Gitting tuffer on plea deals boosting McLennan County Jail costs

The changing of the guard at the McLennan DA's Office (Waco) in 2010 appears to have resulted in an overcrowded, over-budget county jail as the new District Attorney rejects more plea deals, forcing defendants to wait in jail longer, judging from a Waco Tribune Herald report this week ("McLennan County Sheriff out of money for prisoner overflow," March 21, behind paywall). The Sheriff has requested emergency funds for the jail, blaming "the rapid spending on an unexpected and prolonged increase in the county’s jail population." Reported the Trib:

[Sheriff's Captain Paul] Wash said when the sheriff’s office prepared its current budget last spring, the county on average was housing 30 to 40 inmates each day at Harwell.

But by the time the commissioners court approved the budget in August, the inmate population at the county jail started climbing. In the fall months, the sheriff’s office sent an average of 175 to 200 inmates to Harwell [a privately run facility where the county must pay by the head].

The county had 130 inmates at Harwell as of midnight Monday. Plemons said the county jail had only 28 vacant inmate beds.

The Sheriff's office couldn't give a definitive cause, citing classification issues (male/female, violent, non-violent) sometimes creating inefficient allocations. But Wash said the main problem is quantitatively more inmates housed at the jail, stemming either from "an increase in arrests made by law enforcement agencies throughout the county, or [else] fewer inmates are being offered or accepting plea deals, thus staying in jail longer while awaiting trial," the paper reported.

The data isn't available yet (to me, anyway) to tell for sure, but Grits believes DA decision making and policy changes are the more likely cause of extra inmates than increased arrests. After all, crime statewide has been declining and Waco is among the cities that saw a massive drop in traffic enforcement by local police in 2011, with municipal courts processing just under 14,000 traffic cases in 2011 compared to 19,582 in 2010. That's more than a 28% drop. Since so many arrests on other charges originate at traffic stops, it seems unlikely there were significantly more arrests in McLennan County in 2011 with traffic tickets down that much and overall crime trending downward. Indeed, just last year the same reporter was lamenting declining inmate numbers at the jail and exploring the cause of lower crime rates to explain them.

Instead, it's far more likely changes in plea bargaining stances by rookie DA Abel Reyna account for the biggest difference. There was a report just last month about  the DA's office implementing a strict policy on DWIs that caused Reyna's former law partner Damon Reed to predict rising costs for the county:

Reed said the result of the new policy is not justice and only will force defendants to plead “open to the court” seeking a better deal with a judge. In “open” pleas, offenders plead guilty and ask judges to set punishments without the benefit of plea agreements.

The other option is to go to trial, further clogging court dockets and costing taxpayers more to operate the judicial system, Reed said.

“Abel is clearly doing all this for political purposes,” Reed said. “I don’t understand why he has a budget for so many assistant prosecutors when they are not allowed to do their jobs. I’ll buy him a rubber stamp and he can lay a half-dozen prosecutors off and save the county a whole lot of money.

Now we see it's not just court dockets clogged as a result of this and similar plea-bargain policies but also the county jail. If the DA is negotiating fewer plea deals with DWI (and presumably other classes of) defendants, no wonder the jail population is rising! Moreover, the timing of Waco's jail population rise coincides roughly with the new DA's changes in plea bargaining policies.

In fact, the McLennan DA's example is almost a case study of tuff-on-crime policies equating directly to getting tuff on the taxpayers, with little identifiable public safety benefit. Jails and criminal justice generally are behemoths in county budgets, and small policy changes can have big budget consequences. Whether county commissioners, reporters or for that matter McLennan County voters make the connection is another matter. But those who want to avoid county tax hikes should dislike Reyna's new plea policies based on budget considerations unless a stronger case can be made that increased pretrial detention boosts public safety. In most instances, certainly on routine DWIs, the cost-benefit analysis just isn't there to support it.

