Big Brother, felony pranks, and rebates for 'murder insurance'

Let's do a roundup post to clear out the mounting, increasingly daunting sea of tabs across my browser that have relentlessly taunted Grits for several days now:

PBS features Kerry Max Cook saga
PBS Frontline has a new feature on Kerry Max Cook, following up on a New York Times story last week by Michael Hall.

Picking grand jurors
This Austin Statesman story gives one of the best descriptions you'll see of the nuts and bolts of how grand juries are selected in Travis County - either by appointed commissioners or from the same jury pool as regular jurors. I prefer the latter, even if the commissioner system generates more "diversity." I don't want prosecutors cherrypicking grand juries - as DA Rosemary Lehmberg said she did in a recent, high-profile case involving a police shooting - based on the grand jurors' skin colors, either to affect the outcome or to pander to public perception.

Big Brother in Big D
According to the Dallas Morning News, tomorrow Dallas Police Chief David "Brown will unveil the latest in crime-fighting technology that, he hopes, will ensure that the city’s crime rate stays permanently on its declining trajectory. The technology consists of monitoring devices such as cameras, license-plate readers for squad cars and tracking equipment" for use in bait cars and other "bait" items. The News editorial focuses on the "bait" strategy, but I'm more concerned about the expansion of cameras with little credible evidence they're cost effective or prevent crime, much less "license plate readers for squad cars," which would amount to a massive data mining project operating in the field with little regulation. The Dallas City Council should reject those two items.

Big Brother meets the Alamo
James Bamford at Wired has a lengthy, must-read story on the domestic intelligence gathering apparatus of the National Security Administration, including a massive campus at Lackland Air Force Base in San Antonio which "Focuses on intercepts from Latin America and, since 9/11, the Middle East and Europe. Some 2,000 workers staff the operation. The NSA recently completed a $100 million renovation on a mega-data center here—a backup storage facility for the Utah Data Center."

Defense can explain 'guilty beyond a reasonable doubt'
The Court of Criminal Appeals recently upheld a pro-defense ruling to say that defense counsel has a right to explain to jurors what "guilty beyond a reasonable doubt means." Good luck with that! In my experience if you get five different lawyers in a room you'll get at least six different opinions on the question. As the judge in the story pointed out, reasonable doubt "is not mathematically quantifiable, but rather is a level of certainty of belief in the minds of each of the jurors."

Counties get 'murder insurance' rebate
The regional capital public defender office in West Texas - what some have dubbed "murder insurance" - refunded $400K to the 77 counties in its jurisdiction, reported the Lubbock Avalanche Journal.

Public interest lawyering recognized
Congrats to the UT Law School's Texas Law Fellowship Public Interest Award recipients. "They are: Ian Spechler, ‘07, founder of the Legal Representation for Dually Managed Youth Project; David Gonzalez, founding partner of a sliding-scale criminal defense firm in Austin; UT Law Clinical Professors Bill Allison and Patricia Cummings of the Criminal Defense Clinic, who are being recognized for their work on the Michael Morton case; and Jordan Pollock, a third-year UT Law student."

Corrupt in Covington?
Attorney Michael Lowe writes about a Texas Ranger investigation of alleged police corruption in Covington, TX.

Felony pranks
In College Station, a young Aggie has been charged with a third degree felony for online impersonation after posting a woman's cell phone number in the Craig's List casual encounters section as a prank. Though not a Texas case, in Georgia a valedictorian and senior class president has been charged with a felony for participating in ritual graff writing with a group of classmates as the end of their senior year approached. Texas has a similarly harsh law making any graffiti on school property a felony.

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.

