From Frying Pan to Fire?

What I did does not remotely approach the level of what I would consider an investigation. It was a cursory review of information that exists in the public domain. Any 14 year old with a smart-phone could access more information than I did. Ultimately, we learned more from Mark Bennett’s blog post than I discovered from my inquiry.

That’s Harris County District Attorney’s Office Chief Investigator Don McWilliams, explaining what he did to learn about the 185th District Court Grand Jurors investigating the DA’s Office in connection with the BAT van fiasco. (PDF)

I agree with McWIlliams and Lykos that what he did regarding Trisha Pollard, the grand jury forewoman, wasn’t an investigation. What I did wasn’t an investigation, and I found more than McWIlliams did about her.

But Ted Oberg, who has been harrying this story for Channel 13, suggests that McWilliams may have done a great deal more than I did:

According to sources, on Saturday, October 22, 2011 the DA’s chief investigator was called while off duty. He was told by the DA’s first assistant, Jim Leitner, to collect information on members of the grand jury themselves—specifically the foreperson, Trisha Pollard, and another member who shared a last name, but no relation with DWI defense attorney Mark Theissen.

What’s of interest here is not what McWilliams did, but whom he did it to. I knew that Trisha Pollard was the grand-jury forewoman because that information had been reported early in the media. How did McWilliams or Leitner know to check up on a grand juror with the last name Theissen (or, like the criminal-defense lawyer, Thiessen)? The list of grand-jury names is confidential, not available to people who are being investigated, unless the people being investigated happen to be prosecutors.

I doubt that Lykos’s primary opponent Mike Anderson and I will ever see eye-to-eye on much in the courthouse, but I’m with him when he says he wants the Texas Rangers to look at what the DA did. Investigation or no investigation, what the DA’s Office did was an abuse of its authority.

But wait. There’s more. Oberg reports:

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.

I am familiar with Accurint: it’s an investigative tool. If I look someone up on Accurint, I’m investigating. The information is not “in the public domain.” To search for someone on Accurint you must certify the purpose for which you intend to use the information:

Accurint Purpose Certification

Without a permissible purpose, available information is extremely limited—less than a 14-year-old with a smartphone could find on the web.

Why does it matter? Well, here’s what Accurint says about permissible purposes (none of which clearly authorizes researching members of a grand jury that you suspect is politically motivated:

Federal law, in conjunction with your user agreement with LexisNexis®, requires you to have a permissible use in order to view personal information. The applicable laws governing these uses are the Drivers’ Privacy Protection Act (DPPA) and related state laws and the Gramm-Leach-Bliley Act (GLBA). If you do not have a permissible use, you will not be given access to the personal information.

In addition to complying with these privacy acts, you should understand that, under the Fair Credit Reporting Act (FCRA) (15 U.S.C. sec 1681), the data provided to you by using the LexisNexis® products may not be used as a factor in establishing a consumer’s eligibility for credit, insurance, employment or other purposes by that act.

There are criminal fines and civil liabilities for knowingly violating the provisions and restrictions of these acts.

People whose private information was accessed by McWilliams in violation of DPPA or GLBA (for example, if he falsely claimed a permitted use) might have a civil suit; I’ll bet that Accurint keeps a record of what purpose searchers declare.

Oberg reports, “The FBI tells us at this point it is not investigating, saying there is no evidence of a federal crime.” I wonder if they’ve given the GLBA and DPPA any thought yet.

14 responses to “From Frying Pan to Fire?”

  1. When I was at the office, Accurint was only available to certain senior investigators for this very reason: The information obtained by it was considered sensitve and confidential. They didn’t want just anyone idly researching their in-laws, prospective boyfriends, etc. In addition (and perhaps even more importantly since we are, after all, talking about the Government in ever-frugal times) each search you run costs the county money. While accessing the information for the wrong reasons might implicate federal statutes, using county resources to access the information implicates various state laws such as theft and abuse of official capacity. Unfortunately, the latter would only be a Class C misdemeanor if the value of the searches was less than $20. The theft would be a Class B misdemeanor unless the value of the searches was over $50. –Then again, with the number of individuals named so far, we could well be into the higher ranges already!

    There is no question this was an investigation. And even though Lykos’ denial was BS, even by her definition (“accessing confidential information”) this fits the bill.

      • Hmm. Am I missing something about the whole Grand Jury/Pat Lykos investigation? I am not a legal or law enforcement professional, but I know what an investigation is. What Don McWilliams had done fits the true definition of an investigation. I think its disgusting and an abuse of power.

  2. Yes, that’s why I said it would be a B unless it was over $50, in which case the public servant aspect would make it an A. I checked out Accurint’s price list and, depending on the detail of the searches run, it is possible, though unlikely, that the value could push it over $500, which would, as you’ve pointed out, be a state jail felony for a public servant.