McLennan DA implements 'one size fits all' DWI deals, but a deal takes two

In Waco, McLennan County DA and John-Bradley wannabe Abel Reyna has implemented a new policy for first-time DWI defendants that "prohibits DA assistants from negotiating plea deals and sets probationers up for failure with higher fines and related fees," according to a story forwarded to me by a reader by Tommy Witherspoon at the Waco Tribune Herald ("DA's DWI policy under fire from area attorneys," Feb. 19, behind paywall).

Remarkably, "The policy is so unpopular that attorney Damon Reed, Reyna’s former law partner, asked a judge last week to order the district attorney’s office into mediation with Reed’s 23-year-old DWI client because of Reed’s perception that the district attorney’s office won’t negotiate or treat defendants fairly." A judge denied the motion, but attorney Damon Reed, who is Reyna's former law partner, criticized new DA's approach as a "one size fits all" policy. Reported the Trib:

Reed said the result of the new policy is not justice and only will force defendants to plead “open to the court” seeking a better deal with a judge. In “open” pleas, offenders plead guilty and ask judges to set punishments without the benefit of plea agreements.

The other option is to go to trial, further clogging court dockets and costing taxpayers more to operate the judicial system, Reed said.

“Abel is clearly doing all this for political purposes,” Reed said. “I don’t understand why he has a budget for so many assistant prosecutors when they are not allowed to do their jobs. I’ll buy him a rubber stamp and he can lay a half-dozen prosecutors off and save the county a whole lot of money.

“The point of it is so the district attorney can look like he is tough on crime and the judges will artificially appear that they are being soft on criminals if they take into consideration any of the circumstances of the individual in shaping justice for that individual.”

Reyna said he has set a standard offer of 15 months probation and $1,000 fines for those charged with their first DWI. Offers are higher if there are aggravating factors, such as an unusually high breath or blood-alcohol test, causing a wreck or being belligerent to the arresting officer.

The maximum penalty for a first-time DWI is two years in jail and a $2,000 fine.

Regular readers know, of course, those only include the criminal penalties. There is also a civil surcharge, which for DWI defendants can be quite high and have caused a decline in the DWI conviction rate statewide.

The issue is, at what point do penalties become so severe that defendants would prefer to just sit out their sentence in the county jail than agree to probation, which is what happened in Harris County when the previous DA, Chuck Rosenthal, tried to turn up the screws. And as attorneys in the story pointed out, a big part of the problem is expensive DWI "surcharges," as well as probation fees, costs for treatment, urinalysis, any required classes, etc.:

Reed and other attorneys say a typical DWI defendant placed on probation will incur fines, probation fees, state surcharges and possibly other charges that easily can total $500 or more a month.

“If I slap a poor man 20 times to get his attention, I guarantee you I had his attention after the first time,” Waco attorney Mike Roberts said. “If I give him a fine he can’t pay, it is not in the best interest of justice because he is not going to be able to pay it, you are setting him up to fail and the taxpayers will have to pay to keep him in jail and to pay for more jury trials. It is nothing more than political posturing.”

Will defendants in McLennan County pay through the nose, or will this result in clogged dockets, demands for trials, or even pleas to jail sentences? I suppose, looking at it through the prism of local politics, at least that last option would provide some extra bed days for these guys, which a cynic might imagine could even be the point.

No indictments from Houston BAT van probe

A grand jury investigating misconduct at the Harris County District Attorney's Office declined to issue indictments, but put out a stinging public statement critical of the DA's Office's handling of the affair. Reports Brian Rogers at 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.

"The stain upon the HCDAO will remain regardless of any media statements issued or press conferences issued by anyone," according to the statement.

Certainly, the spectacle of a prosecutor taking the 5th Amendment to avoid testifying was an almost absurdist display, and Grits cannot recall another DA called to testify before a grand jury in the fashion that occurred here. I'm not sure what if anything has been resolved, or what conclusions to draw. I'll look forward to reading a copy of the grand jury's report.

