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Comments on Current Events In Criminal Law from the Federal Criminal Courts in Texas
January 29, 2012
CONDITIONS OF BAIL IN DWI CASES CAN BE HARSH
Politics and Profit Motive Lead to Unreasonable Conditions of Bond in First Time DWI Cases
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
The Texas Legislature in 1999 gave courts the general authority to impose “reasonable conditions” of pre-trial release. This authority was codified in Chapter 17 of the Texas Code of Criminal Procedure. Art. 17.40(a) and has been used by some courts to impose draconian “conditions” of bond in DWI cases on the dubious claim they are related “to the safety of the community.” Unfortunately, some courts, with pressure from tough on crime advocacy groups who often endorse judges during election cycles, have added such burdensome conditions of bond as to amount to punishment prior to a finding of guilt, disregarding the fundamental principle of “innocent until proven guilty.”
The Texas Court of Criminal Appeals, in Ex parte Anderer, held that a court’s condition of bail will be upheld if it meets three criteria: 1) it must be reasonable; 3) it must be made to secure the presence of the defendant at trial; and 3) it must be related to the safety of an alleged victim or the community. At least one Court of Appeals, the Twelfth District in Burson v. State, held that the condition relating to safety of either victim or community does not necessarily need to relate to the other two criteria.
January 22, 2012
THE IMPACT OF SMITH V. CAINHigh Court Misses Opportunity to Discuss Ethical Obligations of Prosecutors
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
For reasons we discussed in a previous post, the U.S. Supreme Court had an opportunity in Smith v. Cain to discuss the ethical discovery obligations of both federal and state prosecutors—an idea strongly suggested by the American Bar Association in their amicus brief filed in the case. While the issue before the Court was whether Louisiana prosecutors had committed a Brady violation in a murder case by suppressing favorable evidence, the ABA had encouraged the Justices to use the case to emphasize that a prosecutor’s pre-trial ethical obligations to disclose exculpatory and mitigating evidence under Rule 3.8(d) of the Model Rules of Professional Conduct, 3.09(d) in the Texas Disciplinary Rules of Professional Conduct, are broader and distinct from the post-conviction Brady analysis. In its amicus curiae brief, the ABA framed the issue as follows:
January 08, 2012
“JUNK SCIENCE” ONCE AGAIN PUTS TEXAS IN NATIONAL FOREFRONT
Defense Lawyers Need to Challenge Questionable Expert Testimony and Conclusions
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
In October 2010 we posted piece titled “Dog Witnesses Kicked Out of the Courtroom” concerning a capital murder case in San Jacinto County. The accused, all members of the same family—Richard Lynn Winfrey Sr. and his son, Richard Jr., and daughter, Megan—were arrested in 2006 for the brutal murder of Murray Wayne Burr, a longtime custodial worker at the high school attended by the Winfrey siblings. Local law enforcement officials considered Winfrey and his two children as “persons of interests” shortly after Burr was murdered in his home, even though DNA evidence found at scene excluded the Winfreys. The proverbial “break in the case” came in 2006 when Richard Sr., who was housed in the Montgomery County jail, told another inmate David Campbell that “some kind of gun and some kind of knife collection” had been taken from Burr’s home, as well as other details about the murder, including the victim’s body being dragged from one room to another. Campbell repeated this information to the authorities.
This new information spurred San Jacinto County investigators into action. Not deterred by the fact that the DNA evidence excluded the Winfreys, the police turned to what they believed was infallible science—the nose of specially trained dogs. They called in a renowned law enforcement bloodhound “expert” named Keith Pickett to conduct what is called a “dog scent lineup.” The lineup was conducted in 2007 at which time Pickett used three of his hounds: Quincy, James Bond, and Clue. Investigators provided Pickett with a scent sample from clothing worn by the victim on the night he was murdered and scent samples from six white males, including Richard Sr. All three dogs were “pre-scented” with the scent from the victim’s clothing. The dogs were then paraded past six paint cans containing the scent samples of the six white males. All three dogs “alerted” on the paint can containing Richard Sr.’s scent sample and later “alerted” on Richard Jr. and Megan’s scent sample as well. All three were tried and convicted of murder.
December 22, 2011
A “SLIPPERY SLOPE” TO COMBAT HOMEGROWN TERRORISM
Indefinite Detention of Homegrown Terror Suspects, Citizens inside U.S. Unnecessary and Dangerous Erosion of Civil Liberties
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
Like it or not, the term “Jihadist” has become a commonly used term in today’s political lexicon. In a Congressional Research Service (“CRS”) report titled “American Jihadist Terrorism: Combating a Complex Threat” and issued on November 15, 2011, the report’s author Jerome P. Bjelopera said the term “homegrown jihadist” describes “terrorist activity or plots perpetrated within the United States or abroad by American citizens, legal permanent residents, or visitors radicalized within the United States.” The analyst for the CRS in organized crime and terrorism said the term “jihadist” describes “radicalized individuals using Islam as an ideological and/or religious justification for their belief in the establishment of global caliphate, or jurisdiction governed by a Muslim civil and religious leader known as a caliph.”
The CRS’s report estimates there have been “53 homegrown violent jihadist plots or attacks in the United States since September 11, 2001.” Between May 2009 and October 2011, there were 32 arrests made in homegrown jihadist terror plots. And of the 53 terror plots since 9/11, only four were successful—and they were carried out by “lone wolves,” three of whom targeted military personnel through the use of firearms. There were three other lone wolf plots but they were unsuccessful as were the remaining plots that involved two or more participants.
December 12, 2011
BRADY VIOLATIONS IN WHITE COLLAR, CORRUPTION CONVICTIONS
Serious, Widespread and Intentional Concealment of Evidence by DOJ and US Attorneys
By: Houston Criminal lawyer John T. Floyd and Paralegal Billy Sinclair
Former Alaska lawmaker, Vic Kohring, has entered a guilty plea admitting he accepted bribes from an “oil man” for his help in keeping taxes low on the Alaskan oil industry. The plea comes after an appellate court tossed out Kohring’s original conviction, along with others convicted in the scandal, after finding that the Government had intentionally withheld evidence in the trials. Kohring’s case documents the years of scandal resulting from official corruption between the oil industry and Alaska’s politicians and the disturbing pattern of misconduct by prosecutors, hell bent on getting the bad guys, that followed.
November 20, 2011
SMITH V. CAIN: A LOOK AT PROSECUTOR’S DUTY TO DISCLOSE
ABA Files Amicus Demanding Disclosure of Exculpatory Evidence Regardless of Materiality, Broader than Brady
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
The Orleans Parish and Williamson County district attorney offices have something in common: both have a disturbing history of withholding exculpatory information that resulted in innocent men being sent to prison (or death row) for long periods of time (here, here and here). The U.S. Supreme Court, in the case of Smith v. Cain, is being asked by Juan Smith’s attorneys and the American Bar Association (“ABA”) to address a prosecutor’s pretrial ethical obligations to disclose exculpatory evidence. A “summary” of the ABA’s argument is outlined in its amicus curiae brief:
November 13, 2011
MORE SHENANIGANS IN WILLIAMSON COUNTY DA’S OFFICE
DA Announces Policy of Hiding Brady, Potentially Exculpatory Evidence
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
We have become convinced that the only way the Williamson County District Attorney’s office will operate in a lawful and ethical manner is for the State Bar to assign an ombudsman to oversee its day-to-day handling of criminal prosecutions. The behavior of this office in the Michael Morton case has already triggered four investigations, including one by the State Bar (here and here). Grits For Breakfast recently carried yet another report, which was first reported by Wilco Watchdog, concerning allegations of prosecutorial misconduct. This time the misconduct charges involve Assistant District Attorney Tommy Coleman who withheld exculpatory evidence in a 2010 theft case.
October 30, 2011
WHAT’S THAT: A “RUNAWAY” GRAND JURY!
Harris County Grand Jury Probe focuses on HPD’s Breath-Testing Vans
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
This is our fourth post this year concerning out of control law enforcement “no refusal” DWI policies (here, here, and here). We don’t like them. They are at best, we believe, an unconstitutional invasion of individual privacy. Worse yet, they smack of the kind of things done in a police state—individual rights eliminated to protect the so-called “good of the majority.” The Harris County District Attorney’s Office is high on these no-refusal policies and the so called “no refusal holidays,” which were the obsession of former Assistant District Attorney Warren Diepraam. The DWI enthusiast has since taken his skills and DWI attitudes to the Montgomery County District Attorney’s Office where he occupies the position of “chief” of the Vehicular Crimes Section.
October 24, 2011
“PROSECUTOR OF THE YEAR!”
Williamson County District Attorneys Gain Distinction for Hiding Evidence, Wrongful Conviction and Hard Fought Cover-Up
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
Ken Anderson was a prosecutor in Williamson County, Texas, in 1986. In fact, he became Williamson County’s longest tenured district attorney with 16 ½ years as the county’s chief prosecutor and 5 ½ years as an assistant district attorney. Anderson knew his prosecuting business—so much so that his political pal, Gov. Rick Perry, appointed him to a District Judge position in January 2002. Why not, the State Bar of Texas Criminal Justice Section named Anderson “Prosecutor of the Year” in 1995 and five years later the Texas Crime Victim’s Clearinghouse tagged him the “Outstanding Prosecutor Upholding Victims’ Rights.” Along the way, he became a “Board Certified Criminal Law Specialist” and was elected as President of the Texas District and County Attorneys Association. And as if this was not enough for one man to achieve, Anderson lectured at over 300 schools where he told the leaders of tomorrow about the value of honest public service.
October 16, 2011
TEXAS’ APPROACH TO TEEN SEXTING
States Reevaluating Criminalization of Juvenile Cyber-Sex
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
This past legislative session Texas joined the ranks of a small number of states which have reduced criminalization “teen sexting.” Gov. Rick Perry signed the law this past June which is designed to, according to Wireupdate, “prevent teenagers from sexting without subjecting them to serious criminal penalties that have life-long consequences.” Before this latest legislation became law on September 1st teenagers could have faced the more serious felony charge of “promotion of child pornography” which, upon conviction, would have resulted in lifetime registration as a “sex offender.”
The new law permits prosecutors to charge minors, younger than 18, caught sexting with a misdemeanor punishable by a fine of not more than $4,000, confinement in jail for less than a year, or both. Prosecutors can also request courts sentence the youths to “participate in an education program about sexting’s harmful long-term consequences,” reported Wireupdate. But more significantly the bill requires the Texas School Safety Center, with input from the Texas Attorney General’s Office, to develop an “education program” that will allow schools to first “address the consequences of sexting.”
September 25, 2011
ROMEO AND JULIET, MEET ADAM WALSH
Texas law Allows Removal/Avoidance of Sex Registration for Youthful, Non-Violent Consent Based Sex
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
Former President George W. Bush in July 2006 signed into law the Adam Walsh Child Protection and Safety Act. Title I of this act is called the Sex Offender Registration and Notification Act (“SORNA”) which expanded the National Sex Offender Registry, including sanctions up to a maximum of twenty years for sex offenders who do not comply with the law’s registration requirements. This includes juveniles convicted, or adjudicated as delinquent in juvenile court, who are 14 years of age or older and who have been convicted of an offense either more serious or similar to federal aggravated sexual assault. It is this juvenile registration issue that has caused many states, including Texas, to have serious reservations about complying with SORNA.
