The Houston Chronicle reports that a grand jury empaneled by the 185th District Court has requested the appointment of a special prosecutor and an extension of its term.
Speculation by the paper and local attorneys, including at least
one blogger is that the grand jury is investigating the Harris County District Attorney's Office's role in the
controversey surrounding the Houston Police Department Breath Alcohol Testing (BAT) vans, and
the Lone Star College contract to supervise the Harris County Sheriff's breath machines. However, considering that grand jury proceedings are secret and the few remedies available to the body, this all may be much ado about nothing.
Even if the grand jury believes that the District Attorney's office suppressed or failed to turnover exculpatory evidence to individual defendants and/or their counsel, there is no criminal sanction for this conduct under Texas Law. It may be unethical and the cause of new trials for accused deprived of the information, but its not a crime. A charge of official oppression based on such conduct or the non-renewel of the contract would be a novel theory of prosecution, at best.
A perjury related allegation such as witness tampering against the DA's office is unlikely, as well. Witness tampering requires an offer or agreement of a benefit or coercion to testify falsely, withhold or avoid testimony. The simplest hypothetical would be a request by an ADA for a witness to present false testimony about the reliability of the BAT van tests or face adverse employment consequences. Without a second witness, recording, or corroborating evidence, this devolves into a he said/she said. Any lawyer who has ever had the burden of proof in a case where that is the only evidence knows it can be a very tall mountain to climb.
It also requires proof of additional details. Firstly, it first requires that the exculpatory information was timely communicated to the DA's office, a matter in dispute. It also requires that actual testimony was contemplated or anticipated on the subject. Next, the person who supposedly did the tampering would have to have known about the exculpatory evidence. Then, they would have to, with the intent to influence the witness, done something to try to get the witness to testify falsely or withhold testimony, as oppossed to to "hair-splitting" style witness preparation.
A more likely target of a perjury investigation is whether any Breath Test Technical Supervisor Affidavits (Form DIC-56) were knowingly falsely signed. This may subject the signer to a number of charges including perjury and tampering with a government record. Neither allegations of "Brady" violations by prosecutors, nor subsequent testimony in different proceedings, absolve an affiant of culpability for swearing falsely. These documents are used by the Texas Department of Public Safety in every Administrative License Revocation (ALR) hearings to suspend the driver's licenses of individuals who failed a breath test. In other words, there are many many many more affidavits that may have been falsely signed than live witnesses who may have falsely testified. Texas district and county attorneys generally do not participate in these proceedings; DPS has its own lawyers. Asking a grand jury to investigate potential criminal matters, on the other hand, is within their role.
While the oddities of this particular investigation may be tantalizing, they may simply be the result of a grand jury conducting a thorough investigation. They may have excluded prosecutors from the room becasue they believe the office has a potential conflict of interest or that their presence impedes their ability to get full and accurate testimony from witnesses, not as a result of anything that has been done, but merely because of the nature of the relationship between the prosecutors and the witnesses and the subject matter, itself. This doesn't mean anyone has done anything wrong - it may simply mean the grand jury is trying to do a good job. This, too, however, is speculation.
No one knows exactly what the grand jury is investigating except the grand jury. Rumors of looming indictments, resignations, and conspiracy theories may be borne of desire or from fantasy, but they have no current basis in fact.
Update:
Judge Brown has granted one of the grand jury's requests and appointed special prosecutors. According to the Houston Chronicle,
The order appointing St. Martin and Mount, both former assistant district attorneys now in private practice, states that grand jurors are investigating “possible criminal conduct by members of the Harris County district attorney’s office.”
While some may view this as support for the speculation that charges are forthcoming, in reality this appointment really only means one thing - there will be no further appeal of Judge Brown's order last week denying the DAs access to the grand jury. The issue is moot. The argument that the alleged error is "capable of repetition, yet evading review" will probably not be presented to the Texas Court of Criminal Appeals. This resolution spares all concerned the potential embarrassment of losing.
Update:
The Houston Chronicle ran a front page story on the matter story this morning.
Judge Brown has extended the grand jury's term.
A County Criminal Court at Law Judge has allowed the defense to subpoena the DA and/or of media tapes of an interview with her relating to her opinion of HPD breath testing. This may be a risky move by the lawyer - unless she knows what she's going to get from the witness or evidence as she's not the only one who gets to ask questions or present evidence.
Update:
It didn't work. the defendant was convicted.
Florida has its own problems with unreliable breath machines, according to news reports.
Update:
The Houston Chronicle reports that several prosecutors and court reporters may face contempt charges arising from their alleged unlawful possession of transcripts of witness testimony.
Update:
The latest conspiracy theories.
Update:
Judge Susan Brown recused herself from the contempt proceedings that she initiated.
Update:
The grand jury subpoenas members of Commissioner's Court to testify. It appears that as the matter before the grand jury has been widely reported, the prohibition against disclosure of the existence of grand jury subpoenas in
CCP Art. 20.02(h) mayn't apply.
Final Update:
The grand jury indicts no one.