quite concerned that someone the lack of indictments make cause the sun not to rise or cause solar flares or even cause the hole in the ozone layer to get bigger.

My response? So freaking what?

So the state's ability to infringe upon the freedom and liberty of its citizens is curtailed. So someone who might not otherwise qualify for bail in Harris County gets to spend some time with his family. What's the problem, Murray?

We're criminal defense attorneys. Our job is to defend the Constitution. Our job is to make it harder for the state to take away someone's freedom. It just so happens that Ms. Lykos may have done part of our job for us. Bully, I say.

A demotion

Now, lest anyone think I'm biased with regard to the unmitigated disaster known as the HPD breath alcohol testing van (BAT van) program, I am now giving the Harris County District Attorney's Office a little equal time. 

This is a statement from the DA's Office dated November 8, 2011 addressing concerns raised about the program:

To the citizens of Harris County,

As many of you know, there have been several news stories regarding the Houston Police Department’s Breath Alcohol Testing (BAT) vans, the evidence they provide, the technicians who perform the work and the Harris County District Attorney’s Office (HCDAO). 

A technician, who is a former employee of the HPD crime lab and supervised the BAT van testing, testified on July 27 and 28 that she believed it is possible that the breath tests conducted by the HPD BAT vans could be problematic. 

August 4, representatives of the HCDAO notified the Scientific Director at the Texas Department of Public Safety—the authority that develops rules and regulations and provides training and laboratory support to local, state and federal authorities for breath alcohol testing throughout the state—of her claims. 

August 11, in a meeting between HCDAO and the technician she stated that she could not verify the accuracy of results of an intoxilyzer instrument that had previously experienced overheating in a HPD BAT van. She said that she could not testify to the accuracy of such intoxilyzer results because this issue had never before been scientifically tested.

August 12, the HCDAO issued a Brady Notice to attorneys to inform them of the potentially exculpatory, or mitigating, evidence raised by the technician and to not allow any HPD BAT van cases to be resolved unless the defendant is made aware of the technician’s comments.

Additionally on August 12, the Harris County District Attorney’s Office requested that the Texas Department of Public Safety’s Breath Alcohol Laboratory conduct scientific tests on the HPD BAT van and the intoxilyzer instruments.

August 23, representatives from the Harris County District Attorney’s Office met again with the technician. At this interview the technician said she believed that all breath tests conducted by the HPD BAT vans dating from summer 2009 - present were suspect because she believed HPD BAT vans were an unsuitable testing location. August 24, the HCDAO distributed a second Brady notice to attorneys alerting them to the technician’s comments.

The Texas Department of Public Safety conducted an Ambient Temperature Study on the HPD BAT van and intoxilyzer instruments that addressed the technician’s concerns. Scientists concluded that the HPD BAT van instruments correctly analyzed breath alcohol concentrations .

October 28, a DWI jury trial was held in a County Criminal Court where evidence was presented in open court about the reliability and accuracy of the HPD BAT vans. The defense presented their position on the reliability of the HPD BAT van instruments. After hearing all the evidence, the jury returned a verdict of guilty.

It is our duty to see that justice is done and to protect the lives, property and rights of our citizens. We respect the rule of law and strive to always do the right thing.

The "technician" referred to is Amanda Culbertson, the former technical supervisor in the HPD crime lab. The statement from Ms. Lykos' office is an interesting exercise in the use of language. Ms. Culbertson is a technician, but the DPS personnel who conducted tests on the breath test machines are scientists.

However, prior to Ms. Culbertson's leaving the crime lab, prosecutors delighted in touting Ms. Culbertson's professional qualifications. She was the scientist in charge of maintaining the machines. According to the Texas Department of Public Safety, she was a forensic scientist. Before a breath test result could be entered into evidence, Ms. Culbertson had to testify that the machine was working properly and that it was reliable.

Now that she's raising concerns over the reliability of the testing program she is a mere technician. According  to the Collins English Dictionary, a technician is "a person employed in a laboratory... or scientific establishment to do practical work." In other words, a mere button pusher.

