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.

Fear Itself

As the Chronicle's Lisa Falkenberg observed in her column, "If Lykos and her prosecutors have done nothing wrong, there's no reason why a runaway grand jury should have them running scared."

That's from near the end of an editorial in yesterday's Houston Chronicle about the runaway grand jury in Harris County that's busy investigating the local DA's office.  I've kept in the link to Lisa Falkenberg because it doesn't actually link to the column the Chronicle's editorial board is quoting.  In fact, as best I can tell, the Chronicle's quote isn't a quote at all.  What Falkenberg wrote, in what I think must be the column to which they refer, is this.

If she trusts this grand jury to judge the facts in other cases, why not trust them to judge her, and HPD?
Or perhaps there's a reason this runaway jury has Lykos and her prosecutors running scared.

Which is much the same theme, but not the same words (or at least not all of them, and not in the same order) as the ones the editorial board put in quotes.

Despite appearances in the early going, this isn't really going to be a post about language or sloppy reportage or messy copy editing/cite checking or even why it is that if you can't trust the newspaper to quote itself accurately you might plausibly wonder why you should trust anything else it puts out.  (Mark Bennett made a similar point about Pat Lykos's office a few days ago, but that's not my point, either.)  No, this is a post about trust and fear and grand juries and prosecutors and why Lisa Falkenberg (and the Chronicle editorial, for that matter) are naively wrong.  And so was the second President Roosevelt.

You know, the one who said

We have nothing to fear but fear itself.

Because, in fact, there's a whole lot to fear.  And I'm not talking about terrorists or nuclear proliferation or overpopulation or an economic meltdown or the lack of health insurance or the drunk driver in the next lane on the interstate.  I'm talking about fear of cops and prosecutors and grand juries (and courts and all legal process, for that matter) even if you've done nothing wrong.

Because they're ready to bite you on the ass.

Just ask some of the factually innocent folks who've been convicted of crimes.  (Forget legal exoneration here.  I'm talking about the people who didn't do it - even sometimes when the "it" they didn't do didn't happen.)  The ones who were once on death row or just serving long terms in prison.  The ones who pay the traffic ticket they didn't deserve because it's easier and cheaper than finding a lawyer and fighting it.  The ones who entered a plea in exchange for time served regardless of guilt because they couldn't afford bond and needed to get out of jail.  The ones who got fucked by bad lawyers or dishonest prosecutors or cops or just by really bad luck.

And then there are the ones who got caught up in what nobody could have expected to be a crime but damned if some overzealous prosecutor didn't find a way.  (See Harvey Silverglate's Three Felonies a Day: How the Feds Target the Innocent, which isn't as good as it should be and doesn't make the point quite as clearly as the title suggests but certainly points to the problem.)

Yes, you can be charged with crimes, even convicted of them, if you're innocent.  Hell you can be shot by the cops (and no, those aren't the only examples) just because. 

And yet we maintain this fantasy that somehow, someway, innocence is enough.  It isn't.  Not even close.

It's not enough to prevent criminal charges.  It's not enough to prevent criminal convictions.  It's not enough to prevent time in prison.  It's not enough to prevent executions (just ask Cameron Todd Willingham).  And, sadly, it's not enough to prevent being shot and killed by a rogue cop.

And even when it is, it's not enough to prevent ruined lives.

And yet there's this myth embraced by Ms. Falkenberg and by the Chronicle.  If you have nothing to hide, you're secure.  There's nothing to fear but fear itself.

And so:

• Of course I'll come down to the station and answer your questions.  I have nothing to hide.
• Of course you can search my car.  I have nothing to hide.
• Of course I don't need a lawyer.  I have nothing to hide.

Which as any half-smart criminal defense lawyer can tell you is simply (and I'm putting this in boldface for a reason) wrong.

It may be true that you have really have nothing to hide.  

It's still not true that you should go to the station (or sit at your kitchen table, for that matter) and answer questions.  It's still not true that you should consent to the search of your car.  It's still not true that you don't need a lawyer.

What's true is that once they start looking at you, you're in trouble.  Maybe you get out of it unscathed.  Maybe not.

And the "not" happens more often than we like to think.

Let me put this as simply as possible.

You don't trust the government to do much of anything right, but you trust it not to pursue criminal charges against innocent people?  You're living in a fool's paradise.

I don't know whether Pat Lykos and her office have violated any laws.  I don't know whether the grand jury in Harris County will end up bringing indictments against anyone.  I do know that to say she and her minions have no reason to be scared if they didn't do anything wrong is to be grossly naive.

