Much Ado About Lykos

The Republican primary for Harris County District Attorney is a soap opera for lawyers

It began with a kerfuffle that escalated to a brouhaha. By the end, the affair involved two grand jury investigations, the Texas Rangers and the FBI. At its heart: Harris County District Attorney Pat Lykos, the wise-cracking 70-year-old Republican who now finds herself in a tough primary fight against Judge Mike Anderson, a 30-year veteran of the Houston court scene.

Spoiler: Lykos has yet to be found guilty of anything. But will the voters presume her innocence?

Here’s the saga. Last July, a former crime lab supervisor for the Houston Police Department, Amanda Culbertson, alleged that the machinery in HPD’s mobile breath alcohol testing (BAT) vans was faulty. If true, the news would cast doubt on several drunk driving convictions.

Shortly thereafter, DA Lykos’s staff recommended the Harris County commissioners cancel a decades- old contract with the lab at Lone Star College—which, coincidentally, had just hired Culbertson.

Judge Susan Brown empanelled a grand jury to investigate whether breathalyzer evidence was tainted, who knew about it when, and whether Lykos’s office had retaliated against Culbertson for her whistle- blowing.

During the six-month investigation that followed, lots of provincial suspicion bounced around, but nothing raised so many eyebrows as when Rachel Palmer, a high-ranking assistant DA, pled the Fifth Amendment rather than answer questions about BAT van evidence. It’s illegal for a prosecutor to withhold evidence that could aid the defense, so her plea bred speculation that there was something to know about the BAT vans and that she knew it.

The weird(er) part? According to testing by the Department of Public Safety in Austin, the BAT vans were fine. Culbertson had testified that she didn’t trust the test results because electrical problems in the vans were causing temperature spikes, but the DPS found that even if high spikes occurred, it wouldn’t jeopardize test results. So what was Palmer hiding?

We never found out. The grand jury declined to indict anyone from the DA’s office, but it did issue a one-page report that some observers (cough) might characterize as bitchy.

“The grand jury does not return indictments for bad management practices, for ethical violations or for a number of things that have been talked about in the public domain,” wrote Jim Mount, a special prosecutor for the grand jury.

Lykos called the whole thing a witch hunt. “This politically motivated investigation, I would submit to you, is an outrage,” Lykos said at a news conference shortly after the probe ended in late January. “It’s an abuse of power and a corruption of the criminal justice system. For months our office has been hounded, and there have been a torrent of grand jury leaks.”

Mount said the belief that the grand jury was politically motivated was “fairly silly,” since any such investigation would have ended in an indictment.

Case closed, and a few people come off each others’ Christmas card lists, right?

Nope.

Among their other complaints about Lykos and her office, the grand jury accused her of having investigated the jury members. At the press conference, Lykos said, “I know nothing of that. I certainly did not authorize an investigation.”

But the next day, she admitted in a statement she’d had her chief investigator, Don McWilliams, run “a cursory Internet search” of the jurors. “We were simply trying to learn if there was a political motivation behind the attacks,” she explained. “The purpose of the Internet search was simply to try and determine what were the reasons for this grand jury’s radical, erratic and what we believed to be unlawful actions.”

Lykos maintained that it wasn’t a real investigation because it didn’t involve conducting interviews or using confidential law enforcement databases. But the Houston Chronicle cited anonymous sources who said Lykos’s first assistant asked McWilliams to “investigate” the jurors “for the boss.” “McWilliams went to his courthouse office and used two websites that collect personal information for use by law enforcement and others, according to the sources,” the Chronicle wrote. “He then called Lykos with his results and left a voicemail.”

That was on a Thursday. By the following Tuesday, the FBI and the Texas Rangers were interviewing district attorney employees about the alleged probe. The next week, Lykos claimed she’d asked the Texas Rangers to investigate and said they could take any data or items of interest from her office, which is a bit like offering your sandwich to someone who’s eating your sandwich.

That probe is ongoing.

Despite all that spilled ink, the Republicans who dislike Lykos—and dislike her strongly—don’t seem to do so because of the two investigations. They’re more cranky about the fact that Lykos created the DIVERT program, which is basically deferred adjudication for first-time DWIs, and lessened penalties for possession of trace amounts of crack cocaine or crack pipes. Lykos says that policy has reduced the jail population by 1,000 and let police focus on more serious crimes. Her critics also point to low morale at HPD, while supporters say that’s a byproduct of successful reform, of Lykos having disrupted a longstanding “frat house” atmosphere.

Her opponent in the primary, Mike Anderson, a long-time local prosecutor and judge, is running on nostalgia, advocating a return to—and he actually used these words—“the good old days.” That is, when “honor, integrity, [and] ethics” would “flow like a heart beat at that office.”

Anderson must mean the days before Chuck Rosenthal, the DA who preceded Lykos for eight years. Rosenthal’s first claim to fame was losing Lawrence v. Texas, the Supreme Court case that finally ruled sodomy laws unconstitutional. Then he resigned in disgrace after being sued for incompetence and drinking on the job. That was after he refused to resign when it came to light that he’d sent numerous racist and sexist emails from work and was having an affair with his secretary.

Rosenthal had succeeded Johnny Holmes Jr., who was the Harris County DA for ten years, and whose reputation can be summed up by the headline of a retrospective about him in the Chronicle, “Former DA ran powerful death penalty machine.”

Like a heartbeat, indeed.

In its endorsement of Lykos for the Republican primary, the Chronicle declined to mention the BAT spat, but it did nod toward the “small, often gossip-driven world that is the Harris County criminal courthouse.”

Will the voters care about that gossip, legit or not, about BAT vans and Google searches, when they go to the polls in two weeks?

Probably not, say insiders. Lykos is getting and spending more and has support from several Republican higher-ups.

Besides, says a Democratic strategist quoted in the Chronicle, “The stuff that’s gone on now is decidedly nasty, but it’s not something non-lawyers can really get their arms around. The stakes are large, but the interest level is low… People just don’t follow that kind of thing.”