Good blogging by others

Several posts from other Texas blogs related to topics sometimes discussed on Grits deserve readers' attention:

Some Harris County grand juries runaway, some never leave the station
I haven't written much about the "runaway" grand jury in Harris County evaluating potential misconduct by the District Attorney, nor the apparent failure to timely empanel grand juries in the new year, mainly because the process is secret and at this distance I can't make hide nor hair of what's happening amidst all the campaign-driven allegations and counter-allegations. Some folks closer to the action, though, are attempting to divine the true circumstances, most notably Mark Bennett, who analyzes the imbroglio here, and Murray Newman, who sees the delay in empaneling grand juries as nigh-on the end of the world.  Paul Kennedy, by contrast, can't understand what all the fuss is about. Much more serious, clearly, is the grand jury's subpoena of DA Pat Lykos, which seems like a late Christmas present to Newman. Bennett considers it "unprecedented for a Texas grand jury to subpoena a sitting District Attorney. Getting subpoenaed is bad. Taking the Fifth would be political suicide. Others might take the Fifth as an obstruction or delay tactic, but if Pat Lykos takes the Fifth, it’s because she really means it." Good stuff all around. The Houston legal blogosphere is working through these issues more quickly and deftly than the MSM.

Kuff: Still "too many" inmates after Harris jail pop reduction
Charles Kuffner reacts to good news that murders are down nearly as much as the local jail population, a development discussed in this Grits post. Kuff suggests that "We have patched this problem, for which the county’s multiple-year hiring freeze is an exacerbating factor, by squeezing a lot of overtime out of the guards, a solution that is both unfair to them and expensive to us. Now that we’re not paying Louisiana to house some of our prisoners, maybe we can take some of the money we’d been spending on that and use it to hire a few more guards. The Sheriff will make that request at the Tuesday Commissioners Court meeting. I can’t wait to hear what their excuse to turn him down will be this time."

Cart before horse: Implications of possible innocence in Lake Waco murders
The Texas Moratorium Network has a pair of posts discussing the possible implications if DNA testing in the 30 year old Lake Waco murders comes back exonerating the men convicted of the crime, which could prove for the first time that the state has actually executed an innocent man:

• New development in seeking DNA testing in Lake Waco murders for sole surviving defendant (other defendant David Spence already executed)
• Did George W. Bush execute an innocent person: David Wayne Spence?

While I'm interested in this case, regular readers know Grits doesn't believe "proving" an innocent person was executed will be the silver bullet many death-penalty abolitionists hope. Moreover, I've learned from harsh experience that one never knows what the results of DNA testing will be until it comes back from the lab. If the two men convicted are actually innocent, for the sake of the remaining fellow I hope the DNA can prove it; if they were guilty, I hope that's proven, too. The worst outcome where a past execution is involved would be if the tests came back inconclusive (as happens, I'm told, about a third of the time) or if DA Abel Reyna were to succeed (as seems unlikely) in his effort to suppress DNA testing. You don't want more cases hanging out there like Todd Willingham's where unresolved doubts linger forever, undermining public confidence almost more than if the execution of an innocent had been definitively proven.

Bias, the judiciary and the death penalty
Another post from the Texas Moratorium Network chides the Texas judiciary for only being intolerant of bias in one direction: If Teresa Hawthorne Must Recuse Herself From Death Penalty Case, Then Sharon Keller Must Recuse Herself From All Cases. The post opens, "In Texas it is apparently ok for a Republican judge to say that they are “pro prosecution”, as Judge Sharon Keller has done, and not have to recuse herself from any cases, but if a Democratic judge expresses any doubts about the constitutionality of the death penalty, then she must recuse herself. If Teresa Hawthorne must recuse herself from the current death penalty case because of “bias”, then Judge Sharon Keller should recuse herself from all cases before her court." Mike Hashimoto at the Dallas News was less kind to Judge Hawthorne, calling her opinion "goofy." See more from the Dallas Observer blog.

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.

Current, former prosecutors in Williamson, Harris Counties forced to testify about alleged misconduct

In a pair of extraordinary cases in Williamson and Harris Counties, prosecutors are being forced to testify regarding alleged misconduct and as one might expect, they're not universally happy about it.

In Williamson County, reported the Wilco Watchdog last night, "In a hearing on Monday morning, [visiting Judge Sid] Harle ruled against the Motions to Quash filed by Davis and Anderson, which meant the depositions [will] go forward" to determine the cause of alleged Brady violations in the wake of Michael Morton's DNA exoneration.  Further, the investigation has already begun: "Retired Detective Don Wood, the lead investigator did not challenge his deposition and testified in deposition today. However, John Bradley said a few weeks ago Wood has a "health issue effecting his memory."