So, in recent weeks we've been told that HPD isn't trustworthy and that the person who maintains the breath test machines is doing "practical" work. Any more gems for us, Ms. Lykos?

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 cost of thinking outside the box

I'm no fan of Pat Lykos.

Her job is to infringe upon the rights of the citizenry as zealously as the courts will allow. She is part of the mechanism by which the state seeks to keep folks under its thumb.

But there are a couple of areas in which Ms. Lykos got it right.

Now, with apologies to my colleague, Murray Newman, I don't mind the chaos emanating from the 6th floor of the Criminal (In)justice Center. Chaos in the prosecutor's office is a good thing for the citizens of Harris County. So long as prosecutors are fighting with one another, with the District Attorney and with law enforcement, they aren't waging total war against our clients.

Ms. Lykos was right when she changed her office's policy on drug residue cases. Let's face it, the war on drugs has been a colossal failure (it makes Vietnam seem like a good idea). Even State District Judge Michael McSpadden acknowledges its failure.

"No one respects law enforcement more than I do, but they're wrong about this. I want them out there going after the career criminals, the sex offenders, the people who pose a real threat to our society, and not someone who has a residue amount of drugs." - State District Judge Michael McSpadden

There are far too many folks in the Harris County Jail on possession cases. There are far too many folks in the penitentiary on possession cases. Most of these people are addicts. Locking them up in jail does no one any good. The addicts aren't receiving the treatment they need and there's no room in the inn for those who really need to be put away.

No, local law enforcement doesn't like the policy. They want to go out and arrest everyone they possibly can, lock 'em up and forget about them. That's fine and dandy - but where are you going to put them? Maybe it's the fear that with fewer drug arrest, jobs and overtime might vanish. Maybe it's the fear that the public is fed up with the overcriminalization of American life and desires a bit of sanity.

Ms. Lykos also understands that the stigma associated with a DWI conviction is a little bit out of whack when compared to the consequences befalling those convicted of some violent crimes. DIVERT may have been a good concept but the execution is poor (not to mention illegal). The reason given by the DA's Office for DIVERT is so that folks arrested for driving while intoxicated can get treatment to help prevent them from doing it again. The reality is that Ms. Lykos thought that too many people were "getting off" with time served and a fine. What better way to force them into probation than to make the minimum sentence 30 days in jail?

Need I even mention that the judges who signed off on the program are violating their constitutional duty to consider the full range of punishment in a DWI case? But, then, most of those on the bench are part of the DA's "trial court" division.

Sometimes change comes from the most unexpected agents. Just as it took Nixon to open China, maybe it took Lykos to bring some sense to drug prosecutions.

Surprise! Surprise! Surprise!

What a shock. The day after the local police unions announce they will not endorse current Harris County DA Pat Lykos in the upcoming election, former judge Mike Anderson announces his entry in the race.

Let the games begin...

Judge punts show cause hearing

Today was the day and I was determined not to be denied. Assistant District Attorneys Carl Hobbs and Steve Morris were to appear in the 185th this morning for a show-cause hearing to determine whether they should be held in contempt of court for allegedly violating Judge Susan Brown's order that the Harris County District Attorney's Office be denied access to the grand jury investigating HPD's batmobile fiasco.

I dropped my youngest daughter at school in plenty of time to get downtown. But, when I walked into the Harris County Criminal (In)justice Center, the lines at the elevators were beyond ridiculous. I knew what had to be done. It was off to the stairwell.

For those of y'all not familiar with the courthouse, the 185th District Court is on the 17th floor. Yes, the 17th floor. And I was hoofing it up the stairs.

With every step my body reminded me of the 14 mile run on Sunday morning and the soccer game that afternoon. My body was not very happy. But there I was - on the 17th floor. It was around the corner and down the hall and into the courtroom. The place was packed.

