If you have been a long time follower of this blog the name Dee Wallace should ring a bell. She was the technical supervisor in charge of breath test machines in the Houston area who faked test and calibration data.
Now there's a new name to add to the Forensic Hall of Shame. Let's say hello to Marianela Martinez, late of the League City Police Department. It seems that Ms. Martinez had a contract to oversee the breath test programs in League City and several other small towns in southern Harris County and in Galveston County. It would also appear that Ms. Martinez also participated in creative maintenance of breath test machines.
Ms. Martinez was fired last month for unsatisfactory job performance. In a detailed write-up, the Chief of Police for League City, Michael Kramm, set forth a laundry list of problems with Ms. Martinez' job performance over the years. Interestingly enough, Ms. Martinez received excellent mark-ups in her annual job evaluations - even though she was doing piss poor when it came to audits of her work from the State of Texas.
According to Mr. Kramm
"Documentation from State auditors and regional supervisory staff demonstrated lengthy down time for instruments under the care and control of Martinez. Audit documentation demonstrated a pattern of poor time management, last minute inspections, poor record keeping, missing maintenance records and deficient hardware/technical knowledge on behalf of Martinez."
Ms. Martinez was afforded a great deal of latitude with respect to running the breath test program in League City. No one looked closely at DPS audits when it came time to reviewing her job performance. It wasn't until someone higher up the chain of command began looking into problems pointed out by the audits that anyone gave her performance a second thought.
In addition to her failure to maintain the breath test machines under her control, Ms. Martinez also failed to calibrate and prepare the new Intoxilyzer 9000 machines that were to be put into service in her area.
Keep in mind that the estimations from these machines were used in drunk driving prosecutions. We have no way of knowing whether any of the machines used to test those breath samples were in proper operating condition. We have no way of knowing whether they were properly maintained. And but for Ms. Martinez' bumbling inepitude with the roll out of the Intoxilyzer 9000, we might never have found out she wasn't doing the job she was supposed to be doing.
This is the problem with breath testing. These machines are placed under the control of persons who are rarely held accountable for what goes on under their watch. It's only years after a problem was discovered that we find out what went on behind the curtain.
This is the primary problem in leaving these forensic "tools" in the hands of the people who are doing the arresting. There is no accountability - until it's too late. There is a built in bias on the part of the folks who maintain these machines since they get their paychecks from the same agency that arrested the test subject in the first place.
Showing posts with label breath test. Show all posts
Showing posts with label breath test. Show all posts
Wednesday, July 6, 2016
Monday, March 3, 2014
Let's play cowboys and vampires
March is a busy time in the Houston area. First there's the Livestock Show and Rodeo that opened this past weekend with the World Championship BBQ Cookoff followed by three weeks of shows, music and carnival rides. There's also Mardi Gras down on the island and St. Patrick's Day (when we reduce all of Irish culture to a glass of green beer). Finally it's Spring Break time and folks will be flocking to the beach.
It's also time, once again, for the Harris County District Attorney's Office, local law enforcement and the black-robed members of the DA's Office to conspire to make a mockery of the Fourth Amendment with a No Refusal Month.
For those not familiar with this little game, the DA's Office recruits judges to volunteer to sign search warrants authorizing forcible blood draws for people arrested for DWI who decide not to give a breath or blood sample voluntarily. Note that I didn't say they would review the warrants. Nope. That's not part of the game.
If these judges actually performed their duty the whole No Refusal program would find itself on the ash heap of history. The only way to ensure that blood is drawn is for the judges to be compliant and ignore the shortcomings of the cookie cutter search warrant affidavits that are faxed to them.
Few of the affidavits contain anything more than boilerplate language and conclusory statements that are supposed to pass as articulable facts. But have no fear, there's no random assignment of judges during the No Refusal period, the judges that sign the warrants volunteered to be part of the program. They are advertised as being part of the team.
The DA's Office is quite clear about the purpose of No Refusal - they want to obtain as much evidence as they can to force a defendant to wave the white flag and plead guilty. But what is the judge's role in this farce?
The judge should have no interest in whether a motorist submits to a breath or blood test. Whether there is a test or not if none of the judge's concern. The judge is just supposed to be a neutral and detached arbiter - not a participant in the prosecution.
And finally, just to clear up any confusion that may exist out there, in order for a breath or blood test result to be admissible in court, the suspect must have been under arrest before the officer requested the sample. In other words, the breath or blood test has nothing to do with an officer's decision to arrest a motorist for driving while intoxicated - the officer has already made up his mind before he even asks the motorist to blow.
Just be careful out there.
It's also time, once again, for the Harris County District Attorney's Office, local law enforcement and the black-robed members of the DA's Office to conspire to make a mockery of the Fourth Amendment with a No Refusal Month.
For those not familiar with this little game, the DA's Office recruits judges to volunteer to sign search warrants authorizing forcible blood draws for people arrested for DWI who decide not to give a breath or blood sample voluntarily. Note that I didn't say they would review the warrants. Nope. That's not part of the game.
If these judges actually performed their duty the whole No Refusal program would find itself on the ash heap of history. The only way to ensure that blood is drawn is for the judges to be compliant and ignore the shortcomings of the cookie cutter search warrant affidavits that are faxed to them.
Few of the affidavits contain anything more than boilerplate language and conclusory statements that are supposed to pass as articulable facts. But have no fear, there's no random assignment of judges during the No Refusal period, the judges that sign the warrants volunteered to be part of the program. They are advertised as being part of the team.
The DA's Office is quite clear about the purpose of No Refusal - they want to obtain as much evidence as they can to force a defendant to wave the white flag and plead guilty. But what is the judge's role in this farce?
The judge should have no interest in whether a motorist submits to a breath or blood test. Whether there is a test or not if none of the judge's concern. The judge is just supposed to be a neutral and detached arbiter - not a participant in the prosecution.
And finally, just to clear up any confusion that may exist out there, in order for a breath or blood test result to be admissible in court, the suspect must have been under arrest before the officer requested the sample. In other words, the breath or blood test has nothing to do with an officer's decision to arrest a motorist for driving while intoxicated - the officer has already made up his mind before he even asks the motorist to blow.
Just be careful out there.
Thursday, May 23, 2013
More problems with breath tests up in Conroe
Earlier this month I posted an article about how the Montgomery County DA's Office and the Texas DPS were trying to paper over a colossal screw up in the maintenance of their breath test machines.
While the technical supervisor in charge of the machines failed to perform acetone tests on machines taken out of service in one location and placed into service in another location in violation of the DPS regulations regarding the moving of machines, the DPS contends that it was no big deal because the tests were performed as part of the monthly maintenance routine after the machines were placed back into service.
The problem with that analysis is we're talking about so-called scientific evidence and if breath test evidence is to be admitted at trial, any tests must be performed in accordance with the DPS regulations. As the machines were not properly tested before being placed back into service, according to the DPS regulations, the machines were never placed back into service. Therefore any breath test result from any one of those machines should be inadmissible since the machine wasn't in service at the time of the test.
Prosecutors just love scientific evidence because it gives them a short cut to obtaining convictions. Once a jury buys that the evidence is "scientific," they can choose to hang their hats on it and call it a day early. But, if you want to play with that sword, it's two-edged and that second edge is that the evidence is inadmissible if the tests weren't done right.
Of course that still relies on a judge to make the proper ruling when he knows the test result is over the per se limit of .08. That's when you find out whether that judge is more interested in results or process.
But that's not all as the DPS has suspended Technical Supervisor Glenn Merkord for 30 days for improperly renewing the certification of breath test operators who failed to meet the qualifications for recertification. This now raises the question of who those breath test operators were and whether they administered breath tests during the time they were wrongfully certified.
According to Warren Diepraam of the Montgomery County District Attorney's Office, the officers in question are a sheriff's deputy named Buckner and a Magnolia police officer named Salmassi.
If a test was administered by someone other than a certified breath test operator, then the results of that test are inadmissible. Now we need to know when the DPS learned of Mr. Merkord's actions and what, if anything, has been done to correct the problem.
While the technical supervisor in charge of the machines failed to perform acetone tests on machines taken out of service in one location and placed into service in another location in violation of the DPS regulations regarding the moving of machines, the DPS contends that it was no big deal because the tests were performed as part of the monthly maintenance routine after the machines were placed back into service.
The problem with that analysis is we're talking about so-called scientific evidence and if breath test evidence is to be admitted at trial, any tests must be performed in accordance with the DPS regulations. As the machines were not properly tested before being placed back into service, according to the DPS regulations, the machines were never placed back into service. Therefore any breath test result from any one of those machines should be inadmissible since the machine wasn't in service at the time of the test.
Prosecutors just love scientific evidence because it gives them a short cut to obtaining convictions. Once a jury buys that the evidence is "scientific," they can choose to hang their hats on it and call it a day early. But, if you want to play with that sword, it's two-edged and that second edge is that the evidence is inadmissible if the tests weren't done right.
