Kissing Your Sister

This is not a post about incest.  It's not about sex at all.

Sorry.  No.

This is about the runaway grand jury in Houston. The one that instead of doing the prosecutor's bidding by investigating the folks who blew the whistle on the Houston PD's unreliable mobile breath testing vans (and screwing up DUI prosecutions) decided to investigate the prosecutors.

Well, they're done now.

And you'll be shocked to know that they didn't bring any charges.

As Paul Kennedy explains, that's really no surprise.  The investigation seemed to focus on whether Pat Lykos and her minions hid evidence about just how worthless the Batmobiles were from the defense in DUI cases.  But while a prosecutor who hides favorable evidence from the defense is violating the Constitution, the violation isn't a crime.  It's mostly not even an actionable tort.

But golly, the grand jury wasn't happy.

Brian Rogers in the Houston Chronicle.

A Harris County grand jury ended its session Tuesday, ending a months-long investigation into the district attorney's office and the Houston Police Department's DWI testing vehicles with a blistering report, but no indictments.

"There was no evidence of a crime," said grand jury foreman Trisha Pollard.

Pollard signed off on a one-page report blasting the DA's office for "unexpected resistance" and accusing the office of launching an investigation into the grand jurors, the special prosecutors and judges.

The grand jury also harshly criticized Rachel Palmer, a prosecutor who invoked her fifth amendment right to refuse to testify.

Ah, yes. Blast the office. Criticize harshly. Wag a finger.

Probably, in this case, that's all that's legally possible.  But still, it's unsatisfying.

Coitus interruptus. (Nope, still not about sex.)

* * * * *

I stood, one day, in the well of the court of appeals.  I had a substantive issue in the case, but that's not what the judges wanted to talk about and when you stand before the berobed ones who are asking questions about your case, well, you answer them.  You try to get back to your subject, but ultimately they're in charge, however much you insist on owning the stage, it's their theater.

Anyway, there I stood answering questions about an obviously improper practice of ex parte electioneering communication between judge and jurors.  Everyone knows the judges do it.  Everyone who thinks about it, knows they shouldn't.  And everyone knows that it makes no difference in the outcome of more than perhaps one trial every couple of decades.  If that much.

Because of an oddity in the record of my case, I was able to complain about it on appeal.  I couldn't show it hurt my client, but as a side issue, I figured it would give the court of appeals a chance to stop an impropriety.

But what can we do? the judges wondered.

We know it's wrong, and they should stop, but there's no harm to your client?

Do what you do all the time.  Explain that it's error but harmless.  At least they'll have been admonished, slapped down, told to knock it off.  It may not make them stop, but it might.

But we can't say it's error if it didn't prejudice your client.

What?  You do that all the time.  

But we can't do that.

Yes, of course you can, Your Honorably Confused Ones.

And the opinion came out.  And they never even addressed the damn thing.  And the practice continues unabated, a decade or more later.  And everyone who thinks about it still knows it's wrong.

Really, it probably wouldn't have changed anything if they said it was harmless error.

Judges and prosecutors tend to take that as vindication, not admonishment.  But still.

* * * * *

And the Civil Rights Division of the Department of Justice looked down upon Sheriff Joe after years of investigating and said

Golly, gee.  The old coot doesn't like Hispanics.

Dearie.  He should be nicer to them.

Bad boy, Joe.

Please clean up your act.

Pretty please.

And I mean, they actually could have sued instead of just issuing a report.  Even if there was a press conference, too.  As Scott Greenfield noted at the time,

If Crazy Joe could have paid for a report from the current administration that would establish, for all the time, his imperial hegemony, this would have been it. Merry Christmas, Joe. Love, Barack.

* * * * *

That runaway grand jury?  Here, courtesy of Murray Newman, is what they said.

To:  The Honorable Susan Brown, 185th State District Court
From:  Foreman, 185th Grand Jury, Harris County
DATE:  January 31, 2012
RE:  Our Grand Jury Service

The members of this Grand Jury are honored to have had the opportunity to serve as Grand Jurors for the August 2011 Term, extended to February 1, 2012 for the HPD Mobile B.A.T. Vans investigation.  The privilege to serve the outstanding citizens of Harris County by participating in the determination of probable cause in felony cases and in an investigation is a unique experience essential to the administration of the criminal justice system, and we actively encore other citizens to volunteer for Grand Jury service.