September 12, 2011
DOUBLE STANDARD OF EVIDENCE IN CONRAD MURRAY TRIAL
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
Jury selection has begun in the high profile criminal case against Dr. Conrad Murray, the physician charged with involuntary manslaughter in the drug overdose and death of Michael Jackson. This comes the day after a California Court of Appeals denied Murray’s request to have the jury sequestered in what will assuredly be intense media coverage and “expert” speculation.
Defense attorney Edward Chernoff, who is defending Dr. Conrad Murray on an involuntary manslaughter charge in connection with Michael Jackson’s drug overdose death in 2009, wanted to call a number of witnesses to testify about Jackson’s 2005 acquittal on child molestation charges. One of the witnesses was a police detective who searched Jackson’s Neverland home in Santa Barbara County in 2003 where drugs, including Demerol, were found. Chernoff wanted to use the detective and a Dr. Arnold Klein, a dermatologist who gave Jackson Demerol, to show that the famous pop singer was addicted to prescription drugs.
September 05, 2011
PUNISHMENT: TEXAS STYLE
Life Sentences for DWI, Shoplifting for Habitual Offenders
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
Two years ago the Houston Chronicle carried report about a Montgomery County jury imposing a life sentence on a criminal defendant who shoplifted five compact discs from a Wal-Mart in Conroe. The defendant, Brian K. Balentine, was understandably stunned by the sentence. We just posted a piece about how a defendant’s criminal history, and even uncharged prior bad conduct, can come back to haunt him during the punishment phase of a trial.
That’s what happened to Balentine. The jury learned about his extensive criminal background and decided he would always pose a threat to society, so they sent him away for life. The evidence the jury considered was a 1984 murder in Freestone County of a man trying to protect his wife from Balentine and his brother, Terry, who wanted to rape the wife during a robbery attempt. Although the brothers were given three life sentences for this crime, Brian Balentine was released on parole in 2006. Besides the murder, the Montgomery County jury heard evidence about prior thefts as well as the fact that he had been linked to at least three additional thefts while on parole.
August 28, 2011
INTRODUCING EVIDENCE OF PRIOR FALSE ALLEGATIONS
Confronting Witnesses with Prior False Allegations to Support Theory of Bias, Motive or Interest
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
One of the most devastating crimes that can happen to anyone is to be falsely accused of having sexually assaulted a child. A significant number of potential jurors in child sexual assault cases readily admit in jury selection, voir dire, that they do not believe a child would “make up” a story about being abused. But we know it happens (here, here, and here). Children lie about sexual abuse for an endless assortment of reasons: mom told them to do it in bitter divorce custody disputes; they want to “get even” with a relative who was responsible for them being disciplined; they want to be removed from a household, especially in foster care, in which there are a lot of behavioral restrictions; they are emotionally unstable or mentally ill.
But can a defendant charged with a child sexual assault offense present evidence that the victim has made prior false abuse allegations?
August 09, 2011
TEXAS RAPE-SHIELD: RIGHT TO PRIVACY VS. THE SIXTH AMENDMENT’S CONFRONTATION CLAUSE
TRE 412 Permits Use of Past Sexual Behavior in Limited Circumstances
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
Every state in these United States have what is known as “rape shield statutes”—laws that limit a criminal defendant’s ability to cross examine sexual assault victims about their past sexual behavior. Texas’ rape shield statute lies in Rule 412 of the Texas Rules of Evidence and explicitly applies only in sexual assault cases. The, however, Rule is qualified to permit the use of “past sexual behavior” in certain situations: when it is necessary to rebut or explain scientific or medical evidence offered by the State, Subsection(b)(2)(A): when it is offered by the defendant upon the issue of whether the victim consented to the sexual behavior which is the basis for the charged offense, Subsection (b)(2)(B); and when it is relevant to show “motive or bias” on the part of the victim, Subsection (b)(2)(C).
Rule 412(c) sets forth the procedures for determining whether evidence of prior sexual behavior should be allowed:
July 29, 2011
PROSECUTORIAL MISCONDUCT IN CASEY ANTHONY CASE?
Prosecutors Fail to Disclose Favorable Evidence that Contradicted Expert’s Testimony
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
We have repeatedly made clear our disdain for prosecutorial misconduct (here). And here we go again. More dirty, underhanded prosecutorial tactics. Just two days after our July 16 post concerning the Casey Anthony “not guilty” verdict, The New York Times carried a report about these tactics being employed by Orlando prosecutors bent on convicting Anthony for capital murder of her two-year old daughter. In our July 16 post we made the following observation about manner of how little Caylee was murdered that prosecutors presented to the jury:
“The problem is that theories are nothing more than opinions until they are supported by facts. The Casey Anthony jurors had the remarkable courage to face an inevitable hostile public reaction by refusing to accept the prosecutors’ theory [of how Caylee was killed] without a single piece of direct factual evidence to back it up. For example, prosecutors wanted the jurors to accept that because they offered evidence that Anthony had conducted Internet searches for chloroform, she must have used it in the commission of the murder. Yet prosecutors did not produce any chloroform, any evidence that Anthony purchased chloroform and, worse yet, that Caylee was even killed with chloroform.”
June 20, 2011
MILITARIZED POLICE “NO KNOCK” SEARCHES KILL INNOCENT PEOPLE
Recent U.S. Supreme Court Decisions Expanding “No Knock” Powers of the Police and Insulating Law Enforcement Abuses Allow a Growing Police State
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
We are no fans of “no knock” searches by the police, especially those launched by militarized SWAT units. We made this clear after a recent U.S. Supreme Court decision expanding police powers to conduct such searches (here). We don’t like them because they kill innocent people indiscriminately. We have permitted our law enforcement agencies to become so militarized that “no knock” searches increased from 3,000 in 1981 to 50,000 in 2005, according to Eastern University of Kentucky criminologist Paul Kraska, and have resulted in the deaths of 40 innocent people during that time, according to the Washington-based Cato Institute. Peter Guither, with Drug War Rant, places the number of innocents killed in “no knock” searches at 42.
June 06, 2011
REQUESTS FOR DNA TESTING PRESENT ENORMOUS CHALLENGES
Right to Appointed Counsel Not Absolute: Courts Only Required to Appoint Counsel if Reasonable Grounds Exist for DNA Testing
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
Ruben Gutierrez was convicted of capital murder and sentenced to death for the September 5, 1998 robbery/murder of 85-year-old Escolastica Harrison in Brownsville. The elderly woman owned a mobile home park and the trailer in which she lived doubled as an office. Gutierrez was a friend of Harrison’s nephew. He and the nephew, with other neighbors, frequently gathered behind the Harrison trailer to drink and socialize. Through this relationship Gutierrez got to know a lot about how Harrison conducted her business affairs; specifically, that she did not trust banks and kept all of her money in her trailer/office. Gutierrez was one of the few people who knew Harrison kept large sums of money in the trailer.
May 31, 2011
ACTUAL INNOCENCE: PUTTING A CAMEL THROUGH EYE OF A NEEDLE
Habeas Claims of Actual Innocence Require “Herculean” Burden by Clear and Convincing Evidence
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
It was March 22, 1987. Near midnight. The Dallas Police Department received a report that a man was lying face down in the street. The man was Jeffery Young who was transported to an area hospital, unconscious and bleeding. Before regaining consciousness, Young died and a subsequent autopsy revealed he had died from what the Texas Court of Criminal Appeals said was “severe skull fractures that were the result of multiple blows to the head.” The Dallas police then received another report about a BMW parked in an alley near where Young had been found mortally injured. The police quickly determined the BMW belong to Young.
Two days after Young’s murder a witness name Gladys Oliver went to the police to report what she had seen in the alley the night Young’s BMW was located. She informed the police that there were other witnesses besides her who also saw what transpired in the alley that night. She told investigators she belatedly decided to come forward with her information after learning they had arrested a man named Van Mitchell Spencer for stealing Young’s vehicle. She said the police had the wrong man in custody because she saw Benjamine John Spencer, not Van Mitchell Spencer, getting out of Young’s vehicle in the alley. Another witness, Charles Stewart, whose name was supplied by Oliver, told the police Benjamine Spencer got out of the passenger side of the vehicle, jumped Oliver’s fence, and went through her back yard. He said that when the car door of the vehicle opened a light came on and, besides Spencer, he saw a second man named Nathan Robert Mitchell in the vehicle as he was getting out on the driver’s side. A third witness named Donald Merritt told the police he saw a white man lying in the street, bleeding from the head and struggling to breathe. Merritt also saw the BMW in the alley with an individual named Nathan Robert Mitchell standing next to it. Finally, a fourth witness named Jimmie Cotton told the police that he was cooking dinner in his kitchen when he saw the BMW drive into the alley and Spencer exit the vehicle on the passenger side shortly afterwards.
May 30, 2011
SPECIAL CONDITION X: DESIGNATED AS A SEX OFFENDER
Texas Must Afford Due Process before Imposing Sex Offender Conditions on Parolees
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
The Center for Missing and Exploited Children has reported that there are, on average, 234 registered sex offenders per 100,000 residents in the United States—a total of nearly 730,000 such offenders, with more than 61,000 residing in the State of Texas, making this State second only to California’s approximately 123,000 registered sex offenders. An inherent tragedy behind these figures is that it is too easy for state officials to wrongfully classify a parolee as a sex offender while it is so hard to undo such a classification.
Take the case of J Evans who found himself wrongfully designated for sex offender conditions while on parole in Texas. The facts of the Evans case are disturbing, if not outright chilling, given the extreme stigma and hardship that comes with sex offender registration. Those facts are: In October 2001 he pled guilty to two counts of reckless injury to a child involving his two baby girls. The prosecutor in the case quite adamantly stated that at no time “did [he] ever view the case as a sex crime, nor did [he] see anything in the case to indicate any sexual or conduct which concerned me.” Even the trial judge who accepted Evans’ guilty plea said: “Based on the trial court’s personal recollection of the facts adduced at applicant’s trial, there was no evidence of sexual abuse of Applicant’s victims.”
May 21, 2011
DWI BLOOD DRAWS TAKE A HIT
Refusal to Perform DWI Police Tests Not Enough to Substantiate Probable Cause for Blood Draw
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
“No refusal weekends” have become a permanent fixture in the aggressive anti-DWI campaign waged by law enforcements agencies across the State of Texas and the nation. In these programs a judge is on standby to sign a warrant authorizing law enforcement authorities to take a “blood sample” when a suspected DWI driver refuses to take the standard breathalyzer test—and in Texas, if the suspect refuses to voluntary consent to a blood draw, law enforcement authorities can forcefully extract the blood sample.
This past January the Second District Court of Appeals, in Farhat v. State, reversed a DWI conviction involving the use of “blood evidence seized with a warrant.” The significance of the Farhat decision lies in the fact that the prerequisite “affidavit” used to secure the blood draw warrant did not have a sufficient factual basis. Corporal Patrick Finley of the Highland Village Police Department, located in Denton County, decided to stop Farhat after the officer observed him driving ten miles per hour below the posted 40 miles per hour limit, his vehicle weaving from side to side, and his signaling a right-hand turn before turning left into a fast-food restaurant.
