CRIMINAL JURISDICTION

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

February 5, 2010

WHO IS AAFIA SIDDIQUI – TERRORIST OR GOVERNMENT PAWN?

Filed under: Anti-Terrorism Lawyer — Tags: , , , , , , , — johntfloyd @ 3:36 pm

The Tragic Case of the “The Gray Lady of Bagram”

By:  Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

The U.S. Government contends Aafia Siddiqui’s alleged links to terrorism began in June 2001—some three months before the 9/11 terror attacks on New York City’s Twin Towers. According to government sources, Siddiqui made a trip from Quetta, Pakistan to Monrovia, Liberia, where she was met by a car and driven to the Hotel Boulevard, a known al Qaeda safe house. A week later Siddiqui allegedly left Monrovia in the same inauspicious manner in which she arrived—the only difference being is that she carried with her a large parcel of Africa’s illegal diamonds, a hard-to-trace but key funding source for al Qaeda’s terror operations.

Nearly three years later on May 26, 2004 former U.S. Attorney General John Ashcroft and FBI Director Robert Mueller held a new conference during which they announced the government had received reports that al Qaeda planned terror attacks in the U.S. that summer or fall. Director Mueller specifically named Aafia Siddiqui as “an al-Qaeda operative and facilitator” and one of the seven al-Qaeda suspects being sought in connection with the impending terror plots. Attorney General Ashcroft added the seven suspects posed “a clear and present danger” to America and should be “considered armed and dangerous.”

As soon as Siddiqui’s photo was displayed during the Ashcroft/Mueller news conference an informant was convinced Siddiqui was the same woman who went to Monrovia in June 2001 and left with the package of illegal diamonds. The informant called the Special Court for Sierra Leone, which was investigating Africa’s illegal diamond trade, and reported Siddiqui’s alleged ties to the diamond trade on behalf of al Qaeda.

Siddiqui’s family vigorously disputes the notion that Aafia was ever in Monrovia. They say she was living in the Back Bay Manor in Roxbury, Massachusetts taking care of her own three children and her sister’s child (while the sister finished a fellowship in neurology at Brigham and Women’s Hospital), as well as being a wife to her husband who was an anesthesiologist at Brigham and Women’s Hospital.

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January 29, 2010

MORE EVIDENCE OF BAD EVIDENCE – AGAIN

Filed under: Houston Criminal Lawyer — Tags: , , , , — johntfloyd @ 4:51 pm

Criminal Defense Attorneys Must Question Findings, Conclusions of Forensic Experts

By:  Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

We have posted a number of blogs about the “junk science” associated with forensic evidence—a science popularized by network television with drams like “CSI” and its spin-offs. It would indeed by an ideal world if all the evidence-gathering and analysis reflected in these TV programs reflected the real world of crime and criminal prosecutions. The reality is that while these shows may entertain their legion of loyal viewers, they do a tremendous disservice to our criminal justice system. http://www.newscientist.com They contribute to the popular acceptance among most jurors that “forensic evidence” is infallible when, in truth, the evidence analysis methodologies used in most of this science have never been validated and the end results have been tragic. According to the New York-based Innocence Project, nearly half of all the DNA exonerations in this country involved “false forensics,” not to mention the horrific way this flawed process undermines the integrity of our truth-seeking, albeit adversarial justice system.

For example, KCBD television in Lubbock recently reported that Paul Shrode, the city’s former Deputy Medical Examiner, lied on his resume to secure the position of Chief Medical Examiner in El Paso County. The Texas Medical Board has indicated it will investigate the complaint filed by an Austin documents analyst named David Fisher (who frequently works with criminal defense attorneys) against Shrode with the medical board concerning the “resume doctoring”.

The Paul Shrode revelation comes on the heels of a series of fine investigative reports by Fort Worth Star-Telegram investigative reporter Yamil Berard about statewide problems dealing with medical examiners and the flawed nature of their forensic work, particularly when it comes to autopsies performed by these “medical forensic experts.” After Tarrant County District Attorney Joe Shannon told the newspaper that his office relied upon the county’s medical examiners “a great deal,” Yamil pointed out the flawed nature of the evidence analysis methodology of medical examiners:

“ … even though medical examiners rule as to how people die, that is an opinion based on interpretation of available evidence. In some cases, critics say, justice may be trumped by outside influences and by speculation that goes beyond hard scientific evidence. There are even questions about how much ‘science’ is in forensic science. In a report to Congress [last] year, the National Academy of Sciences said that there is a dearth of studies establishing the scientific validity of many forensic methods and that invalid interpretation of forensic evidence is a serious problem.

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January 24, 2010

VIOLENCE IS A NATURAL GROWTH INDUSTRY

Filed under: Houston Criminal Lawyer — Tags: , , , , — johntfloyd @ 6:52 pm

Prison Systems Breed Future Violence

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

The Wall Street Journal (Jan. 8, 2010) carried a report about the decreasing violent crime rate across the country. The report, based on FBI statistics, said all major violent crimes—homicide, forcible rape, robbery and aggravated assault—have been decreasing since 2007. Homicides decreased by 4.4 percent between 2007 and 2008, and by 10 percent during the first six months of 2009. Major cities like Washington, D.C., San Francisco, and Los Angeles recorded decreases in homicides levels not seen since the 1960s.