Of course that still relies on a judge to make the proper ruling when he knows the test result is over the per se limit of .08. That's when you find out whether that judge is more interested in results or process.
But that's not all as the DPS has suspended Technical Supervisor Glenn Merkord for 30 days for improperly renewing the certification of breath test operators who failed to meet the qualifications for recertification. This now raises the question of who those breath test operators were and whether they administered breath tests during the time they were wrongfully certified.
According to Warren Diepraam of the Montgomery County District Attorney's Office, the officers in question are a sheriff's deputy named Buckner and a Magnolia police officer named Salmassi.
If a test was administered by someone other than a certified breath test operator, then the results of that test are inadmissible. Now we need to know when the DPS learned of Mr. Merkord's actions and what, if anything, has been done to correct the problem.
Friday, May 10, 2013
Something's rotten up in Conroe
Texas DPS Standard Operating Guidelines for Technical Supervisors
1.1 An official inspection by a Technical Supervisor can only be conducted at the evidential testing location. Each part of the inspection shall occur at the testing location and includes not only the instrument, but the associated equipment and the testing environment as a whole.
1.1.1 The capability of the instrument to detect and subtract the effect of acetone shall be tested.
1.2 A complete inspection (1.1) shall be performed by a Technical Supervisor each time an instrument is placed into or returned to service at a testing location.
According to Chapter 37 of the Texas Administrative Code, for a breath test result to be admissible it must be conducted per the rules set out by the Texas Department of Public Safety. Should these procedures not be followed, the results of breath tests can be thrown out and machines can be taken out of service.
The DPS rules state that anytime a technical supervisor inspects a breath test machine, he or she must conduct a test to determine whether the machine is capable of detecting acetone. The rules state further that an inspection must be conducted every time a breath test machine is placed into service.
Well, up in Montgomery County, someone forgot to read the rules. According to a memo sent out to the local defense bar by the District Attorney's Office, acetone checks were not performed on breath test machines that were taken out of service and moved to another location.
Here is the text of Warren Diepraam's memo regarding the failure of technical supervisors to follow proper protocols:
It has recently been brought to our attention that the Intoxilyzer instruments in Montgomery County did not receive acetone checks when the devices were taken out of service and transferred to another location. This appears to be contrary to DPS guidelines. DPS informs us that because all instruments received acetone checks when placed back into service at the new location and also received the standard acetone checks each month, they do not believe the testing has been affected. However, DPS is conducting an analysis to determine whether or not any test may have been affected.
At this time, we have no reason to suspect that the tests in any cases were affected. However, should DPS find any irregularities, we will immediately contact you. Should you have any cases that you feel were affected by this SOP issue, please contact the relevant Bureau Chief or the First Assistant.Well of course the DPS doesn't feel that any tests were affected by the failure of their technical supervisors to follow their own rules. The cover is that acetone tests were run during routine inspections and no problems were indicated.
But that's not the issue here. The issue is whether or not the results of those tests are admissible due to the state's failure to conduct the proper tests when called for in the DPS operating guidelines.
Just remember that the state puts forward the results of breath tests as scientific evidence. As such these tests must be conducted in a certain manner and if they aren't, the results are compromised and not admissible. In order to talk about a test score, the state must present evidence that the machine was in service and functioning properly as well as evidence that the breath test was conducted according to the DPS rules.
If the machines weren't properly tested when they were taken out of service then they should never have been considered back in service after they were transferred to new locations. If that's the case then no breath test score from any of the machines in question should be admissible until the proper procedures are followed for removing a machine from service and transferring it to another location.
The Montgomery County District Attorney's Office and the DPS have an obligation to provide the local defense bars with the serial numbers and locations of each machine that was compromised by the failure to follow the SOG's. It should not be up to prosecutors or the DPS to determine whether tests were affected or not - they have an inherent conflict of interest.
The DA doesn't want to have to dismiss cases and agree to post-conviction writs in the cases in question. The DPS doesn't want to open up a can of worms regarding its breath testing program. Allowing them to determine whether all is well or not is akin to letting the fox guard the henhouse.
Thursday, January 17, 2013
Judge throws curve ball regarding Pennsylvania's breath test machines
The DWI statute in the Commonwealth of Pennsylvania establishes three levels of DWI offenses. There is a "loss of normal use" DWI that does not require the prosecution to prove an alcohol concentration (referred to as being incapable of safely driving). The state can also prove up general impairment by showing the driver had an alcohol concentration of between .08 and .10 within two hours of driving.
Should a driver have an alcohol concentration of between .10 and .15 within two hours of driving he can be charge with a "high rate of alcohol" DWI. Should that alcohol concentration be over .15, the driver can be charged with the "highest rate of alcohol" DWI.
The penalties for each of the three levels of offense get stiffer as the alcohol concentration rises.
In January 2010, Jason Schildt was arrested on suspicion of DWI when a police officer came across his car lying on its side in a ditch. A breath test on the state's Intoxilyzer 5000EN revealed an alcohol concentration of .20. Mr. Schildt was charged with multiple counts of driving while intoxicated and faced the most severe penalties as a result of his high breath test.
But, somewhere on the way to the plea docket, things got a bit hairy for the state.
Mr. Schildt's attorney filed a motion to quash the charge alleging that the state's breath test machine could not produce a reliable alcohol concentration reading over .015. The challenge was based on the initial calibration of the machine at the factory as well as the field calibrations conducted on the machines.
According to Pennsylvania regulations, the machine is supposed to be calibrated using simulator solutions purchased from an outside source and certified by an independent laboratory. At the hearing on the defense motion testimony from the state's "expert," an engineer at CMI, established that CMI, the manufacturer of the machine, performed the initial calibration of the machine using ethanol samples prepared in-house.
Furthermore, when the machines were calibrated in the field, they were only calibrated using ethanol solutions of .05, .10 and .15 concentrations. Another controversy arose about calibrating the machine to a zero point. Defense experts pointed out that for a machine to calibrate to zero would require it be able to distinguish a single atom. Anything else would be a guess. A true calibration curve only includes those data points established by a series of calibration tests - by "forcing" the calibration curve to cross the zero point, the curve below a .05 calibration was just pure speculation.
At the conclusion of the hearing, Court of Common Pleas Judge Lawrence Clark, Jr. found that the Intoxilyzers used by the Commonwealth could not be relied upon to produce a reliable result at alcohol concentrations below .05 or higher than .15.
The court did not find that the machines were unreliable - just that there was no scientific evidence that they could be relied up outside the range at which they were calibrated in the field. Judge Clark was also quick to point out that the defense was not challenging the regulations promulgated by the Commonwealth regarding the calibration of the machines. The challenge was to the conclusions made by the machine's keepers based upon the regulatory scheme.
The challenge was creative and illustrates why you have to know and understand the regulations surrounding breath test machines as well as how the machines operate in order to defend a drunk driving case properly. Over the years DWI laws have become more draconian and motorists' constitutional rights have been pared away. In that type of environment, sometimes the best defense is to know the minutiae of the machine better than the prosecutor.
Should a driver have an alcohol concentration of between .10 and .15 within two hours of driving he can be charge with a "high rate of alcohol" DWI. Should that alcohol concentration be over .15, the driver can be charged with the "highest rate of alcohol" DWI.
The penalties for each of the three levels of offense get stiffer as the alcohol concentration rises.
In January 2010, Jason Schildt was arrested on suspicion of DWI when a police officer came across his car lying on its side in a ditch. A breath test on the state's Intoxilyzer 5000EN revealed an alcohol concentration of .20. Mr. Schildt was charged with multiple counts of driving while intoxicated and faced the most severe penalties as a result of his high breath test.
But, somewhere on the way to the plea docket, things got a bit hairy for the state.
Mr. Schildt's attorney filed a motion to quash the charge alleging that the state's breath test machine could not produce a reliable alcohol concentration reading over .015. The challenge was based on the initial calibration of the machine at the factory as well as the field calibrations conducted on the machines.
According to Pennsylvania regulations, the machine is supposed to be calibrated using simulator solutions purchased from an outside source and certified by an independent laboratory. At the hearing on the defense motion testimony from the state's "expert," an engineer at CMI, established that CMI, the manufacturer of the machine, performed the initial calibration of the machine using ethanol samples prepared in-house.
Furthermore, when the machines were calibrated in the field, they were only calibrated using ethanol solutions of .05, .10 and .15 concentrations. Another controversy arose about calibrating the machine to a zero point. Defense experts pointed out that for a machine to calibrate to zero would require it be able to distinguish a single atom. Anything else would be a guess. A true calibration curve only includes those data points established by a series of calibration tests - by "forcing" the calibration curve to cross the zero point, the curve below a .05 calibration was just pure speculation.
At the conclusion of the hearing, Court of Common Pleas Judge Lawrence Clark, Jr. found that the Intoxilyzers used by the Commonwealth could not be relied upon to produce a reliable result at alcohol concentrations below .05 or higher than .15.
The court did not find that the machines were unreliable - just that there was no scientific evidence that they could be relied up outside the range at which they were calibrated in the field. Judge Clark was also quick to point out that the defense was not challenging the regulations promulgated by the Commonwealth regarding the calibration of the machines. The challenge was to the conclusions made by the machine's keepers based upon the regulatory scheme.
The challenge was creative and illustrates why you have to know and understand the regulations surrounding breath test machines as well as how the machines operate in order to defend a drunk driving case properly. Over the years DWI laws have become more draconian and motorists' constitutional rights have been pared away. In that type of environment, sometimes the best defense is to know the minutiae of the machine better than the prosecutor.
Friday, November 16, 2012
Assuming that was his real purpose
The other day I was in county court handling a client's DWI case. The judge was calling the trial docket and trying to figure out if anyone was going to trial that day. One by one came the requests for a continuance - and one by one they were granted. That is, until there were two cases left.
One of the cases, a breath test case, was the one picked to go. The defense attorney asked the judge for a continuance because he wanted to talk to the technical supervisor about the assumptions he made in the process ofguessing extrapolating the defendant's alcohol concentration at the time of driving.
I overheard bits and pieces of the conversation at the bench while I waited (and waited and waited). The defense attorney wanted to know what assumptions the technical supervisor was making. The judge insisted that the technical supervisor was assuming only one thing - that the defendant had nothing to drink between the time of his arrest and the time he blew into the little black box. The judge insisted that technical supervisors aren't assuming anything else. She told the defense attorney that they use the time of the last drink and of the last meal and the breath test score and the time that elapsed between the time of driving and the time of the test. The defense attorney said the technical supervisor was also assuming that his client was in the elimination phase at the time of the test.
I couldn't help but think that while the defense attorney was correct in his statement that the technical supervisor was making assumptions, it was a pretty lousy argument to use if you wanted to get the case continued.
Of course the technical supervisor is making assumptions. The judge was so far off base with her assertion that he wasn't. Let's take a look at some of the facts used by the technical supervisor to guess extrapolate a driver's alcohol concentration.
First the technical supervisor needs to know about how much the defendant weighed. He also needs to know how much time elapsed between the time of driving and the breath test. He needs to know when the defendant consumed his first and last drinks and when he ate his last meal. It would be helpful if he knew exactly how much the defendant had to drink.
Now let's think of the assumptions being made by the technical supervisor. First he is assuming that the breath test result is accurate. He is assuming that the machine was operating properly that evening and that the operator conducted the test properly. He is assuming that the operator observed the defendant for at least 15 minutes prior to the test. He is assuming that the defendant is being truthful when asked about the time of his first drink, last drink and last meal. He is assuming that the defendant isn't being truthful when he told the officer he had only had a couple of beers. He is assuming that the defendant is in the elimination stage. He is assuming that the defendant eliminates alcohol at a steady rate equal to the number he plugs into his calculator. Finally he is assuming that armed with one data point it is possible to calculate the slope to a another data point at some time in the past.
So, yes, there are a lot of assumptions being made by the technical supervisor. And each of those assumptions gives rise to a line of questions during cross-examination. The best way to attack the conclusions of an expert is not to challenge the expert head-on. The best way is to challenge the assumptions he made along the way.
One of the cases, a breath test case, was the one picked to go. The defense attorney asked the judge for a continuance because he wanted to talk to the technical supervisor about the assumptions he made in the process of
I overheard bits and pieces of the conversation at the bench while I waited (and waited and waited). The defense attorney wanted to know what assumptions the technical supervisor was making. The judge insisted that the technical supervisor was assuming only one thing - that the defendant had nothing to drink between the time of his arrest and the time he blew into the little black box. The judge insisted that technical supervisors aren't assuming anything else. She told the defense attorney that they use the time of the last drink and of the last meal and the breath test score and the time that elapsed between the time of driving and the time of the test. The defense attorney said the technical supervisor was also assuming that his client was in the elimination phase at the time of the test.
I couldn't help but think that while the defense attorney was correct in his statement that the technical supervisor was making assumptions, it was a pretty lousy argument to use if you wanted to get the case continued.
Of course the technical supervisor is making assumptions. The judge was so far off base with her assertion that he wasn't. Let's take a look at some of the facts used by the technical supervisor to guess extrapolate a driver's alcohol concentration.
First the technical supervisor needs to know about how much the defendant weighed. He also needs to know how much time elapsed between the time of driving and the breath test. He needs to know when the defendant consumed his first and last drinks and when he ate his last meal. It would be helpful if he knew exactly how much the defendant had to drink.
Now let's think of the assumptions being made by the technical supervisor. First he is assuming that the breath test result is accurate. He is assuming that the machine was operating properly that evening and that the operator conducted the test properly. He is assuming that the operator observed the defendant for at least 15 minutes prior to the test. He is assuming that the defendant is being truthful when asked about the time of his first drink, last drink and last meal. He is assuming that the defendant isn't being truthful when he told the officer he had only had a couple of beers. He is assuming that the defendant is in the elimination stage. He is assuming that the defendant eliminates alcohol at a steady rate equal to the number he plugs into his calculator. Finally he is assuming that armed with one data point it is possible to calculate the slope to a another data point at some time in the past.
So, yes, there are a lot of assumptions being made by the technical supervisor. And each of those assumptions gives rise to a line of questions during cross-examination. The best way to attack the conclusions of an expert is not to challenge the expert head-on. The best way is to challenge the assumptions he made along the way.
Wednesday, August 1, 2012
Making us all just a little bit dumber
Apparently Amy Davis of KPRC-TV in Houston doesn't keep up with the news. If she had, she might not have criticized the Harris County Sheriff's Office for not using its BATmobile. If she kept up with the news she might have learned about the problems the Houston Police Department had with their vans.
Yes, Harris County did waste $80,000 purchasing the van. But they bought one because everyone else had one, too. It was just the latest shiny toy. No one thought about the sensitivity of the breath test machines. No one thought about how the summer heat could cause the circuitry in the machines to go haywire. At least not until HPD's problems became known.
Ms. Davis wants us to believe that motorists are in danger because the BATmobile sits in its cave. She wants you to believe that drunk drivers are cruising up and down our streets because the BATmobile isn't crawling around town.
Ms. Davis seems to be unaware that the police don't need a breath test in order to arrest a motorist on suspicion of driving while intoxicated. She doesn't seem to understand that a motorist suspected of driving while intoxicated is under arrest when the breath test is offered.
Instead of running an "investigative" piece about an unused heap of junk sitting in a garage, she should've looked into why the BATmobile was purchased in the first place. She should've looked at who makes the decisions on what equipment to purchase and why. Maybe she could've looked into the giant slush fund controlled by the DA from criminal seizures and forfeitures. Maybe she should've questioned why that money isn't placed into the general revenue pool for the county.
But such reporting would have required research and legwork. It's much easier to grab the low-hanging fruit. It's even easier not to do a simple internet search for articles about the problems with the BATmobiles.
Yes, Harris County did waste $80,000 purchasing the van. But they bought one because everyone else had one, too. It was just the latest shiny toy. No one thought about the sensitivity of the breath test machines. No one thought about how the summer heat could cause the circuitry in the machines to go haywire. At least not until HPD's problems became known.
Ms. Davis wants us to believe that motorists are in danger because the BATmobile sits in its cave. She wants you to believe that drunk drivers are cruising up and down our streets because the BATmobile isn't crawling around town.
Ms. Davis seems to be unaware that the police don't need a breath test in order to arrest a motorist on suspicion of driving while intoxicated. She doesn't seem to understand that a motorist suspected of driving while intoxicated is under arrest when the breath test is offered.
Instead of running an "investigative" piece about an unused heap of junk sitting in a garage, she should've looked into why the BATmobile was purchased in the first place. She should've looked at who makes the decisions on what equipment to purchase and why. Maybe she could've looked into the giant slush fund controlled by the DA from criminal seizures and forfeitures. Maybe she should've questioned why that money isn't placed into the general revenue pool for the county.
But such reporting would have required research and legwork. It's much easier to grab the low-hanging fruit. It's even easier not to do a simple internet search for articles about the problems with the BATmobiles.
Tuesday, July 3, 2012
A breath tester in every car
It's one thing to punish motorists for exercising their Constitutional right to give up evidence that could be used against them. The coercive power of the state is used to try to force motorists to blow into the breath test machine in hopes that it might make it easier to convict them.
