CRIMINAL JURISDICTION

Criminal Law Blog by Defense Lawyer John Floyd and Mr. Billy Sinclair

February 4, 2012

ATTORNEY-CLIENT PRIVILEGE

Filed under: Houston Criminal Lawyer — Tags: , , — johntfloyd @ 8:09 pm

Special Rule of Privilege in Criminal Cases Provides Greater Protection to the Criminally Accused

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Ernest “Randy” Comeaux is currently an inmate serving six life sentences, without the benefit of parole, at the David Wade Correctional Center in Homer, Louisiana. The facts of Comeaux crime were detailed by a Louisiana Court of Appeals in the matter of Smith v. Lafayette Parish Sheriff’s Department on April 24, 2004:

“From the mid-1960’s until the moid-1990’s, a number of rapes occurred in the southern portion of Lafayette Parish and adjoining parishes which could not be solved. In late 1995, the Lafayette Police Department (LPD) developed a theory that the rapes were connected and could have been committed by the same person. In 1997, DNA testing revealed that semen examples from six rape scenes matched. At that point, LPD began looking for a serial rapist.

“In September 1997, a task force was formed to attempt to solve these related rapes. The task included LPD, LPSD (Lafayette Parish Sheriff’s Department), Louisiana State Police, the FBI, and the University of Southwestern Louisiana, now University of Louisiana at Lafayette. Unsuccessful, the task force disbanded after approximately seven months. There were no new leads in the case until November 1998 when an anonymous caller suggested to LPD Captain James Craft that Randy Comeaux, a detective with the LPSD Juvenile Division, should be investigated for the rapes. DNA testing on the butt of a cigarette smoked by Mr. Comeaux revealed that his DNA matched semen samples from six rape scenes. After being arrested, Mr. Comeaux confessed to committing a number of rapes, including five rapes in Lafayette Parish.”

Comeaux was indicted and quickly pled guilty to six aggravated rape charges. The former detective was sentenced to six consecutive life sentences without the benefit of parole.

For purposes of this article, we will assume that prior to his arrest, Comeaux confided in two persons about his rapes: an attorney from whom he sought legal advice about the rapes and a Catholic priest to whom he confessed. These were the only two people who knew Comeaux was the Lafayette serial rapist. One of them apparently violated Comeaux’s confidentially by anonymously calling Captain Craft and telling him that Comeaux should be investigated for the rapes.  We will assume the anonymous call came from the lawyer, who was afraid that the rapes would continue until Comeaux was arrested.

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January 29, 2012

CONFIDENTIAL AND PRIVATE

Filed under: Houston Criminal Lawyer — Tags: , , — johntfloyd @ 2:15 pm

Evidentiary Privileges in the American Legal System

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Writing in the Pittsburgh Law Review, University of California Law Professor Edward J.  Inwinkelried discussed in detail the history and legal parameters of evidentiary privileges. He opened his treatise with this observation: “From society’s perspective, the rules governing privileged communications, such as those between a client and his or her attorney are arguably the most important doctrines in evidence law.”

The importance of these doctrines can be measured by the fact that since the adoption of the Federal Rules of Evidence, the U.S. Supreme Court has dealt with evidentiary privilege law more than any other part of the Federal Rules of Evidence, as pointed out by Professor Inwinkelreid.

The sources for Texas evidentiary privileges are grounded in the state’s Constitution, statutes, rules of evidence, or other rules established pursuant to statute. Rule 501 of the Texas Rules of Evidence defines an evidentiary privilege as a limitation on the admissibility of evidence. It is apparent that the Texas Rules of Evidence (Rules) do not favor privileges. They are viewed as harmful to evidence admissibility and therefore inhibit full disclosure of evidence; therefore, the Rules instruct trial courts to view claimed privileges with “close scrutiny.”

“Unlike almost all other rules of evidence, the rules creating privileges are not designed to enhance the truth-finding function of court proceedings…They acknowledge that other societal values such as privacy, the desire to encourage effective medical care or legal counsel, and governmental efficiency sometimes take precedent over the goal of ascertaining the truth in legal proceedings.”  Texas Rules of Evidence Handbook, Jones McClure Publishing, 7th edition, Cochran).

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January 26, 2012

CONDITIONS OF BAIL IN DWI CASES CAN BE HARSH

Filed under: Houston Criminal Lawyer — Tags: , — johntfloyd @ 11:19 am

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.

This authority to order conditions of release has been used to impose severe conditions in DWI cases, some of which, but not all, are listed below:

No driving while on bond;
Home curfew and electronic monitoring under Art. 17:43;
Home confinement, electronic monitoring and drug testing under Art. 17.44;
Installation of an ignition interlock (deep lung) device in any vehicle driven by the defendant under Art. 17.441;
No consumption of alcohol while on bond;
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January 23, 2012

TWO CONFESSIONS: DIFFERENT CONSTITUTIONAL STANDARDS

Filed under: Drug Defense Attorney — Tags: , , , — johntfloyd @ 2:20 pm

Confessions after Illegal Search Should be Suppressed if Influenced by Underlying Illegality, Violation of Forth Amendment

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

There are primarily two types of unlawful confessions: custodial confessions obtained in violation of the Fifth Amendment and confessions obtained as products of an illegal search in violation of the Fourth Amendment. The Ninth Circuit Court of Appeals had a recent opportunity in United States v. Shetler to address the latter.