Lykos and her minions know that, of course.  The Chronicle should know it, too.  So should you.

A Declaration of Independence?

Sometimes the updates come almost faster than you can type them.

My subject is the Harris County Grand Jury and its investigation of the Houston Police Department batmobiles and of, it seems, the Harris County District Attorney.  Monday I wrote this laying out the basic plot and admiring the fact that the grand jury was standing up and doing its job.  A couple of hours ago, I posted this, considering that oak trees grow from acorns (not the metaphor I used and I found a much better youtube clip than one of a tree growing, but it's serviceable here).

Now, with a nod and a tip of the hat to the vigilant Paul Kennedy.

It's confirmed.  The grand jury in Houston is in fact investigating possible criminal conduct in the office of the Harris County District Attorney.  That's not exactly manning the barricades, but it's not being the silent majority, either.  It's not what grand juries do in this carefully choreographed system.

The Harris County Grand Jury asked today to extend their term beyond its scheduled expiration date at the beginning of November.  And they asked Judge Susan Brown of the 185th District Court, the judge who empaneled them, to appoint a special prosecutor to assist them.  In fact, she appointed two.  (I gather that she hasn't yet ruled on the grand jury's request to extend their term.)

Here's Anita Hassan at the Houston Chronicle.

Brown's order was the first official sign that the grand jury was setting its sights on the DA'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 of possible criminal conduct by members of the Harris County District Attorney's Office," Brown wrote.
The grand jurors did not divulge details of possible misconduct by prosecutors, Brown's order said.

If someone has a copy of the judge's order, and wants to send it to me, I'll be happy to post it.

Runaway grand juries don't get that way by chance. I don't know where this will wind up.  What I do know is that when the people start to take back their government, it can be hard to stop them.

The Tea Party knows that.  The Occupy Everywhere folks know that.  And maybe they know it in the Harris County Grand Jury.

Rockslide?

Sometime around January 25, a bunch of folks gathered in Tahrir Square in Cairo.  Sometime after that, Hosni Mubarak gave up the presidency to be hauled away (at least metaphorically) in chains.

Sometime around September 17 a bunch of folks began to set up an encampment in Zuccotti Park.  Occupy Wall Street, they said.  Sometime after that, from city to city, from nation to nation, people were occupying.

Sometime around last week, a grand jury in Houston kicked out the prosecutors, threatened to have them arrested when they wouldn't leave.  Sometime after that (as in within hours and then maybe a day), the courts backed them up.

I haven't written about Zuccotti Park, though it was quite something the day I was there.  I haven't written about Egypt, either.  But I wrote about the lawyers who gathered in Phoenix.  (Look it up.)  And I wrote about that feisty grand jury in Houston (here).  And I quoted Paul Kennedy .

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. 

Sometimes, not always, but sometimes, what "stands to reason" actually appears to be so.  This is one of those times.  From the Houston Chronicle via Kennedy.

A Harris County grand jury investigating how the Houston Police Department and the Harris County District Attorney handled potentially bad DWI evidence subpoenaed four Assistant District Attorneys as part of its ongoing investigation, KTRK-TV (Channel 13) is reporting:

The four are all prosecutors who handled DWI cases since the BAT vans were used.
The grand jury proceedings are secret, but our legal analyst Joel Androphy says it is clear to him grand jurors are trying to figure out when the DA’s Office knew about BAT van maintenance issues and what they did with the information.

When did Pat Lykos know and what did she do about it?  Yeah, those are the smoking guns questions.  Was her office consciously prosecuting people when they knew the evidence was tainted or were they doing it unconsciously?  Were they actively hiding exculpatory evidence or simply refusing to see it?  (Either way, they violated the Constitution, I should add.)   How much is malice and how much is incompetence?

And who's going to get shafted?

She says she no longer trust the Houston PD to tell the truth about DUI tests.  Mark Bennett asked

[t]he obvious followup question: well, Ms. Lykos, if you don’t trust HPD to tell you the truth about DWI testing, why do you trust HPD to tell you the truth about anything?

Maybe that's really what the grand jury wants to know.  And if it's not what they're after now, maybe it will be as their investigation continues.

Because once you start that pebble rolling downhill . . . .  Oh, sure.  Sometimes it stops.  It bumps into a little rock and that's the end.

But sometimes

And then you can get the Rule of Law.

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.