Of course in some states, such as here in Texas, if you don't play along and blow into their machine, they'll just strap you down and stick a needle in your arm. As Scott Greenfield points out, if you don't live in a state that employs vampires wearing badges, thank your lucky stars.
But across the pond in France, the state has come up with a new method of gathering evidence against motorists suspected of driving while intoxicated. It is now illegal in France to drive around without a portable breath tester in your car. Motorists have a choice between an expensive electronic unit that can be reused, or a less expensive one-off chemical test kit.
The law will affect everyone who operates a car in France - whether they be French or not. The gendarmes plan to enforce the law by setting up checkpoints at the Channel Tunnel and on ferry landings in order to nab those pesky British drivers who choose not to follow French laws.
While citizens on the continent don't enjoy nearly the level of freedom we do here from unwarranted badgering by the police, requiring motorists to carry test kits seems to me to go just a bit too far. It's one thing to have checkpoints to stop motorists to make certain they're carrying the required test kits - but it's not too far a step to then require the drivers to blow into their little thingeys to see if they are intoxicated or not.
Just think, you'll be providing the evidence to be used against you in your very own test kit. As the brewers of Guinness would say, "Brilliant!"
How long until someone here takes up the cause of breath testers in every car? MADD is already calling for interlock devices to be mandatory. And if such a measure were passed, would the police have the authority to set up checkpoints to determine if motorists were carrying their breath testers with them? Would the police have the authority to require a motorist to blow into their tester upon request?
Of course in some states, such as here in Texas, if you don't play along and blow into their machine, they'll just strap you down and stick a needle in your arm. As Scott Greenfield points out, if you don't live in a state that employs vampires wearing badges, thank your lucky stars.
But across the pond in France, the state has come up with a new method of gathering evidence against motorists suspected of driving while intoxicated. It is now illegal in France to drive around without a portable breath tester in your car. Motorists have a choice between an expensive electronic unit that can be reused, or a less expensive one-off chemical test kit.
The law will affect everyone who operates a car in France - whether they be French or not. The gendarmes plan to enforce the law by setting up checkpoints at the Channel Tunnel and on ferry landings in order to nab those pesky British drivers who choose not to follow French laws.
While citizens on the continent don't enjoy nearly the level of freedom we do here from unwarranted badgering by the police, requiring motorists to carry test kits seems to me to go just a bit too far. It's one thing to have checkpoints to stop motorists to make certain they're carrying the required test kits - but it's not too far a step to then require the drivers to blow into their little thingeys to see if they are intoxicated or not.
Just think, you'll be providing the evidence to be used against you in your very own test kit. As the brewers of Guinness would say, "Brilliant!"
How long until someone here takes up the cause of breath testers in every car? MADD is already calling for interlock devices to be mandatory. And if such a measure were passed, would the police have the authority to set up checkpoints to determine if motorists were carrying their breath testers with them? Would the police have the authority to require a motorist to blow into their tester upon request?
Thursday, February 16, 2012
Trying to keep your story straight
It can be so damned hard to get those stories straight sometimes. Fudging a little bit here, leaving out something over there and then having to remember all that when asked to recount what happened.
First you claimed that you knew nothing about any investigation into the backgrounds of the grand jurors investigating your office in the BATmobile mess. Then, after being exposed, you claim that it was just a cursory search of social media sites.
Then, after a scathing letter from the grand jury aimed at your office, we find out the Texas Rangers were nosing around 1201 Franklin asking questions. Three days later you claimed to have called in the Rangers to look into the allegations against you. And now the Rangers are seizing computers and copies of interviews you gave regarding the investigation.
Ms. Lykos would have been better served by just letting the office take its lumps for any Brady violations committed regarding evidence of the unreliability of the breath test machines in the BATmobiles. Sure, you might have had to dismiss a few DWI cases here and there - but then it would be over. The whole matter would be forgotten by the time the primary election rolled around.
But no, that just wouldn't do. You had to try to cover it all up. Then, when the grand jury decided to look into your office you threw up the shield. You asked your investigator to look into the backgrounds of the members of the grand jury (and the judge and her husband). Now the Rangers are looking into exactly what went on and who did what. Definitely not good times.
Once upon a time there was a president who got caught with his hand in the cookie jar when some burglars were caught in the headquarters of the opposition party. Instead of just 'fessing up and taking the heat up front he decided to try to cover it all up. He erased tapes. He tried to intimidate others. In the end he became the first sitting president to step down during his term.
Nixon wasn't disgraced because of his role in the break-in; he was disgraced because of his attempt to cover up his involvement in the matter.
With two grand jury investigations and now the Texas Rangers snooping around the tea leaves at the bottom of the cup aren't looking too good for Ms. Lykos.
I didn't know about any investigation of the grand jurors.
I authorized an investigation of the grand jurors.
Actually it was just a quick internet search [on county computers].
Should there be an investigation [by the Texas Rangers] we will cooperate.
I asked the Texas Rangers to look into the allegations myself.Okay, Ms. Lykos, which is it?
First you claimed that you knew nothing about any investigation into the backgrounds of the grand jurors investigating your office in the BATmobile mess. Then, after being exposed, you claim that it was just a cursory search of social media sites.
Then, after a scathing letter from the grand jury aimed at your office, we find out the Texas Rangers were nosing around 1201 Franklin asking questions. Three days later you claimed to have called in the Rangers to look into the allegations against you. And now the Rangers are seizing computers and copies of interviews you gave regarding the investigation.
Ms. Lykos would have been better served by just letting the office take its lumps for any Brady violations committed regarding evidence of the unreliability of the breath test machines in the BATmobiles. Sure, you might have had to dismiss a few DWI cases here and there - but then it would be over. The whole matter would be forgotten by the time the primary election rolled around.
But no, that just wouldn't do. You had to try to cover it all up. Then, when the grand jury decided to look into your office you threw up the shield. You asked your investigator to look into the backgrounds of the members of the grand jury (and the judge and her husband). Now the Rangers are looking into exactly what went on and who did what. Definitely not good times.
Once upon a time there was a president who got caught with his hand in the cookie jar when some burglars were caught in the headquarters of the opposition party. Instead of just 'fessing up and taking the heat up front he decided to try to cover it all up. He erased tapes. He tried to intimidate others. In the end he became the first sitting president to step down during his term.
Nixon wasn't disgraced because of his role in the break-in; he was disgraced because of his attempt to cover up his involvement in the matter.
With two grand jury investigations and now the Texas Rangers snooping around the tea leaves at the bottom of the cup aren't looking too good for Ms. Lykos.
Wednesday, February 1, 2012
Runaway grand jury closes up shop
Yesterday the grand jury investigating the Harris County District Attorney's Office announced that it was not issuing any indictments. The news was greeted with a big yawn by folks around the Criminal (In)justice Center.
The grand jury foreman, Trisha Pollard, said the grand jury didn't find any evidence of a crime but that they were troubled by the actions of the DA's office. They singled out Rachel Palmer for her refusal to answer questions pursuant to her rights under the Fifth Amendment.
Left unsaid is why special prosecutors didn't offer Ms. Palmer immunity in exchange for her testimony. They went so far as to file a motion to compel her testimony that was denied by the judge. They claimed that none of the questions they wanted to ask were incriminating; but when given a choice between having Ms. Palmer answer the questions under a grant of immunity or not asking the questions at all - they chose to keep their mouths shut.
What information did they seek from Ms. Palmer? And if it was so damn important to the investigation that they were more than willing to ignore the Bill of Rights, why didn't they offer her immunity?
Whatever. Now Pat Lykos will stand up and declare victory and the Mike Anderson forces will stare down at their toes. The fact is the investigation is a black eye on Ms. Lykos and her administration. And, no matter how you want to spin it, Ms. Lykos and her office did their best to stonewall the investigation. That also doesn't bode well for a person who has the ethical duty to see that justice is done.
Given the public's notoriously short attention span and the fact that we don't know when the primary will be held, there's a good possibility that most of the folks in Harris County are going to forget all about this little affair before they step into the voting booth.
I'm not so certain that anyone in the DA's Office broke the law in the BATmobile fiasco. Withholding exculpatory evidence is a Brady violation and, at best, could get you a new trial - unless the error was determined to be (wait for it) harmless. There is no monetary or criminal sanction for not turning information over to the defense that the defense doesn't know about.
As such, there was never the possibility of anyone being indicted for not giving up the goods. The only thing that would have bitten someone in the ass was lying under oath to the grand jury.
So, go on, there's nothing to see here.
The grand jury foreman, Trisha Pollard, said the grand jury didn't find any evidence of a crime but that they were troubled by the actions of the DA's office. They singled out Rachel Palmer for her refusal to answer questions pursuant to her rights under the Fifth Amendment.