May 11, 2011
Aggravated Assault NOT Lesser Included of Aggravated Sexual Assault
Defense Lawyers Sound Objection to Lesser Included Offense Causes Appellate Mental Madness
By: Houston Criminal Lawyer John Floyd and Billy Sinclair
The law is rarely ever clearly defined. It is continuously subject to interpretation.
The law is such a fluid creature that finding its true meaning is sometimes very difficult and can strain the bounds of intellectual honesty. This was illustrated on October 20, 2010 by the Texas Court of Criminal Appeals in the case of Oscar Rene Benavidez.
Benavidez was indicted for the offense of aggravated sexual assault. At the end the guilt/innocence phase of the Benavidez’s trial, the State submitted a proposed jury charge to the court which would allow the jury to convict Benavidez of a lesser included offense of aggravated assault, should it decide to acquit him on the sexual assault charge. That is where the convoluted legal dispute in the Benavidez case began: State prosecutors believed that aggravated assault was indeed a lesser included offense to the aggravated sexual assault charge which had been charged in the indictment. Benavidez’s defense counsel, however, strongly objected to the proposed charge, being of the firm opinion that aggravated assault could not be a lesser included offense of aggravated sexual assault.
April 25, 2011
HOW FAR DOES THE RIGHT TO PRIVACY GO IN A MARITAL HOME?
Wiretaps and Secret Video Taping by Spouses in the Home Can Lead to Criminal and Civil Exposure
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
Marriage may well begin in bliss but during divorce often ends in mutually destructive acrimony between the spouses. Sometimes the acrimony in a failed marriage prompts one of the spouses to do something that violates the law resulting in criminal liability. That’s what happened to J. Duffy in 1996. We came upon Duffy’s case when a local attorney representing a husband charged with aggravated assault on his wife consulted with us regarding the legality of a situation where a husband, who suspected his wife of adultery, wiretapped the home telephone to gather incriminating evidence and recorded statements made by the wife bragging about accusing her husband of the assault. Was the wiretapping of the home phone legal? Having represented a client charged with a felony in a similar fact pattern we knew the answer was NO, but did some quick research and found Duffy’s case illustrative of the point.
April 18, 2011
The Paradox that is The War on Drugs
While Some Politicians Question Cost Of Incarcerating Drug Offenders, Big Money and Bigger Forfeitures Keeps Texas Tough On Drug Crime
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
An increasing number of states have abandoned the traditional notion that the best way to combat drug use and trafficking is through the costly practice of extended incarceration. The Wall Street Journal last month reported that Kentucky joined the ranks of South Carolina, Colorado and New York to enact laws that shift spending into less expensive and more effective rehabilitation and intensive drug testing programs. Delaware, Florida, Indiana, Massachusetts and Pennsylvania are currently considering bills that would reduce drug penalties and direct some drug defendants into treatment programs.
April 04, 2011
OVERZEALOUS FEDERAL PROSECUTION FOR PRODUCTION OF CHILD PORNOGRAPHY REVERSED
U.S. v. Steen: Voyeur’s Video of Child at Tanning Salon Insufficient to Support Conviction
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
You would think that an Assistant U.S. Attorney, charged with prosecuting offenses against the laws the United States, would understand the laws upon which he elects to indict a criminal defendant. But far too often federal prosecutors, especially in “child sex cases,” are more concerned with securing convictions to “notch” the handle on their legal resume than in pursuing justice as they are legally and ethically required to do. Such was the apparent motive for the 2009 prosecution of a petty “voyeur,” Allen Steen, in federal court in Odessa, Texas under the child pornography law, 18 U.S.C. 2551(a)—a statute which carries a mandatory minimum of 15 years upon conviction.
March 13, 2011
5C1.2: “SAFETY VALVE”: ANOTHER FAILED SENTENCING REFORM EFFORT
U.S. Sentencing Guidelines, Mandatory Minimums, Safety Valve Encourage Snitches, Promote False Testimony, Prevent Just Sentences
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
Anytime a new penal statute uses the term “reform” you can take to it the bank that the result will produce just the opposite; that its objective to correct a perceived and politically charged threat will, more than likely than not, harvest a new crop of worse injustices.
Thus is the case with the federal Sentencing Reform Act of 1984 (“SRA”), passed with strong bipartisan support during the Reagan presidency after many years of debate and study. The first indicator that the SRA was not about “reform” was that it was born out of the omnibus Comprehensive Crime Control Act which was designed to overhaul the federal criminal justice system. Notwithstanding that SRA was the afterbirth of a sweeping congressional effort to “get tough” on crime, proponents of SRA hailed its primary purposes which were: “(1) to establish comprehensive and coordinated statutory authority for sentencing [currently found in 18 U.S.C. § 3553]; (2) to address the seemingly intractable problem of unwarranted sentencing disparity and enhance crime control by creating an independent, expert sentencing commission to devise and update periodically a system of mandatory sentencing guidelines; and (3) principally through the sentencing commission to create a means of assembling and distributing sentencing data, coordinating sentence research and education, and generally advancing the state of knowledge about criminal behavior.”
March 06, 2010
THE LAW ON GUNS AND FELONS
Texas Legislature Pushing to Allow Concealed Guns on College Campuses, Penalties for Felon in Possession Increase
By Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
The Texas Legislature appears poised to join Utah in enacting legislation that would allow guns on college campuses (an issue rejected in 23 other states). The legislation would allow college students and professors, who have concealed handgun permits, to pack “heat” on public university property throughout the State of Texas.
In 1995 the State of Texas, along with six other states, enacted what is commonly known as the “conceal carry” law which authorized licensed gun owners to carry their weapons concealed on their person. As of December 31, the Texas Department of Public Safety said the state had issued 461,274 concealed carry licenses. To obtain a license for conceal carry, the applicant must be a legal resident of the state for a six-month period, must be 21 years of age, has never been convicted of a felony, is not charged or a fugitive for Class A or B misdemeanors, is not chemically dependent, is not a person of unsound mind, is not delinquent in making child support payments, and can purchase a handgun.
February 23, 2011
THE PURPOSE OF REASONABLE DOUBT IN CRIMINAL TRIALS
Prosecutorial, Police Misconduct Lead to Wrongful Conviction Unsupported by Evidence
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
In a recent post we discussed both the history and role of reasonable doubt in criminal trials. We noted and criticized the fact that Texas judges in criminal trials do not, per Texas Court of Criminal Appeals mandate, have to give jurors any instruction as to what constitutes “reasonable doubt.” This, we believe, is one of several reasons why Texas leads the nation in the wrongful conviction of innocent people.
The Fifth Circuit Court of Appeals recently reversed a drug conviction of a Texas resident and had an opportunity in the process to explain why reasonable doubt is so critical in ensuring the constitutional right to a fair and impartial trial. The case involved Maria Aide Delgado who was convicted in federal court of one count of possession of marijuana with intent to distribute and one count of conspiracy to commit the same offense. The Delgado case also illustrates a subject matter we have discussed in other posts: prosecutorial misconduct (here and here).
February 19, 2011
CELL PHONES, TEXTS NOT SAFE FROM POLICE SEARCHES
Fifth Circuit: U.S. Court of Appeals Allows Search of Cell Phone Text Messages without Warrant, After Arrest
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
The popularity of Short Message Service (SMS), text messaging, originated in Europe and Asia before captivating American cell phone users, according to a 2008 CBS News report. SMS’ sudden popularity was linked directly to cost: it was cheaper to send short text messages than to make an actual phone call. CBS News pointed out that it cost less than a penny to send a text message in 2008. Perhaps it was also the cost factor that caused Americans, especially the young, to fall “head on heels” in love with texting in 2008. According to CTIA, the wireless industry trade association, Americans sent an average of 2.5 billion text messages per day that year, an increase of 160 percent over 2007. This SMS surge was fueled by teens between 13 and 17 who sent and received an average of 1,742 messages per month. And the SMS explosion in America did not escape the economic attention of the cell phone providers: the cost of sending and receiving text message increased by a whopping 100 percent during this same time period.
February 13, 2011
WHAT IS REASONABLE DOUBT?
Another Tool for Preventing Wrongful Convictions: Texas Needs a Statutory Definition of Reasonable Doubt
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
Four decades ago in the case of In re Winship the United States Supreme Court firmly established that, as a matter of due process, a person charged with a criminal offense, including a juvenile as in Winship, can be found guilty only after the prosecution has proven every element of the crime “beyond a reasonable doubt.” The Supreme Court dated the term “beyond a reasonable doubt” in American jurisprudence to 1798, some eleven years after our Constitution was adopted. Thus, beyond a reasonable doubt has been the degree of persuasion necessary in criminal cases since the early founding of our nation. It has become the very bedrock of our criminal jurisprudence. As Mr. Justice Frankfurter put it in 1952 in Leland v. Oregon: “ … it is the duty of the Government to establish … guilt beyond a reasonable doubt. This notion – basic in our law and rightly one of the boasts of a free society – is a requirement and a safeguard of due process of law in the historical, procedural content of ‘due process.’”
January 25, 2011
TEXAS DEATH PENALTY INQUIRY SHUT DOWN
The Real Reason for Abolition: Texas Poses Greatest Risk of Executing an Innocent
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
For two days in December of last year Harris County Criminal District Court Judge Kevin Fine allowed attorneys representing accused capital murderer John Edward Green to present evidence that the process for carrying out the death penalty in this state is so flawed that it creates an unconstitutional risk that an innocent person could be executed. The two-day hearing in the Green case drew national and international media attention because it involved a challenge to the death penalty in the very State which has executed more people than any other since the executions resumed in this country on January 17, 1977.
Last March, Judge Fine’s decision to hear the issue ignited a swirling legal and political firestorm when he declared from the bench during a pretrial hearing in the Green case that the death penalty as applied in Texas was unconstitutional. Harris County District Attorney lashed out at the ruling, saying: “We respectfully, but vigorously, disagree with the trial judge’s ruling, as it has no basis in law or fact. Words are inadequate to describe this Office’s disappointment and dismay with the ruling; sadly it will delay justice for the victims and their families. We will pursue all remedies.” Texas Gov. Rick Perry and Attorney General Gregg Abbott joined the fray by calling Fine’s decision “an act of unabashed judicial activism.” A term so often used whenever republicans are confronted with a threatening or novel issue contrary to their ideology.
January 10, 2011
DEFENDING AGAINST JUROR BIAS IN SEX CRIMES
Voir Dire, Inability to Consider Full Range of Punishment: Proper Objection and Practice to Preserve Error for Appeal
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
Sex offenses involving children are beyond a doubt the most difficult to defend, particularly when the allegations appear compelling and the witnesses are believable (here, here, and here). These kinds of sexual assault allegations are easy to indict and even easier to prosecute. All the prosecution needs is the victim’s testimony to secure and sustain a conviction. These offenses are difficult to defend because potential jurors enter the trial setting with a predisposed bias against anyone charged with a sex offense against a child. While the defense counsel tries to exclude these biased jurors from the jury, either through peremptory challenges or challenges for cause, too many effectively conceal their bias in order to serve and convict. These jurors want to be part of a process that convicts the insidious “child molester.”