The judge called the docket and we sat in anticipation of what was to come. She called up the attorneys representing Mr. Hobbs, Mr. Morris and the two court reporters. With a gaggle of attorneys wearing dark suits crowded around the bench, I could have sworn I was in the civil courthouse.

The attorney for the court reporters filed a motion to recuse Judge Brown. That seemed to halt the proceedings (at least for the time being). However, Mr. Hobbs' attorney, Bill Hawkins, made it known that his client was ready to proceed. I left the courtroom to take care of some other business.

I returned about 30 minutes later and saw the same cast of characters in the courtroom. But there was one new addition -- my colleague, and fellow blogger, Murray Newman. After his perfunctory insult of my choice of neck wear, we began to discuss what was going on. It seems that there were quite a few conferences at the bench with the defense attorneys and the judge -- the attorneys appointed to represent the state never bothered to approach.

Word went out that the fireworks would begin at 11am. This did not sit well with me since I had only paid for parking til 11am. Oh well, if a parking ticket was the cost of this exercise, it was probably worth it (so long as I don't have too many unpaid parking tickets, I suppose).

Shortly before 11am the defense attorneys once again approached the judge and, the longer the conversation went on, the more animated the judge became. Something was a-brewing and Judge Brown wasn't a happy camper. Neither, it did appear, was Mr. Hawkins. There appeared to be some dissension in the ranks.

Shortly after 11am, Judge Brown went on the record. Mr. Morris' attorney asked that the proceedings be public and not at the bench. Judge Brown then announced that, based on the motion to recuse filed by Mr. Morris' attorney, that she was recusing herself. Mr. Hawkins was not pleased.

So, what was accomplished this morning? Not a whole lot. A small forest was destroyed to make enough paper for all of the motions that were filed. The judge recused herself (Murray was right on the money with his prediction). An interesting subtext was disclosed.

Why would Mr. Hobbs' attorney want to proceed on the show cause hearing? Why not delay it for a few more days and take it up in front of another judge? Could it be that someone is ready to roll? From my dealings with Mr. Hobbs and from the accounts I have heard from other defense attorneys, Mr. Hobbs is a by-the-book guy. I find it hard to believe that he would go to the court reporters and ask for a transcript of the testimony after a judge told the DA's Office that it was not entitled to access to the grand jury. Did someone order Mr. Hobbs to obtain that transcript? Was he following orders?

Someone is going to take a fall for this. The only question is whom.

Harris County's runaway grand jury: a blawgosphere summary

On Monday morning, two high-level prosecutors in the Harris County District Attorney's Office will appear in the 185th Judicial District Court for a show cause hearing to determine whether they should be held in contempt of court for obtaining transcripts of grand jury testimony in the HPD Batmobile investigation.

Here are a few posts from around the blawgosphere regarding the collision between the runaway grand jury and the HCDAO so y'all can get a feel for what's been going down:

"My prediction for Monday: delay of game," Life at the Harris County Criminal Justice Center (Nov. 4, 2011)

"The BAT van show-cause order," Defending People (Nov. 2, 2011)

"It's the coverup that gets you: BAT van edition," Grits for Breakfast (Nov. 2, 2011)

"Judge calls top prosecutors on the carpet," The Defense Rests (Nov. 2, 2011)

"An interesting docket entry," Life at the Harris County Criminal Justice Center (Nov. 1, 2011)

"Live by the hatchet, die by the hatchet," Defending People (Nov. 1, 2011)

"The official investigation has begun," Life at the Harris County Criminal Justice Center (Oct. 27, 2011)

"Houston DWI 'BAT' vans - a timeline," Defending People (Oct. 27, 2011)

"What you say can be used..." Sustained (Oct. 27, 2011)

"The plot thickens," The Defense Rests (Oct. 26, 2011)

"A rat in a trap," The Defense Rests (Oct. 26, 2011)

"What's that: a "runaway" grand jury!," Criminal Jurisdiction (Oct. 25, 2011)

"Grand jury hysteria," Texas Criminal Defender (Oct. 24, 2011)

"Runaway jury," The Defense Rests (Oct. 24, 2011)

"Pat Lykos' star chamber rebels," Life at the Harris County Criminal Justice Center (Oct. 21, 2011)

Judge calls top prosecutors on the carpet

Oh, what tangled webs we weave...

