Amanda Culbertson has a conscience, which isanother way of saying that she wasn’t well-suited to government “work.” Untilrecently she was employed by the Houston Police Department as a crime labsupervisor. In 2009, she became aware of serious problems with the reliabilityof the department’s roadside blood alcohol testing vehicles, more commonlyknown as BAT vans.
Over the past decade, hundreds of police departments nation-wide have purchased the vehicles with the help of federal grants. The testing device deployed in them, the Intoxilyzer, is considered infallible by law enforcement agencies and most trial judges. However, the Kentucky-based company that manufactures the the Intoxilyzer has refused to disclose its source code. Without access to the source code, the device's findings are unverifiable. As one defendant points out, the machine could simply be a gimmicky random number generator, rather than a finely calibrated scientific instrument.
In 2008, it was discovered that a supervisor for the Houston Police Department had falsified BAT van inspection records for at least the previous eighteen months, thereby calling into question test results in at least 2,600 cases. When Culbertson was appointed to supervise the inspections, she learned that indifferently trained police officers allowed the units tooverheat, which would skew test results. In addition, a glitch in the systemcaused the much-heralded Intoxilyzer to reset every timethe air conditioner was turned on.
Overthe course of several months, Culbertson tried to get officials in the policedepartment and the Harris County DA’s office to address her concerns. None of them was interested in disturbing what had become a veryprofitable scam.
In June, Culbertson and two of her colleagues quit their jobswith the HPD. “We could no longer choose between a paycheck and our integrity,”Culbertson explained. Not surprisingly, she was called to testify by attorneysrepresenting some of the hundreds of people facing DUI charges as a result ofBAT van tests.
Inprofessional terms, Culbertson landed on her feet: She was hired by alaboratory at Lone Star College that had a contract to conduct breathalyzeranalysis for the Harris County Sheriff’s Office. Shortly thereafter, the HarrisCounty Commission – at the initiative of DA Pat Lykos – ended its contract withthe Lone Star College lab. In effect, Lykos – in an act of vulgar retaliation--arranged for Culbertson to be fired.
HarrisCounty’s 185th criminal court grand jury, which had beeninvestigating problems with the BAT vans, called Culbertson to testify, alongwith former Harris County Prosecutor Brent Mayr. Lykos dispatched two membersof her flying monkey corps – assistant DAs Carl Hobbs and Steve Morris – to“monitor” the grand jury testimony.
SinceLykos and her office were suspected of covering up the use of tainted evidenceand retaliating against a whistleblower, the DA and her underlings were barredfrom being present in any capacity other than as sworn witnesses. Accordingly,when Lykos’s minions materialized during Culbertson’s testimony, the Grand JuryForeman ordered them to leave. When that directive was ignored, theForeman instructed the Baliff to remove them or place them under arrest.
Lykosunsuccessfully sought a court order compelling the grand jury to grant accessto her underlings. When that effort failed, the DA's office exploited aback-channel to obtain official transcripts of the grand jury testimony. Thatled to a summons from Judge Susan Brown to Hobbs and Morris, along with courtreporters Javier Leal and Katherine Chagaris, who face the possibility ofcontempt citations and the prospect of six months in jail.
TheHarris County grand jury's insurrection caused consternation in the DA'soffice, and astonishment in the local media. "All too often in the past,Harris County grand juries have functioned as rubber stamps providingprosecutors with indictments without impartial scrutiny of theirsubstance," notes the Houston Chronicle. Of course, this is true of practically every grand jury sincethe enactment of the Federal Rules of Criminal Procedure in 1946.
TheAdvisory Committee had no legislative authority or popular mandate; it was apure creation of the prosecutorial class. Thus it’s hardly surprising that oneof its most urgent priorities was to transform the grand jury from a citizen’s assembly into an instrument of theprosecution. This meant “rectifying” – in the Orwellian sense – the FifthAmendment by effectively removing the troublesome word “presentment.”
TheFifth Amendment specifies that “No person shall be held to answer for acapital, or otherwise infamous crime, unless on a presentment or indictment ofa Grand Jury….” A “presentment” is essentially a proprio motu indictment delivered by a grand jury without approvalof a government prosecutor.
Presentments were often filed by grand juriesinvestigating official corruption – such as the grand jury in Minneapolis thatforced the resignation of the mayor and police chief in 1902, or the one thatdislodged Boss Tweed and his politically sheltered cronies thirty yearsearlier.
Thiswas an entirely appropriate function of the grand jury. The “grand jury in itsprimal, plenary sense … was a group of men who stood as a check on government,often in direct opposition to the desires of those in power,” points out constitutional scholar Roger Roots.Rather than being an instrument of the political class, Roots continues,“American grand juries initiated prosecutions against corrupt agents of thegovernment, often in response to complaints from individuals.” It also servedas “a people's watchdog against arbitrary and malevolent prosecutions."
Formost of America’s history, “the evil that the grand jury sought to address wasthe exercise of distant power locally,” wrote Kevin K. Washburn in an articlefor the Fordham Law Review. “Indeed,the grand jury came to us as an institution that was respected for its profoundability to protect local communities – indeed, possibly rebellious ones – fromcentral government authority. It was, in essence, a local check on Crownauthority.”
In1734, grand juries twice refused to indict John Peter Zenger for “seditiouslibel.” New York’s Royal Governor William Cosby bypassed the grand jury byfiling a “criminal information” against Zenger – only to see the trial jurynullify the sedition law and acquit the newspaper publisher. During the 1760s,Crown prosecutors in Massachusetts were constantly stymied by grand juries thatrefused to indict colonists accused of violating the Stamp Act and otherimpositions.
Bothbefore and after American Independence, “the grand jury’s primary method forexercising its power was not rigorous review of facts, but nullification ofvalidly enacted laws,” Washburn observes. They didn’t dispute the prosecutor’spresentation of the facts, but rather “the legislator’s right to impose suchlaws, or at least the prosecutor’s decision to enforce them in a givencontext.”
Obviously,this kind of power simply couldn’t be left in the hands of mere Mundanes.Accordingly, the term “presentment” was conspicuously absent from Rule 6 of theoriginal Federal Rules of Criminal Procedure, which dealt with the role of thegrand jury. Lester B Orfield, who served on the Advisory Committee, laterexplained that retaining the term “might encourage the use of the `run-away’grand jury as the grand jury could act from their own knowledge or observationand not only from charges made by the United States attorney.”
“Today,the grand jury is the total captive of the prosecutor, who, if he is candid,will concede that he can indict anybody, at any time, for almost anything,before any grand jury,” wrote federal District Judge William J. Campbell in a 1973law journal article calling for formal abolition of the institutionon the grounds of redundancy. This isn't to say that the grand jury is considered useless by the prosecutorial caste: It helps maintain the pretense that prosecutors are servants of the public will.
What is happening in Harris County is not an example of a grand jury going "rogue," but rather one behaving exactly as it should. It is interposing itself on behalf of the public by investigating a federally subsidized revenue-collection racket, and the abusive prosecutor who presides over it. Hopefully its example will prove to be contagious.
Programming Note
This Saturday (November 5) I will be one of several featured speakers at the United Republicans of California state convention at the Embassy Suites Hotel in Arcardia, California. UROC, which bills itself as "The republican wing of the Republican Party," is emphatically not a neo-con group: In 2008, it unanimously endorsed Ron Paul's presidential bid.
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Dum spiro, pugno!
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