Antonio Zavala Cardenas was indicted for three counts of aggravated sexual assault of a child and one count of indecency with a child. The evidence against him was indeed compelling. His aunt discovered him in bed with her four-year-old daughter, and suspecting the worse, she pulled the covers back to see her daughter’s pants and underwear pulled down and her nephew hurriedly trying to refasten his trousers. Besides the aunt’s testimony, the child testified that Cardenas had removed her underwear, exposed his penis to her, and rubbed his penis against her genitalia. Police testified that Cardenas admitted in a written statement that he had put his “hand down in front of [the child’s] pants” and rubbed “circles on the top of her vagina.”
December 27, 2010
THE TEXAS DEATH PENALTY SYSTEM BROKEN
Nationally Recognized Experts, Retired U.S. Supreme Court Justice Cite Risk of Innocents Being Put to Death, State of Texas Replies “No Comment”
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
That question could reasonably be asked of any state that maintains the death penalty. Every system of punishment is cracked in one way or another. The fact that 138 condemned inmates in 26 death penalty states have been exonerated since 1973, and the fact that there have been 261 DNA exonerations in this country since 1989, and the fact that our law books are filled with reversals of criminal convictions and death sentences offers compelling evidence that our entire criminal justice system, and, in particular, our death penalty systems is if not broken, certainly flawed. Earlier this year Harris County Criminal District Court Judge Kevin Fine stirred considerable legal and political controversy when he declared from the bench that Texas’ death penalty procedures were unconstitutional. The backlash was so intense, from the state’s attorney general to its governor, that Judge Fine clarified his ruling the next day by saying he had not actually declared the death penalty process unconstitutional and ordered attorneys in the case to submit additional legal arguments detailing how the process was so flawed that it violated the “cruel and unusual punishment” provisions of the Eighth Amendment.
December 24, 2010
WIKILEAKS, JULIAN ASSANGE, AND POSSIBLE CRIMINAL PROSECUTION
Keeping the government in Check, the Uncomfortable Reality of Freedom of the Press
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
WikiLeaks’ founder Julian Assange surrendered to British authorities on December 7, 2010 in connection with sexual assault allegations leveled against the Australian native by Swedish authorities. News media reports said Assange was engaged in consensual sexual encounters with two women (WikiLeak volunteers) in Sweden this past August when the encounters turned non-consensual because Assange would not use a condom. The controversial Assange has gained international acclaim and criticism for his website’s disclosure of thousands of classified U.S. diplomatic cables and documents. The sexual assault charges became prominent after the disclosures occurred.
December 6, 2010
REFORM CAN SOMETIMES BE BAD MEDICINE
Anonymous Inside Sources Criticize Harris County District Attorney
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
Like all cold and flu medicine, “reform” at the governmental level sometimes gags those resistant to changing practices and policies away from the bad toward the good. Harris County District Attorney Pat Lykos was elected on the theme that she would introduce “reform” to the district attorney’s office and put an end to the often illegal and unethical practices of the “convict at any cost” which hallmarked the former administrations of Charles “Chuck” Rosenthal and his predecessor Johnny Holmes. The trial of a criminal case is controlled by three entities: the judge, the prosecutor, and the defense counsel. To be effective and responsible, each entity must do their job in an honest, decent, and fair way. That was seldom the case under Rosenthal and Holmes.
November 22, 2010
NAIT RECEIVES MIXED BLESSING FROM APPEALS COURT
Unindicted Co-Conspirator in Holy Land Appeals Case in Fight to Clear Name
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
The Holy Land Foundation for Relief and Development, formerly the nation’s largest Islamic charity organization based in Dallas, Texas, and seven of its leaders were indicted in 2007 with providing “material support” to a terrorist organization, primarily to Hamas. We have posted up articles about the case (here and here). A 2008 trial resulted in convictions for all those indicted and with Holy Land being labeled as the “largest terrorism financing” Islamic group in the country. In 2009 its founders were given life sentences.
November 15, 2010
SEXUAL ASSAULT DEFENSES SEVERELY RESTRICTED
Extraneous Offenses: The Impact of Bass on Admissibility of other Crimes, Wrongs and Bad Acts.
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
We wrote about the Curtis Bass case last year (here). We will restate the facts of the Bass case here to illustrate the profound effect the case has had on defending sexual assault cases, particularly those involving child victims.
Curtis Bass was a popular minister in Harris County. He had an impeccable reputation among his flock and in the general community as a fine, upstanding citizen. Bass’ reputation was so stellar that when in the fall of 1994 a 16-year-old church member told her mother, other family members and three educators where she attended school that Bass had sexually molested her in the church’s office in February of that year and again in the church’s parking lot in June of that year, no one believed her.
Then in 1995 or 1996 a member of Bass’ congregation named Richard Parmer went to the church to help clean it. He took his five-year-old daughter with him. During the cleaning, Parmer opened the door to Bass’ office and found his daughter sitting in the minister’s lap with her dress pulled up above her waist. Surprised, Bass told the father the girl’s dress had ridden up and he was helping her straighten it out. The police were contacted but no charges were filed.
October 24, 2010
FREEDOM OF SPEECH SURVIVES YET ANOTHER ASSAULT
Freedom of Speech: Conviction for Lying about Medal of Honor Reversed
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
No one likes a liar, a blowhard, or someone who takes credit for something he doesn’t deserve. But that description applies to most of us at one point or another in their lives. People lie about things to make themselves look better in the eyes of others; people embellish life events (the proverbial fish story about the “one that got away”); and people tend to take more credit than they deserve when they are part of a group success (like claiming credit for scoring the winning touchdown in a flag football game when they actually never caught a pass in their lives). This is the general state of human nature, a mirror reflection of those who tediously grope through mundane, sometimes insignificant, lives trying to simultaneously cope with personal fallibility and certain mortality.
October 23, 2010
DOG WITNESSES KICKED OUT OF THE COURTROOM?
Winfrey v. State: Evidence of Dog Scent Line-Up Identification, Standing Alone, Legally Insufficient to Support Conviction
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair.
The San Deigo Police Foundation reports that police dogs work 8 ½ years before being retired and it costs $8500 to replace a retired canine. Dogs serve a legitimate purpose in crime prevention: their sense of smell is nearly 50 times stronger than humans and they can search an area 10 times quicker than a human. Dogs have a long history in law enforcement. For example, bloodhounds were used as early as the 18th century in Europe to track criminals. Germany and Belgium became the first European countries to formalize training of dogs in police work, mostly guard duty. German sheperds served Third Reich well in World War II and returning American soldiers brought this information home with them from the front lines. Following the lead of London and other large European police departments, major American city police departments also began to establish K-9 units in the 1970s, consisting mostly of German sheperds, in their crime-fighting duties.
October 11, 2010
ACTUAL INNOCENCE IN POST-CONVICTION PROCEEDINGS
Timothy Cole Advisory Panel on Wrongful Convictions Recommends Expanded Post-Conviction DNA Testing, Habeas Corpus Based on Changing Science
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
U.S. District Court Judge William T. Moore, Jr., who presides in the Southern District of Georgia, recently observed in the death penalty case of Troy Davis (here and here) that only one state of the 35 states that have the death penalty does not have any post-conviction avenue for inmates to either secure or offer evidence of innocence. That lone state is Oklahoma. Altogether, 47 states and the District of Columbia have enacted statutes which provide varying degrees of access to remedies to establish innocence in a post-conviction setting. Massachusetts, Alaska, and Oklahoma are the only three hold-out states which have elected not to enact reform legislation in the critical area of establishing “actual innocence” despite the ever-increasing number of DNA exonerations.
more....
October 04, 2010
TEXAS DISCOVERY PROCEDURES
Discovery, Brady Rules in Need of Reformation to Prevent Wrongful Convictions
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
Last month the Timothy Cole Advisory Panel (“Panel”), which was created by the Texas Legislature in its 2009 session to develop recommendations for the Texas Task Force on Indigent Defense to help prevent wrongful convictions, issued its “report” calling for changes in the state’s eyewitness identification procedures, custodial interrogations, discovery procedures, post-conviction proceedings, and various innocence projects that receive state funding.
September 30, 2010
“NO REFUSAL” BLOOD DRAWS AND SOBRIETY
CHECKPOINTS: CONSTITUTIONAL DILEMMAS
Law Enforcement Willing to Lessen Constitutional Protections to Appease Mothers Against Drunk Driving
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
For the past fifteen years the State of Texas either led the nation or ranked in the top five states in DWI fatalities. The Century Council reported in 2008 there were nearly six-million traffic accidents reported in this country to the police which took the lives of 37,361 people—11,773 of the deaths involved crashes in which a driver had a blood-alcohol reading of .08 or higher. A blood alcohol level (BAL) of .08 is considered intoxicated in the State of Texas.
September 18, 2010
WRONGFUL CONVICTIONS: TRAGIC RUSH TO JUDGMENTS
Tunnel Vision By Investigators and Prosecutors Convicts, Imprisons the Innocent
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
Last year we blogged about the tragic wrongful convictions of three innocent Texas inmates, Ricardo Rachel, Timothy Cole (here and here), and Ernest Sonnier. This year has proven just as tragic. We have thus far blogged about the wrongful convictions of four more innocent Texas inmates: Donald Wayne Good, Anthony Robinson, Allen Wayne Porter, and Michael Anthony Green. The wrongful conviction emblem seems to have been deeply etched on the face of Texas justice. But convicting innocent people is not a phenomenon unique to this state.
September 12, 2010
ROGER CLEMENS TAKES THE MOUND AGAINST U.S. GOVERNMENT
False Statements, Perjury and Prosecutorial Over-Charging
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
Between 1984 and 2006, Roger Clemens, a seven-time Cy Young Award winner, was arguably the best—certainly one of the top five—pitchers ever to take the mound in Major League Baseball (“MLB”). Nicknamed the “Rocket,” Clemens’ 354 wins (ninth on the all-time win list) and his 4,672 strikeouts (third only to career strikeout leader Nolan Ryan and runner up Randy Johnson) make a compelling argument that he is one of the greatest MLB pitchers of all time.
Then it happened. Former Oakland Athletics outfielder Jose Canseco released his book, Juiced: Wild Times, Rampant ‘Roids, Smash Hits, and How Baseball Got Big (William Morrow 2005), and pointed the finger at a number of prime time baseball stars as steroid users, including Clemens. Canseco’s book spurred the congressional House Committee on Oversight and Government Reform (“Oversight committee”) in March 2005 to conduct a hearing titled “Restoring Faith in America’s Pasttime: Evaluating Major Baseball’s Efforts to Eradicate Steroid Use.” Canseco and a host of other prominent MLB stars, including Mark McGwire, testified before the committee, either confirming or denying performance enhancement (“PED”) drug use by themselves or others.