As you already may know (if you read Murray Newman's blog), two top-ranking prosecutors and two court reporters have been called on the carpet by State District Judge Susan Brown to explain why she shouldn't hold them in contempt of court.

It would appear that transcripts of secret grand jury testimony found there way into the hands of Carl Hobbs and Steve Morris. Mr. Morris is the head of the grand jury division and Mr. Hobbs is, ironically enough, head of the government integrity bureau.

Left unsaid, interestingly enough, is how Judge Brown found out that the Harris County District Attorney's Office had obtained transcripts of grand jury testimony regarding HPD's batmobile fiasco.

Would it surprise anyone if Mr. Hobbs and Mr. Morris are sacrificed by Pat Lykos to the gods of public opinion in an attempt to hold on to her rapidly sinking ship? This is some serious shit Mr. Lykos has stepped in and there doesn't appear to be a tidy way to dispose of it.

13 Undercover first exposed maintenance problems with the BAT vans that could have led to bad test results. The DA now says the breath tests are sound. The grand jury is trying to figure out when did the DA First hear about the problems and did they speak up about it as the law requires.

But then there's the curve ball. According to this story from KTRK-13, the breath tests in question are suddenly valid again. But wait, you ask, wasn't it just last week that Ms. Lykos said she couldn't trust HPD when it came to breath tests conducted in the batmobiles?

What changed? Are we suddenly going to pretend that Amanda Culbertson made it all up? Has Ms. Lykos forgotten the e-mails outlining the problems with the batmobile program? Or is it just a case of her realizing that she opened her mouth without thinking in a desperate attempt to deflect blame for the situation?

Why do I get the impression that what's going to happen on the 6th floor at 1201 Franklin is going to resemble the closing scenes in Casino in which the the crime lords decided that Joe Pesci's character is just a little bit too dangerous to leave alive? Or maybe the sequence in Goodfellas when Robert DeNiro kills off everyone who participated in the airline heist? Or maybe...

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.

A rat in a trap

As my colleague Murray Newman reported earlier today, four prosecutors with the Harris County District Attorney's Office were subpoenaed to testify before a grand jury today. The grand jury is looking into HPD's Batmobile program.

Well, Pat Lykos is not taking this lying down. First she sent her minions to Judge Brown in the 185th and demanded she tell the grand jurors to let her prosecutors in the room. Judge Brown politely declined. Then she fired off a request to the 14th Court of Appeals to order the grand jurors to let her prosecutors in the room. Again the answer was no.

The topic du jour would appear to be when the DA's office found out there were problems with the Batmobiles and just how many folks were prosecuted using evidence that has since been found to be unreliable.  With that we're no longer just talking about Brady violations and the possibility of a lot of writs, we're also talking about ethics violations.

Prosecutors have a duty to see that justice is done. Prosecuting people with evidence you know is unreliable is not fulfilling one's ethical duties.

It also raises questions about the reliability of breath testing in general. If the police can't maintain their machines in the Batmobiles, what makes you think they're maintaining them at the police station? We know now that these machines are sensitive to temperature and humidity. What else causes them to go haywire? And since the machines run a self-diagnostic check, what guarantee is there that the machines are operating properly.

HAL ran a self-check and determined that he was functioning properly. We all know how well that went.

And then there's this gem...  

Lykos tells us she still doesn't know what went wrong inside that grand jury room last week that nearly led to the arrest of two of her top assistants, despite the fact one of them was in the room with us during the interview. What she does know is that she no longer wants HPD supervising its own DWI vans.

"That's what perturbs me," she said.

Lykos told us Monday she's done trusting HPD to tell her the truth about DWI testing.

"We were never informed there were questions about whether the tests were valid," Lykos said.

What's this? A public pronouncement that the chief prosecuting attorney in the county doesn't trust the biggest police department in the county to run its own breath testing program. If the DA won't trust HPD to be truthful about its breath testing program, why should a jury? If Ms. Lykos said she can't trust them, how can a prosecutor, in good faith, present evidence to a judge or jury regarding a breath test conducted under the auspices of HPD?

Now the only question remaining is whether Ms. Lykos will accept responsibility for what has transpired or whether she will seek out a scapegoat (or two) and leave them hanging in the wind for all the public to see. I know where I'm putting my money.



See also:

"Pat Lykos' star chamber rebels," Life at the Harris County Criminal Justice Center (Oct. 21, 2011)

"The voice of the people," Gamso - For the Defense (Oct. 24, 2011)

Out of the mouths of unethical prosecutors?

Rule 3.07 Trial Publicity

(a) In the course of representing a client, a lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicatory proceeding. A lawyer shall not counsel or assist another person to make such a statement.
(b) A lawyer ordinarily will violate paragraph (a), and the likelihood of a violation increases if the adjudication is ongoing or imminent, by making an extrajudicial statement of the type referred to in that paragraph when the statement refers to:
(1) the character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness; or the expected testimony of a party or witness;
(2) in a criminal case or proceeding that could result in incarceration, the possibility of a plea of guilty to the offense; the existence or contents of any confession, admission, or statement given by a defendant or suspect; or that person's refusal or failure to make a statement;
(3) the performance, refusal to perform, or results of any examination or test; the refusal or failure of a person to allow or submit to an examination or test; or the identity or nature of physical evidence expected to be presented;
(4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration; or
(5) information the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and would if disclosed create a substantial risk of prejudicing an impartial trial.

The Texas Disciplinary Rules of Professional Conduct refer to conduct engaged in by attorneys during the course of representing a client (whether that client be a criminal defendant or the State of Texas). We are forbidden from making statements that we know, or should know, may prejudice one of the parties in a lawsuit.

"The DEA conducted a brilliant investigation and has stopped a dirty doctor and his cohorts from continuing to profit from the wretchedness of addiction." -- Harris County District Attorney Pat Lykos

Ms. Lykos was referring to Dr. Gerald Ratinov who was charged with running an illegal "pill mill" that dispensed pain killers.

Ms. Lykos represents the State of Texas, the party who is prosecuting Dr. Ratinov. Ms. Lykos made an extrajudicial (outside the courtroom) statement that brought Dr. Ratinov's character and reputation into question. That would appear to be a violation of Rule 3.07(b)(1).

Ms. Lykos' statement implied that Dr. Ratinov was guilty. Considering that Dr. Ratinov is charged with a felony that could result in his incarceration, that would appear to be a violation of Rule 3.07(b)(4).

Ms. Lykos has been in office for over two years now, she should be aware of the ethics rules governing what she can and cannot say about a pending criminal case. Ms. Lykos should be held accountable for violating those rules. Someone should file an ethics complaint. But, will anyone step up to the plate?

Maybe someone could schedule a meeting with Ms. Lykos. They could sit down and discuss the matter - and maybe become best friends by the end of the day. Maybe she'd even say she was wrong and that she wouldn't do it again. A group of defense attorneys could argue about whether filing an ethics complaint would be piling on poor Ms. Lykos. Maybe her new best friend could bring her to a meeting while the group is deciding what to do. Maybe that group might decide to do nothing because they don't want to piss off Ms. Lykos or her supporters.

On second thought, there's no way anything like that could happen. Is there?

Confronting police brutality

Tuesday was the day to speak out against police brutality at the weekly meeting of the Houston city council. As I was scheduled to appear in court down on the island, I was unable to attend the meeting. My colleague, Robert Fickman, past president of the Harris County Criminal Lawyers Association, was on hand, however, and provides us with this guest post.

I attended today's City Council Meeting along with my officemate Vivian King. Altogether I am sorry to report that the meeting left me largely disappointed. However, my resolve to fight police brutality has never been stronger. 