Scott Raymond Shetler was a meth addict/dealer in Pomona, California in September 2009. His drug activities became so obvious that his daughter Jamie anonymously tipped off the Pomona Police Department that her father was using and manufacturing methamphetamine in his residence. Acting on this tip, three police officers arrived at the Shetler residence at 8:00 p.m. on September 22. They noticed a garage door was wide open and one officer detected a “chemical odor” coming from the garage. Standing outside, the three officers saw numerous boxes, motorcycle parts and other equipment in the garage. A partition wall concealed the back portion of the garage from frontal view. The Ninth Circuit explained what happened next:

“The officers entered the garage and conducted visual sweep to determine if there was an in-operation methamphetamine lab or a person behind the partition wall. They did not find anyone inside the garage or any evidence that methamphetamine was being cooked. The officers did, however, observe the following items in plain view behind the partition wall: a can of acetone, a duffel bag containing several plastic and glass beakers, and a jug that appeared to contain red phosphorus, a chemical that the officers knew to be related to the production of methamphetamine.

“At approximately 8:15 p.m., the officers left the garage and knocked on the front door of the house. Shetler exited the house from a side door and approached the officers, who handcuffed and detained him. By this point, several additional police officers had arrived. The police then called into the house to Shetler’s girlfriend, Cynthia Marohn, and her daughter, both of whom lived with Shetler. Marohn and her daughter stepped outside, and several officers immediately entered the residence and conducted a sweep. After completing this search of the house, several officers stayed inside the house, near the front door and in view of Marohn, who remained outside. At 8:5 p.m., while officers were still inside the residence, Marohn signed a consent form that authorized the police to enter the premises and search for ‘methamphetamine, methamphetamine cooking and packaging material, [and] weapons.’”

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January 19, 2012

THE IMPACT OF SMITH V. CAIN

Filed under: Federal Defense Attorney — Tags: , , — johntfloyd @ 6:59 pm

High 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:

“The case involves numerous serious allegations of non-disclosure that, post-trial, a court must evaluate under this Court’s Brady jurisprudence. However, a prosecutor’s pre-trial ethical disclosure obligations, as governed by the attorney disciplinary rules of the state or jurisdiction in which the prosecutor practices, are separate from and broader than the constitutional standards. Specifically, the ABA Model Rule 3.8(d) [Model Rules of Professional Conduct] mandates disclosure of exculpatory and mitigating evidence without regard to materiality. This Rule’s widespread acceptance is reflected in the fact that 49 states, including Louisiana, as well as the District of Columbia, United States Virgin Islands, and Guam have adopted ethics rules that include a provision identical or substantially similar to it. Similarly, various provisions of the ABA Criminal Justice Standards promote broad disclosure of all exculpatory evidence, without regard to the materiality standard that is required for post-trial analysis under Brady. Accordingly, this Court should again recognize that a prosecutor’s pre-trial ethical disclosure obligations are distinct from the constitutional standards that control a court’s post-trial determination.”

Although the Court reversed the conviction in Smith v. Cain, the Justices did not even mention a prosecutor’s pre-trial ethical obligations to disclose Brady material. It was an affront to the ABA. But we suspect, as we long have, that the Supreme Court is determined to provide as much ethical and constitutional cover for “rogue prosecutors” as possible. Put simply, the Court wants the status quo to remain in place; namely, that the worst consequence a prosecutor can expect for committing a Brady violation is a slap-on-the-wrist reversal of the conviction involved, as it did in Smith v. Cain.

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January 12, 2012

FEDERAL DISCOVERY AND INSPECTION PROCEDURES

Filed under: Federal Crimes Lawyer — Tags: , , — johntfloyd @ 7:48 pm

Tunnel Vision Interferes with Duty to Comply with Discovery Obligations

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Most litigation in federal criminal cases regarding discovery of evidence, or lack thereof, is based on claims of violations of due process protections found in the Fifth and Fourteenth Amendments of the Constitution.  These constitutional protections create duties upon the government to disclose to the defendant certain types of evidence that is favorable to the accused because it either questions the defendant’s guilt, exculpatory evidence, or is useful in impeaching a government witness.