August 24, 2010
APPELLATE COURTS DON’T ALWAYS GET IT RIGHT EITHER
U.S. Fifth Circuit Court of Appeals Corrects itself by Holding Overt Act Not Element of Conspiracy to Launder Money, 18 U.S.C. § 1956(h)
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
Money laundering is a process through which either the source or use of proceeds from illegal financial transactions are concealed. The primary purpose of a money laundering operation is to hide either the origin or destination of money derived from ill-gotten gain. Most money laundering operations are tied to illicit drug trafficking. The Office of National Drug Control Policy estimates that Americans spend $65 billion each year on illicit drugs. Since federal law enforcement agencies seize only $1 billion in drug money each year, according to the U.S. Drug Enforcement Administration, there is a lot of illegal money being laundered at both national and international levels. In 1986 Congress passed the Money Laundering Control Act, which is codified in the United States Code, Title 18, Section 1956, and is the statute most often used by the U.S. Justice Department to prosecute money launderers. In 2007 former Assistant U.S. Attorney Charles Intriago told USA Today that it is easy “to move money in and out [of the country], using U.S. companies, without a trace. This is a glaring problem.”
August 15, 2010
OSTRICH INSTRUCTION REJECTED IN FEDERAL ONLINE SOLICITATION
Deliberately Avoiding the Truth to Deny Criminal Knowledge
By Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
What is an “ostrich instruction?”
Also known as a “willful blindness” or “deliberate indifference” instruction in many federal circuits, an ostrich instruction is a jury instruction given when a criminal defendant claims a lack of guilty knowledge about the crime but there is some evidence the defendant deliberately elected to remain ignorant to avoid confirmation. Put succinctly, an ostrich instruction is generally given in cases where defendants deliberately close their eyes to the truth. It is not routinely used in federal online solicitation cases filed under 18 U.S.C. § 2422(b), which prohibits the knowing persuasion, inducement, enticement or coercion of a minor under 18 years of age to engage in prostitution or other illegal sexual activity.
August 8, 2010
MISTAKEN IDENTIFICATIONS SENT TWO INNOCENT MEN TO PRISON
Suggestive Police Procedures and Mistaken Identification Resulted in Two More Wrongful Convictions and Incarcerations, One for 27 Years
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
Our criminal justice system is flawed. Its imperfections can be found in the 255 DNA exonerations of innocent offenders and the 138 people released from death row since 1973 in this country. But, paradoxically, its perfection lies in its willingness and ability to correct the imperfections brought about by human mistake. According to the New York-based Innocence Project, mistaken identification is the “greatest cause for wrongful convictions,” playing a role in 75 percent of the nation’s DNA exonerations. Twice this year we have posted pieces dealing with the dangers, and, yes, tragedies caused by, the mistaken pointed finger (here and here).
Two recent Harris County cases involving wrongful convictions of innocent men brought about because of mistaken identification illustrate not only the tragedy but just how easy it for an innocent man to be sent to prison, especially with emotionally charged crimes such as sexual assault. The first case brought to the public’s attention by the Houston Chronicle (here, here, here, and here) was Allen Wayne Porter who was convicted of rape and robbery in 1991. The case from the outset had some strange twists and turns.
August 01, 2010
CAMERON TODD WILLINGHAM: IMPROPER OR WRONGFUL CONVICTION?
Texas Forensic Science Commission Concludes Flawed Science Used In Trial That Led To Conviction and Execution
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
It was December 1991 in Corsicana, Texas. Cameron Todd Willingham was alone in his residence with his three small children—Amber 2, and one-year-old twins, Karmon and Kameron. A fire broke out in the residence. Willingham managed to escape the fire. The three children did not, dying a horrible death trapped in the flames that quickly engulfed the residence. Willingham was immediately targeted as a suspect for arson murder. He was indicted on January 8, 1992. After turning down an opportunity to plead guilty for a life sentence, he was tried, convicted, and sentenced to death in August 1992. He was executed on February 17, 2004, angrily telling all those present that he was an innocent man. The political and media fallout from Willingham’s execution began before his remains were laid to rest. The case’s controversial history can be found on Billy Sinclair’s blog here, here, here, here, here, here, here, and here. But essentially Willingham was convicted and executed because state officials involved in the case—and with a lot of help from the condemned inmate himself—successfully portrayed him as a “monster” throughout the trial and execution process. The basis for this portrait was:
July 19, 2010
A CHILD CANNOT BE BOTH CRIMINAL AND VICTIMBy: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
The Texas Supreme Court recently held that a child under the age of fourteen could not be found guilty of a Class B misdemeanor offense of prostitution. This case began when a 13-year-old identified by the court as B.W. waved over a Houston undercover police officer driving an unmarked vehicle and offered to perform oral sex on him for $20. The officer agreed, and as soon as the teenager got in the officer’s vehicle, he arrested her for prostitution. The case was originally brought in the criminal district court, but as soon as the District Attorney’s Office learned the girl was only thirteen, the criminal complaint was dismissed and charges were re-filed under Articles 51.02(2) and .04(a) of the Texas Family Code.
July 05, 2010
TERRORISM LAW HELD CONSTITUTIONAL
Material Support of Foreign Terrorist Organizations vs. Freedom of Speech and Association
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
Founded in 1974, the Partiya Karkeran Kurdistan (PKK) was established as a Marxist-Leninist insurgent group composed of Turkish Kurds who formed to seek Kurdish independence from Turkey. By the late 1990s the group had had morphed from a rural-based insurgent group into a full-fledged terrorist organization, sometimes using suicide bombings on civilian targets.
July 01, 2010
TEXAS MAKING FUTURE CRIMINALS
Children in Foster Care Residential Treatment Centers at High Risk of Neglect, Mistreatment and Abuse
By: By Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
In a 2002 article for Child Trends, Dr. Richard Werthheimer, Ph.d, said there were more than 556,000 children in foster care in this country—many of whom suffered from serious emotional, behavioral, developmental, and other health problems. That figure represented an increase from 302,000 in 1980. While black children at the time accounted for 15 percent of the nation’s children, they represented 30 percent of those entering foster care and 42 percent of those living in foster care. Hispanic children, who represented 16 of the nation’s children, represented just 18 percent entering and living in foster care.
June 21,2010
HOUSTON LAW ENFORCEMENT FACES TOUGH TIMES
Decreased Police Budget: Increased Unsolved Crime, Botched Investigations, Wrongful Arrests and Convictions
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
Thomas Hargrove, Scripps Howard News Service, reported last month that 6,000 homicides go unsolved in this country each year. Hargrove said the number of “unsolved homicides” has risen at an alarming rate even though the nation’s homicide rate has decreased to levels last seen in the 1960s. Most of these unsolved homicides occur in dozens of the nation’s largest cities.
June 05, 2010
FBI STEPS UP INQUISITION AGAINST MUSLIM AMERICAN COMMUNITY
Know Your Legal Rights Before Talking to the FBI
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
The Fort Hood shooting massacre last year, the Christmas day bombing attempt, and the Times Square car bombing attempt have prompted the FBI to again increase its surveillance of the Muslim American community in this country. Muslim Advocates recently issued a “community alert” informing all Muslim Americans, but especially those from Pakistan and South Asia, that the FBI may be contacting them for information and advice in “addressing violent extremism.” Muslim Advocates was so concerned that it offered a free webinar about how Muslims can freely and safely work with law enforcement.
May, 28 2010
SUPREME COURT ADDRESSES LIFE WITHOUT PAROLE FOR JUVENILES
Are Life Sentences Appropriate for Juvenile Offenders?
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
The United States Supreme Court finally addressed for the first time a long debated issue: whether juveniles can be sentenced to life without parole (“LWOP”), a sentence normally reserved for the very worst offenders. In its decision finding that LWOP for juvenile offenders was unconstitutional, the Court pointed out that only six states in this country do not have LWOP for juveniles. Fortunately, the State of Texas is one of those states. The Legislature last year eliminated the penalty provision from its sentencing practices.
May, 24 2010
THE FLAWS OF TEXAS’ EXPUNCTION STATUTEClient Acquitted by Jury but Still Branded by Criminal Records, Background Checks
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
In 2008 and 2009, The John T. Floyd Law Firm won three acquittals in the cases of Michael Serges, whose ordeal in the Harris County court system was the subject of a Houston Press feature story reporter Chris Vogel.
May, 20 2010
THE PITFALLS OF EXPERT TESTIMONY IN CHILD SEXUAL ABUSE CASES
Child Sexual Assault Expert Lies about Conclusions of Study
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
We have written previously about the prolific use of “child sexual abuse experts” in child sexual assault cases. In particular, we have criticized the testimony such experts from the Harris County Children’s Assessment Center (“CAC”).
May 11, 2010
THE DANGERS OF CRIMINAL IDENTIFICATIONS
Legislatively Mandated Innocence Commission to Review Claims of Wrongful Convictions and Bring Accountability for Wrongful Convictions Needed
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
April 26, 2010
THE SUPREME COURT MAKES A DIFFICULT CHOICE
Free Speech: Federal Law Criminalizing Depictions of Animal Cruelty Declared Unconstitutional
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
April 18, 2010
TEXAS COURT OF CRIMINAL APPEALS STRIKES BALANCE FOR RULE OF LAW
Wilson v. State; Court Reverses Conviction Obtained After Finding Investigator Used False Fingerprint Lab Report to Obtain Confession
April 06, 2010
IS HIV A DEADLY WEAPON?Texas Prosecutors Use HIV as Deadly Weapon in Aggravated Sexual Assault Case
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
Let us state quite emphatically at the outset that we do not know if K. L. Sellars is guilty of the crime the Harris County District Attorney’s Office has leveled against him. Many people are wrong accused of crimes they did not commit, so we will leave judgment that to a jury of his peers.
March 29, 2010
ARE WE ALL POTENTIAL JIHADISTS?
Arrest of “Jihad Jane” Adds Fuel to Fight Against Racial Profiling
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
March 22, 2010
CAN THE SMELL OF POT LEAD TO WARRANTLESS ARREST?
Odor of Burnt Marijuana, alone, may be sufficient for a warrantless entry but insufficient to establish probable cause for a specific arrest.
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
March 10, 2010
TEXAS DEATH PENALTY PROCEDURE UNCONSTITUTIONAL?Judge Acknowledges Innocent People Have Likely been Executed
Harris County Criminal District Court Judge Kevin Fine on Thursday, March 4, 2010, created a tsunami of controversy in the Texas legal community when he reportedly made a comment that he was declaring the state’s death penalty unconstitutional. The comment was made during a hearing on a motion filed by defense attorneys in the case of John Edward Green Jr. who is facing a capital murder charge. What Judge Fine actually did was to declare Article 37.071 of the Texas Code of Criminal Procedure unconstitutional which is the statute that outlines the procedures for imposing the death sentence in this state.
March 02, 2010
A “TIP OF THE HAT” FOR A JOB WELL DONE:
Court Recommends New Trial for Man Sentenced to Life in Prison for Capital Murder After Finding State’s Expert Testimony Incompetent.
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
February 22, 2010
RELEASED SEX OFFENDERS: A GROWING UNDERCLASSBy: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
In 1994 the United States Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act which required all states to create programs mandating that certain kinds of sex offenders register with state or local authorities. Congress added teeth to the Act by threatening the states with a ten percent loss of federal anti-crime funding for failure to comply.
