From Frying Pan to Fire?

 Posted on February 02, 2012 in Uncategorized

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:

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.