First,  I had called upon our fellow members of the Harris County Criminal Lawyers Association to attend. I thought that some of our 500 plus members would want to join us in speaking out against police brutality. 

I was mistaken. Vivian and I were the only two members of the Defense Bar there.

 I have worked for a number of years to build HCCLA and  the voice of the defense bar. I am disappointed  that some of our leaders  think it's not our place to speak out against police  brutality.  Additionally, the membership's  apathy toward police brutality is also disappointing. Our clients are the victims of the brutality. HCCLA, in my opinion, is currently adrift, rudderless,  which makes me quite angry. 

There  was a large turnout at City Hall. Those, like myself, who came to speak out against police brutality were made to wait until more important topics like historic preservation and sewers were discussed. After an hour or so they finally got to us.  Reverends Dixon and Coffield were quite forceful in their presentations. Minister Muhammed was eloquent and warned that if the City did not take serious steps to end police brutality the community reaction would only get worse. Each of these men and others presented compelling arguments urging the city to take action. Quanell X was sick an unable to attend. His voice was missed. 

Unfortunately, with few exceptions mostly what we heard from Council was semi- patronizing lip service and statements about how they had done all they could do. Council Members Bradford and Jones seemed to be the only two on Council who were in touch with the community outrage. Curiously Councilwoman Wanda Adams spent much of the meeting, posturing  on her desk phone.

I spoke. I told the Mayor and Council that the Harris County District Attorney's Office were largely responsible for the problem. I pointed out that  except for rare occasion the District Attorney's Office had failed for three decades to prosecute police brutality. I urged the Mayor to contact the Attorney General of the United States and ask him to form a special task force to investigate and prosecute police brutality in Houston.

In response to my call for federal intervention,  City Attorney David Feldman pointed out that the City had already contacted the Justice Dept regarding the Holley case and  they were taking a wait and see position. I  think they  missed my point. I was not speaking about the Holley case. I was speaking about  all police brutality cases in Houston. Having pointed out the historic failings of the DA's Office on these cases, I was calling on the Mayor to call on the feds to form a task force to handle all police brutality cases in Houston. I pointed out that it took the power of the federal government to end segregation, and I believed it would take the power of the federal government to end police brutality. 

I intend to follow up with my own letters. HCCLA's leadership, members, and Council may choose to stick their collective heads in the dirt while our community suffers daily police abuse; I will not. I will not be silent on the issue of police brutality. We need strong deterrents and punishments to stop the abuse.  The longstanding history of murderous rogue cops needs to end on Our Watch. 

I don't know what the solution is. A civilian review board sounds nice - but in reality, do they really do any good? The boards tend to be made up of politically-connected folks who don't really want to go out on a limb. Even if you give the board subpoena power, what would you accomplish? Would the board be tasked with seeking out the truth - and forgoing criminal prosecution? Would the board's job be to uncover evidence and turn it over the the DA's office? Would members of the board have any idea what they were doing?

A "rogue" grand jury that was interested in investigating complaints of police brutality might be the best opportunity to bring these matters to light. Of course, since the Harris County DA's Office would then be in charge of any criminal prosecutions, it's very likely that nothing would change under that scenario. The DA's Office has shown its complete indifference toward police brutality over the years. The last thing that Ms. Lykos wants is for those sitting on jury panels to realize what happens to a person when they've pissed off a cop.

The more things change, the more they stay the same

I sat on a panel at a community meeting on police brutality on Tuesday night and listened as dozens of folks spoke of incidents in which they or their loved ones were the victims of police intimidation or brutality. One of the speakers was Janie Torres, the youngest sister of Jose Campos Torres, who was beaten by the police and then dumped into Buffalo Bayou in handcuffs back in 1977.