January 31, 2010
MORE EVIDENCE OF BAD EVIDENCE, AGAIN
Criminal Defense Attorneys Must Question Findings, Conclusions of Forensic Experts
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
January 11, 2010
A CALL FOR ACTION: A NEED FOR REAL CHANGE
To Regain Public Confidence Houston Police and Crime Labs Must Adhere to the Highest Standards of Competence, Independence and Integrity
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
December 27, 2009
EXTRANEOUS OFFENSE EVIDENCE IN FEDERAL COURT
Probative or Prejudicial: Evidence of Previous Drug Convictions Admitted to Show Proof of Intent in Drug Case
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
December 21, 2009
SEXUAL ASSAULT CASES: THE RIGHT TO PRESENT A DEFENSE EFFECTIVELY ELIMINATED
Defense Attorneys Fight Prosecutors Prejudicing the Jury with Extraneous Acts, Wrong, Crimes
By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair
December 14, 2009
MORE EVIDENCE OF BAD EVIDENCECriminal Defense Attorneys Must Request and Analyze Procedures for Testing, Accepted Protocols and Handling of Forensic Evidence
November 30, 2009
TEXAS FORENSIC SCIENCE COMMISSION LACKS CREDIBILITY
Governor’s Sacking of Commission’s Head Stalls Review of Junk Science Convictions
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
November 02,2009
TEXAS ATTORNEY DISCREDITS SPIRIT OF LEGAL PROFESSION
Flagrant Exhibit of Unprofessionalism, Disloyalty to Executed Client Adds to Nationwide Scrutiny of Willingham Execution
By Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
October 12, 2009
TEXAS GOV. RICK PERRY IMPEDES INQUIRY ABOUT WHETHER TEXAS EXECUTED AN INNOCENT MAN
Governor’s abrupt Dismissal of Chairman, Two Members of Texas Forensic Science Commission on Eve of Hearing Smacks of Political Cover-up
By: Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair
October 05, 2009
THE “JUNK SCIENCE” OF DOG SCENT LINEUPS
Popular Law Enforcement Dog Handler Discredited After False Results, Exaggerated Claims of Accuracy Exposed
By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair
September 28, 2009
COURT TAKES HARDLINE STAND IN CHILD EXPLOITATION CASE
Video Taped Consensual Sex with Minor Gets Federal Time
By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair
August 31, 2009
ASKING HARD QUESTIONS TO ARRIVE AT THE APPROPRIATE PUNISHMENT
Judges Should Question Victims, Witnesses, About Offense Before Imposing Punishment
By: Houston Criminal Defense Lawyer John Floyd and Billy Sinclair
August 17, 2009
Court of Criminal Appeals of Texas Finds Lawyer’s Careful and Repeated Objections did not Preserve Error
By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair
Criminal trials are governed by strict rules of evidence and procedures. It is the duty of a defense attorney to not only know but understand these rules and procedures precisely. We have written several times in the past about the harm caused by a defense attorney’s inadvertent failure to make specific, timely and properly lodged objections during the course of a criminal trial. The Texas Court of Criminal Appeals recently delivered that same unreasonable message once again and in no uncertain terms.
July 27, 2009
THE UNRELENTING MARCH AGAINST FLDS - Texas Legislature Joins the Hunt
By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair.
Besides March winds, April showers, and June humid heat, the one thing you can go to bank on: when state lawmakers, either in Texas or any other state, get involved is trying to legislate religion and morality, you will have a witch-hunt.
July 20, 2009
THE DIFFICULTIES FACED IN INSANITY CASES
Lawyer Ineffective for Failure to Investigate, Request Medical Records Indicating Possible Insanity; (Be careful what you ask for…)
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
July 06, 2009
MICHAEL JACKSON’S DEATH, POTENTIAL CRIMINAL LIABILITY
Doctors Move to Hire Criminal Defense Attorney Vital in Protecting His Reputation and Liberty in the Jackson Whirlwind
By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair
June 29, 2009
A DEFENSE ATTORNEY IN THE HEAT OF BATTLE
Rule 606(b) of the Texas Rules of Evidence; Conducting Inquiry into Juror Misconduct
June 08, 2009
“JUICED” BY THE DESIRE FOR FITNESS
Addiction to Pumping Iron and Juicing Leads to Massive Arrests in Houston Area and Ft. Bend County
May 25, 2009
THE RIGHT TO KNOW IN THE REAL WORLD
The President’s Balancing Act; Public’s Right to know, Due Process for Terrorist
By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair
President Barak Obama has drawn considerable political flak recently from liberal Democrats, human rights groups, and “left-leaning” bloggers for two terror-related decisions: the decision to fight the court-ordered release of dozens of photos of terror suspects being subjected to torture interrogation techniques; and the decision to resurrect the military tribunals set up during the Bush administration to try terror suspects.
May 18, 2009
JUDGE SAMUEL KENT: SHOULD HE BE IMPEACHED? SHOULD HE CONTINUE TO RECEIVE HIS PENSION?
By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair
These two questions have stirred considerable debate in both the legal community and general public in south Texas. Normally it is not a subject that would provoke a response by us. But the tenor of those demanding the impeachment of Judge Kent and those who have said he should not receive his pension have caused us some concern. Now that the federal judge has sentenced to 33 months in prison, we decided to weigh in on these two important questions.
April 27, 2009
TORTURE FALLOUT CONTINUES
Foreign Investigation of Torture Techniques Sanctioned by Bush Administration
By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair
April 20, 2009
THE CONTINUING SAGA OF THE WRONGFULLY CONVICTED
Factors Contributing to Wrongful Convictions and Unjust Imprisonment
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
April 06, 2009
A TEXAS BIGAMY DEFENSE
The Constitutional Implications of Lawrence v. Texas on the Texas Bigamy Statute
By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair
March 30, 2009
FLDS REVISITED: ONE YEAR LATER - Aftermath of the Texas CPS Raid
By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair
In the fall of 2003 members of the Fundamentalist Church of Jesus Christ of Latter Day Saints (“FLDS”) arrived in Eldorado, Texas. They purchased a 1700-acre ranch four miles outside of town. They called it the “Yearn for Zion Ranch” (“YFZ”). More members arrived. They constructed a mammoth temple and created their own community. They lived in peace.
March 23, 2009
COLD SHOULDER FROM LUBBOCK OFFICIALS IN COLE CASE DNA Exonerations: Improper Eyewitness Identification Procedures and Poor Police Work; A Deadly Combination
By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair
Dying in prison is a sad, tragic affair. Timothy Cole died in a Texas prison in 1999 from asthma complications.
March 02, 2009
“BAD DAY AT BLACK ROCK” FOR JUDGES IN SOUTH TEXAS
Judges Reap What They Sowed
By Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair
There may be no Hero to the rescue in this dark drama hanging over the state and federal judiciaries in South Texas. The clouds in the horizon are as ominous as those that preceded Hurricane Ike last September.
February 16, 2009
OBJECTIONS, BOLSTERING, AND APPELLATE REVIEW
Objections to Bolstering Testimony Should Communicate Evidentiary Basis
By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair
The Texas Rules of Evidence, Article 103, requires that a timely objection be based on a specific ground in order to preserve for appellate review an alleged trial error concerning the admissibility of evidence.
January 25, 2009
CSAAS IN TEXAS CRIMINAL TRIALS
Rule 702 Expert Testimony v. Bolstering, Child Sexual Abuse Accommodation Syndrome
By: Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair
In 1983, Roland Summit in a published paper coined the phrase “Child Sexual Abuse Accommodation Syndrome” (CSAAS). See: 7 Child Abuse and Neglect 177 (1983).Summit’s syndrome set forth five specific characteristics children may exhibit following sexual abuse. Summit intended that CSAAS be utilized by law enforcement and child protective services investigators, as well as clinicians, to explain the coping behavior of children sexually abused by adults. He did not intend for CSAAS to be used, as it has been in some states, as a diagnostic tool to tell juries in criminal trials that sexual abuse has in fact occurred. The five CSAAS characteristics are listed below:
January 12, 2009
STANDARDS OF PROOF
Reasonable Doubt; Foundation of a Free Society
By: Houston Criminal Lawyer John Floyd and Mr. Billy Sinclair
Every one has heard of the phrase “proof beyond a reasonable doubt.” But there are three primary standards of proof: preponderance of evidence; clear and convincing evidence; and reasonable doubt. Black’s Law Dictionary (8th Ed. 1990) provides the definitions of each in order of importance:
December 15, 2008
PROBATION ELIGIBILITY: NEW LIMITATIONS
Texas Juries Can No Longer Recommend Community Supervision When Victim is Child Under 15, Elderly or Disabled
November 24, 2008
RIGHT TO EXPUNCTION OF CRIMINAL RECORD UNDER § 55.01
Erasing Criminal Records After Dismissal, Acquittal, Pardon or False Identification
Criminal Defense Lawyers often get call from potential clients wanting their criminal records expunged/destroyed. However, the expunction statute in Texas is very specific and applies only to records of arrest when a case against a defendant is dismissed with no probation, no billed by a grand jury, acquitted by the trial court or the court of criminal appeals or the result of identity theft.
November 10, 2008
PROSECUTORIAL OVERCHARGING
Multiple Counts, Lesser-Included Offenses and Double Jeopardy
One of the quiet abuses in the nation’s criminal justice system is prosecutors overcharging criminal defendants.
November 03, 2008
DNA EXONERATIONS QUESTION EYEWITNESS TESTIMONY
Flawed, Suggestive Photo Lineups Resulting in Eyewitness Misidentification and Wrongly Convicted
October 20, 2008
THE PITFALLS OF DELAYED OUTCRY TESTIMONY
Hearsay Statements of Child Abuse Victims and Delayed Outcry
“Hearsay” is a statement, other than one made by the declarant while testifying at a trial or hearing, offered into evidence to prove the truth of some matter being asserted. See: Tex. R. of Evid. 801. In English, hearsay is testimony about what somebody heard from somebody else. Hearsay testimony is generally inadmissible in a criminal trial.
October 13, 2008
THE ACQUITTAL
John Floyd Secures Not Guilty After Jury Trial, Aggravated Sexual Assault of a Child younger than 14, 263rd District Court, Harris County, Case No. 1156699
October 06, 2008
DOES CHILD SEXUAL ABUSE LEAD TO FUTURE MENTAL ANQUISH?
If you were raped at age nine by your local YMCA counselor, do you think you would endure what is known in legal parlance as “future mental anguish?”
September 22, 2008
MORE FLDS INDICTMENTS: THE UNHOLY SAGA CONTINUES
In July 2008 a Schleicher County grand jury indicted five members of the Fundamentalist Church of Jesus Christ of Latter Day Saints, including FLDS leader Warren Jeffs, on sexual assault of children charges and a sixth member for failure to report a child abuse charge.
September 01, 2008
DNA FREES ANOTHER INMATE WRONGFULLY CONVICTED OF RAPE
False Allegations of Rape, Convictions Based Exclusively on Uncorroborated Testimony
18 years ago Robert McClendon, then 34 years of age, was convicted and sentenced to 15 years to life in Franklin County, Ohio for allegedly raping a 10-year-old girl.