There are, however, three federal statutes that create additional duties to disclose certain evidence.  Rule 12.1, 16 and 26.2 of the Federal Rules of Criminal Procedure governs “discovery and inspection” in criminal cases. The more often cited Rule 16 specifically provides:

(a) Government’s Disclosure.
(1) Information Subject to Disclosure.
(A) Defendant’s Oral Statement. Upon a defendant’s request, the government must disclose to the defendant the substance of any relevant oral statement made by the defendant, before or after arrest, in response to interrogation by a person the defendant knew was a government agent if the government intends to use the statement at trial.
(B) Defendant’s Written or Recorded Statement. Upon a defendant’s request, the government must disclose to the defendant and make available for inspection, copying, or photographing, all of the following:
(i) any relevant written or recorded statement by the defendant if: the statement is within the government’s possession, custody, or control; and the attorney for the government knows—or through due diligence could know—that the statement exists;
(ii) the portion of any written record containing the substance of any relevant oral statement made before or after if the defendant made the statement in response to interrogation by a person the defendant knew was government agent; and
(iii) the defendant’s recorded testimony before a grand jury relating to the charged offense.
(C) Organizational Defendant. Upon a defendant’s request, if the defendant is an organization, the government must disclose any statement described in Rule 16(a) (1) (A) and (B) if the government contends the person making the statement:
(i) was legally able to find the defendant regarding the subject of the statement because of that person’s position as the defendant’s director, officer, employee, or agent; or
(ii) was personally involved in the alleged conduct constituting the offense and was legally able to bind the defendant regarding that conduct because of that person’s position as the defendant’s director, officer, employee, or agent.

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January 5, 2012

“JUNK SCIENCE” ONCE AGAIN PUTS TEXAS IN NATIONAL FOREFRONT

Filed under: Houston Criminal Lawyer — Tags: , , , — johntfloyd @ 5:31 pm

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.

In 2009 the Texas Court of Criminal Appeals, in Winfrey v. State, threw out Richard Sr.’s conviction, saying the dog “scent” identification was insufficient evidence upon which to base a criminal conviction. The Texas Tribune reported on December 4, 2011 that Richard Jr.’s conviction has also been thrown out. Both men have been released from prison. And the Court of Criminal Appeals will soon decide Megan’s fate, most likely with the same result reached in other two Winfrey cases. She is now into her third year of a life sentence.

On December 15, 2011 the Texas Tribune also reported that the Court of Criminal Appeals had remanded two death penalty cases (Steven Butler and John Matamoros) back to the trial courts for review of the evidence used to determine they were “intellectually competent” to stand trial.

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December 28, 2011

WRONGFUL CONVICTION AND PROSECUTORIAL MISCONDUCT

Filed under: Houston Criminal Lawyer — Tags: , , , — johntfloyd @ 3:18 am

Filing Grievances, Request for Courts of Inquiry in Wrongful Conviction and Exoneration Cases

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

On December 12, 2011, writing for Mother Jones, Beth Schwartzapfel and Hannah Levintova published a piece titled “How Many Innocent People Are In Prison?”—a piece based in part on research conducted by University of Michigan Law Professor Samuel Gross. Gross’s research, with the assistance of the New York-based Innocence Project and the Center on Wrongful Convictions, determined there have been as many as 850 exonerations in this country since the late 1980s. The Innocence Project lists 282 exonerations since 1989 based on DNA evidence alone. Extrapolating from these two figures, Schwartzapfel and Levintova conservatively estimate that 1 percent of the total prison population in the United States have been wrongfully convicted. Put it raw numbers, this means that approximately 20,000 inmates in the nation’s prison system were wrongfully convicted.

“We don’t even have a denominator,” University of Virginia law professor Brandon Garrett told the Mother Jones writers. “But the wrongful convictions we do know about suggest that there’s a big problem.”

Writing in a 2008 paper titled “Frequency and Predictors of False Conviction,” Gross reached the same conclusion as Garrett: “One difficulty in making generalizations about false convictions is that the ones we know about, exonerations, are clearly a small and unrepresentative sample of all false convictions.” Gross added that death penalty cases are the only ones in which false convictions can be accurately measured because they have trial transcripts. Gross’ 2008 paper reported that in the modern era the rate of exoneration is 2.3 percent in capital cases—and using this percentage, the Mother Jones writers reasonably extrapolated that there could have been as many as 87,000 wrongfully convicted people in the nation’s general prison population between 1989 and 2003.

Utilizing data compiled by Mother Jones, the Texas Tribune found, not surprisingly, that Texas leads the nation with 48 DNA exonerations and is third behind Illinois (95) and New York (83) with 78 total exonerations since 1989. In an article titled “No Country For Innocent Men,” which will appear in the Jan./Feb.2012 edition of Mother Jones, Beth Schwartzapfel found that 56 of these exonerations, including five death penalty cases, occurred under the reign of current Governor and presidential candidate Rick Perry, who still maintains that the criminal justice system is working. These figures are scary in light of the fact that 238 executions have taken place under Perry’s governorship—including Cameron Todd Willingham who, according to reputable fire forensic experts, was probably innocent of the arson murders of his three children in December 1991.

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