Left unsaid is why special prosecutors didn't offer Ms. Palmer immunity in exchange for her testimony. They went so far as to file a motion to compel her testimony that was denied by the judge. They claimed that none of the questions they wanted to ask were incriminating; but when given a choice between having Ms. Palmer answer the questions under a grant of immunity or not asking the questions at all - they chose to keep their mouths shut.
What information did they seek from Ms. Palmer? And if it was so damn important to the investigation that they were more than willing to ignore the Bill of Rights, why didn't they offer her immunity?
Whatever. Now Pat Lykos will stand up and declare victory and the Mike Anderson forces will stare down at their toes. The fact is the investigation is a black eye on Ms. Lykos and her administration. And, no matter how you want to spin it, Ms. Lykos and her office did their best to stonewall the investigation. That also doesn't bode well for a person who has the ethical duty to see that justice is done.
Given the public's notoriously short attention span and the fact that we don't know when the primary will be held, there's a good possibility that most of the folks in Harris County are going to forget all about this little affair before they step into the voting booth.
I'm not so certain that anyone in the DA's Office broke the law in the BATmobile fiasco. Withholding exculpatory evidence is a Brady violation and, at best, could get you a new trial - unless the error was determined to be (wait for it) harmless. There is no monetary or criminal sanction for not turning information over to the defense that the defense doesn't know about.
As such, there was never the possibility of anyone being indicted for not giving up the goods. The only thing that would have bitten someone in the ass was lying under oath to the grand jury.
So, go on, there's nothing to see here.
Wednesday, December 21, 2011
A demotion
Now, lest anyone think I'm biased with regard to the unmitigated disaster known as the HPD breath alcohol testing van (BAT van) program, I am now giving the Harris County District Attorney's Office a little equal time.
This is a statement from the DA's Office dated November 8, 2011 addressing concerns raised about the program:
To the citizens of Harris County,The "technician" referred to is Amanda Culbertson, the former technical supervisor in the HPD crime lab. The statement from Ms. Lykos' office is an interesting exercise in the use of language. Ms. Culbertson is a technician, but the DPS personnel who conducted tests on the breath test machines are scientists.
As many of you know, there have been several news stories regarding the Houston Police Department’s Breath Alcohol Testing (BAT) vans, the evidence they provide, the technicians who perform the work and the Harris County District Attorney’s Office (HCDAO).
A technician, who is a former employee of the HPD crime lab and supervised the BAT van testing, testified on July 27 and 28 that she believed it is possible that the breath tests conducted by the HPD BAT vans could be problematic.
August 4, representatives of the HCDAO notified the Scientific Director at the Texas Department of Public Safety—the authority that develops rules and regulations and provides training and laboratory support to local, state and federal authorities for breath alcohol testing throughout the state—of her claims.
August 11, in a meeting between HCDAO and the technician she stated that she could not verify the accuracy of results of an intoxilyzer instrument that had previously experienced overheating in a HPD BAT van. She said that she could not testify to the accuracy of such intoxilyzer results because this issue had never before been scientifically tested.
August 12, the HCDAO issued a Brady Notice to attorneys to inform them of the potentially exculpatory, or mitigating, evidence raised by the technician and to not allow any HPD BAT van cases to be resolved unless the defendant is made aware of the technician’s comments.
Additionally on August 12, the Harris County District Attorney’s Office requested that the Texas Department of Public Safety’s Breath Alcohol Laboratory conduct scientific tests on the HPD BAT van and the intoxilyzer instruments.
August 23, representatives from the Harris County District Attorney’s Office met again with the technician. At this interview the technician said she believed that all breath tests conducted by the HPD BAT vans dating from summer 2009 - present were suspect because she believed HPD BAT vans were an unsuitable testing location. August 24, the HCDAO distributed a second Brady notice to attorneys alerting them to the technician’s comments.
The Texas Department of Public Safety conducted an Ambient Temperature Study on the HPD BAT van and intoxilyzer instruments that addressed the technician’s concerns. Scientists concluded that the HPD BAT van instruments correctly analyzed breath alcohol concentrations .
October 28, a DWI jury trial was held in a County Criminal Court where evidence was presented in open court about the reliability and accuracy of the HPD BAT vans. The defense presented their position on the reliability of the HPD BAT van instruments. After hearing all the evidence, the jury returned a verdict of guilty.
It is our duty to see that justice is done and to protect the lives, property and rights of our citizens. We respect the rule of law and strive to always do the right thing.
However, prior to Ms. Culbertson's leaving the crime lab, prosecutors delighted in touting Ms. Culbertson's professional qualifications. She was the scientist in charge of maintaining the machines. According to the Texas Department of Public Safety, she was a forensic scientist. Before a breath test result could be entered into evidence, Ms. Culbertson had to testify that the machine was working properly and that it was reliable.
Now that she's raising concerns over the reliability of the testing program she is a mere technician. According to the Collins English Dictionary, a technician is "a person employed in a laboratory... or scientific establishment to do practical work." In other words, a mere button pusher.
So, in recent weeks we've been told that HPD isn't trustworthy and that the person who maintains the breath test machines is doing "practical" work. Any more gems for us, Ms. Lykos?
Friday, December 16, 2011
I'll have a fifth, please
On Thursday morning, Harris County Assistant District Attorney Rachel Palmer appeared before a grand jury looking into the troubled HPD mobile alcohol testing vans (BATmobiles). Ms. Palmer invoked her Fifth Amendment right to remain silent and refused to answer any questions.
The grand jury then filed a motion to compel with State District Judge Susan Brown. A hearing on that motion was held Thursday afternoon after which Judge Brown announced she would hear from both sides on Monday.
Now why would the ADA invoke her right to remain silent? Don't they like to tell us that an innocent person has nothing to hide? That our client had the opportunity to give his side of the story but chose not to?
And how might her answering questions incriminate her?
Did the Harris County DA's Office know about the problems with the BATmobiles? Did prosecutors provide that information to defense attorneys? Were prosecutors aware they were putting on perjured testimony regarding the reliability of the breath test machines in the vans? Did the DA's Office prosecute motorists knowing that the "evidence" upon which they relied was faulty?
However this shakes out, it's a black eye for Harris County DA Pat Lykos. It doesn't look good when a prosecutor refuses to answer questions from a grand jury investigating the conduct of both the police and the DA's Office.
I just wonder if the DA's Office is so hell bent on prosecuting DWI's that they will violate the law in so doing, what do they do on more serious cases?
See also:
"Your Fifth Amendment at work," Defending People (12/15/11)
"Motion to compel," Life at the Harris County Criminal Justice Center (12/15/11)
The grand jury then filed a motion to compel with State District Judge Susan Brown. A hearing on that motion was held Thursday afternoon after which Judge Brown announced she would hear from both sides on Monday.
Now why would the ADA invoke her right to remain silent? Don't they like to tell us that an innocent person has nothing to hide? That our client had the opportunity to give his side of the story but chose not to?
And how might her answering questions incriminate her?
Did the Harris County DA's Office know about the problems with the BATmobiles? Did prosecutors provide that information to defense attorneys? Were prosecutors aware they were putting on perjured testimony regarding the reliability of the breath test machines in the vans? Did the DA's Office prosecute motorists knowing that the "evidence" upon which they relied was faulty?
However this shakes out, it's a black eye for Harris County DA Pat Lykos. It doesn't look good when a prosecutor refuses to answer questions from a grand jury investigating the conduct of both the police and the DA's Office.
I just wonder if the DA's Office is so hell bent on prosecuting DWI's that they will violate the law in so doing, what do they do on more serious cases?
See also:
"Your Fifth Amendment at work," Defending People (12/15/11)
"Motion to compel," Life at the Harris County Criminal Justice Center (12/15/11)
Wednesday, December 14, 2011
Grand jury subpoenas top county officials in DWI probe
Remember that "runaway" grand jury investigating the HPD BATmobiles? Well, they're baaack...
The county judge and two commissioners have been subpoenaed to testify before the grand jury. It is believed that the grand jury is looking into the contract the county entered into with the Texas Department of Public Safety to administer breath test machines in Harris County. The county entered into the contract after Harris County District Attorney Pat Lykos urged county commissioners to dump Lone Star College after former HPD crime lab technical supervisor Amy Culbertson spilled the beans on the malfunctioning breath test machines in HPD's BATmobiles.
First a word for those of y'all not from Texas. The county judge isn't really a judge, he's the head of the county government. The commissioners are the elected representatives who run the county.
Ostensibly, the reason for the change in maintaining the breath test machines was a cost-saving function. The county's contract with the DPS is $330,000 for the first year versus $342,000 with Lone Star College. But there's more to the calculation than that. Remember, DWI is big business in Texas and running the breath test program is no exception. For every DWI conviction obtained without the use of DPS technicians, the state reimburses the county $22. Doesn't sound like a lot on the surface but, between 2008 and 2010, the county was reimbursed $220,000 by the state. Do the math; the DPS contract will cost the county more money in the long run.