August 25, 2008
ANOTHER HORRIFIC BUS CRASH ON A TEXAS HIGHWAY
Most people automatically assume that when they board a commercial or chartered bus, they will safely reach their destination. Greyhound and Trailways over a four decade period from the 1940s through the 1970s ingrained that assumption in the American psyche. Before the explosion of air travel in this country in the 1980s, bus travel was considered an economically efficient and fairly comfortable way of traveling across a nation that spans four time zones.
August 18, 2008
TWO EXECUTIONS WITH INTERNATIONAL IMPLICATIONS
By Houston Criminal Defense Attorney John T. Floyd and Mr. Billy Sinclair
The State of Texas executed two foreign nationals during the week of August 5 and 7, 2008. Both men, Jose Ernesto Medellin and Heliberto Chi, were found guilty of committing brutal murders. There was little doubt about their guilt. Had they not been foreign nationals, their executions would have passed under the Texas execution radar basically unnoticed. This is a sad fact in this great state where executions have become all too common.
August 11, 2008
THE RULE OF DUE PROCESS OF LAW GETS OPPORTUNITY TO BE RESTORED; Designation of Enemy Combatant Status
By: Houston Criminal Defense Attorney John Floyd and Mr. Billy Sinclair
How would you feel if you had never been a member of any nation’s military, had never fought alongside any nation’s armed forces, and had never borne arms against the United States anywhere in the world but were suddenly designated an “enemy combatant” by the President of the United States, placed in solitary confinement in a military prison for five years, subjected to torture, held incommunicado from family and attorney, and never had any formal charges brought against you?
August 04, 2008
JUSTICE DENIED TO RAMOS AND COMPEAN BY A FIFTH CIRCUIT COURT OF APPEALS RULING
By: Houston Criminal Attorney John T. Floyd and Mr. Billy Sinclair
Fabens, Texas is located thirty miles southeast of El Paso just across the Rio Grande from Mexico. 95 percent of the people living in the town of 8,000 are poor and Hispanic. It’s a young town – the median age is 24 years compared to the median Texas age of 32. The average household income is $18,000 annually compared to $43,000 for the rest of Texas. In a nutshell, it’s a “dusty, little Border town” that stands as open invitation for major Mexican drug traffickers like Oswaldo Aldrete-Davila.
July 28, 2008
FLDS MEMBERS INDICTED BY GRAND JURY
By: Houston Criminal Defense Attorney John Floyd and Mr. Billy Sinclair
The grand jury is a powerful weapon in the hands of state and federal prosecutors. An old legal adage says that a prosecutor can get a grand jury to indict a ham sandwich if it the “target” of a criminal investigation.
July 21, 2008
JUSTICE ANTONIN SCALIA’S DISSENT FROM THE DARK SIDE
Houston Criminal Attorney John Floyd Discusses Scalia’s Blistering Dissent Accusing Justices of Aiding Terrorist
The Supreme Court on June 12, 2008 issued a decision that marked the first time in the nation’s history that the constitutional right to the writ of habeas corpus was conferred on enemy aliens detained abroad by American military forces engaged in an ongoing war. See: Boumediene v. Bush, 553 U.S. ____ (2008) [Slip Opinion No. 06-1195 & 06-1196].
July 14, 2008
USDA EMPLOYEE PLEADS GUILTY TO PERMITTING INFESTED AGRICULTURAL PRODUCTS TO ENTER US
First prosecution in the United States under federal agricultural statute
(LAREDO, Texas) - A U.S. Department of Agriculture (USDA) employee has pleaded guilty to illegally permitting infested agricultural products to enter the United States from Mexico, United States Attorney Don DeGabrielle announced today. He will be sentenced Sept. 3, 2008.
July 07, 2008
FLDS GRAND JURY TAKES NO ACTION, YET
Houston Criminal Defense Attorney Discusses Latest Developments in FLDS case and the Beginnings of a Grand Jury Investigation
A West Texas grand jury sitting in Schleicher County heard testimony from a few of the dozens of witnesses subpoenaed to testify concerning allegations made by the Attorney General’s Office that members of the Fundamentalist Church of Jesus Christ of Latter Day Saints forces underage girls into “spiritual marriages.”
June 30, 2008
AMERICA’S TORTURED POLICY OVER TORTURE
Houston Criminal Defense Attorney John Floyd Discusses Bush Administration’s “Torture” Policy and Downstream Consequences
In 1994 America ratified a treaty entitled “Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.” This treaty defined “torture” as “ … any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession," when it is "inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."
June 23, 2008
FIVE CHARGED IN TWO SAN ANTONIO INDICTMENTS WITH MORTGAGE FRAUD – CHARGES PART OF NATIONWIDE CRACKDOWN CALLED OPERATION MALICIOUS MORTGAGE
United States Attorney Johnny Sutton announced that five individuals have been indicted for their roles in two separate million-dollar-plus mortgage fraud schemes based in San Antonio.
June 16, 2008
FLDS: A LOOK AT AN UNNECESSARY TRAGEDY - Swift Justice?
Houston Criminal Defense Attorney John Floyd Opines on the FLDS Debacle
This column has examined the FLDS case extensively since the military-style raid on the Yearning for Zion Ranch in Eldorado, Texas on April 3, 2008.
June 09, 2008
Former Skydiving Company Owner and Ex-Houston Auto Executive Convicted of Tax Charges - Auto Executive Turned Tax Defier Failed to Pay Approximately $1 Million in Taxes
HOUSTON - After a four-day bench trial in the Southern District of Texas, U.S. District Court Judge Lynn N. Hughes today convicted Madison Lee Oden of filing false tax returns for tax years 2000 through 2002, the Justice Department announced.
June 02, 2008
THE FLDS CASE: THE TEXAS SOLUTION, PRISON FOR THE MEN, SHAME FOR THE WOMEN - May 24, 2008
Houston Criminal Defense Lawyer John T. Floyd Discusses Potential Bigamy Charges Facing Those Living on the Yearning for Zion Ranch
May 26, 2008
FLDS: EXPLORING THE SUBJECT OF ABUSE
Houston Criminal Defense Attorney Discusses FLDS Fiasco and the Disproportionate Resources Spent by the State to Persecute this Misunderstood Religious Group
May 19, 2008
FLDS: EXPLORING THE SUBJECT OF ABUSE
Houston Criminal Defense Attorney Discusses FLDS Fiasco and the Disproportionate Resources Spent by the State to Persecute this Misunderstood Religious Group
May 12, 2008
FLDS: A TEXAS-SIZED LEGAL DILEMMA
Houston Criminal Defense Attorney John T. Floyd Continues the Discussion about Government Raid at Yearning For Zion and the Potential Criminal Charges to be Filed Against FLDS Members
May 05, 2008
PROSECUTORIAL MISCONDUCT
Houston Criminal Defense Attorney, John Floyd, Discusses Fifth Circuit Court of Appeals Decision Finding Reversible Plain Error in Improper Statements of Prosecutor.
April 28, 2008
FLDS: THE VICTIM THAT WASN’T
Houston Criminal Defense Attorney John Floyd Discusses Developments in FLDS Case; Anonymous Hoax Caller Used to Support Warrant Illustrates Why Probable Cause Requires More Evidence
April 21, 2008
The FLDS Raid and the Extension of the Police State
Houston Criminal Attorney John T. Floyd Discusses Military Style Raid on Eldorado FLDS Compound, Illegal Arrests and Fabricated Probable Cause
April 14, 2008
KEEP THE GOVERNMENT OUT OF OUR BEDROOMS
Houston Criminal Attorney John T. Floyd Discusses Fifth Circuit Decision Striking Down Obscenity Statute Prohibiting Promotion or Sale of Sex Toys, the Right to Private Sexual Privacy
April 07, 2008
MEDELLIN: TEXAS LAW TRUMPS PRESIDENT’S PEN
Houston Criminal Defense Attorney John T Floyd Discusses Medellin v. Texas; United States Supreme Court Devastates Mexican National’s Rights Under Geneva Convention While Simultaneously Limiting Presidential Power
March 31, 2008
ELEVEN MEN ARRESTED ON FEDERAL CHARGES FOR FAILING TO REGISTER AS SEX OFFENDERS
United States Attorney Johnny Sutton announced that federal and state law enforcement officers recently wrapped-up Operation Guardian West, a multi-agency operation targeting registered sex offenders in the El Paso area who were required, but failed to maintain their registration as a sex offender.
March 24, 2008
COURT ALLOWS WRONGFUL CONVICTION LAWSUIT TO PROCEED
Houston Criminal Defense Attorney John Floyd Discusses Civil Rights Lawsuits Brought by Those Wrongly Convicted of Crimes.
March 17, 2008
Attorney General Abbott Takes Legal Action To Shut Down Illegal Casino Style Gambling - Tigua tribe operating eight-liner gambling machines in violation of Texas law
EL PASO – Texas Attorney General Greg Abbott today filed an enforcement action against the Tigua Indian tribe for conducting illegal gambling operations. In a motion for contempt of court, the state seeks to enforce a 2001 injunction prohibiting casino-style gambling at the tribe’s Speaking Rock Entertainment Center.
March 10, 2007
VIOLENT SEX OFFENDERS: IS CIVIL COMMITMENT A LEGITIMATE SOCIAL RESPONSE?
Houston Criminal Attorney John Floyd Discusses Civil Commitment for Sexually Violent Offenders
The New York Times reported last year (March 4, 2007) that there are approximately 2,700 pedophiles, rapists, and other sexual offenders being held indefinitely by 19 states, mostly in medical treatment centers.
March 03, 2008
THE CASTLE DOCTRINE: STAND YOUR GROUND AND SHOOT TO KILL
Houston Criminal Attorney John T. Floyd discusses the Castle Doctrine and the Growing Support for the Use of Deadly Force in Self Defense
In October 2005 the Florida became the first state in the United States to officially put a “Castle Doctrine” law on its books. Supporters hailed it as a “stand your ground” law while opponents called it a “shoot to kill” license.
February 25, 2008
NO BAIL FOR REPEAT DOMESTIC VIOLENCE
Houston Criminal Defense Attorney John T. Floyd Discusses Denial of Bail in a Family Violence Cases
The Texas Council on Family Violence reported there were 187,811 incidents of family violence in 2005 throughout the state. 143 of those incidents resulted in the deaths of women by an intimate partner.
February 18, 2008
COUNSELORS PLEAD GUILTY IN HEALTH CARE FRAUD SCHEME IN SOUTHEAST TEXAS
(BEAUMONT, TX) United States Attorney John L. Ratcliffe and Texas Attorney General Greg Abbott announced today that three Southeast Texans pleaded guilty in connection with a health care fraud scheme in Beaumont.
February 11, 2008
VERDICT REACHED IN EL PASO TRIAL
(HOUSTON, Texas) - James Brooks, 48, the former managing director of North American natural gas sales for El Paso Merchant Energy (El Paso), along with El Paso natural gas traders Wesley C. Walton, 45, and James Patrick Phillips, 48, have been convicted by a jury’s verdict, United States Attorney Don DeGabrielle announced today.
