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Following up on yesterday’s post (Grand Jury Investigates Breath Test Accuracy – Throws D.A. Out), here are the latest fascinating developments in a Houston grand jury’s investigation into cover-ups by police and prosecutors of defective breath-alcohol machines.  

Keep in mind what we’re talking about here: this is the District Attorney’s office –charged with finding truth and achieving justice — trying to ensure convictions of possibly innocent citizens by hiding that truth from the public.  And this is a grand jury – normally used as a tool by the D.A. — turning on their masters and throwing prosecutors out of the hearings.

Four Harris County Assistant DAs Subpoenaed in BAT Van Investigation


Houston, Oct. 25 - There are new developments in our investigation into how the Houston Police Department and the Harris County District Attorney’s Office handled complaints about unreliable DWI testing. It’s a story we’ve been following for months and now more evidence that a secret grand jury is also trying to get to the bottom of just who knew what and when.

Four Assistant District Attorneys Tuesday were ordered to testify to the grand jury and, to make it worse for the DA, a special independent prosecutor is about to be named.

The ADAs all tried DWI cases and likely know if supervisors downplayed faulty DWI tests. The grand jury is still meeting in secret, but it’s becoming clear they are zeroing in on a possible cover-up within HPD or the DA’s Office.

What is happening inside a Harris Co. Grand Jury room this month cuts right at the heart of how the DA prosecutes cases.

"This could be catastrophic. Anyone who’s been arrested involving these mobile vans could have their cases overturned," said KTRK Legal Analyst Joel Androphy.

With four ADAs and a current judge called to testify, it’s clear the grand jurors want to know what prosecutors knew about potentially bad DWI evidence, when they knew it and what their bosses told them to do about it.

"It’s not OK to cover up unreliable evidence; period," said Tyler Flood, a DWI defense attorney.

On Monday, Harris Co. District Attorney Patricia Lykos told Eyewitness News she never knew about the problems with the BAT vans until they came out in open court in July.

"The Houston Police Department Crime Lab has never notified us of any questions or any issues with respect to the BAT vans, and that includes as of today," Lykos said.

And that’s true if you listen very carefully. Officers from the crime lab never came to her office. But other police officers spoke up months earlier. She didn’t tell us about that.

In court testimony, one police officer testified he knew of issues a year before and told prosecutors about them more than once without questioning the admissibility of the evidence.

The lawyer for the whistle blower in the case says the DA isn’t telling the whole story.

"She should’ve kept her mouth shut," said attorney Chip Lewis.

But Lewis says the DA isn’t the only one who should be concerned; he’s convinced this grand jury will want answers from HPD as well.

"It’s clear to me that HPD broke the law. Whether it’s a civil law by retaliating on Amanda Culbertson or the criminal law of official oppression, I will let the grand jury make that determination," Lewis said.

With the addition of a special independent prosecutor, that grand jury investigation just got a lot more serious.

"You start with people who were the messengers, then work up to the supervisors and work your way up to determine if there was a cover-up," Androphy said.

Amidst all the claims of cover-up, none of it’s been proven and the DA continues to insist they did nothing wrong.

The special prosecutor has not been named, but once that person is on the job they will help the grand jury figure out if a crime has been committed.

Here’s a look at a timeline in the BAT van investigation:

     Our 13 Undercover investigations exposed maintenance problems with the BAT vans back in March.

     Emails we uncovered about the Breathalyzer accuracy prompted attorneys to challenge DWI cases connected to the vans.A hearing was held in July where

     Culbertson openly testified about the lack of response to the BAT van issues.

     In October, Harris County commissioners terminated a contract with Culbertson’s current employer to provide DWI testing in the county.

     Last Friday, Eyewitness News first reported that the grand jury appeared to be investigating how the DA’s Office and HPD handled reports of the BAT van                  problems.

     Today, we confirmed four prosecutors have been subpoenaed in that investigation.
 

And yesterday:

Prosecutors Named in BAT Van Case


Houston, Oct. 26 – State District Judge Susan Brown on Wednesday named attorneys Stephen C. St. Martin and James Mount as temporary prosecutors to assist a grand jury apparently investigating the Houston Police Department’s troubled mobile alcohol testing program.

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.

Brown did not immediately rule on the grand jury’s request that its term, scheduled to end in late November, be extended.

The grand jury gained attention last week when it excluded prosecutors from listening to witnesses testifying in secret proceedings. On Tuesday the grand jury heard testimony from prosecutors under subpoena, providing further evidence that the panel is examining the role the DA’s office has played in cases involving breath alcohol testing vehicles known as BAT vans.