The change had nothing to do with saving the county money. The change was retaliation against Lone Star College for hiring Amy Culbertson after she left the Houston Police Department. The change was retaliation against Ms. Culbertson for testifying truthfully about the problems with the BATmobiles.
Ms. Lykos and her minions got caught withholding Brady material from defense attorneys handling DWI cases. Ms. Lykos has blamed Ms. Culbertson and she has blamed HPD for the fiasco. All of that is an attempt to deflect attention away from the actions of the Harris County DA's Office.
The county judge and two commissioners have been subpoenaed to testify before the grand jury. It is believed that the grand jury is looking into the contract the county entered into with the Texas Department of Public Safety to administer breath test machines in Harris County. The county entered into the contract after Harris County District Attorney Pat Lykos urged county commissioners to dump Lone Star College after former HPD crime lab technical supervisor Amy Culbertson spilled the beans on the malfunctioning breath test machines in HPD's BATmobiles.
First a word for those of y'all not from Texas. The county judge isn't really a judge, he's the head of the county government. The commissioners are the elected representatives who run the county.
Ostensibly, the reason for the change in maintaining the breath test machines was a cost-saving function. The county's contract with the DPS is $330,000 for the first year versus $342,000 with Lone Star College. But there's more to the calculation than that. Remember, DWI is big business in Texas and running the breath test program is no exception. For every DWI conviction obtained without the use of DPS technicians, the state reimburses the county $22. Doesn't sound like a lot on the surface but, between 2008 and 2010, the county was reimbursed $220,000 by the state. Do the math; the DPS contract will cost the county more money in the long run.
The change had nothing to do with saving the county money. The change was retaliation against Lone Star College for hiring Amy Culbertson after she left the Houston Police Department. The change was retaliation against Ms. Culbertson for testifying truthfully about the problems with the BATmobiles.
Ms. Lykos and her minions got caught withholding Brady material from defense attorneys handling DWI cases. Ms. Lykos has blamed Ms. Culbertson and she has blamed HPD for the fiasco. All of that is an attempt to deflect attention away from the actions of the Harris County DA's Office.
Saturday, November 5, 2011
Harris County's runaway grand jury: a blawgosphere summary
On Monday morning, two high-level prosecutors in the Harris County District Attorney's Office will appear in the 185th Judicial District Court for a show cause hearing to determine whether they should be held in contempt of court for obtaining transcripts of grand jury testimony in the HPD Batmobile investigation.
Here are a few posts from around the blawgosphere regarding the collision between the runaway grand jury and the HCDAO so y'all can get a feel for what's been going down:
"My prediction for Monday: delay of game," Life at the Harris County Criminal Justice Center (Nov. 4, 2011)
"The BAT van show-cause order," Defending People (Nov. 2, 2011)
"It's the coverup that gets you: BAT van edition," Grits for Breakfast (Nov. 2, 2011)
"Judge calls top prosecutors on the carpet," The Defense Rests (Nov. 2, 2011)
"An interesting docket entry," Life at the Harris County Criminal Justice Center (Nov. 1, 2011)
"Live by the hatchet, die by the hatchet," Defending People (Nov. 1, 2011)
"The official investigation has begun," Life at the Harris County Criminal Justice Center (Oct. 27, 2011)
"Houston DWI 'BAT' vans - a timeline," Defending People (Oct. 27, 2011)
"What you say can be used..." Sustained (Oct. 27, 2011)
"The plot thickens," The Defense Rests (Oct. 26, 2011)
"A rat in a trap," The Defense Rests (Oct. 26, 2011)
"What's that: a "runaway" grand jury!," Criminal Jurisdiction (Oct. 25, 2011)
"Grand jury hysteria," Texas Criminal Defender (Oct. 24, 2011)
"Runaway jury," The Defense Rests (Oct. 24, 2011)
"Pat Lykos' star chamber rebels," Life at the Harris County Criminal Justice Center (Oct. 21, 2011)
Here are a few posts from around the blawgosphere regarding the collision between the runaway grand jury and the HCDAO so y'all can get a feel for what's been going down:
"My prediction for Monday: delay of game," Life at the Harris County Criminal Justice Center (Nov. 4, 2011)
"The BAT van show-cause order," Defending People (Nov. 2, 2011)
"It's the coverup that gets you: BAT van edition," Grits for Breakfast (Nov. 2, 2011)
"Judge calls top prosecutors on the carpet," The Defense Rests (Nov. 2, 2011)
"An interesting docket entry," Life at the Harris County Criminal Justice Center (Nov. 1, 2011)
"Live by the hatchet, die by the hatchet," Defending People (Nov. 1, 2011)
"The official investigation has begun," Life at the Harris County Criminal Justice Center (Oct. 27, 2011)
"Houston DWI 'BAT' vans - a timeline," Defending People (Oct. 27, 2011)
"What you say can be used..." Sustained (Oct. 27, 2011)
"The plot thickens," The Defense Rests (Oct. 26, 2011)
"A rat in a trap," The Defense Rests (Oct. 26, 2011)
"What's that: a "runaway" grand jury!," Criminal Jurisdiction (Oct. 25, 2011)
"Grand jury hysteria," Texas Criminal Defender (Oct. 24, 2011)
"Runaway jury," The Defense Rests (Oct. 24, 2011)
"Pat Lykos' star chamber rebels," Life at the Harris County Criminal Justice Center (Oct. 21, 2011)
Wednesday, November 2, 2011
Judge calls top prosecutors on the carpet
Oh, what tangled webs we weave...
As you already may know (if you read Murray Newman's blog), two top-ranking prosecutors and two court reporters have been called on the carpet by State District Judge Susan Brown to explain why she shouldn't hold them in contempt of court.
It would appear that transcripts of secret grand jury testimony found there way into the hands of Carl Hobbs and Steve Morris. Mr. Morris is the head of the grand jury division and Mr. Hobbs is, ironically enough, head of the government integrity bureau.
Left unsaid, interestingly enough, is how Judge Brown found out that the Harris County District Attorney's Office had obtained transcripts of grand jury testimony regarding HPD's batmobile fiasco.
Would it surprise anyone if Mr. Hobbs and Mr. Morris are sacrificed by Pat Lykos to the gods of public opinion in an attempt to hold on to her rapidly sinking ship? This is some serious shit Mr. Lykos has stepped in and there doesn't appear to be a tidy way to dispose of it.
What changed? Are we suddenly going to pretend that Amanda Culbertson made it all up? Has Ms. Lykos forgotten the e-mails outlining the problems with the batmobile program? Or is it just a case of her realizing that she opened her mouth without thinking in a desperate attempt to deflect blame for the situation?
Why do I get the impression that what's going to happen on the 6th floor at 1201 Franklin is going to resemble the closing scenes in Casino in which the the crime lords decided that Joe Pesci's character is just a little bit too dangerous to leave alive? Or maybe the sequence in Goodfellas when Robert DeNiro kills off everyone who participated in the airline heist? Or maybe...
As you already may know (if you read Murray Newman's blog), two top-ranking prosecutors and two court reporters have been called on the carpet by State District Judge Susan Brown to explain why she shouldn't hold them in contempt of court.
It would appear that transcripts of secret grand jury testimony found there way into the hands of Carl Hobbs and Steve Morris. Mr. Morris is the head of the grand jury division and Mr. Hobbs is, ironically enough, head of the government integrity bureau.
Left unsaid, interestingly enough, is how Judge Brown found out that the Harris County District Attorney's Office had obtained transcripts of grand jury testimony regarding HPD's batmobile fiasco.
Would it surprise anyone if Mr. Hobbs and Mr. Morris are sacrificed by Pat Lykos to the gods of public opinion in an attempt to hold on to her rapidly sinking ship? This is some serious shit Mr. Lykos has stepped in and there doesn't appear to be a tidy way to dispose of it.
13 Undercover first exposed maintenance problems with the BAT vans that could have led to bad test results. The DA now says the breath tests are sound. The grand jury is trying to figure out when did the DA First hear about the problems and did they speak up about it as the law requires.But then there's the curve ball. According to this story from KTRK-13, the breath tests in question are suddenly valid again. But wait, you ask, wasn't it just last week that Ms. Lykos said she couldn't trust HPD when it came to breath tests conducted in the batmobiles?
What changed? Are we suddenly going to pretend that Amanda Culbertson made it all up? Has Ms. Lykos forgotten the e-mails outlining the problems with the batmobile program? Or is it just a case of her realizing that she opened her mouth without thinking in a desperate attempt to deflect blame for the situation?
Why do I get the impression that what's going to happen on the 6th floor at 1201 Franklin is going to resemble the closing scenes in Casino in which the the crime lords decided that Joe Pesci's character is just a little bit too dangerous to leave alive? Or maybe the sequence in Goodfellas when Robert DeNiro kills off everyone who participated in the airline heist? Or maybe...