MORE: Big Jolly, who sees this as vindication for Pat Lykos, has posted the grand jury statement and Lykos' official  response. Lykos portrays the grand jury proceedings as a witch hunt by her political enemies, and there is something to that assessment. But I also think the DA's Office and especially Houston PD bear responsibility in the matter. One of Lykos' prosecutors, Rachel Palmer, notoriously took the 5th (the right against self-incrimination) instead of testifying about activities performed on the job. That's a highly unusual development, and it's hard not to wonder if the outcome of the investigation might have been different if the ADA had testified. Lykos likely deflated the matter as a campaign issue, though, by testifying herself.

The DA's public statement declares, "Despite repeated public insinuations to the contrary, there was no criminal conduct in the operation of HPD BAT vans, nor was  there suppression of evidence." "No criminal conduct" I'll accept, but the truth is Houston PD knew about problems with BAT vans in fall 2010 when the issues were raised by their own analysts, two of whom later resigned rather than participate in flawed forensics. It was only after defense attorneys found those ex-analysts and brought one of them to court that anyone in officialdom publicly acknowledged potential problems with BAT vans' accuracy. So while this may be the end of the runaway grand jury story (and HPD BAT vans generally, which are being phased out later this year), your correspondent sees little vindication for anyone coming from this episode, just an enormous politicized mess that pretty much tarnished everyone remotely associated with the process.

AND MORE: From Mark Bennett, who thinks the DA's Office may have improperly used a secure database in violation of federal law.

On preconviction shaming and the role of the prosecutor

Fort Worth criminal defense attorney Richard Henderson authored a response in the Star-Telegram to the Tarrant County District Attorney Joe Shannon and assistant DA Richard Alpert, who held a splashy press conference last week announcing a new policy of publishing DWI defendants' names on their website as a shaming tactic (discussed here on Grits). Wrote Henderson:

I would support a joint effort by the DA and the defense bar to prevent DWI, so long as it does not include the publishing of names on the DA's website.

The Texas Disciplinary Rules for lawyers specifically state that a lawyer is not supposed to seek publicity to gain an advantage in a proceeding.

Prosecutors have their own special rule stating this. They are to seek justice, not merely be advocates and seek convictions.

Alpert has stated that merely publishing the names is not a comment on the case for giving evidentiary details.

This contradicts what Alpert states on the website:

"Over the years, we have tried to make it clear to the public that during a 'no refusal weekend' there will be no way to hide the evidence of their intoxication. This year we are adding the promise that they also won't be able to keep their charges a secret."

Such rhetoric goes beyond merely publishing the names. The direct implication of having the name of a person charged with DWI on the DA's website is that the person is guilty.

All people are presumed innocent until found guilty in court. A police officer's finding of probable cause for DWI is not legal proof, yet that is all that is required for a DWI arrest.

Potential jurors will have access to the DA's website and the names of persons accused of DWI.

I think Shannon and Alpert mean well, but they need to rethink this policy and remember their role in the system.

RELATED: Does preconviction shaming deter DWI or just obliterate the presumption of innocence?

Does pre-conviction shaming deter DWI or just obliterate presumption of innocence?

The Tarrant County District Attorney's website is posting the names of everyone charged with DWI as a supposed deterrent to drunk driving over the holiday weekend, reports the Fort Worth Star-Telegram. But this pre-conviction shaming sanction has its critics:

Defense attorneys, however, said the postings could violate the civil liberties of those accused of driving drunk.

"I absolutely condemn driving while intoxicated ... but these people are presumed innocent," attorney Richard Henderson said. "I just don't think that's right."

Attorney Steve Gordon, president of the Tarrant County Criminal Defense Lawyers Association, said the postings could violate state ethics rules for prosecutors.

"There are some people [members] who are very upset about it," Gordon said. "Is he going to pull the information on the case when he loses?"

Good question about what happens when the DA loses a case - haven't they then just slandered somebody who didn't deserve it? In 2009, for example, 102,309 DWI arrests statewide resulted in just 44,777 convictions. This seems like putting the cart before the horse.