Stay tuned…. 

DUI BLOG

The latest in the continuing saga of the Houston grand jury’s probe of the D.A.’s cover-up of defective Breathalyzers…

Prosecutors, Court Reporters Face Contempt Charges in Grand Jury Probe

Houston, TX.  Nov. 1 – Two Harris County prosecutors are facing contempt charges after a judge learned members of the DA’s office were given information that may contain official transcripts from secret proceedings of a grand jury that is investigating the district attorney’s office, court records show.

Assistant district attorneys Carl Hobbs and Steve Morris, along with court reporters Javier Leal and Katherine Chagaris, have been summoned to appear before Judge Susan Brown’s court at 9 a.m. Monday.

According to a motion requiring the four to attend the hearing, the prosecutors and court reporters must show why they should not be held in contempt and sanctioned by the court for violating orders issued by Brown.

"It is now come to this court’s attention that members of the Harris County District Attorney’s Office may be in possession of official transcripts of testimony from witnesses who appeared before the grand jury," according to a motion issued by Brown and obtained by the Houston Chronicle Tuesday.

Hobbs and Morris, both senior prosecutors with the DA’s office, are two of three prosecutors who were excluded on Oct. 18 from listening to witness testimony by the grand jury, which also appears to be investigating the Houston Police Department troubled mobile breath alcohol testing vans. That day, when defense attorney Brent Mayr, a critic of the vans, was called to testify, the grand jury ejected the two along with the general counsel for the DA’s office, John Barnhill, and threatened to have the bailiff arrest them if they did not leave, according to court records.

Brown revealed last Wednesday that a Harris County grand jury is investigating possible criminal conduct by the district attorney’s office and disqualified the office from participating in the ongoing investigation into the testing vans.

The judge made the disclosure in an order granting the grand jury’s request for a temporary special prosecutor. She appointed attorneys Stephen C. St. Martin and James Mount to assist the panel. Both are former veteran assistant district attorneys.

Grand jury proceedings are secret, but suspicions by defense attorneys involved in the case and court records have indicated that the panel’s investigation centered on issues surrounding the breath alcohol-testing vehicles – known as BAT vans – and possibly the DA’s office’s involvement.

If the prosecutors or court reporters are found guilty of the misdemeanor contempt charges they could face up to a 0 fine and up to six months in jail.

"Possible criminal conduct by the district attorney’s office"?  If only some prosecutors worked as hard at finding the truth as they do at hiding it… 

(Thanks to Ari Weiner.)
 

DUI BLOG

My past two posts have dealt with the Houston grand jury investigating cover-ups of breathalyzer problems by the District Attorney’s office.  In related developments in this fascinating saga, a defense attorney representing a client charged with drunk driving has subpoenaed the District Attorney for the trial:

Harris County District Attorney Called to Testify in DWI Trial  

Houston, TX.  Oct. 28 – A day after the revelation that her office is the target of a grand jury investigation, District Attorney Pat Lykos was called to testify Thursday in an ongoing DWI trial because she made public comments regarding the accuracy of results from the Houston Police Department’s troubled mobile breath-testing vehicles.

"The reliability of the BAT [breath alcohol testing] vans has come into serious question by the chief prosecutor of Harris County herself," declared Jackie Carpenter, a defense attorney in the DWI trial. "If they’re so unreliable, then why are you prosecuting someone with evidence you deem unreliable?"

Reversing an earlier decision to compel Lykos to testify, County Court at Law judge John Clinton ruled Thursday that the top prosecutor’s opinions on the breath-alcohol testing vehicles – known as BAT vans – are relevant in the DWI trial.

An assistant district attorney, one of more than 240 under Lykos’ authority, is handling the misdemeanor case. If Lykos appears, she could be cross-examined by one of her own prosecutors.

The testimony could affect dozens of past and future DWI cases that relied on evidence handled by the testing equipment in the vans.

Even more serious is the possibility that Lykos and other prosecutors had doubts about the tests’ accuracy while prosecuting past DWI cases but did not alert defense attorneys…
 

Fascinating stuff.  The public is finally getting a look behind the so-called "state of the art" magical machines used to convict citizens.  The readings from these machines have been deemed so reliable that, by law, they are deemed sufficient "proof beyond a reasonable doubt" to convict.  As I’ve been saying for years, however, these machines are little more than "pseudo-science".  See, for example, How Breathalyzers Work (and Why They Don’t), Why Breathalyzers Don’t Measure Alcohol and Report: Breathalyzers Outdated, Unstable, Unreliable.
 

DUI BLOG