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Retaliation Suit by Former HPD Lab Supervisors Will Finally Go Forward

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Thanks to a ruling by the federal Fifth Circuit Court of Appeals Monday, a lawsuit filed by two former Houston Police Department crime lab supervisors, which alleges Harris County prosecutors retaliated against them for testifying about serious flaws with the city's so-called Breath Alcohol Testing (or BAT) vans, will move forward.

The ruling revives the case against the county, former Harris County District Attorney Pat Lykos and then-assistant prosecutor Rachel Palmer which had stalled back in 2013 after a Houston federal judge threw out the former lab workers' claims.(*The case against Pat Lykos is still over; Culbertson and Wong dismissed their appeal against the former DA in October of 2013.)

Starting sometime in 2010, former HPD crime lab supervisor Amanda Culbertson began warning department officials about major problems with the BAT vans that she feared could undermine test results. Culbertson insisted the vans, which were essentially roving offices for HPD officers to give breath tests to sauced drivers out in the field, suffered from electrical and overheating issues that could mess with the gauges and control samples used to calibrate the vans' breath-testing machines.

Fellow analyst Jorge Wong shared Culbertson's concerns. And while both claim they told HPD officials about the problem, it was never fixed. Both say that's the reason they resigned from HPD in spring 2011 and went to go work as lab analysts at Lone Star College, which had contracted with the Harris County Sheriff's Office to oversee breath alcohol testing for nearly 30 years.

Culbertson was called into court to testify on a drunk driving case shortly after she resigned from HPD in May 2011. Culbertson told the jury she couldn't vouch for the accuracy of the testing instrument and the jury acquitted the defendant. The acquittal apparently riled officials over at the Harris County District Attorney's Office, and on June 3, 2011, Palmer wrote to Culbertson's bosses at Lone Star College to say the DA's office didn't want Culbertson testifying in any future HSCO breath alcohol testing cases – which, you can imagine, would make it pretty difficult for Culbertson to do her job as an analyst on alcohol cases from the sheriff's office.

Then, a week later, Palmer sent a memo to her boss at the DA's office saying, “after this debacle, we realized that she (Culbertson) could not be trusted to testify in any breath test.” Palmer also said she was “gravely concerned about [Culbertson's] ability to testify fairly in cases going forward.”

Meanwhile, Lone Star College's contract with the sheriff's office, which had gone on for decades, was about to come up for its annual renewal.

By late July 2011, Culbertson was called to testify in another case – this time by a defense attorney who was trying to get a breath alcohol test thrown out of court due to the concerns Culbertson had already admitted to on the stand. Culbertson, according to court records, testified that concerns over the reliability of BAT van testing were a “big reason” she and Wong left the HPD crime lab in the first place. Culbertson maintains that Palmer cross-examined her during that hearing and even acknowledged Culbertson as a “whistleblower.”

This is the point at which, if you believe Wong and Culbertson, the behavior from prosecutors becomes particularly difficult to stomach. On one hand, they did exactly what you'd want them to do when confronted with concerns about possibly unreliable evidence being deployed in court – concerns raised not by some crusading defense attorney but by law enforcement lab analysts: they sat down with Culbertson to hear her out. According to court records, Culbertson met with DA's officials – including Palmer – in August 2011 to discuss the concerns raised by her testimony and so she could explain her problems with the BAT van testing equipment. According to the Fifth Circuit's ruling, following those meetings prosecutors notified at least two defense attorneys of “potentially exculpatory or mitigating evidence based on Culbertson's concerns.”

So Culbertson's concerns about potentially faulty BAT van evidence were enough for prosecutors to alert defense attorneys – something prosecutors are generally loath to do unless legally required.

Yet, at the same time, Palmer and the DA's office began investigating Culbertson for perjury, according to court records, and Culbertson alleges in her lawsuit that Palmer began telling other prosecutors that she wasn't a credible witness in court – again, exactly the kind of stuff that can jeopardize a crime lab worker's career.

In their lawsuit, Culbertson and Wong allege that even as prosecutors quietly told defense attorneys that the lab analysts concerns over BAT testing amounted to “potentially exculpatory or mitigating evidence” for their clients, prosecutors started pushing for Harris County commissioners to kill the decades-long contract between the county and Lone Star College, where Culbertson and Wong worked.

As the Fifth Circuit put it: “Culbertson asserts that then-District Attorney Pat Lykos, Assistant District Attorney Palmer, and the DA's Office sought to discredit Culbertson and Wong so that the contract would be awarded to [the Texas Department of Public Safety] instead of Lone Star. These efforts included other private conversations with representatives of the Commissioners Court.” (The DPS contract, it should be noted, was the more costly of the two.)

And, as the Fifth Circuit notes in its ruling, the prosecutors' apparent displeasure with two Lone Star employees seems to have been the main excuse commissioners gave for switching breath alcohol testing to DPS after nearly 30 years with the college. At a September 2011 Commissioners Court meeting, several defense attorneys spoke publicly about their fears that the Lone Star contract was ending because of Culbertson and Wong's actions as whistleblowers. As the Fifth Circuit recounts: “During this meeting, one County Commissioner stated publicly that he supported terminating the Contract with Lone Star because the County should not work with someone who takes an adversarial position to the DA's Office.”

That position – that the county should kill its longstanding contract with an independent lab for testing evidence in criminal cases because its experts sometimes disagree with prosecutors – is troubling enough on its face and only perpetuates the worst win-at-all-costs stereotype of prosecutors. But the county's behavior is even more galling when you consider prosecutors had already lent enough weight to Culbertson's concerns that they felt they had to notify at least two defense attorneys about it.

Ultimately, Culbertson and Wong were fired on October 31, 2011, shortly after Lone Star College lost its contract with Harris County. They filed their lawsuit the next year.

Dismissing their claims in September 2013, federal district court Judge Lynn Hughes wrote that the former lab workers couldn't show specific enough evidence “that they were fired from the college as a direct consequence of an illegal act of the defendants.” Among other findings, the Fifth Circuit Monday wrote that a tortious interference claim against Palmer should stand because Culbertson and Wong hadn't argued that Palmer directly interfered with the contract between Lone Star and the county, but rater she interfered with their employment contract and that her conduct helped trigger their firing.

The case now goes back to Judge Hughes.

You can read the Fifth Circuit's full 36-page opinion here: 

(*Correction 6/23/15 at 2:50pm)

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