For the DA to do this raises a host of questions about pretrial punishments, presumption of innocence, etc., but commercial media do the same thing all the time. The broader and seldom-broached question is whether it need be reported at all? In Britain, by contrast, most information about criminal prosecutions is confidential pre-conviction. As a young man, I considered that an outrageous restriction on the press, but anymore I'm not so sure. As Grits has written previously, "much US crime coverage is quite poor, sensationalistic, frequently misleading, one-sided, and often flat-out counterproductive. In Texas, there are at most half a dozen news reporters who I consider to produce high-quality crime beat coverage, and most of the rest often do more harm than good. That's not a great ratio."

A topic Grits hopes to delve into more deeply in the coming year is the extent to which such pretrial publicity - whether it's the DAs doing it themselves, the Austin Statesman publishing booking photos, a Denton art student putting arrests on Twitter, or Nancy Grace flailing defendants in nationally publicized cases - serves or harms the public interest. Stuff like booking photos, arrest logs, jail logs, etc., are historically public data but nobody but insiders, journalists, and those viewing it in a professional capacity would, as a practical matter, ever access it. Now it can be easily disseminated electronically, but doing so before the conclusion of a criminal case, especially high-profile ones, can be highly prejudicial. Shaming can properly be in and of itself a punishment - indeed, some sentencing theorists actively promote shaming sanctions - but punishment should occur after a conviction rather than merely as the consequence of an accusation that may prove unfounded.

Grits fears the issues surrounding the Tarrant DA's DWI arrest list are merely the point of the spear, and that widespread publication of such data will become a major flashpoint among 21st century privacy concerns. I noticed that over at the Texas Tribune, their largest database app (government employee salaries), drew 125 times as many page views as their most popular news story, at 19.1 million page views compared to 153,000. Their second most popular data app was their Texas inmate database, a service which duplicates one on the TDCJ website, which came in at just over 5 million page views.

With web-traffic flagging, more media are putting unfiltered government data online precisely because of numbers like those - they look at their web traffic and see their prose isn't nearly the draw they hoped it might be, but database apps get much more traffic. Lots of papers these days are putting booking photos online to draw eyeballs, but like the Trib's employee salary database, its draw is mostly a function of voyeurism, not because the practice is a boon to public safety or a driver of improved public policy. Grits considers it ethically questionable for the media to publish booking photos and unproven allegations about non-public figures, and even more problematic when the Tarrant DA engages in public shaming while defendants still retain a presumption of innocence.

Choosing gifts for the amnesiac, and other tall but true tales

A few Sunday morning odds and ends:

Debating the legality of D.I.V.E.R.T.
The 14th Court of Appeals said a Harris County judge was within his realm of discretion to refuse to use DA Pat Lykos' much-heralded D.I.V.E.R.T. program on DWI cases because it amounts to deferred adjudication, which is illegal for DWI under current Texas law. Does that mean the program itself will be overturned as illegal in and of itself on appeal? Not necessarily. Mark Bennett thinks Murray Newman overstates the legal import of the case and that David Jennings' take is too politicized, but between their various posts you can get a good sense of the issue. This is a strange one. As far as this non-lawyer can tell, D.I.V.E.R.T. may be technically illegal, but if the prosecutor offers it and it benefits the defendant, nobody is in a position to challenge its legality on appeal. Hundreds or even thousands of DWI defendants have been processed through the program. What happens to those contracts, wonders Bennett, if a DA is elected who thinks they were illegal? ¿Quien sabe?

Decked Out: Austin PD halls decked with expensive, distracting in-car computer system

When purchasing a new in-car video system, did City of Austin "officials fall for a system too expensive to buy and too impractical to use"? A former garage employee alleges in the Austin Chronicle that Austin PD essentially rigged a bid to favor a preferred vendor for expensive, in-car police equipment when a cheaper in-house solution was available. The purported whistleblower says APD created detailed specifications they knew only a single, preferred vendor could meet, but really they just needed extra battery power for vehicle video systems which could be done in-house, he says, on a much cheaper basis. Jordan Smith, as usual, provides an excellent, detailed account. Incidentally, having recently mentioned the issue of distracted driving at Austin PD as a large source of civil liability for the city, I was interested to see Jana Birchum's photo (at left) of the inside of an APD cruiser decked out with the new rig. Who wouldn't be distracted with all that gadgetry in their face? Moreover, what's good for the goose is good for the gander. If cops get to do this, how can you then criminalize texting while driving? There's a friggin laptop pointing at the driver with a QWERTYUIOP keyboard, no less!