February 04, 2008
SAN ANTONIO DOCTOR SENTENCED ON FEDERAL CHARGES OF BRIBING A PUBLIC OFFICIAL
January 28, 2008
ATHELETES, STEROIDS, FALSE STATEMENTS AND PERJURY: THE NEED FOR COUNSEL
Houston Criminal Attorney John Floyd Discusses Lying About Steroids; Recent Criminal Investigations and Convictions
January 21, 2008
WHEN WILD ANIMALS ATTACK
Houston Defense Attorney John Floyd discusses Potential Texas Tort Liability for Zoo Attacks. What if it happened in Texas?
THE ATTACK...
January 14, 2008
Hidalgo County Man Pleads Guilty To Other Charges After Getting 27 Year Sentence In November
Sigifredo Flores to serve concurrent two-year sentence tied to bogus Medicaid counseling
January 07, 2008
Federal Court Upholds Texas Moment Of Silence Statute
Allows Texas schoolchildren to continue to voluntarily “reflect, pray, or meditate” to begin each school day
December 31, 2007
BUSINESSMAN INDICTED FOR ILLEGALLY EXPORTING GOODS TO MEXICO
New federal law at work targeting smugglers
(LAREDO, Texas) - A federal indictment charging a Laredo businessman with illegally exporting goods from the United States into Mexico has been unsealed following the arrest of Gerardo Cantu, United States Attorney Don DeGabrielle announced today.
December 24, 2007
NAVAL AIR STATION EMPLOYEE CONVICTED OF BRIBERY
(CORPUS CHRISTI, Texas) – A Naval Air Station-Corpus Christi engineer technician has been convicted of bribery, United States Attorney Don DeGabrielle announced today.
December 17, 2007
FEDERAL GRAND JURY INDICTS LOCAL RESIDENTS IN IDENTITY THEFT SCAM TO FRAUDULENTLY COLLECT UNEMPLOYMENT INSURANCE BENEFITS
DALLAS — A federal grand jury has returned an 11-count indictment charging six area residents with offenses related to a conspiracy to fraudulently obtain unemployment insurance benefits, announced U.S. Attorney Richard B. Roper of the Northern District Texas.
December 10, 2007
JOE HORN’S SELF-DEFENSE SAGA CONTINUES
Part Two: Discussion of Use of Deadly Force and Self Defense by Houston Criminal Defense Attorney John T. Floyd
On November 14, 2007 a Pasadena, Texas resident named Joe Horn shot and killed two men who had burglarized his neighbor’s home.
December 03, 2007
Attorney General Abbott Files Enforcement Action Against Cameron County Meat Wholesaler
La Villita Meat Market cited for failure to obtain proper certifications
November 26, 2007
Attorney General Abbott Launches School Safety Initiative To Protect Texas Students
Abbott visits local high school following speech at Texas School Administrators Safety Conference
November 19, 2007
THE RESPONSE TO JUVENILE CRIME AND YOUTH VIOLENCE
Criminal Defense Attorney John T. Floyd
In the 1970s, when crime and violence had turned the nation’s big cities into urban arenas of fear, suspicion and distrust, Former Houston Police Chief B.K. Johnson told TIME Magazine (March 23, 1981) that “we have allowed ourselves to degenerate to the point where we’re living like animals.
November 12, 2007
THE HOLY LAND FOUNDATION VERDICT
Criminal Defense Attorneys in Dallas Raise Reasonable Doubt and Force Mistrial
November 05, 2007
SURVIVING DEATH ROW
Essay by Billy Wayne Sinclair
E-mail Billy Wayne Sinclair Billy@JohnTFloyd.com
Since 1930, when reliable statistics started being kept, and August 2007, there were 4,936 government-sanctioned executions carried out in the United States during that seventy-seven year period. It has been reported that during the sixty-nine year period between 1882 and 1951 an additional 4,730 lynchings in America.
October 29, 2007
“MISTAKES” IN A LAST-MINUTE DEATH APPEAL
Grievances Filed by Criminal Attorneys across the State; Intentional mishandling of the request for an extension of the filing deadline by Judge Sharon Keller reflects the mean-spirited, biased, and callous nature of not only those who advocate but those who enforce the ultimate punishment.
October 22, 2007
HOUSTON CRIMINAL ATTORNEY DISCUSSES CRUEL AND UNUSUAL PUNISHMENT, DEATH PENALTY BY LETHAL INJECTION
The United States Supreme Court on September 25, 2007 granted certiorari in the case of Ralph Baze and John C. Bowling, two convicted double murderers, who challenged the constitutionality of lethal injection as it is administered in the State of Kentucky. See: Baze, et al. v. Rees, Comm’r Ky DOC, et al., ___ Ct. ____, 2007 WL 2075334 (U.S.Ky. 09/25/07).
October 15, 2007
A 2007 TEXAS LEGISLATIVE SUMMARY
The 80th Texas Legislative Session, as other legislators across the United States, was preoccupied with sex offenses and sex offenders. This is hardly surprising given the intense media attention to these types of cases and the public outrage against sex crimes. So, rather than focus on a myriad or other issues that would bring real change to the lives of our citizens and purposeful change to our system of criminal justice, our legislature took the easy way out and focused, again, on an easy target.
October 08, 2007
INEFFECTIVE ASSISTANCE OF COUNSEL:THE FAILURE TO INVESTIGATE
Criminal Defense Lawyers Must Diligently Investigate Facts Supporting Possible Defenses, Witnesses
The right to effective assistance of counsel is guaranteed by the Sixth Amendment to the U.S. Constitution. See, McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970). This constitutional guarantee attaches to both retained and appointed counsel. See, Cuyler v. Sullivan, 446 U.S. 335, 344-45 (1980).
October 01, 2007
THE MICHAEL VICK SAGA
A Criminal Defense Lawyers Perspective
Michael Vick and Don Imus. What do they have in common. Well, to begin with, soup for the goose, soup for the gander.
September 24, 2007
CHILD PORN: WHAT IS REAL, WHAT IS VIRTUAL?
Criminal Defense Lawyers Must Closely Examine Evidence In Child Pornography Cases to Rule Out Virtual Images: Government Retains Burden to Prove Images of a Real Child.
September 17, 2007
DEFENDING TERRORISM CRIMES
Criminal Defense Lawyers Begin Fight with Aggressive Pretrial Litigation United States v. Abdi
September 10, 2007
CRIME VICTIMS MOVEMENT AND THE DEATH PENALTY
Essay by Billy Wayne Sinclair
E-mail Billy Wayne Sinclair Billy@JohnTFloyd.com
Newton Anderson was put to death by lethal injection in Texas on February 22, 2007 for a double murder that occurred eight years ago.
September 3, 2007
INDICTMENTS FOR MORTGAGE FRAUD ON THE RISE
Investigations and Indictments for mortgage fraud are on the rise in the current climate of the sub-prime mortgage scandal. From high profile investigations involving the powerful to small time straw buyers, the government is showing a zero tolerance policy when it comes to investigating and prosecution of allegations of mortgage fraud.
August 27, 2007
THE “GREAT WRIT” SURVIVES TO FIGHT ANOTHER DAY
Ali Saleh Kahlah al-Marri is a Qatari national and a legal resident of the United States. He lawfully entered the United States with his wife and children on September 10, 2001, to pursue a master's degree at Bradley University in Peoria, Illinois, where he had obtained a bachelor's degree in 1991. The very next day, September 11, terrorists hijacked four jet airliners and ruthlessly attacked the sovereignty of the United States.
August 20, 2007
THE TERROR ATTACK ON CIVIL LIBERTIES
America has lauded itself as a country that cherishes individual liberty. Our constitution and the Bill of Rights are held out as models for the rest of the world to immolate. But America has never been comfortable protecting civil liberties in times of national crises.
August 13, 2007
THE LETHAL INJECTION PROTOCAL
Philip Ray Workman was executed in the Tennessee death chamber on May 9, 2007.
Twenty-six years before, on August 5, 1981, Workman robbed a Wendy’s restaurant in Memphis. He forced all the employees and a customer into the manager’s office where he collected the day’s receipts into a bag. See, Workman v. Bredesen, ____ F.3d _____, 2007 WL 1311330 (6th Cir. Tenn.) [May 7, 2007].
August 06, 2007
IMPACT OF DNA EXONERATIONS ON THE NATION’S CRIMINAL JUSTICE SYSTEM
In 2000 a free lance writer named J.J. Maloney wrote a piece entitled, “Will DNA Evidence Revolutionize Criminal Law” for the online publication CRIME Magazine.
In the ensuing decade the nation’s criminal justice system has witnessed the dramatic way DNA evidence has indeed revolutionized the way criminals are prosecuted and defended in a court of law.
July 30, 2007
THE SLIPPERY SLOPE OF POST-CONVICTION APPEALS
The first, and perhaps most important, statute a criminal defendant should become aware of following an arrest is Rule 103 of the Texas Rules of Evidence. Rule 103(a)(1) requires that an objection be made to any pretrial, trial or post-trial error in order for it to be heard on direct appeal. A criminal defendant should stress to his attorney, whether appointed or retained, that he/she expects the attorney to object to any adverse rulings made by the trial court throughout the criminal proceedings against the defendant. While some of the objections clearly will not have a basis in law, the defense attorney should nonetheless make the objection, research the issue, and be prepared to present it on direct appeal. The failure to object by a defense attorney will haunt a criminal defendant throughout the post-conviction process.
July 24, 2007
TWO CASES OF INNOCENCE
Essay by Billy Wayne Sinclair
E-mail Billy Wayne Sinclair: Billy@JohnTFloyd.com
Nearly two hundred innocent persons have been freed from the nation’s prison system over the last two decades through DNA evidence – dozens had been condemned to die and awaiting execution at the time their innocence was discovered.
more....
July 16, 2007
BRYAN MILLER: A REAL GANGSTA’
Essay by Billy Wayne Sinclair
E-mail Billy Wayne Sinclair Billy@JohnTFloyd.com
It was not much of a house. There were no “nice” houses in the “ghetto’ of East Los Angeles. Simply called “the hood,” it was the home of more than a half-million economically deprived residents who lived daily in the crossfire of rival gangs and under the corrupt abuses of the 77th Division of the city’s police department. One of those ghetto residents was Alice Miller – a young woman with an enormous capacity to love and protect her fatherless family.
Standing on the front porch of the house, Alice was watching her son who was standing in their small front yard. He was afraid of a larger boy standing in the street talking “trash” at him. Darren was a bully, always trying to “tip” the younger, smaller boys – particularly Alice’s son Brian. Life brings moments when hard choices are unconditionally imposed. Alice Miller, who had given birth to Brian when she was just sixteen, seized that moment to impose a permanent lesson on her son.
July 11, 2007
Evidence of Torture may become Public at Padilla Trial
In May 2002 Jose Padilla arrived at the Chicago O’Hare International Airport abroad an international flight from Zurich, Switzerland where he was taken into custody by federal law enforcement authorities on a Material Witness Warrant. The federal authorities had allegedly obtained information, through torture interrogation, from al-Qaida operative Abu Zubaydah that implicated Padilla in suspected terrorist activity against the government of the United States. The U.S. Justice Department released information that Padilla was part of an al-Qaida plot to detonate a radioactive “dirty bomb” in an American city.
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