Wednesday, October 26, 2011
A rat in a trap
As my colleague Murray Newman reported earlier today, four prosecutors with the Harris County District Attorney's Office were subpoenaed to testify before a grand jury today. The grand jury is looking into HPD's Batmobile program.
Well, Pat Lykos is not taking this lying down. First she sent her minions to Judge Brown in the 185th and demanded she tell the grand jurors to let her prosecutors in the room. Judge Brown politely declined. Then she fired off a request to the 14th Court of Appeals to order the grand jurors to let her prosecutors in the room. Again the answer was no.
The topic du jour would appear to be when the DA's office found out there were problems with the Batmobiles and just how many folks were prosecuted using evidence that has since been found to be unreliable. With that we're no longer just talking about Brady violations and the possibility of a lot of writs, we're also talking about ethics violations.
Prosecutors have a duty to see that justice is done. Prosecuting people with evidence you know is unreliable is not fulfilling one's ethical duties.
It also raises questions about the reliability of breath testing in general. If the police can't maintain their machines in the Batmobiles, what makes you think they're maintaining them at the police station? We know now that these machines are sensitive to temperature and humidity. What else causes them to go haywire? And since the machines run a self-diagnostic check, what guarantee is there that the machines are operating properly.
HAL ran a self-check and determined that he was functioning properly. We all know how well that went.
And then there's this gem...
What's this? A public pronouncement that the chief prosecuting attorney in the county doesn't trust the biggest police department in the county to run its own breath testing program. If the DA won't trust HPD to be truthful about its breath testing program, why should a jury? If Ms. Lykos said she can't trust them, how can a prosecutor, in good faith, present evidence to a judge or jury regarding a breath test conducted under the auspices of HPD?
Now the only question remaining is whether Ms. Lykos will accept responsibility for what has transpired or whether she will seek out a scapegoat (or two) and leave them hanging in the wind for all the public to see. I know where I'm putting my money.
See also:
"Pat Lykos' star chamber rebels," Life at the Harris County Criminal Justice Center (Oct. 21, 2011)
"The voice of the people," Gamso - For the Defense (Oct. 24, 2011)
Well, Pat Lykos is not taking this lying down. First she sent her minions to Judge Brown in the 185th and demanded she tell the grand jurors to let her prosecutors in the room. Judge Brown politely declined. Then she fired off a request to the 14th Court of Appeals to order the grand jurors to let her prosecutors in the room. Again the answer was no.
The topic du jour would appear to be when the DA's office found out there were problems with the Batmobiles and just how many folks were prosecuted using evidence that has since been found to be unreliable. With that we're no longer just talking about Brady violations and the possibility of a lot of writs, we're also talking about ethics violations.
Prosecutors have a duty to see that justice is done. Prosecuting people with evidence you know is unreliable is not fulfilling one's ethical duties.
It also raises questions about the reliability of breath testing in general. If the police can't maintain their machines in the Batmobiles, what makes you think they're maintaining them at the police station? We know now that these machines are sensitive to temperature and humidity. What else causes them to go haywire? And since the machines run a self-diagnostic check, what guarantee is there that the machines are operating properly.
HAL ran a self-check and determined that he was functioning properly. We all know how well that went.
And then there's this gem...
Lykos tells us she still doesn't know what went wrong inside that grand jury room last week that nearly led to the arrest of two of her top assistants, despite the fact one of them was in the room with us during the interview. What she does know is that she no longer wants HPD supervising its own DWI vans.
"That's what perturbs me," she said.
Lykos told us Monday she's done trusting HPD to tell her the truth about DWI testing.
"We were never informed there were questions about whether the tests were valid," Lykos said.
What's this? A public pronouncement that the chief prosecuting attorney in the county doesn't trust the biggest police department in the county to run its own breath testing program. If the DA won't trust HPD to be truthful about its breath testing program, why should a jury? If Ms. Lykos said she can't trust them, how can a prosecutor, in good faith, present evidence to a judge or jury regarding a breath test conducted under the auspices of HPD?
Now the only question remaining is whether Ms. Lykos will accept responsibility for what has transpired or whether she will seek out a scapegoat (or two) and leave them hanging in the wind for all the public to see. I know where I'm putting my money.
See also:
"Pat Lykos' star chamber rebels," Life at the Harris County Criminal Justice Center (Oct. 21, 2011)
"The voice of the people," Gamso - For the Defense (Oct. 24, 2011)
Monday, October 24, 2011
Runaway jury
The original purpose of the grand jury was to have a body that could review a case to determine if there was enough evidence to proceed. The grand jury met in secret and if they chose to no-bill a case, no one ever knew the case had ever been considered.
The grand jury's role was to act as a check on the state in its prosecution of citizens accused of breaking the law. Over the years the grand jury has become a de facto rubber stamp for prosecutors. If the District Attorney wanted a case indicted, it was. If he wanted a case to go away because it was too hot a potato, all he had to do was let the grand jury know it was okay to no-bill it.
But someone, in Houston, a grand jury actually decided to take matters into its own hands. The grand jury was convened to consider whether anyone did something untoward regarding HPD's batmobile breath test machines.
You see, Amanda Culbertson kind of embarrassed Pat Lykos and her minions when she pointed out to her superiors in the HPD Crime Lab that the breath test machines in the batmobiles weren't, shall we say, very accurate or reliable. Then, to make matters worse, Ms. Culbertson testified under subpoena in a case and repeated her assertions that the breath tests conducted in the vans weren't all they were cracked up to be.
In the process of conducting its investigation, the grand jurors made it known that prosecutors weren't welcome in the room. Needless to say, this did not go over very well with Ms. Lykos. The DA's office asked the court of appeals to order the grand jurors to let prosecutors into the room but the appellate court thanked Ms. Lykos for playing but that she was not getting into the room - even if she said "pretty please or I'll indict someone's mother."
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.
Ms. Lykos has apparently forgotten that her ethical duty as a prosecutor isn't to coerce pleas or obtain convictions - it is to do justice. And that's even if it means dismissing cases because the machines used by law enforcement can't be relied upon to do what they are supposed to do.
H/T Murray Newman
The grand jury's role was to act as a check on the state in its prosecution of citizens accused of breaking the law. Over the years the grand jury has become a de facto rubber stamp for prosecutors. If the District Attorney wanted a case indicted, it was. If he wanted a case to go away because it was too hot a potato, all he had to do was let the grand jury know it was okay to no-bill it.
But someone, in Houston, a grand jury actually decided to take matters into its own hands. The grand jury was convened to consider whether anyone did something untoward regarding HPD's batmobile breath test machines.
You see, Amanda Culbertson kind of embarrassed Pat Lykos and her minions when she pointed out to her superiors in the HPD Crime Lab that the breath test machines in the batmobiles weren't, shall we say, very accurate or reliable. Then, to make matters worse, Ms. Culbertson testified under subpoena in a case and repeated her assertions that the breath tests conducted in the vans weren't all they were cracked up to be.
In the process of conducting its investigation, the grand jurors made it known that prosecutors weren't welcome in the room. Needless to say, this did not go over very well with Ms. Lykos. The DA's office asked the court of appeals to order the grand jurors to let prosecutors into the room but the appellate court thanked Ms. Lykos for playing but that she was not getting into the room - even if she said "pretty please or I'll indict someone's mother."
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.
Ms. Lykos has apparently forgotten that her ethical duty as a prosecutor isn't to coerce pleas or obtain convictions - it is to do justice. And that's even if it means dismissing cases because the machines used by law enforcement can't be relied upon to do what they are supposed to do.
H/T Murray Newman
Wednesday, October 5, 2011
Ask not for whom the whistle blows
For the past two decades the breath alcohol testing program in Harris County was run by Lone Star College (formerly North Harris Montgomery College). But no longer.
Yesterday Harris County commissioners voted to award the contract to the Texas Department of Public Safety. Harris County District Attorney Pat Lykos has been accused of pressuring commissioners to make the change in retaliation to Lone Star's hiring of Amanda Culbertson as a technical supervisor.
Ms. Culbertson, as you may remember, testified this summer about problems with the Houston Police Department's breath testing vans. She testified after being subpoenaed by a local defense attorney (and served by my brother). In her testimony she alleged that the higher-ups in the HPD crime lab had turned the lab into a hostile work environment because she dared to speak up about the problems.
County commissioners did Ms. Lykos no favors by deferring responsibility for the change to Ms. Lykos. She might want to get the license plate number of the bus she was thrown under.
Knowing what I know about Ms. Lykos, I don't find it a stretch to believe that she was behind the move. It would appear to be par for the course (for more on Ms. Lykos and her gang that can't shoot straight, check out Murray Newman's Life at the Harris County Criminal Justice Center blog).