Pressing prostitute for patronage procures prosecution for San Antonio police
In San Antonio, "A police officer accused of accosting an 18-year-old woman for sex after she was targeted for a drug arrest four years ago pleaded no contest Wednesday to one count of official oppression and will lose his Texas peace officer's license." The sentence of one-year deferred adjudication probation, though, means the conviction may eventually be expunged from his record - a courtesy unlikely to be extended to the 18-year old he coerced for her various offenses. Reading the account from the SA Express-News, it sounds like the underlying facts amount to using a drug-warrant as a pretext and coercion tool to solicit the the services of a prostitute on behalf of a fellow officer, who fondled the woman but was then rebuffed when he could not pay. The two cops then stood lookout on behalf of a third, unidentified "friend" who paid for oral sex. Another former SA police officer - the one who would've liked a freebie but couldn't afford it - is awaiting charges related to the same incident. You can only lean on folks so hard, I suppose, even prostitutes with outstanding drug warrants. I've often wondered how common this is. The incident reminds Grits of a study out of Chicago, discussed here, which found that 3% of all tricks performed by sex-workers operating independently (without a pimp) were freebies given to police for protection. Via Injustice Everywhere.

Abuse alleged at South Texas detention center
Bob Libal at Texas Prison Bidness lets us know about a recent media report I hadn't seen:

Last month, PBS's Frontline aired a damning exposé of the immigration detention system that focused on MTC's Willacy County Processing Center.

The show, which you can watch online in its entirity, reported a pattern of sexual and physical abuse by guards at the MTC facility.  Frontline correspondent, Maria Hinojosa, highlights stories of terrifying and repetitive abuse and harassment of immigrant detainees at the facility.

See a transcript of the show. Relatedly, from Slate/Alternet: "How private prisons game the system."

Newspaper sides with Harris DA on crack-residue policy
The Houston Chronicle editorial board sides with District Attorney Pat Lykos in the debate with police unions and their proxies over prosecuting felonies based on residue-level drug amounts when officers arrest someone with a crack pipe. See Grits' earlier discussion.

Please keep pretending the naked emperor is clothed
Border Patrol officers are fired if they voice critical opinions about the drug war.

Holiday gifts for the amnesiac
If anybody out there is looking for Christmas gifts for Judge Ken Anderson or former Williamson County Sheriff's Sgt. Don Wood, after their amnesiac performances in recent depositions, I'd humbly suggest books on mnemonics. A mind, they say, is a terrible thing to waste. Please suggest other possible memory-related gifts or mnemonic tips for the Michael Morton prosecution team in the comments.

Legislative recommendations from LBB criminal-justice focus group, practitioner interviews

Scanning the Legislative Budget Board's new Adult and Juvenile Correctional Population Projections (pdf), in the "qualitative analysis" section, for which they queried more than 100 people in "Focus groups and interviews with criminal justice practitioners, juvenile justice practitioners, and adult offenders," I ran across these interesting summaries about what these insiders told LBB they think could/should be done to improve the justice system:

REGARDING CRIMINAL JUSTICE IN TEXAS, WHAT SHOULD BE THE EIGHTY-SECOND LEGISLATURE’S MOST IMPORTANT PRIORITIES?

