Big Jolly Politics

politics in Harris County and Texas

Rachel Palmer wins again

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ADA Rachel Palmer
ADA Rachel Palmer

One thing about being bullied is that if you are willing to step up and fight back, you usually win. Harris County Assistant District Attorney Rachel Palmer, who along with former Harris County District Attorney Pay Lykos was the subject of a politically motivated witch hunt, was willing to step up and fight back. And win she did.

This past Wednesday, Federal Judge Lynn Hughes issued an order forcing the plaintiffs in a frivolous lawsuit against Palmer, Amanda Culbertson and Jorge Wong, to pay  Palmer $82,101 in attorney’s fees. Click here to view the order.

Because Culbertson and Wong brought baseless claims in an attempt to construct a case out of an administrative policy they did not like, they must pay the reasonable attorney’s fees incurred in defending their suit. They may use legal action in their politics, but they are responsible for the consequences.

Let me repeat that last line:

They may use legal action in their politics, but they are responsible for the consequences.

I remain convinced that the real culprit here was the attorney pushing Culbertson and Wong, Chip B. Lewis, along with other supporters of former Harris County DA Mike Anderson (deceased). Hopefully Culbertson and Wong will find a way to make Mr. Lewis pay the $82,101 because they were nothing more than pawns used in an attempt to smear Palmer and Lykos. Perhaps the campaign account of Anderson could chip in because that campaign certainly profited from the smears.

It is an absolute disgrace that these people used a runaway grand jury as a tool to get Anderson elected to office and then used a couple of pawns like Culbertson and Wong to continue the smear.

Congratulations to Rachel Palmer for being a fighter and standing up to the bullies, although it is no surprise. She fights for the citizens of Harris County every day in the courtroom, putting the worst of the worst in our society behind bars where they belong. Those now in positions of power at the DA’s office continue to hold her back and bypass her for promotion. It will take time for this smear job to go away (and the current regime to get booted out of office) but perhaps someday the people of Harris County will recognize her work and elect her to lead the DA’s office and put integrity back in the place.

 

Rachel Palmer, Pat Lykos exonerated

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I’m always amazed at the way “professional media” goes after public figures, tearing them down and ruining their reputations as they chase a “story”. They trumpet their efforts with outrageous and misleading headlines and teasers, throwing caution to the wind in an effort to get more readers, listeners, or viewers. Or perhaps, like one beat writer in Houston, trashing politicians in the hopes of being on the “inside” if their guy wins.

And then when the truth comes out and their sensationalism is proven to be false, which is typically long after the public flogging, the silence is deafening. But silence or not, the truth matters. So I’ll tell you, even if the sharks in the media will not.

Recall that Chip B. Lewis made a big deal out of suing former Harris County DA Pat Lykos and Assistant DA Rachel Palmer for what he claimed was “unlawful retaliation”. This was on the heels various folks, including some in the media, using Judge Susan Brown’s Runaway 185th Grand Jury to help Mike Anderson defeat Lykos in the Republican primary.

Federal Judge Lynn Hughes dismissed this frivolous lawsuit with prejudice on August 30th.

Palmer Lykos Dismissal

What does “dismissed with prejudice” mean?

A dismissal with prejudice is dismissal of a case on merits after adjudication.The plaintiff is barred from bringing an action on the same claim. Dismissal with prejudice is a final judgment and the case becomes res judicata on the claims that were or could have been brought in it.

A court has inherent power to dismiss an action with prejudice if it is vexatious, brought in bad faith, or when there has been a failure to prosecute it within a reasonable time.

But there were few mentions in the Houston media about this. The bloggers that helped the 185th Runaway Grand Jury didn’t blog about it. Just silence.

On 9/11, Judge Hughes issued his opinion on the dismissal. In his conclusion, he states:

If the Port of Houston bans cruise ships because of your protests, the longshoreman who has no work as a consequence cannot sue you. Similarly, you are not immune from natural consequences of your free speaking, especially if it affects people’s impression of your abilities, including reliability. Lykos and Palmer were obliged as public servants to recommend a supervisor for the alcohol testing. Neither had the power to interfere with Culbertson’s and Wong’s employment at Lone Star College.

This tortification of politics and related public administration fails.

I waited. And waited. Those that attacked Lykos and Palmer remained silent.

Let me repeat what I said the day of the Chip B. Lewis press conference:

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.

Unfortunately, I don’t think that point has made it through the noise. As a political figure, Pat Lykos had to endure the humiliation of the false attacks – it comes with the territory. But the people that did this to ADA Palmer, who wasn’t a political figure, should have had to pay a price by going to jail. Yet even today, she is still being attacked by those that refuse to see the truth or the error of their ways. The so-called “stain” on her reputation should be considered an attribute – she stood up to a bullying judge and grand jury and said I’m not going to go along with your farce of an investigation. Sometimes standing for what is right will have lesser people calling you names and mocking you – it is a weak person’s way of dealing with the fact that they would not be strong enough to do what you did.

