In what is probably a start of litigation surrounding the Houston Police Department’s Breath Alcohol Testing (BAT) vans and what is referred to as the 185th Runaway Grand Jury, two former HPD technicians filed a lawsuit in federal court this morning alleging that Harris County District Attorney Pat Lykos and Assistant Harris County District Attorney Rachel Palmer violated their Constitutional rights by unlawfully retaliating against them for their roles as whistle-blowers.
The two former HPD employees, Amanda Culbertson and Jorge Wong, held a press conference this morning at the Law Offices of Chip Lewis. Mr. Lewis has been retained as their personal lawyer – as he is a criminal defense specialist and has no experience in labor law, Scott Cook out of Austin, TX. Mr. Cook’s Linked in profile discusses his experience:
Scott’s law practice focuses on the representation of individuals in employment disputes. He represents and has represented individuals in a wide variety of cases, including litigating claims for breach of an employment contract, discrimination, unpaid overtime, FMLA violations, whistleblower retaliation, retaliation for the exercise of First Amendment rights, and sexual harassment. He regularly advises employees on their rights in the workplace.
At the press conference this morning, each plaintiff gave a brief statement and then turned it over to the lawyers for questioning. Unfortunately, I didn’t capture their statements on video but I do have audio of them (sorry about the “clicks”, one of the photographers had a very loud Canon camera!):
It was clear that this is Mr. Lewis’ show. He answered the majority of the questions, deferring to Mr. Cook for answers to a couple of technical details. Here is a video of the press conference:
The lawsuit itself contains far more information about the Houston Police Department than it does the Harris County District Attorney’s Office. There is a third technician mentioned many times, Jano Chu, that is not a party to the lawsuit, which is somewhat curious to me. Here is the lawsuit:
As you can see, much of the lawsuit centers on Lone Star College, where the two former HPD technicians ended up after leaving HPD. While the lawsuit focuses on Harris County Commissioners Court selecting the Texas Department of Public Safety to take over testing for DWI’s, it fails to mention that the contract with Lone Star expired and wasn’t renewed. This may or may not be significant in the outcome of the lawsuit but leaving that portion out does change the context of the two “losing” their jobs after the contract expired.
One thing that caught my eye is on page 11, numbered paragraph 43. I’m not sure what the purpose of the paragraph is, except perhaps to make ADA Palmer “look bad”. The lawsuit contains this quote from Judge Pam Derbyshire:
“You may be unhappy with her conduct, but there is only one thing and one thing only she is hirer for, which is about the breath test given to this gentleman in Bat Van 5.”
When I first read that, my impression was that the judge was scolding ADA Palmer. However, when Judge Derbyshire’s comment is read in context, the trial transcript of State vs Donald Andrews, Case # 1682012, tells a far different story.
22 Q You realize that the DA’s office relies on
23 you for your past blood testing and full breath
24 testing, right?
25 MR. LEWIS: Objection; relevance.
START OF PAGE 11
1 THE COURT: Are we going to get to the
2 breath test in this case?
3 MS. PALMER: There is a lot of background
4 that’s important.
5 THE COURT: You may be unhappy with her
6 conduct, but there is only one thing and one
7 thing only she is here for, which is about the
8 breath test given to this gentlemen in Bat Van
10 MS. PALMER: Respectfully, it’s more
11 important than that.
12 Let me make clear for the record, I am not
13 unhappy with this witness. It’s important that
14 the State knows the truth about what’s going on
15 in the Houston Police Department crime lab.
16 From yesterday’s direct examination and
17 cross-examination, this witness is acting as a
18 whistle-blower with regard to HPD.
19 THE COURT: Approach the bench.
20 Ms. Culbertson, could you wait in the
22 (Discussion off the record)
23 THE COURT: All right. Back on the
25 Ms. Palmer, please proceed.
START OF PAGE 12
1 MS. PALMER: Thank you.
What actually happened here is pretty important. As ADA Palmer is questioning Ms. Culbertson, her attorney, Mr. Lewis*, objects. The judge initially seems inclined to agree with him, which is the quote used in the lawsuit. However, after sending Culbertson out of the room and hearing ADA Palmer out, Judge Derbyshire agrees with ADA Palmer, and allows her to continue questioning the witness. But the key point is that ADA Palmer CLEARLY wants to get to the truth. Let me repeat what she says on the record:
Respectfully, it’s more important than that. Let me make clear for the record, I am not unhappy with this witness. It’s important that the State knows the truth about what’s going on in the Houston Police Department crime lab.
Virtually the entire universe of press surrounding the BAT Vans, DA Lykos, and ADA Palmer has accused them of trying to hide something or cover something up – in reality, as documented in the official trial transcripts. they were trying to get to the truth about them. If nothing else comes from this lawsuit, perhaps that point will make it through the noise.
Which brings me to another potentially interesting thing that might come out of this lawsuit: could we see copies of the grand jury testimony from the 185th Grand Jury? After all, paragraphs 61-67 specifically refer to that misuse of the court system. Obviously, I’m not an attorney and don’t know if that testimony is “discoverable” or not, or if the alleged leaks by grand jury members can be used, but if that happens, expect incoming DA Mike Anderson’s regime to be tainted from the start.
You know, it occurs to me that perhaps Culbertson and Wong are being used by Anderson surrogates to give him a plausible reason to fire ADA Palmer. If so, I’d bet that Harris County taxpayers are going to have to clean that up with our pocketbooks. Pass the popcorn, folks, this is going to be very interesting.
* The attorney identified as “Mr. Lewis” in the transcript is not the same person as Chip B. Lewis, who is currently representing Ms. Culbertson and who held the press conference today at his office, and is not related to Chip B. Lewis.