  3. Thanks Mark and Mike. The agency I retired from has strict guidelines on when those reports could be used in an investigation. It contains personal information that is not considered public and should not be used unless you are trying to obtain information that is DIRECTLY related to your investigation.

    If elected officials can break the laws when it serves them, then what have we become.

  4. Based upon your “Live by the hatchet” post at the beginning of all this many would agree that Lykos had probable cause to conduct an investigation of the GJ. And I believe Murray’s blog had a comment long ago that first mentioned Theissen was a member of this GJ. Regardless, there will be no Texas Ranger investigation into this matter, as Lykos paid her dues to the republican hierarchy by dropping arson charges against Justice Medina’s wife in one of her first smarmy actions as the DA.

    Remember, David Medina was Rick Perry’s personal counsel long before Perry placed him on the Supreme Court, and Perry controls Abbott who controls the Rangers. And the feds, they won’t likely involve themselves either because Lykos has played ball with them as well, and they’re smart enough to realize they would have nothing to gain in an eventual indictment anyways.

  5. Mark – I had this this really weird nightmare I have to share with you. In the nightmare this really mean woman came back from the dead and took over the DA’s office. And then she fired a whole bunch of senior investigators & Das. And then she created something called divert that kinna a fib. Then when a smart senior Da named Donna asked questions of one of DAs henchmen and made him mad, she was referred to a secret
    tribunal that would be presided over by that same henchmen. Then the DA got mad at a witness wo told the truth and she arranged for the witness to get fired. Then she tried to indict the witness. Then grand jury said no. So then she started to investigate the grand jury but she said it wasn’t an investigation even though it was. And then one of her henchwomen refused to answer questions and invoked the 5th but she still got to act all pious and lock up people. And then the Da investigated Judges she didn’t like. …

    It was a really bad nightmare. Thank God I live in Anerica where nothing that screwed up would ever happen

    Robb Fickman
    ( most likely under investigation)

  6. Good new rule. I left out that the DA and all her henchpeople were. Wearing brown shirts. It was such a bad dream I am afraid to go back to sleep. At a minimum from now on I am sleeping with one eye open and filing my Place with garlic.

    Robb ” I fear this nightmare is not over” Fickman

  7. Mark;

    I have been out of the loop for awhile,, having grown up in Harris County and practiced law there for many years before moving to another jurisdiction.

    It seems to me that a number of the things Pat Lycos has initiated have been very beneficial to criminal defense lawyers.

    You are too probably young to remember having to hand write the notes from the State’s file, wasting time and desperately looking for a copying machine to cheat time and perhaps not being able to read our own writing. Yes, some of us in the old days may have done the unthinkable and actually copy the o/r rather than hand write it out.(Is this action criminal, or just bad judgment)?

    Now at very least this new idea of allowing discovery freely saves many lawyers time and effort,, at very most it allows defense attorneys efficient discovery of the state’s file. (Unlike Holmes, Rosenthal, et. al.).

    Anyway,, I’m not saying Pat is correct in getting nervous and perhaps looking into those who are looking into her,, but I’m just saying,, if the roles were reversed,, I suspect I’m not the only one who would react perhaps as she did,, (if in fact she did anything illegal at all).

    It may come as a surprise to some of your readers,, but perhaps a new DA may not be the most efficient DA for our clients and may revert to tactics utilized by Holmes, Rosenthal, et al.

    When Pat was a Judge,, I always found Pat to do things that were not popular with a lot of attorneys or for that fact,, even DA’s,, but I remember one thing that Pat did. Pat gave us defense attorneys an option to prison and allowed some of my clients to get help for their addiction when other Judges didn’t. I know several of my former clients who actually appreciated that.

    I’m not saying Pat is perfect, above the law or anything like that,, I’m just saying her office policies have made my job easier and given my clients other options to these terrible crimes such as DWI.

    I’m wondering if the “new old” guard will allow options to what is now an income raising opportunity for the State and a terrible financial burden to most of my clients.

    Maybe, just maybe,, as an ex-prosecutor, (I never was one),, the old system might be better,, then again,, you might be another “meddling outsider” who changed teams and is not to be trusted by the “new guard”. Perhaps your hand writing should be be exemplary,, cause you might just need it.

    Anyway,, it’s just something to think about.

    All I’m saying,, is beware of the “new, old guard”,, it may not be as much fun as you think. Then again,, it might be.

    Something to think about,, along with the presumption of innocence.

    Thanks for letting me ramble.

    Paul J. Smith

  8. Hi, Paul. I hope you’re well.

    Lykos has done some remarkable things to make the system more fair to the accused. No, I’m not too young to remember the days of handwritten notes—”you’re not copying that verbatim, are you?” (They didn’t know what to think when I started taking my laptop to court to take notes.)

    And those things have nothing at all to do with this post. I aim to tell the truth, call ’em like I see ’em, and let the political chips fall where they may.

Leave a Reply

Your email address will not be published.