Congratulations to Judge Pat Lykos and ADA Rachel Palmer for their victory. It should never have gotten this far in the first place but you held firm and showed your true character. I pray that your futures are blessed and bright.

Harris County DA Pat Lykos sued for unlawful retaliation

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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.

Chip Lewis, Amanda Culbertson, Jorge Wong, and Scott Cook press conference
Chip Lewis, Amanda Culbertson, Jorge Wong, and Scott Cook press conference

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!):

Amanda Culbertson Statement

Jorge Wong Statement

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:

Culbertson Wong 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

9              5.

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

21           hallway.

22           (Discussion off the record)

23           THE COURT: All right. Back on the

24           record.

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.

Runaway Harris County Grand Jury or electoral conspiracy?

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In the off chance that you haven’t been following the goings on down at the Harris County Criminal Justice Center and a runaway grand jury, it remains a freaking mess. And it is getting messier every day, with more and more political operatives and media becoming involved. The original intent of the grand jury was apparently thrown overboard in an effort to “get someone” over at the District Attorney’s office. The question is: why? Is it, as ADA Rachel Palmer suggests, a conspiracy designed to oust DA Pat Lykos or is it, as I have suggested, a runaway grand jury with so many inputs that it would take Edward Lorentz to help decipher the unintended consequences?

Remember, even the “head” of the movement to oust DA Lykos, challenger Mike Anderson, told me that he “completely understood my concerns about the appearance of impropriety with this Grand Jury”. So it is very easy to understand why ADA Palmer and her team would make the charge that the entire investigation is designed to embarrass the DA’s office in an effort to oust DA Lykos. I don’t agree with that and think it is far more complicated but I can’t argue that they do not have a compelling case. They laid out their case in two court documents this week, a Motion to Recuse Susan Brown and a Response to Motion to Compel. You will need to read them to understand their case but it is an expansion of what Mark Bennett outlined in part here: Live by the Hatchet, Die by the Hatchet.

After hearing the Motion to Recuse, Judge Al Bennett denied the motion and returned the case back to Judge Susan Brown Tuesday morning. I think that he was probably correct because as I said earlier, as far as I know, no one questioned Judge Brown’s integrity before this episode. But again, the appearance of impropriety is certainly there and I can’t blame or argue with the thought process of DA Palmer in regards to Judge Brown. Murray Newman makes light of the animosity that existed on the campaign trail in the 2010 primary with his attempt at parody but I was in the middle of both races (Palmer/Smyth and Brown/Dexter) and the animosity between the camps was very real and very high. And Murray very well knows that. As I stated here, I thought that Don Smyth’s experience was the overwhelming factor in his defeat of DA Palmer and I stick by that. I also supported now Judge Marc Brown against Danny Dexter, although my enthusiasm for that campaign (not Marc Brown) was dampened quite a lot when someone on his team released Mr. Dexter’s personnel files from his time at the DA’s office.

So, to me, ADA Palmer’s stance about the appearance of impropriety is very reasonable given the entirety of the circumstances.

Tuesday afternoon, Judge Susan Brown denied the request by the by the special prosecutors to force ADA Palmer to testify:

And again, I think that the Judge got it right. If you look at the recollections of the questions as stated in the Response to Motion to Compel, the questions are open ended, non-specific, and could basically allow the grand jury to go any which way they wanted. As the attorney for ADA Palmer stated in this KHOU 11 interview by Doug Miller, she turned over more than a thousand pages of documents and emails to the grand jury for review. A minor misstep in answering an open-ended question could have allowed the grand jury to charge her for perjury where in reality there was none, it was a simple recollection error. Also, all of her attorneys are ex-ADA’s themselves, so they know what could happen. Heck, just this week we saw an example of a grand jury returning an indictment against seven protesters from Occupy Houston after a judge had explicitly said that there wasn’t a chargeable felony offense. You simply cannot take a chance with a grand jury because of the power they wield.

Once again, to me, ADA Palmer’s stance in taking the Fifth Amendment is entirely reasonable given the entirety of the circumstances.

But it is quite obvious that she and the DA’s office are losing the media war. I was shocked when I watched ABC 13’s Ted Oberg’s report on the goings on at the courthouse. Here is his headline:

ADA still on job despite admitting she may have committed crime

Holy buckets, Batman, talk about a misleading headline! Taking the Fifth Amendment does not mean that you are admitting that you may have committed a crime. Sheesh. It means that do not have to answer questions at any time if you think that something you say may be used against you by the state. That is a long, long, long way from “admitting that you may have committed a crime”. That it comes from Ted Oberg, one of, if not the smartest persons I’ve ever met, is incomprehensible to me. Sweeps and ratings aside, that is a very misleading headline. For a balanced, unbiased piece, see Doug Miller’s interview linked above.