Focus group and interview participants most consistently mentioned the need for investment in mental health resources of all types. Expanded inpatient and outpatient treatment, additional funding for specialized community supervision caseloads, increased reimbursement rates for mental health professionals, and additional state hospital capacity for competency restoration were all mentioned as important needs. Practitioners also agreed statutes and policies regarding DWI punishments need revision. Currently, DWI offenders have little incentive to obtain treatment through community supervision; offenders increasingly prefer short terms of incarceration in county jail. Possible solutions mentioned for this issue included offering deferred adjudication and potential early termination from community supervision for DWI offenders. Participants also voiced support for ending or reforming the Driver Responsibility Program (DRP), which provides significant financial burden on DWI (and other) offenders with seemingly little to no public safety enhancement. Other legislative recommendations included providing Community Supervision and Corrections Departments (CSCDs) additional flexibility in the use of state funding and providing offenders more incentives to choose community supervision over incarceration.  (emphasis added)

Equally important, questioning offenders:

WHAT CAN THE STATE OF TEXAS DO TO IMPROVE CRIMINAL JUSTICE AND KEEP OFFENDERS IN THE COMMUNITY AND OUT OF PRISON OR STATE JAIL?

Offenders most consistently mentioned three factors that would improve criminal justice and keep offenders in the community: employment opportunities and assistance, expanded access to substance abuse treatment, and additional educational opportunities. Offenders indicated employment opportunities and assistance as the most important need of these three responses.

Relatedly:

WHAT RESOURCES ARE NEEDED TO KEEP OFFENDERS IN THE COMMUNITY AND OUT OF PRISON OR STATE JAIL?

According to focus group and interview participants, mental health treatment options are the most needed resources to rehabilitate offenders in the community. Specifically mentioned resources included additional residential treatment, additional outpatient treatment, and increased reimbursement rates for mental health treatment providers. Along with mental health resources, practitioners indicated offenders need additional incentives to choose and/or remain on community supervision in lieu of incarceration. Participants also mentioned the need for additional resources specifically directed to meet the needs of female offenders.

High error rates discovered for Austin PD blood tests in DWIs

When the defense had a blood sample in an Austin DWI case retested, a private lab came up with results 20% lower than the Austin PD blood test given on one of the city's "no-refusal" weekends. Reported My Fox Austin:

"My client was arrested on July 4th weekend on a no refusal initiative," said Attorney [and former Forensic Science Commission chairman] Sam Bassett.

Bassett said his client was forced to surrender his blood. The sample was tested at the Austin Police Department's crime lab. The results, in a report 18 days later, revealed the blood alcohol content tested at 0.10, just above the legal limit.

"There's always a question when you are dealing with law enforcement crime labs, in my experience there are errors," said Bassett.

After fighting for 10 months, Bassett finally got a court order to have the blood sample retested. He sent it to the Southwestern Institute of Forensic Sciences in Dallas, an accredited and nationally recognized lab. And weeks later, he said the results were surprising.

"It was very surprising to me that there was such a difference," said Bassett.

The retest showed a problem, APD's analysis was 20 percent different.

The sample tested by the Southwestern Institute of Forensic Sciences now at a .08, right-on the legal limit.

One sample. Two different results. So what happened? Why did APD test higher?

"At least half of the ones that I have seen were performed incorrectly," said [attorney] Ben Florey.

Florey said he's seen this many times before. He says he's had to help a number of clients fight what he calls "bad science".

"They're back logged, and I would imagine that they make mistakes," said Florey.

"That starts to raise issues about the quality of the machinery, whether it's being properly calibrated. Whether the people doing the calibration are qualified to do it," said Attorney Bill Mange.

Another expert contacted by the TV station said the 20% error rate was too high: "'Twenty percent would not be an acceptable discrepancy with in a laboratory that they can evaluate what is right and wrong,' said Toxicology expert Dwain Fuller." Notably, breath specimens in DWI cases are specifically exempted under the authorizing statute for the Texas Forensic Science Commission, but blood tests such as this would seem to fall under the FSC's purview. This might be a good issue for them to take up.

It's worth remembering that Austin PD arrests many more people per capita for DWI than other large Texas jurisdictions and has a much larger percentage of their cases dismissed. This news perhaps supplies another datapoint helping explain that odd but consistent outcome. In the meantime, Austin is considering shifting to a "no refusal" policy on DWI arrests every day instead of only on holidays and other higher-risk weekends.