Our attempts to initiate our investigation were met with unexpected resistance from persons in the Harris County District Attorney's Office (HCDAO).  Nothing prepared us for the events that unfolded, some of which are documented in motions filed by the HCDAO and some are in the public domain.  In the days prior to the Court's ruling authorizing the attorneys pro ten to aid in our investigation, an investigator and other senior members of the HCDAO were observed in the hallway outside our Grand Jury meeting room;  we were unable to determine whether this was an effort to track the traffic of witnesses or for purposes of intimidating members of the Grand Jury.  One day while walking on a sidewalk returning from lunch break, some Grand Jury members were photographed by an unknown person in what appeared to be a government issued vehicle, again for an unknown purpose.  We discovered through our investigator that the HCDAO initiated investigations into members of the Grand Jury, the attorneys pro ten and past and present members of the Harris County Judiciary.

Our investigation was distracted by the Assistant District Attorney most responsible for the prosecution of DWI cases invoking her Fifth Amendment right against self-incrimination (publicly reported).  To be perfectly clear, we know the ADA had the right to invoke the Fifth Amendment, but we are deeply troubled that any prosecutor would fear prosecution from a Grand Jury investigation.  The stain upon the HCDAO will remain regardless of any media statements issued or press conferences performed by anyone.

The ultimate standard for prosecutors much be much more than mere obedience to the law; it must be conduct which constantly reaffirms one's fitness for the responsibility and continuously furthers the belief that a DAO exists to ensure an even-handed administration of justice.  Conduct which casts public discredit on the office of the HCDAO as well as on the administration of justice is unacceptable.  While we appreciate the fine line between ethics and the law, our investigation was unable to determine that any criminal conduct had occurred.  But it is clear that the work of this Grand Jury has already resulted in some positive changes in the enforcement of DWIs in Harris County, as the HPD B.A.T. vans are being phased out.  Again, we thank you for the privilege to serve our County.

And that probably really is all they could do.  And damned good for them to do that much.

But do they really believe what they said about the stain?  You know, this.

The stain upon the HCDAO will remain regardless of any media statements issued or press conferences performed by anyone.

Really? 

To those like Lykos, the failure to indict isn't merely grounds for a sigh of relief.  It's hard proof of virginal innocence and a conspiracy.  Brian Rogers again, different story.

At a news conference Tuesday, Lykos lashed out at the report and scolded the grand jury.

"This politically motivated investigation, I would submit to you, is an outrage," Lykos said. "It's an abuse of power and a corruption of the criminal justice system. For months our office has been hounded, and there have been a torrent of grand jury leaks."

And that stain?

"If there is a stain, it is on the people who demagogued this office," she said. "That stain is indelible and, like Lady Macbeth, they will never be able to wipe that spot out."

The truth is that if there's a stain, it rinses away without a trace.
Not Lady Macbeth's crime-induced madness.

Doctor

What is it she does now? Look, how she rubs her hands.

Gentlewoman

It is an accustomed action with her, to seem thus
washing her hands: I have known her continue in
this a quarter of an hour.

LADY MACBETH

Yet here's a spot.

Doctor

Hark! she speaks: I will set down what comes from
her, to satisfy my remembrance the more strongly.

LADY MACBETH

Out, damned spot! out, I say!--One: two: why,
then, 'tis time to do't.--Hell is murky!--Fie, my
lord, fie! a soldier, and afeard? What need we
fear who knows it, when none can call our power to
account?--Yet who would have thought the old man
to have had so much blood in him.

Doctor

Do you mark that?

LADY MACBETH

The thane of Fife had a wife: where is she now?--
What, will these hands ne'er be clean?--No more o'
that, my lord, no more o' that: you mar all with
this starting.

Doctor

Go to, go to; you have known what you should not.

Gentlewoman

She has spoke what she should not, I am sure of
that: heaven knows what she has known.

LADY MACBETH

Here's the smell of the blood still: all the
perfumes of Arabia will not sweeten this little
hand. Oh, oh, oh!

Doctor

What a sigh is there! The heart is sorely charged.

Gentlewoman

I would not have such a heart in my bosom for the
dignity of the whole body.

Doctor

Well, well, well,--

Gentlewoman

Pray God it be, sir.

Doctor

This disease is beyond my practise: yet I have known
those which have walked in their sleep who have died
holily in their beds.

LADY MACBETH

Wash your hands, put on your nightgown; look not so
pale.--I tell you yet again, Banquo's buried; he
cannot come out on's grave.

But Macbeth's exhausted fatalism.

To-morrow, and to-morrow, and to-morrow,
Creeps in this petty pace from day to day
To the last syllable of recorded time,
And all our yesterdays have lighted fools
The way to dusty death. Out, out, brief candle!
Life's but a walking shadow, a poor player
That struts and frets his hour upon the stage
And then is heard no more: it is a tale
Told by an idiot, full of sound and fury,
Signifying nothing.