The Voice of the People

The idea was that the grand jury was a group of independent citizens who would investigate and decide whether there was enough evidence (probable cause) to charge someone with a crime.  That's an oversimplification, of course, but it gets at the general idea.  The grand jury was designed to protect people from overzealous prosecution.  And, not incidentally, because it had the power to subpoena and question witnesses, the grand jury was able to investigate and root out government corruption and misconduct.

That was then.  Before prosecutors began running grand juries.

Nowadays, as Sol Wachtler is credited with saying, a competent prosecutor could get a grand jury to indict a ham sandwich.  When a grand jury refuses to return an indictment, it's mostly because the prosecutor made sure that they wouldn't have the evidence or wouldn't take it seriously. Because the details of what happens in a grand jury are generally secret, the prosecutor who doesn't want to pursue a case but knows the community wants him to can announce that he's bringing it before the grand jury but ensure that his crony the accused will never actually face charges.

The point, and so far I haven't really made one, is that the function of the grand jury today is simply not what it was.  Rather than protecting the people from the government, today's grand jury has become a weapon that the government uses against the people.

Except sometimes.

Come with me now to the Lone Star State.  Specifically Harris County (which is Houston) where someone (and quite clearly not a representative of District Attorney Pat Lykos's office) seems to have told a grand jury that it's not just the prosecutor's tool.

Here, and I'm going to try to make this short and simple, is the backstory. 

In 2008, in an effort to increase drunk driving arrests keep the roads safer, the Houston PD acquired a set of vans equipped with breath testing gear.  They have the clumsy moniker "Breath-alcohol testing vehicles.  Naturally, that's commonly reduced to the acronym BAT.  Paul Kennedy calls them Batmobiles.  (And I was going to keep this short and simple?)

So there are these Batmobiles (Kennedy just stole my distinction between the Rule of Law and the Law or Rule, so I'm taking his term) and to the surprise of nobody except the cops and the DA's office it turns out that their breath testing technology is wholly unreliable.  Naturally, the cops and the DA's office tried to bury that fact.  But damned if Amanda Culbertson didn't have a bout of integrity.  Anita Hassan, writing in the Houston Chronicle, explains.

Beginning last fall, then-HPD crime lab supervisorAmanda Culbertson and two other lab supervisors at the time informed HPD officials on several occasions that they found electrical and maintenance problems with the breath-alcohol testing vehicles, also known as BAT vans, causing the testing instruments to overheat. Culbertson and the emails state that despite many notifications to HPD officials, the problems with vehicles persisted.

. . .

In recent months at least two defense attorneys say evidence in DWI cases they are handling could have been compromised because of problems with the BAT vans. Another defense attorney estimates his firm has about 20 cases that could be affected.

The crime lab supervisors told HPD superiors that problems with the BAT vans needed to be corrected to maintain the scientific integrity of the breath-testing instruments.

Culbertson also said she received push back from HPD officials when she tried to reprimand breath test operators for not properly maintaining the vehicles and received little support from her own supervisor, HPD crime lab director Irma Rios.

"There were problems with those vans, and they (HPD) weren't fixing the vans," Culbertson told the Chronicle. She testified during a court hearing in July that she quit her job because she no longer felt she could trust the accuracy of test results from BAT vans.

So, Culbertson blew the whistle internally, and then told the truth on the witness stand. She left HPD and went to work supervising breath testing at a county lab, going public about the whole thing.

And then things got first ugly, then interesting.  From Life at the Harris County Criminal Justice Center:

Lykos is having her prosecutors present a case to the Grand Jury involving the B.A.T. vans and Amanda Culbertson. That Grand Jury was created by the 185th District Court, Judge Susan Brown presiding. Grand Jury proceedings are secret, so we don't know what exactly has been presented to the Grand Jury so far.

But on October 18th, the Harris County District Attorney's Office vendetta against Amanda Culbertson blew up in their face.

On that day, prosecutors Carl Hobbs, Steve Morris (from Governmental Integrity), and John Barnhill all marched down to the 185th Grand Jury with the intent of calling defense attorney (and former-prosecutor) Brent Mayr as a witness before the grand jurors. Brent Mayr, if you will recall from my earlier post, is the attorney who filed a Writ against the D.A.'s Office for withholding evidence of B.A.T. van reliability issues.

Upon arrival at the Grand Jury, however, Hobbs, Morris, and Barnhill were suddenly informed by the Grand Jury bailiffs that the Grand Jurors wanted them (the prosecutors) excluded from the room while Mayr was testifying.

"But . . . but . . . but . . . but," you can imagine the prosecutors sputtering.

But we own the grand jury.  They're ours. They can't make us leave.

Except they did.  Threatening the trio with arrest if they tried to stay.

Why would the grand jury do that?  Really, there can only be one reason.  They wanted to know why the DA's office was going after Culbertson for having the gall to tell the truth on the witness stand.
And they wanted Brent Mayr to feel free to answer their questions without concern about what the DA's minions might overhear, without intimidation.

Kennedy explains.

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.

Which make this what's known (really) as a "runaway jury."

If only it had stopped there.

But now came DA Lykos, in her commitment to ensuring a fair grand jury investigation (i.e., one her office controls).  The prosecutors asked Susan Brown, judge of the 185th District Court, the judge who empaneled that grand jury, to order them to let them back in.  Nope.

And so they went to the court of appeals.

Which told them to pound sand.

Lykos Mandamus

Now, honestly, the odds that the grand jury is actually going to try indicting Lykos or anyone from her office or anyone from HPD are very slim.  But right now that's almost an irrelevance.

What the grand jury has done is to justify its existence.  It's acknowledged a right to speak truth to power, to stand up for the people against the government.

I'm not sure whether they're Tea Bagging or Occupying the Justice Center (or a little of both), but they're standing up.  Doing what they were designed to do.

It's something to behold.

And maybe, just maybe, the powers will take note.