Rightly notes the Watchdog, "A powerful sub-plot in this drama involves the calendar. If Davis and Anderson can frustrate the deposition process until the final exoneration of Morton is filed and perfected by the Third Court of Appeals, then the discovery in the case—including the depositions—would cease, based on a crafty provision in the AGREEMENT constructed by Williamson County District Attorney John Bradley. Given the legal games now being played to delay the process, it is becoming clear why Bradley was insistent on including this provision in the agreement."

The Statesman reports that  second-chair prosecutor Mike Davis has relented and agreed to be deposed, but District Judge Ken Anderson, first chair in Morton's prosecution, has filed an additional litany of motions hoping to stall until after time runs out on the discovery agreement with Williamson County. Reported the Watchdog::

Ken Anderson filed:
1. A Motion to Leave For File
2. A Petition for Writ of Prohibition
3. A Petition for Writ of Mandamus
4. A Motion for Temporary Injunction
5. A Motion to Quash
6. A Motion for Protective Order
7. A Motion for Stay of Discovery

Meanwhile, in Harris County, a rogue grand jury has refused to allow Harris County prosecutors to participate in their questioning of witnesses related to alleged retaliation surrounding a whistleblower who wouldn't sign off on results from the Blood Alcohol Test (BAT) van testing. But they have called four prosecutors to testify as witnesses and asked for a special prosecutor not affiliated with the Harris Couty DA's office. This could turn on DA Pat Lykos quickly and provide Murray Newman, who has already dubbed the event "Watergate on the Bayou," enough additional fodder to last the rest of his bloggerly days.

'We've had enough of courthouse cronyism'

The Houston Chronicle has an editorial today with the same title as this post criticizing alleged cronyism among judges in how they select attorneys appearing before their courts, particularly in juvenile arena, reacting to a pair of recent stories by columnist Lisa Falkenberg which found state Sen. John Whitmire on the warpath. See:

• We've had enough of courthouse cronyism
• Former judge Pat Shelton just won't go away
• A case of 'Oh no, not again'

The Chron reported that Judge Pat Shelton left office in the face of criticism "for directing most of his court appointments to attorneys who contributed heavily to his re-election campaigns. One of them, Glenn Devlin, won election as Shelton's successor in the 313th District Court last year when Shelton declined to run." Sen. Whitmire and others had criticized Shelton's "cozy relationship with attorneys he lavished with lucrative appointments, his hiring of bad attorneys over the more experienced, board-certified variety, and his apparent preference to adopt out children to foster families rather than consider placements with blood relatives first, as the law requires."

So "how did Shelton find his way back onto the bench and into the limelight?," asks the editorial board. "Turns out that although he is not on the approved list of visiting judges for the region, [Judge Glenn] Devlin had named him as a substitute judge using local rules that allow juvenile judges to appoint friends and former colleagues without oversight. Apparently one good ol' boy was rewarding a former judicial patron for past favors."

True that. (More soon, perhaps, on court appointment systems in Harris County.) But Chronicle editorial writers could have tagged the same title onto a series of nascent stories about an apparently rogue grand jury that may be investigating misconduct in the firing of former Houston crime lab supervisor Amanda Culbertson after she identified flaws in breathalyzer systems used in mobile blood alcohol testing units, colloquially known as B.A.T. vans.

• Grand jury may be targeting DA in HPD van probe"
• Retaliation, contracts and the DA
• Harris County DA's Office accused of retaliation

Murray Newman chimes in with a snarkily titled but probative explication of what's known from recent court filings in a missive headlined "Pat Lykos' Star Chamber Rebels." KTRK's headline was "Grand jury kicks out DA's office in BAT van case." At one point the grand jury apparently ordered the bailiffs to arrest Harris County prosecutors if they tried to enter the room while testimony was being taken related to alleged retaliation over exposing flawed DWI forensics.

Go read their coverage: Grits has little to add to either story for the moment except to find them both as remarkable as they are disappointing.