And then we have the Houston Chronicle’s teen columnist weighing in. Yes, Mary Benton, I know that she is supposedly an “opinion” writer and can say what she thinks but her “opinions” are rarely insightful and almost always biased against Republicans. Which is why I nicknamed her the Spokesperson for the Texas Democratic Party. But that is too long, so I’ll stick with the name that Cory Crow over at Harris County Almanac prefers: Lil’ Red. She seems to have bonded with Murray, as this “opinion” piece could have been taken straight from his tweets from the courthouse Tuesday. I thought that this line in the “opinion” piece was telling:

The deputy misdemeanor division chief, with her tangle of pearls and wisp of blond hair, seemed quite the sensitive type.

That was about the only original line in the “opinion” piece. Only Lil’ Red, the Chron’s teen columnist, could have pulled that one out of a long, boring court hearing. Catty little remark by Lil’ Red. Obviously the Chron’s decreasing circulation numbers shows that they prefer “opinion” writers over subscribers.

Just as obviously, the foes of DA Lykos have learned a lot in the last three years about media relations. Kelly Siegler could only dream of media that supported her bid.

So now we come to the grand jury itself, headed by some sort of wanna be cowgirl prosecutor/judge. And small time political contributor, as you can see in the money trail outlined in the Motions above. I had to laugh when I read Isaiah Carey’s blog post titled “THIS FOOLISHNESS HAS GOT TO STOP NOW!” In it, he says that Judge Brown said:

Brown also said someone has been posting the name of the grand jury foreman on several blogs.

Now boys and girls, that right there is damn funny. The grand jury forewoman likes her some publicity – she is the one that outed herself when she decided that the 185th Grand Jury needed to head up the road to Sam Houston State University to get them some learnin’. The article even comes with a picture that includes ADA Palmer:

“The tours gave us the opportunity to see close-up the outstanding work being done at the SHSU Crime Lab and the fascinating research being conducted at the STAFS facility,” said Trisha Pollard, an SHSU alumna and foreman of the Harris County Grand Jury. “The crime lab tour gave us a better understanding about controlled substances and the expense and complexity of running the tests as well as the enormity of the problem.”

“We’ve had some cases where it has been a long time before homicide victims were discovered,” Pollard said. “The ‘Body Farm’ tour gave us an insight into the investigator’s role in trying to determine the time of death and methods used to determine the cause of death.”

185th Grand Jury visits SHSU crime lab

Emphasis added. Oh, you say, but that doesn’t say “185th”, it just says Grand Jury. Oh, yeah, you’re right. Let’s try this one because it has a way cool title: CSI Huntsville — fact, not fiction:

Trisha Pollard, a member of the Board of Regents for the Texas State University System who helped SHSU develop STAFS, was recently elected foreman of the 185th Grand Jury in Harris County. She arranged for a group to tour STAFS and the SHSU regional crime lab in The Woodlands last week to get an idea of how evidence is studied.

Again, emphasis added. Judge Susan Brown, your grand jury has been leaking like a sieve ever since they started this witch hunt. Don’t blame “blogs” for the problem, blame your grand jury. While I’m thinking about it, how did this happen?

Radack said Lewis called his office on Monday to tell him of the coming subpoena and informed him the city was getting free DPS supervision.

That would be County Commissioner Steve Radack saying that he received a call from attorney Chip Lewis, who is representing Amanda Culbertson, giving him a heads up about a coming grand jury subpoena. You know, the super duper secret grand jury? Leaking like a freaking sieve.

Remember again what Mike Anderson told me? That he met Trisha Pollard on a Habitat for Humanity project and she asked to be on a grand jury? And that once she was on one, she was a model grand jurist, going out and doing her own investigating?

Shouldn’t grand jurors be reviewing evidence presented? Not creating it? I know, I know, I’m just a hayseed from Pasadena and I’m certain that the blogging lawyers will “correct me” but I’ve always thought that our justice system was supposed to be fair. This “investigation” by a leaking grand jury seems anything but “fair”. I don’t blame the Anderson campaign for using this to their advantage because it would amount to a dereliction of duty if they didn’t. But I don’t think they are driving this, I think that a runaway grand jury is.

But that is nothing more than my opinion. ADA Palmer and her team could be entirely correct in their assertion that she is being used by political forces to bring down the current DA. It could be that nothing is wrong and it is just a simple investigation. I couldn’t agree more with Kevin Whited over at blogHOUSTON:

Seriously, all of this looks terrible for the DA’s office, whatever motivations you may think are at play (and anyone who tells you with 100{997ab4c1e65fa660c64e6dfea23d436a73c89d6254ad3ae72f887cf583448986} confidence they know and understand the motivations should be disregarded).

It does look bad for the DA in the media and I doubt anyone truly knows and understands the motivations. But how is it playing for the voters? We’ll know soon enough.