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Grant M. Scheiner - Houston Criminal Defense Lawyer

The BAT Van Controversy Continues

It seems like almost every day there is a new twist to the BAT Van fiasco. What is perhaps the most troubling about the controversy is the lack of transparency with which the DA’s office has handled this matter. Last Friday’s Houston Chronicle featured a very well-written article which cut to the heart of the issue (read the original here):

Judging by the chain of events involving allegations that police and prosecutors used flawed evidence to convict motorists of DWI, it would appear the Harris County criminal justice system is getting a bit tipsy.

It started when a whistle-blowing Houston Police Department Crimee lab supervisor, Amanda Culberston, questioned the accuracy of breathalyzer tests conducted by the department’s breath alcohol testing (BAT) vans. If the allegations are proven, many DWI cases and convictions could be thrown out.

Then Harris County commissioners, at the recommendation of District Attorney Pat Lykos’ staff, canceled a contract with a Lone Star Laboratory that has performed breathalyzer analysis for the sheriff’s office for decades. The lab just happened to have hired Culbertson, who had resigned her HPD position. Defense attorneys charged that the move was payback by the DA for Culbertson’s undermining of DWI prosecutions.

In the latest twist, Harris County’s 185th criminal court grand jury, an institution normally controlled by prosecutors, has apparently turned its investigative focus on the DA’s handling of the tainted evidence and possibly issues of retaliation against Culbertson. The grand jury not only barred prosecutors from being present during its questioning of witnesses, but also called three assistant district attorneys as well as a former prosecutor who is now a judge to testify about their handling of DWI cases.

Lykos unsuccessfully appealed to Susan Brown, the judge who empaneled the grand jury, and then to an appellate court to get her employees back into the grand jury sessions. The grand jury requested a special prosecutor be appointed to assist the investigation, and Judge Brown named two attorneys, both former Harris County prosecutors.

Because grand jury testimony is secret, no one’s confirming what possible violations of law the grand jury is looking at. To paraphrase Bob Dylan’s Ballad of a Thin Man, something is going on here and we don’t know what it is.

We do know the grand jurors are showing rare independence and courage in trying to get to the bottom of a very murky controversy centered on the reliability of HPD breathalyzer results.

All too often in the past, Harris County grand juries have functioned as rubber stamps providing prosecutors with indictments without impartial scrutiny of their substance. The indictments of former Judge Lupe Salinas or an alleged $200 discrepancy on a campaign report and former HPD chief and current Houston City Councilman CO Bradford for perjury regarding the use of a swear word come to mind. Both cases were later thrown out by jurists.

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

We agree. No government agency should be unaccountable to the judicial process for its actions, and that includes the Harris County District Attorney’s office.