The other day I wrote that I had a few problems with local criminal defense attorneys coming to Ms. Culbertson's defense. I still find it disturbing and short-sighted. Ms. Culbertson was a true-believer until she ran across problems with the batmobiles that she couldn't defend.
But, Ms. Culbertson was not a whistleblower. She never went to the media to let them know about problems with the breath test machines in the vans. She never volunteered that information at trial. The only reason she testified about those problems in open court was because Dane Johnson had made an open records request and had obtained e-mails documenting the problems. She had no choice but to testify that the machines were unreliable in that environment.
If Ms. Culbertson left HPD because she felt intimidated for raising questions about the batmobiles, then it's shame on HPD for allowing it to happen. But if we're supposed to be up in arms because the county decided not to renew the contract with Lone Star, let me off the train. It would seem that we're forgetting that what the government giveth, the government taketh away.
When your job depends on government largesse, you must understand that what's here today may be long gone tomorrow. So maybe it was retaliation and maybe it wasn't. That's just politics.
Yesterday Harris County commissioners voted to award the contract to the Texas Department of Public Safety. Harris County District Attorney Pat Lykos has been accused of pressuring commissioners to make the change in retaliation to Lone Star's hiring of Amanda Culbertson as a technical supervisor.
Ms. Culbertson, as you may remember, testified this summer about problems with the Houston Police Department's breath testing vans. She testified after being subpoenaed by a local defense attorney (and served by my brother). In her testimony she alleged that the higher-ups in the HPD crime lab had turned the lab into a hostile work environment because she dared to speak up about the problems.
County commissioners did Ms. Lykos no favors by deferring responsibility for the change to Ms. Lykos. She might want to get the license plate number of the bus she was thrown under.
Knowing what I know about Ms. Lykos, I don't find it a stretch to believe that she was behind the move. It would appear to be par for the course (for more on Ms. Lykos and her gang that can't shoot straight, check out Murray Newman's Life at the Harris County Criminal Justice Center blog).
The other day I wrote that I had a few problems with local criminal defense attorneys coming to Ms. Culbertson's defense. I still find it disturbing and short-sighted. Ms. Culbertson was a true-believer until she ran across problems with the batmobiles that she couldn't defend.
But, Ms. Culbertson was not a whistleblower. She never went to the media to let them know about problems with the breath test machines in the vans. She never volunteered that information at trial. The only reason she testified about those problems in open court was because Dane Johnson had made an open records request and had obtained e-mails documenting the problems. She had no choice but to testify that the machines were unreliable in that environment.
If Ms. Culbertson left HPD because she felt intimidated for raising questions about the batmobiles, then it's shame on HPD for allowing it to happen. But if we're supposed to be up in arms because the county decided not to renew the contract with Lone Star, let me off the train. It would seem that we're forgetting that what the government giveth, the government taketh away.
When your job depends on government largesse, you must understand that what's here today may be long gone tomorrow. So maybe it was retaliation and maybe it wasn't. That's just politics.
Monday, October 3, 2011
Thinking before speaking
Why would some local criminal defense attorneys be singing the praises of ex-HPD crime lab technical supervisor Amanda Culbertson?
Ms. Culbertson left the beleaguered HPD crime lab earlier this year as a result of what she called retaliation on the part of department employees after she raised questions about the accuracy and reliability of breath test machines in the departments BATvans.
Now Harris County Commissioner's Court is looking at whether to renew a contract with Lone Star College to manage breath test machines in the county or turn over their machines to the DPS. Adding drama to the events is the fact that Ms. Culbertson now works for Lone Star College (along with one of her former colleagues Jorge Wong).
Tyler Flood, Mark Thiessen and Brent Mayr spoke at the most recent meeting of the county commissioners to voice their belief that the county is retaliating against Ms. Culbertson for recently speaking out about problems with the BATvans.
Mr. Mayr told county commissioners that the county's technical supervisors are "committed to justice" and to seeking the truth. He said that he believed the contract was in jeopardy because the DA's office was more concerned about chalking up convictions than seeking justice.
Referring to technical supervisors as scientists is stretching the truth just about as far as it can be stretched. Technical supervisors are hired to maintain breath test machines in Texas. Their job is to ensure that the machines are working and to remove malfunctioning machines from service. They must also testify in criminal proceedings that the particular machine was working properly and that the breath test was conducted per Texas guidelines.
They are not paid to be objective. They are not paid to take a critical view of the breath test machine. They are paid to work with police and prosecutors to obtain convictions against motorists accused of driving while intoxicated.
They are no more committed to justice than the rulers of Yemen or Syria.
By singing Ms. Culbertson's praises these attorneys are telling future jurors that she speaks the truth; that she views science as impartial; that she wants to make certain that innocent folks are convicted of DWI.
Is that the image you want jury panels to come into the courtroom with? Are you sure you want to puff up the person who will testify - without any evidence other than a number on a test slip - that your client was intoxicated at the time she was driving?
I understand realpolitik and that the enemy of your enemy may very well be your friend -- but never forget the fox who offered to carry the gingerbread man across the river.
Let the county switch from Lone Star College to the DPS. It doesn't really matter. In the end the police, the technical supervisors and the judges are all working to see that your client is convicted. Maybe Ms. Culbertson had some interesting things to say about the batmobiles -- but it doesn't mean she's a friend of the defense.
Ms. Culbertson left the beleaguered HPD crime lab earlier this year as a result of what she called retaliation on the part of department employees after she raised questions about the accuracy and reliability of breath test machines in the departments BATvans.
Now Harris County Commissioner's Court is looking at whether to renew a contract with Lone Star College to manage breath test machines in the county or turn over their machines to the DPS. Adding drama to the events is the fact that Ms. Culbertson now works for Lone Star College (along with one of her former colleagues Jorge Wong).
Tyler Flood, Mark Thiessen and Brent Mayr spoke at the most recent meeting of the county commissioners to voice their belief that the county is retaliating against Ms. Culbertson for recently speaking out about problems with the BATvans.
Mr. Mayr told county commissioners that the county's technical supervisors are "committed to justice" and to seeking the truth. He said that he believed the contract was in jeopardy because the DA's office was more concerned about chalking up convictions than seeking justice.
Referring to technical supervisors as scientists is stretching the truth just about as far as it can be stretched. Technical supervisors are hired to maintain breath test machines in Texas. Their job is to ensure that the machines are working and to remove malfunctioning machines from service. They must also testify in criminal proceedings that the particular machine was working properly and that the breath test was conducted per Texas guidelines.
They are not paid to be objective. They are not paid to take a critical view of the breath test machine. They are paid to work with police and prosecutors to obtain convictions against motorists accused of driving while intoxicated.
They are no more committed to justice than the rulers of Yemen or Syria.
By singing Ms. Culbertson's praises these attorneys are telling future jurors that she speaks the truth; that she views science as impartial; that she wants to make certain that innocent folks are convicted of DWI.
Is that the image you want jury panels to come into the courtroom with? Are you sure you want to puff up the person who will testify - without any evidence other than a number on a test slip - that your client was intoxicated at the time she was driving?
I understand realpolitik and that the enemy of your enemy may very well be your friend -- but never forget the fox who offered to carry the gingerbread man across the river.
Let the county switch from Lone Star College to the DPS. It doesn't really matter. In the end the police, the technical supervisors and the judges are all working to see that your client is convicted. Maybe Ms. Culbertson had some interesting things to say about the batmobiles -- but it doesn't mean she's a friend of the defense.
Wednesday, September 21, 2011
What's the point?
To secure a defendant's attendance at trial, a magistrate may impose any reasonable condition of bond related to the safety of a victim of the alleged offense or to the safety of the community. -- Texas Code of Criminal Procedure Art. 17.40(a)The other day I was sitting in court when the judge called up everyone making their first appearance. He had the prosecutor read the probable cause statement. On every DWI case he asked the prosecutor whether there was an accident or a breath test.
The judge order the young man to install an ignition interlock device in his car.
I found it to be quite odd - as did the attorney sitting next to me. It's not like an ignition interlock is going to detect the presence of CNS depressants (other than alcohol) in one's breath. If this young man had a problem, it certainly didn't appear to be with alcohol.
A couple of minutes later we had DRE number two on the morning. Again we had a breath test well under the legal limit. And, again, the judge ordered the defendant to install an ignition interlock device on her car.
The law says a judge shall order an ignition interlock device as a condition of bond for a defendant who has at least one prior conviction for driving while intoxicated. The law also says that a judge may order an ignition interlock device as a condition of bail in a case with a breath or blood test over .15.
So what's going on here? Ordering the installation of an ignition interlock when a person clearly was not intoxicated by consuming alcohol makes little or no sense. It certainly doesn't do anything to enhance the safety of the community.
All it appears to do is line the pockets of the companies that distribute, install and maintain the devices. I do wonder where that money goes.
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