We heard from a young man who was working at a local grocery store late one night when the police made a traffic stop. He stopped to watch. Apparently the officer didn't appreciate someone watching him and he approached the young man -- who was wearing his work clothes. He told the young man he looked suspicious (he was sweeping around the gas pumps). He searched the young man's car - and even put a drug dog in the car - looking for anything he could use to arrest him. After trashing the car he escorted the young man inside the store and continued to harass him. The young man told the officer he had a concealed handgun license and when the officer asked for the gun, the young man pointed to his bag. The officer then took the gun and pressed it to his head before leaving.

We heard from a mother whose 52 year-old son suffered from a mental disorder. She called 911 while he was in the midst of a psychotic episode expecting a crisis intervention team to respond. The police came instead. Her son was tased 18 times before he was handcuffed and beaten. When it was all over, her son was dead. The officers had broken his neck while beating him.

Another woman told us of how her daughter, who also suffered from a mental disorder, was killed by the police as she walked down the street. Again, instead of a crisis intervention team, five patrol cars responded to the call. She was shot at close range. The official story? She had a gun. There was no gun.

We also heard from a mother whose son was involved in a car with HPD officers in 1998. When he was finally stopped, seven officers surrounded his truck and fired more than 50 rounds into the cab. She found out about the shooting while watching the news. When she asked the department what happened, no one would speak to her.

From Jose Campos Torres to Randall Webster to Ida Delaney - police brutality has been a way of life in this city for a very long time. The fact that Chad Holley was beaten by the police isn't new. The fact that there was  a video of the assault on this young man is.

The Harris County District Attorney's Office seems to think that all they can do is charge the officers involved with misdemeanor assaults. I would suggest that Ms. Lykos open up her copy of the penal code and look at Chapter 22:

AGGRAVATED ASSAULT. (a) A person commits an offense if the person commits assault as defined in Section 22.01 and the person:
(1) causes serious bodily injury to another, including the person's spouse; or
(2) uses or exhibits a deadly weapon during the commission of the assault.
(b) An offense under this section is a felony of the second degree, except that the offense is a felony of the first degree if the offense is committed:
(1) by a public servant acting under color of the servant's office or employment;
(2) against a person the actor knows is a public servant while the public servant is lawfully discharging an official duty, or in retaliation or on account of an exercise of official power or performance of an official duty as a public servant; or
(3) in retaliation against or on account of the service of another as a witness, prospective witness, informant, or person who has reported the occurrence of a crime.
(c) The actor is presumed to have known the person assaulted was a public servant if the person was wearing a distinctive uniform or badge indicating the person's employment as a public servant.

Mr. Holley suffered neurological damage to his face as a result of the beating. Mr. Holley was struck by a patrol car. The officers were armed. I'm curious to know if the officer who thought it was a good idea to kick Mr. Holley repeatedly was wearing steel-toed boots.

If the state wants to allege that a car is a deadly weapon in an intoxication manslaughter case, why isn't the patrol car considered a deadly weapon in this case? You can believe that if a citizen were accused of assaulting another and he was carrying a gun, he would be charged with aggravated assault -- whether or not he used the gun. But if an officer commits an assault while carrying a weapon the DA's Office just turns a blind eye, holds up their hands and claims they did all they could do.

The old saw is that the DA could indict a ham sandwich if he wanted. Since the state is the party presenting cases to the grand jury, the state decides how hard to push a case. If the DA wants a case to go away -- just present it to the grand jury and let them know the DA doesn't care if the case is indicted. Then, when the grand jury no-bills it, the DA can tell the public that she had nothing to do with the case being dismissed. Marc Brown, who presides over the 180th Judicial District Court, presented the Holley case to a grand jury. The officers were charged with misdemeanor assaults. This is the same Marc Brown who campaigned that he had integrity and was tough.

When this issue of police brutality is raised at a city council meeting, the mayor, Annise Parker, waves her hand and tells the council and the audience that a public meeting is not the correct forum to discuss police brutality. What then, Ms. Parker, is the correct forum? We all know it happens. Until we acknowledge that fact, nothing will be done to stop it.

