The Federal Rules of Criminal Procedure were created by committee to be an instrument of what the German National Socialists called Gleichschaltung – the “synchronization” of legal (as well as political and cultural) institutions with the dictates of the central government. Germany had been a federated constitutional republic prior to 1933, when Gleichschaltung got underway. Five years later, the FDR regime’s Advisory Committee on the Rules of Criminal Procedure – invoking the supposed need for “simplicity” and “efficiency” – began the same process in the United States.
Amanda Culbertson has a conscience, which is another way of saying that she wasn’t well-suited to government “work.” Until recently she was employed by the Houston Police Department as a crime lab supervisor. In 2009, she became aware of serious problems with the reliability of the department’s roadside blood alcohol testing vehicles, more commonly known 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 to overheat, which would skew test results. In addition, a glitch in the system caused the much-heralded Intoxilyzer to reset every time the air conditioner was turned on.
Over the course of several months, Culbertson tried to get officials in the police department and the Harris County DA’s office to address her concerns. None of them was interested in disturbing what had become a very profitable 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 attorneys representing some of the hundreds of people facing DUI charges as a result of BAT van tests.
In professional terms, Culbertson landed on her feet: She was hired by a laboratory at Lone Star College that had a contract to conduct breathalyzer analysis for the Harris County Sheriff’s Office. Shortly thereafter, the Harris County Commission – at the initiative of DA Pat Lykos – ended its contract with the Lone Star College lab. In effect, Lykos – in an act of vulgar retaliation– arranged for Culbertson to be fired.
Harris County’s 185th criminal court grand jury, which had been investigating problems with the BAT vans, called Culbertson to testify, along with former Harris County Prosecutor Brent Mayr. Lykos dispatched two members of her flying monkey corps – assistant DAs Carl Hobbs and Steve Morris – to “monitor” the grand jury testimony.
Since Lykos and her office were suspected of covering up the use of tainted evidence and retaliating against a whistleblower, the DA and her underlings were barred from being present in any capacity other than as sworn witnesses. Accordingly, when Lykos’s minions materialized during Culbertson’s testimony, the Grand Jury Foreman ordered them to leave. When that directive was ignored, the Foreman instructed the Baliff to remove them or place them under arrest.
Lykos unsuccessfully sought a court order compelling the grand jury to grant access to her underlings. When that effort failed, the DA’s office exploited a back-channel to obtain official transcripts of the grand jury testimony. That led to a summons from Judge Susan Brown to Hobbs and Morris, along with court reporters Javier Leal and Katherine Chagaris, who face the possibility of contempt citations and the prospect of six months in jail.
The Harris County grand jury’s insurrection caused consternation in the DA’s office, and astonishment in the local media. “All too often in the past, Harris County grand juries have functioned as rubber stamps providing prosecutors with indictments without impartial scrutiny of their substance,” notes the Houston Chronicle. Of course, this is true of practically every grand jury since the enactment of the Federal Rules of Criminal Procedure in 1946.
The Advisory Committee had no legislative authority or popular mandate; it was a pure creation of the prosecutorial class. Thus it’s hardly surprising that one of its most urgent priorities was to transform the grand jury from a citizen’s assembly into an instrument of the prosecution. This meant “rectifying” – in the Orwellian sense – the Fifth Amendment by effectively removing the troublesome word “presentment.”
The Fifth Amendment specifies that “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury….” A “presentment” is essentially aproprio motu indictment delivered by a grand jury without approval of a government prosecutor.
Presentments were often filed by grand juries investigating official corruption – such as the grand jury in Minneapolis that forced the resignation of the mayor and police chief in 1902, or the one that dislodged Boss Tweed and his politically sheltered cronies thirty years earlier.
This was an entirely appropriate function of the grand jury. The “grand jury in its primal, 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 the government, often in response to complaints from individuals.” It also served as “a people’s watchdog against arbitrary and malevolent prosecutions.”
For most of America’s history, “the evil that the grand jury sought to address was the exercise of distant power locally,” wrote Kevin K. Washburn in an article for the Fordham Law Review. “Indeed, the grand jury came to us as an institution that was respected for its profound ability to protect local communities – indeed, possibly rebellious ones – from central government authority. It was, in essence, a local check on Crown authority.”
In 1734, grand juries twice refused to indict John Peter Zenger for “seditious libel.” New York’s Royal Governor William Cosby bypassed the grand jury by filing a “criminal information” against Zenger – only to see the trial jury nullify the sedition law and acquit the newspaper publisher. During the 1760s, Crown prosecutors in Massachusetts were constantly stymied by grand juries that refused to indict colonists accused of violating the Stamp Act and other impositions.
Both before and after American Independence, “the grand jury’s primary method for exercising its power was not rigorous review of facts, but nullification of validly enacted laws,” Washburn observes. They didn’t dispute the prosecutor’s presentation of the facts, but rather “the legislator’s right to impose such laws, or at least the prosecutor’s decision to enforce them in a given context.”
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 the original Federal Rules of Criminal Procedure, which dealt with the role of the grand jury. Lester B Orfield, who served on the Advisory Committee, later explained 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 observation and 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 1973 law journal article calling for formal abolition of the institution on 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.