Harris County Grand Jury Probe focuses on HPD’s Breath-Testing Vans

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

This is our fourth post this year concerning out of control law enforcement “no refusal” DWI policies (here, here, and here). We don’t like them. They are at best, we believe, an unconstitutional invasion of individual privacy. Worse yet, they smack of the kind of things done in a police state—individual rights eliminated to protect the so-called “good of the majority.” The Harris County District Attorney’s Office is high on these no-refusal policies and the so called “no refusal holidays,” which were the obsession of former Assistant District Attorney Warren Diepraam. The DWI enthusiast has since taken his skills and DWI attitudes to the Montgomery County District Attorney’s Office where he occupies the position of “chief” of the Vehicular Crimes Section.

Well, the “take no prisoners” legacy of Diepraam has fallen into some disfavor. The legacy began to unravel this past July when the Houston Chronicle carried a report that the Houston Police Department’s “breath-testing vans” (“BAT vans”) used in the no-refusal stops are defective and produce false positives for intoxication. Former HPD crime lab supervisor Amanda Culbertson and several lab technicians became so concerned about the flawed vans that they “documented” the problems—after which they resigned from the crime lab, apparently under fear of retaliation; something either HPD or the District Attorney’s Office was apparently concealing from defendants charged with DWI violations stemming from evidence produced by these “BAT” vans.

“We could no longer choose between a paycheck and our integrity,” the Chronicle quoted Culbertson as testifying this past July at a pretrial hearing in a DWI case being tried before District Judge Pam Derbyshire.

The problem with the BAT vans lies in their air conditioning systems which are needed to “regulate the temperature” of the breath testing machines used to measure breath alcohol levels. Culbertson told Judge Derbyshire that there was “an electrical glitch” which caused the machines to “reset” each time the van’s air conditioner was turned on. HPD was aware of this glitch and never fixed the problem. Culbertson and others were concerned about the “accuracy of the test results” produced in this unstable environment.

“In theory it’s a great idea, but is depends on who is in charge of the environmental conditions,” Culbertson told the court.

This latest flap involving the BAT vans, which are operated by the HPD crime lab, surfaced after defense attorneys in a DWI case moved to have breath test evidence suppressed. The attorneys, Dane Johnson and Jordan Lewis, produced Culbertson at their suppression hearing after HPD officials had testified, under oath, that there were “no problems” with the breath testing equipment. Culbertson’s concern focused on most DWI cases from 2009, prompting attorneys Johnson and Lewis to say her testimony could impact “dozens of DWI cases.”

Prosecutors scrambled to “damage control.” They sought, and secured, a continuance from Judge Derbyshire, telling the court they had never been informed about the “alleged problems.” Prosecutors did not offer any public comment following Culbertson’s serious disclosures about the BAT van problems.

While prosecutors thought the “problem” would disappear under the social radar, it did not—the problem became cancerous. The Chronicle in early September carried yet another report that fueled the controversy into a political firestorm. This time the newspaper’s report concerned efforts by two local defense attorneys, Martin Thiessen and Brent Mayr (a former Harris County prosecutor), to have DWI convictions against their clients tossed out because of “bad evidence” produced by the BAT vans. Thiessen’s client was arrested earlier this year after a BAT van breath-testing machine said she blew over the legal limit for breath-alcohol.  But Thiessen produced a “police video” which showed the client did not appear intoxicated.

“There’s a problem with these machines, and the district attorney’s office is reluctant to tell us about it,” the attorney told the newspaper.

Mayr was even more blunt in his criticism of the BAT vans and the evidence-handling associated with them. The attorney filed court pleadings to have a DWI conviction set aside because of the flawed evidence used to convict his client in August 2010. Mayr had learned from news reports that there was a string of emails among HPD personnel discussing the BAT van problems. These news reports disturbed Mayr because he had received a court order prior to the email disclosures requiring the HPD to disclose all documents relating to the BAT van problems. The HPD, however, disclosed only the one work order utilized in his client’s case.

“HPD knew about this stuff and hid it from me, even though I had a court order,” Mayr told the Chronicle.

In the wake of the Culbertson revelations, Harris County First Assistant District Attorney Jim Leitner told the newspaper that his office had contacted the “scientific director” of the Texas Breath Alcohol Testing Program requesting “tests” to address the former crime lab supervisor’s claims. “As a result of this testing,” Leitner told the Chronicle, “we have no concerns about the accuracy and reliability of breath alcohol testing in the HPD BAT vans when the tests are administered in accordance with scientific protocol.”

Perhaps the DA’s office should have been more concerned, as well as forthcoming, about the BAT van problems. The local news media (KTRK and Houston Chronicle) have carried headline grabbing reports that a local grand jury may be investigating the District Attorney’s role in the handling of the BAT van problems. In fact, local television station KTRK reported that the foreperson of the grand jury asked a bailiff to remove prosecutors from the grand jury room so jurors could receive testimony “on their own about potentially faulty DWI tests.” Since grand jury proceedings are secret, there is no way to accurately predict the direction of the BAT van investigation.

The forced expulsion of prosecutors from the grand jury room came after Culbertson and Mayr were reportedly asked to testify about problems associated with the BAT vans and the handling of this matter by the District Attorney’s office and the HPD.

“I wouldn’t call it a runaway grand jury,” Chip Lewis, the attorney representing Culbertson, told the Chronicle, “as much as I would call it a well-focused grand jury.”

Grand juries have historically been an arm of the prosecution, rubber-stamping requests for indictments. The fact that the grand jury kicked prosecutors out of the jury room over vehement protests from DA Pat Lykos’ office is a good indicator that the “well-focused grand jury” has set its investigative sights on the district attorney’s office and its apparent efforts to cover up the entire BAT van controversy.

The district attorney’s office tried to convince the judge who impaneled the grand jury, and a subsequent appellate court, that since the grand jury had not sought “formal disqualification” of the district attorney’s office because it was the target of the investigation, the grand jury did not have the authority to bar prosecutors from the proceedings. Both the judge and the appellate court rejected those arguments, effectively endorsing the boot the grand jury had used to kick prosecutors from the jury room.

The grand jury has now asked that a special prosecutor to be appointed and for an extension past their three month term to continue the investigation, says Brian Rogers of the Houston Chronicle.

Our two most recent articles concerned prosecutors who withheld evidence that kept Michael Morton, an innocent man, in prison for twenty-five years for crimes he did not commit. These prosecutors now face several ongoing investigations, including one by the State Bar.

We now have no doubt that the flaws in the BAT vans have resulted in the criminal convictions of innocent DWI defendants, and likewise we believe exculpatory evidence about the vans was withheld from their attorneys by the HPD with either the knowledge or blessing by someone in the district attorney’s office.

The BAT van case and others make it appear that the suppression or withholding of favorable evidence in criminal cases is endemic among Texas law enforcement, including some prosecutors. We don’t know which direction the investigation currently being conducted by Harris County grand jury into the BAT vans controversy will take, but when an assistant district attorney is kicked out of the proceedings under threat of arrest, it is safe to assume that the district attorney’s office is under serious scrutiny. We have said it before, and we will reiterate it again, that the only way to stop the persistent taint of intentional professional misconduct among Texas prosecutors is through formal discipline or disbarment from the State Bar of Texas along with criminal prosecution, if such is warranted. We have no way of knowing if anyone at the Harris County District Attorney’s office has acted in a criminal manner in the BAT van matter, but if they have, the grand jury should do more than kick prosecutors out of the proceedings—it should hand down indictments against anyone in law enforcement who broke the law.

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization