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What is an investigation?

Remember when I said that the grand jury saga wasn’t over yet?

DA Pat Lykos

After denying any investigation into the grand jurors who for six months investigated her office, Harris County District Attorney Pat Lykos disclosed that she directed her chief investigator to run “a cursory Internet search.”

Meanwhile, sources say an investigation by the DA’s office into grand jurors, two judges and a political opponent of Lykos was ongoing during the grand jury’s probe.

On Tuesday, a grand jury ended its investigation of possible problems with evidence from the Houston Police Department’s DWI testing vehicles and the DA’s office involvement. The grand jury then accused Lykos’ office of investigating them.

“I know nothing of that,” she said at a news conference Tuesday. “I certainly did not authorize an investigation.”

But Lykos surprised many when she issued a statement a day later saying that because her office was “unfairly attacked” she had ordered an Internet search of members of the grand jury. “We were simply trying to learn if there was a political motivation behind the attacks,” Lykos said.

On Thursday, Lykos released another prepared statement, attempting to draw distinctions of the meaning of “investigation.” Her statement said an “investigation” involves obtaining confidential information, accessing law enforcement databases, conducting surveillance, or interviewing witnesses.

She apparently was making the case that a simple Google search did not rise to the level of “investigation.”

“The purpose of the Internet search was to simply try and determine what were the reasons for this grand jury’s radical, erratic and what we believed to be unlawful actions,” according to her statement.

KTRK’s Ted Oberg has been doing a lot of reporting on this story – see here and here. Is doing a Google search on someone an “investigation”? David Jennings, a Lykos supporter, says no.

[Lykos] insists, and I’ve come to believe her, that her definition of what “investigate” means is entirely different than mine. Hers is a formal, working definition that would include the full weight of the HCDA’s office, including the use of investigators, law enforcement databases, background interviews with neighbors, employers, etc. After a long career as a police officer, a judge, and now as a district attorney, that is what the term means to her.

The DA’s argument has been that the grand jury, including the jury’s foreperson and Judge Susan Brown in whose court it was operating, were politically biased against her. Jennings goes into some of the evidence for that. He then continues:

So back to the original question, do you believe that DA Lykos ordered an “investigation” (remember her definition) or do you believe that the team at the HCDAO felt that they were under a political attack and did a Google search to find out who was attacking them? Using her definition, it is easy to see why she would have answered that question at the news conference the way she did. In other words, I believe her. As they say, your mileage may vary but before you quickly jump to a conclusion, at least do yourself a favor and consider what you would have said in her shoes with her background. Also consider that if they had performed a full investigation, public information requests would prove that. Alas, there are none.

And that last one is critical. Notice that near the end of Mr. Oberg’s report, he states that “county paid for, password protected internet databases” would have to be used to find out this information. Nonsense. Lots of people did the same searches on the same people because that grand jury leaked like a sieve. I assure you that I don’t have access to “county paid for, password protected internet databases” and I found everything they did and more. As did Mark Bennett, whom Mr. McWilliams references in his statement about the issue. Once [grand jury foreperson Trisha] Pollard put her name in the press, it was easy. If Mr. Oberg has something that proves his assertion, he needs to show us.

I’ll buy the explanation that “investigate” has a specific meaning to law enforcement, and I am inclined to agree that searching public domain information – i.e., Googling – does not rise to that definition. If that’s all there is, then I agree with Jennings that this wasn’t an “investigation”. But in that post Jennings didn’t address Oberg’s subsequent report, which contains this detail:

Using the confidential list of grand jurors’ names, the DA’s chief investigator looked at Facebook, Google, the state bar and then accessed a county paid for, password-protected database called Accurint—which gave him a list of grand jurors’ addresses, jobs, relatives, bankruptcies, all sorts of information and connections.

The question of how the DA’s office got the list of grand jurors’ names is a separate one. I think it’s fair to say there have been enough leaks coming from the grand jury room to cast doubt on how confidential that information really was, but I’m more interested in that bit about Accurint. In Jennings’ subsequent post, he prints a statement from DA investigator Jim McWilliams, from which we get this:

On Saturday, October 22, First Assistant District Attorney Jim Leitner called me and said that he had spoken to Judge Lykos earlier that morning, and that it was their belief that the Grand Jury was acting in violation of the law. Specifically, the Grand Jury had barred the District Attorney’s Office from the Grand Jury room. They had then proceeded to take testimony from witnesses at a time when our office had not yet been disqualified, nor had Attorneys Pro Tem been appointed. Mr. Leitner voiced his concern that the Grand Jury was leaking information to the DWI criminal defense bar and the news media. I believe that he also voiced a complaint that the Grand Jury was compromising the ability of our office to prosecute DWI cases, although I may be recalling this fact from another conversation with him.

Mr. Leitner told me that a Grand Juror shared the same uncommon last name with a DWI defense attorney who had been quoted in media sources. He thought that this was suspicious with regard to possible leaks of secret proceedings, and directed me to research whether there was a familial relationship between these persons. I told him that I could research familial relationships via subscription databases. Primarily by accessing Accurint and TLO, two .subscription databases that “míne” or collect information from a variety of third party sources, it appeared to me that there was no relationship, and that their common last name was mere coincidence.

Mr. Leitner also told me that the foreperson of the Grand .Iury was an attorney. He directed me to research what kind of law she practiced, and whether there was evidence of ties to outside parties who might have access to Grand Jury actions. I asked him if, for example, he wanted me to look for her having practiced criminal defense or DWI law. or whether she had served as counsel for a media organization. He confirmed that these were the kinds of “red flags” I was to look for. I told him that our subscription databases would give me information on professional associations. Again, primarily by accessing TLO and Accurint, I found no suspicious associations. I terminated my inquiry at this point, and called Mr. Leitner to tell him that I had found nothing upon which to proceed.

I called the District Attorney later that afternoon and left her a voice message. I did not discuss specific databases or search tools used, nor did I give her a detailed “blow by blow” account of my findings, other than that I had essentially found nothing.

[…]

In summary, my actions on the 22nd were predicated on the widely held belief of this office, piausible that the law Wa# iaeing The First Assistant directed me to conduct an inquiry to try to find information to that effect. Finding no such information, I made no further inquiries.

My actions of the 29th were made in response to a request from the First Assistant for my help. Those actions did not involve the use of any county equipment or property, nor were any law enforcement or otherwise proprietary data sources accessed, nor did I engage in those actions in the course and scope of my duties as a law enforcement officer.

What I have recounted in this document was provided to the Attorneys Pro Tem when I met with them, outside the presence of the Grand Jury, in November.

I suspect the lack of detail given to Lykos after that first search may explain the “investigation” confusion. Jennings doesn’t mention the contradiction, but he does point out that if the Attorneys Pro Tem – that is, the attorneys that were appointed by the judge to advise the grand jury – knew about this, it shouldn’t come as a surprise to the jurors. In responding to the Oberg reports, Mark Bennett calls Accurint “an investigative tool” that accesses information that is not “in the public domain”. He also notes that one must declare one’s purpose for using Accurint, whose allowable uses are proscribed by federal laws, and that he “[bets] that Accurint keeps a record of what purpose searchers declare”. If so, then we ought to be able to get an objective answer to the question of whether or not there was an “investigation” of the grand jurors and other associated people or not. Of course, to get that answer from Accurint would require an “investigation”, and at the end of Oberg’s second report he says “The FBI tells us at this point it is not investigating, saying there is no evidence of a federal crime.” So for now at least, we get to decide that for ourselves.

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3 Comments

  1. Paul Kubosh says:

    In my opinion Accurint??? I say no big deal. Anyone can get access to Accurint. There information is not private. It is all public. They just do a better job of organizing the public information. We have access to Accurint. Kuffner can get an accurint account. Jennings is right. This was a political get lykos out of the office grand jury investigation.

  2. Peter Shoffner says:

    Paul, those accounts are regulated both in terms of criminal and civil violations. See Bennett’s more detailed explanations but using ANY means to look into, investigate, or otherwise check out a sitting grand juror opens up a Pandora’s box of troubles that anyone should see is problematic. That this was done by people placed in positions of such responsibility should cause concerns and ethical inquiries at very least. Remember, this is only what they currently admit to using, not necessarily the full depth of their true investigation.

    This, combined with all the other misconduct of late, is enough to vote for either Anderson or Fertitta without reservation. If Paul ran, I’d consider him too (Happy Birthday Paul, a few days early).

  3. […] here for the backstory. None of this means that there will be any charges brought, or that any […]

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