Grits is surprised to read this story because blood tests have been touted as much more accurate than breathalyzers. But a 20% error rate (on the high side, no less) means it's possible some borderline cases - where the blood test comes back close to the .08 mark - are being falsely charged.

MORE: From Paul Kennedy, "Blood or Breath?"

It's the coverup that gets you: BAT van edition

In politics, often it's not one's sins that trip you up but the coverup afterward. That appears to be what's happening in Houston as a grand jury investigates whether DA Pat Lykos retaliated against a whistleblower from the Houston PD crime lab. Now, two Harris County prosecutors face contempt charges for obtaining secret transcripts of grand jury proceedings from which they were barred on threat of arrest. See:

• Houston Chronicle: Two Harris County prosecutors face contempt charges
• KTRK-TV: Judge threatens top DA assistants with jail time
• Murray Newman: An interesting docket entry

The whole episode drips with institutional arrogance. Houston PD ignored problems with mobile breathalyzer units until 2 crime lab supervisors quit because they wouldn't sign off on faulty breathalyzer results from Blood Alcohol Testing (BAT) vans. When defense attorneys subpoenaed evidence on the matter, Houston PD defied a court order to hand over documentation. The DA's office insisted that all is well, move along, nothing to see here, but then appeared to retaliate against one of the supervisors, prompting a grand jury investigation. As the grand jury looked into the conflict, they turned their sights on the DA's office and decided to conduct their investigation independently, threatening to have prosecutors arrested if they tried to enter the room. The DA appealed and lost, then appealed again, and lost: They couldn't hear the grand jury testimony. So now it appears the ADAs went directly to the court reporters to secure secret transcripts, thumbing their noses at the grand jury and the judge who empaneled it.

How much simpler would all this have been if, when Houston PD first discovered problems with the BAT vans back in 2010, they'd informed prosecutors and addressed the technical and training problems instead of blaming the messengers? What if, when the DA's office discovered HPD had concealed BAT van errors, they stepped up and took the hit on Brady violations (withholding exculpatory evidence) instead of blowing smoke and attempting to discredit the whistleblowers? And what if, once prosecutors were ordered out of the grand jury room, they'd just abided by the order and waited to see how things turned out?

Odds are, if the HPD crime lab had its house in order a year ago, this would all have been fixed behind the scenes and never been made public. If the DA had owned up to the problem after defense attorneys found out about it, this would have been a one-day story instead of an ongoing drama. And now that the DA's office appears to be defying/circumventing the grand jury, perhaps even illegally violating its secrecy provisions, they've opened up a can of worms that may end up taking DA Pat Lykos down.

MORE: Mark Bennett sees political machinations behind the "runaway" grand jury, with the investigation possibly serving as a stalking horse for Lykos' political foes. He suggests there's at minimum an "appearance of impropriety" from appointing a special prosecutor who was a major contributor to Lykos' 2008 primary opponent, Kelly Siegler, and who is known to have "bad blood" with the DA. That all may be true, but it's also true that if the situation had been handled more forthrightly earlier on, there would be nothing to investigate now. AND MORE: See a followup post from Bennett. Murray Newman predicts delay tactics.

Grand jury investigating BAT van coverup to question DA Pat Lykos

It seems that as a practical matter, examinations of flawed forensics in the justice system virtually never result from the mature, public exercise of judgment aimed at seeking scientific truth but inevitably are cinched up in some taut, emotional knot by whatever painful, uncomfortable or inconvenient memories or secrets may be exposed if the flaw were to come to light in a particular case. So when investigating flawed arson science, for example, the Forensic Science Commission gets sidetracked by death penalty politics. Similarly, flawed breathalyzer forensics at the Houston PD were only exposed when a crime lab supervisor quit rather than sign off on questionable results, then faced alleged retaliation from the District Attorney and the Harris County Commissioners Court, which eliminated her new job soon after she took it. So the question of breathalyzer mechanics gets wrapped up in a nasty employment dispute. For whatever reason, when flawed forensics are exposed the case is seldom as simple as the science.

