The Stain

So, as I predicted in my last post, no indictments were handed down by the 185th Grand Jury today as they concluded their investigation into criminal wrongdoing by Pat Lykos' District Attorney's Office.  Also as predicted, they issued the following statement:

To:  The Honorable Susan Brown, 185th State District Court
From:  Foreman, 185th Grand Jury, Harris County
DATE:  January 31, 2012
RE:  Our Grand Jury Service


The members of this Grand Jury are honored to have had the opportunity to serve as Grand Jurors for the August 2011 Term, extended to February 1, 2012 for the HPD Mobile B.A.T. Vans investigation.  The privilege to serve the outstanding citizens of Harris County by participating in the determination of probable cause in felony cases and in an investigation is a unique experience essential to the administration of the criminal justice system, and we actively encore other citizens to volunteer for Grand Jury service.


Our attempts to initiate our investigation were met with unexpected resistance from persons in the Harris County District Attorney's Office (HCDAO).  Nothing prepared us for the events that unfolded, some of which are documented in motions filed by the HCDAO and some are in the public domain.  In the days prior to the Court's ruling authorizing the attorneys pro ten to aid in our investigation, an investigator and other senior members of the HCDAO were observed in the hallway outside our Grand Jury meeting room;  we were unable to determine whether this was an effort to track the traffic of witnesses or for purposes of intimidating members of the Grand Jury.  One day while walking on a sidewalk returning from lunch break, some Grand Jury members were photographed by an unknown person in what appeared to be a government issued vehicle, again for an unknown purpose.  We discovered through our investigator that the HCDAO initiated investigations into members of the Grand Jury, the attorneys pro ten and past and present members of the Harris County Judiciary.


Our investigation was distracted by the Assistant District Attorney most responsible for the prosecution of DWI cases invoking her Fifth Amendment right against self-incrimination (publicly reported).  To be perfectly clear, we know the ADA had the right to invoke the Fifth Amendment, but we are deeply troubled that any prosecutor would fear prosecution from a Grand Jury investigation.  The stain upon the HCDAO will remain regardless of any media statements issued or press conferences performed by anyone.


The ultimate standard for prosecutors much be much more than mere obedience to the law; it must be conduct which constantly reaffirms one's fitness for the responsibility and continuously furthers the belief that a DAO exists to ensure an even-handed administration of justice.  Conduct which casts public discredit on the office of the HCDAO as well as on the administration of justice is unacceptable.  While we appreciate the fine line between ethics and the law, our investigation was unable to determine that any criminal conduct had occurred.  But it is clear that the work of this Grand Jury has already resulted in some positive changes in the enforcement of DWIs in Harris County, as the HPD B.A.T. vans are being phased out.  Again, we thank you for the privilege to serve our County.


So, what can be made of this letter?  A lot, actually.

The letter points out that they "appreciate the fine line between ethics and the law" when they state that no criminal conduct had been committed.  Unfortunately, it is a sad fact that unethical behavior by an attorney may be handled on other levels (such as a grievance with the State Bar), but may not result in criminal charges being filed.  Ethical violations and breaking the law are both wrongful acts, in other words, but ethical violations won't put you in prison.  The fact that the letter points this out is very telling.

Furthermore, the fact that the letter indicates that the Grand Jurors felt as if the District Attorney's Office was attempting to intimidate them is a definite cause for concern.  In fact, it is more of a concern than any allegations regarding the functionality of a fleet of B.A.T. vans.  David Jennings, in a Twitter post, made light of the intimidation tactics by writing: "LOL, it reads like a black helicopter conspiracy kook wrote it.  Photos from a car looked like a gov't vehicle!  Oh no!"

I can't help but wonder if Dave would feel so cavalier about the Grand Jury's claims of intimidation if Defendants charged with violent crimes and other felonies roamed the hallways outside where a Jury or Grand Jury was deliberating their cases, or were taking photos of them as they walked down the street.  Lykos does have Joe Strange working for her and his job (as he drives around in his county car) is taking photos.  Or perhaps, it was just that nimwit Don Hooper taking photos as he likes to do.  He does have a lot of free time on his hands.

The bottom line is that whether the allegations of wrong-doing by the Harris County District Attorney's Office were True Billed or No Billed, Pat Lykos and her Crew responded truly like defendants in a criminal case.  Lykos tried everything in her power to have her prosecutors bully their way into the Grand Jury room, stonewall by pleading the 5th Amendment, and claim that she was set up for political reasons.  As I'm writing this blog post, she's giving a press conference celebrating the fact she and her Gang weren't indicted.

Actually, the vast majority of criminal defendants that I have dealt with in my 13 years of handling criminal law respond with more dignity and respect for the System than Lykos has.  Lykos and Palmer have truly acted like the Stain on the Criminal Justice System that the letter described them to be.

I'm certain that Lykos and Palmer and the rest of their group will feel very emboldened by today's Grand Jury decision.  What they should be is thankful.  Despite any external or fictional political pressure, the Grand Jury weighed the evidence they had and decided that no criminal cases would be filed.  The organization that is notoriously mocked as being inclined to "indict a ham sandwich" did not indict anyone from the District Attorney's Office.

Does that disappoint me?  Not in the slightest.  The Grand Jury did what it was supposed to do.  They held a government agency to scrutinizing standards and made their decision based on the law provided.  You can't argue with that.

But, I am reminded of something that Pat Lykos said on the campaign trail back in 2008, in alluding to the benefits of "transparency":  sunshine is the best disinfectant.

I couldn't agree more, and the 185th Grand Jury did add some sunshine with their letter.