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Legal Reality Newsletter 27 October A. D. 2011


27 October A.D. 2011

Below is the recent story in the the Houston Chronicle. 

The headline focuses on the investigation of the validity of the data taken via the breath-alcohol test (BAT) van and how much of what the prosecutors knew about potentially tainted evidence.

The details of the story reach the even more significant focus for the student of “the system,” which is the discussion of the trial and appellate rulings that allow the Grand Jury (in Texas) to proceed WITHOUT having prosecutors in the room with them.  This state Grand Jury ordered the prosecutors out of the room; the trial court confirmed their authority to do so; and, the state appellate court upheld the trial court.

Of zero surprise, the Harris County DA is deflecting the investigation into prosecutorial corruption by focusing her comments on the faulty nature of the BAT evidence, which tends to put the blame on the Houston cops (not good politics for any prosecutor to put blame on the cops).  But, if potentially tainted evidence were all that was at issue, why would the Grand Jury subpoena four prosecutors to testify, and, then, why would the Grand Jury have their “supervisors,” i.e., the attorneys that usually “control” the Grand Jury sessions, leave when taking testimony from a Harris County defense lawyer?

This author has been sensitive to destruction of evidence issues and fabrication of evidence issues for, well, let’s call it a long time.  For just one example, if the (federal) Grand Jury in Oklahoma would have exercised its authority, as is plainly exercised by this (state) Grand Jury, then the development of the fabricated-evidence-based cases against McVeigh and Nichols could very easily have taken a different path.  For the present system to function, both the prosecutors and the judicial officers have to want it to.  Here, the judicial oversight of the matter has removed prospectively conflicted attorneys from the Grand Jury’s investigation.

If something develops from this, then it’s likely that a special prosecutor will have to be appointed.  We’ll then watch a dispute over “venue.”  Then, if a case survives all that activity, we’ll see if prosecutors who are charged with playing fast and loose with evidence known to be corrupted can end up in jail.

It’d be but a drop of water in the ocean, but it’d be a step in the right direction.

Harmon L. Taylor
Legal Reality
Dallas, Texas

Subscribe / unsubscribe :  legal_reality@earthlink.net

http://blog.chron.com/newswatch/2011/10/grand-jury-calls-4-harris-county-prosecutors/

Grand jury calls 4 Harris County prosecutors

A Harris County grand jury investigating how the Houston Police Department and the Harris County District Attorney handled potentially bad DWI evidence subpoenaed four Assistant District Attorneys as part of its ongoing investigation, KTRK-TV (Channel 13) is reporting:

The four are all prosecutors who handled DWI cases since the BAT vans were used.

The grand jury proceedings are secret, but our legal analyst Joel Androphy says it is clear to him grand jurors are trying to figure out when the DA’s Office knew about BAT van maintenance issues and what they did with the information.

Houston Police Department’s BAT van sits off Washington Avenue in 2010. (Holly Dutton / For the Chronicle)

Pat Lykos (Billy Smith II/ Chronicle)

Last Tuesday when defense attorney Brent Mayr, an outspoken critic of the HPD’s mobile breath alcohol-testing vehicles, was called to testify, the grand jury kicked out three senior prosecutors – even threatening to have the bailiff arrest them if they did not leave, according to court records, the Chronicle reported.

Harris County District Attorney Pat Lykos said yesterday she was considering appealing a court ruling that a grand jury can exclude prosecutors from listening to witnesses testifying in an investigation apparently focused on the Houston Police Department‘s troubled mobile alcohol-testing vehicles.

District Judge Susan Brown, who empaneled the grand jury, refused prosecutors pleas to be present during the testimony, and her ruling was upheld Thursday by the 14th Court of Appeals in Houston.

Although usually known as rubber stamps for prosecutors, grand juries have the authority to initiate investigations in private, but it is rare. Called “runaway,” they meet in secret, have the authority to investigate anything and the power to indict the subjects of their investigations.

– Chronicle reporter Anita Hassan contributed to this report



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