In the Harris County B.A.T. van case, the Houston Chronicle today reports that DA Pat Lykos herself has been called to testify before a grand jury that's apparently investigating Brady violations (withholding exculpatory evidence) in addition to retaliatory termination regarding whistleblower Amanda Culbertson who exposed flawed forensics on mobile DWI testing units. Wrote Brian Rogers:

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.

Culbertson resigned rather than sign off on flawed breath-test analyses and went public with her allegations, taking a job at Lone Star College which held a decades-old training contract for breath alcohol testing with Harris County. If not in response to Culbertson's disclosures then at least soon after them, DA Lykos successfully pressed the Commissioners Court to transfer the contract to the Texas Department of Public Safety. Lisa Falkenberg writes that, "Retaliation, and perhaps even intimidation, seem far more likely motives for the DA's office to want to end Lone Star's contract," but added that "we'd never know for sure without a thorough investigation."

It seems, at least, the grand jury is performing one. What a dramatic turn of events! I'd love to learn the backstory of how it was orchestrated. We could use grand jurors like that in quite a few other Texas counties. The Houston Chronicle has been covering this well, so far, but if you're interested in the straight-up schadenfreude angle on this juicy story, Murray Newman's your man.

See related Grits posts:

• Current, former prosecutors in Williamson, Harris Counties forced to testify about alleged misconduct
• 'We've had enough of courthouse cronyism'
• Holy junk science BAT van!  Houston portable breathalyzers' accuracy questioned
• Paycheck vs. Integrity: Houston PD lab supervisor resigns over faulty breathalyzers, feared retaliation

Holy junk science, BAT van! Houston's portable breathalyzers accuracy questioned

From typical discussions of forensic errors in DNA exonerations, etc., you might think they occur mainly in the most serious crimes like rape, murder, etc., but law enforcement's use of flawed science may extend to more workaday crimes like DWI as well. Reported the Houston Chronicle recently ("Controversy continues to dog BAT vans," Sept. 8):

A driving while intoxicated case that sparked doubts on the accuracy of test results from the Houston Police Department's breath alcohol testing vans has been dismissed, while evidence from the vans in at least two other cases has also come into question.

A former HPD crime lab supervisor testified during a court hearing in July that she quit because she could not trust the accuracy and integrity of breath alcohol tests from the department's breath testing vehicles. Since then at least two other defense attorneys ...  say evidence in DWI cases they are handling could have been compromised because of the problems with the vehicles.

During the testimony in July, the former HPD lab supervisor, Amanda Culbertson, said the breath alcohol testing vehicles, also known as BAT vans, incurred such electrical problems as overheating. Those problems affect gauges, she said, and can alter the control sample used to calibrate the breath-test machine in the vans, possibly affecting the accuracy of test results.

HPD officials have acknowledged there have been problems, including air conditioning, in the BAT vans since they were purchased in 2008, but said that no cases should be compromised as a result of the temperature in the BAT vans.

But defense attorney Mark Thiessen said he does not believe that the breath testing machines were working properly in the BAT vans and that the tests were not run under proper protocols.

Paul Kennedy had an excellent post in August explaining how changes in temperature can affect such tests if the comparison sample isn't just right. Notably, the company that makes the breathalyzer won't actually reveal the source code behind its analysis, nor guarantee beyond one year that their products will be free from defects in material and workmanship. Even when working properly, the margin of error for some versions of the instrument is up to 25%.

Concerns about the accuracy of breathalyzer tests have been raised for several years now in Houston and elsewhere, but the practical implications of how many cases would be affected if they were deemed untrustworthy have scared away elected judges from closely interrogating the technology. Between the political clout of groups like MADD and the fact that so much government employment, fine income, and even trauma hospital funding ride on a steady stream of DWI revenue, judges are no more likely to question breath-test results than officials in Salem would have questioned that dunking in water might expose witches.

See also: Paycheck vs. Integrity: Houston PD crime lab supervisor resigns over faulty breathalyzers, feared retaliation