As Robert Muhammad told the crowd "Police chiefs, mayors and district attorneys come and go, but the problem persists."

See also:

"Houston residents outraged over videos of police brutality," Reuters (Feb. 15, 2011)
"Town hall meeting on HPD violence draws hundreds," Houston Chronicle (Feb. 16, 2011)

Casting a light on the underbelly of the city

For months the Harris County District Attorney's Office fought to prevent the video of Chad Holley being beaten by members of the Houston Police Department from the public.

I'm a criminal defense attorney. It's my duty to defend the Constitution - regardless of how unpopular the cause might be. Some of my colleagues are defending the officers accused of beating Mr. Holley while he was down and defenseless.

One of my colleagues, Mr. Chris Tritico, wrote an opinion piece for the Houston Chronicle yesterday in which he argued against the release of the video. He argued that the video should have been kept under wraps until the officers stood trial for their alleged misdeeds.

I was as disturbed by the images on the Holley video as anyone. That is why Harris County District Attorney Pat Lykos got it right the first time. This video should have been seen for the first time in the courtroom. The court of public opinion is not the place to try these officers or anyone else.

Unfortunately Mr. Tritico aligned the interests of the Harris County Criminal Defense Lawyers Association (of which I am a boardmember) with that of the Harris County District Attorney's Office. Ms. Lykos did not "get it right" when she fought tooth and nail to prevent the public from seeing that video. Ms. Lykos wasn't concerned with whether or not the officers involved received a fair trial. That's never been the concern of the DA's office.

Ms. Lykos was scared of how the public would react to seeing what those of us in the courtroom know happens more often than anyone cares to admit. She was scared to death of how the public would react to the knowledge that those who are sworn to protect us and uphold the law are a lawless force unto themselves. She was scared that juries, having seen the video, would believe defendants who testified that they were beaten by the police. She was scared that juries wouldn't give the boys in blue the benefit of the doubt when questions arose regarding the legality of a search. She was scared juries wouldn't put their blind trust in the testimony of a police officer on the witness stand.

The release of this video, its airing and the rush to judgment by those who know better is a direct assault on the Bill of Rights. Lawyers on both sides of the docket have opined after the video was made public that these defendants will have a hard time getting a fair trial now. They are absolutely right.

The airing of the video is not an assault on the Bill of Rights. The video was obtained through the discovery process in a civil proceeding. A private citizen provided local television stations with copies of the video. The video ran on the evening news. There was no state action to deprive the officers of their right to a trial by a jury of their peers. There was no illegal search. The officers' right to remain silent was not violated.

A civil judge need not be concerned with the goings-on at the criminal courthouse. A criminal judge has no more authority than a civil judge.

The assault on the Bill of Rights is a daily battle fought at 1201 Franklin. The police, prosecutors and judges are all complicit in laying siege to our constitutional rights.

Our Constitution will be rendered a nullity the day that we take away any of the rights given to the people simply because we do not like what someone has been accused of doing. This includes the right to a public trial by an impartial jury and the fact that everyone accused of a crime is presumed innocent until proven guilty by that same impartial jury.

Our Constitution will also be rendered a nullity should we decide to ignore the First Amendment because the information may not be favorable to our position. Outside a protective order in the civil case, no agency of the state had any authority to prevent the video from being shown on the local news.

And, make no mistake about it, this is news. From a young age we are told the police are here to help and protect us. Most folks still believe that. Those of us who work in the trenches know the truth. We know that officers lie under oath. We know that officers plant evidence. We know that officers bend the truth in their offense reports. We know that officers beat and kill people. It's an ugly truth. It's a truth that I fight with when my daughters ask me about the police. If no one trusts the police society begins to break down.

I can assure Mr. Tritico that there will be twelve citizens who have no clue whatsoever what happened to Mr. Holley. There are plenty of people in this city who haven't the slightest idea what's going on outside their little bubble.

Lest anyone be confused, although I serve on the board of the HCCLA, in no way do I represent that I speak for the organization. I speak for myself.