The Journal article, written by Tamara Audi and Gary Fields, cited nationally-acclaimed criminal justice experts like James Alan Fox who believe the violent crime decreases are tied to the aging U.S. population. “The graying of America is a significant factor,” the Lipman Professor of Criminal Justice at Northwestern University in Boston told the Journal. “The largest and fastest growing segment of the population is people over 50. People over 50 also happen to be the age group that is the least likely to commit crimes. As the group grows, crime rates do decline.”

Professor Fox also informed the Journal that the “common assumption that crime goes up during a recession” is erroneous. The professor pointed to “historic data” which shows there is little correlation between economic conditions and violent crime.

With all due respect to Professor Fox’s expertise, the nation should view the “good news” of a decreasing violent crime rate with certain trepidation. The Associated Press recently carried a report about the findings of a U.S. Justice Department study showing that 12 percent of youths held in state-run, privately-run, or local facilities are victims of some form of sexual abuse during their incarceration. Currently, there are close to 27,000 juveniles held in such facilities nationwide. Approximately 9,000 of these juveniles participated in the Justice Department survey which was conducted by a Rockville, Maryland company called Westat between June 2008 and April 2009.

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January 20, 2010

CHILD PORNOGRAPHY: JUDICIAL CHAOS LEADS TO HORRIFIC SENTENCING DISPARITIES

Filed under: Child Abuse Crimes Lawyer — Tags: , , , , — johntfloyd @ 1:28 pm

Court Describes Federal Sentencing Disparities as “A Picture of Injustice”

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

In 1984 the United States Congress enacted the Sentencing Reform Act (“SRA”), and as part of the Act, Congress created the United States Sentencing Commission (“Commission”) to “establish sentencing policies and practices for the Federal criminal justice system.” 1/ The Commission was charged with the responsibility of creating U.S. Sentencing Guidelines (“Guidelines”) that would assist Federal judges in the sentencing process to fulfill Congress’ five purposes for imposing criminal sentences. 2/

Title 18, United States Code, Section 3553(a)(2) lists the five congressionally-mandated purposes for sentencing:

  • To reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
  • To afford adequate deterrence to criminal conduct;
  • To protect the public from further crimes of the defendant; and
  • To provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.

While the Guidelines and the § 3553(a) factors were intended to eliminate the gross disparities in federal sentencing practices before the SRA, they have failed miserably in many significant respects, particularly in child pornography cases. Since the enactment of the SRA, Congress has repeatedly created new offenses, increased penalties, and issued directives to the Commission concerning child pornography offenses. 3/ The following is a list of many of the laws enacted by Congress over the last three decades regarding child pornography-related offenses:

  • Protection of Children Against Exploitation Act of 1978;
  • Child Protection Act of 1984;
  • Child Sexual Abuse and Pornography Act of 1986;
  • Child Abuse Victims’ Rights Act of 1986;
  • Child Protection Restoration and Penalties Enhancement Act of 1990;
  • Sex Crimes Against Children Prevention Act of 1995;
  • Protection of Children from Sexual Predators Act of 1998;
  • Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003;
  • PROTECT Our Children Act of 2008;
  • Providing Resources, Officers, and Technology to Eradicate Cyber Threats to Our Children Act of 2008;
  • Keep the Internet Devoid of Sexual Predators Act of 2008; and
  • Effective Child Pornography Prosecution Act of 2008.

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January 14, 2010

THESE ARE DANGEROUS TIMES IN WHICH WE LIVE

Filed under: Child Abuse Crimes Lawyer — Tags: , , , , , , — johntfloyd @ 1:55 am

Civil Commitment: Pre-Emptive Strike against Future Acts by Convicted Sex Offenders

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

In 1999 John Charles Volungus plead guilty in the United States District Court for the Western District of Kentucky to three federal criminal sex offenses: possession of child pornography; receipt of child pornography through interstate commerce by means of a computer; and use of a facility of interstate commerce (computer) to persuade a person under the age of eighteen to engage in a sexual act. 1/ He was sentenced to 53 months in the custody of the Federal Bureau of Prisons (“BOP”) to be followed by a term of supervised release. He was released from actual custody only to have his supervised release revoked. He was returned to the custody of the Bureau of Prisons for another23 months. This latter term of imprisonment expired on February 15, 2007. 2/ Although housed at a number of different facilities while in the custody of the BOP, Volungus was confined at the Federal Medical Center Devens in Ayer, Massachusetts (a prison hospital) when he completely satisfied his prison sentence. 3/

Shortly before Volungus’ February 2007 release date, the United States Government filed a petition to have him “civilly committed” as a “ sexually dangerous person” already in federal custody. The government’s action was based on a provision of the Adam Walsh Child Protection and Safety Act (Walsh Act), which was signed into law in 2006 by former President George W. Bush. This little known provision allows the government to request the civil commitment of any inmate committed to federal penal custody for a sex offense upon completion of the inmate’s federal sentence. 4/ The provision is known in the federal court system as a “Section 4248 proceeding.”

Section 4248 defines a “sexually dangerous person” as anyone “who has engaged or attempted to engage in sexually violent conduct or child molestation and who is sexually dangerous to others.” 4248 says the individual becomes “sexually dangerous” when he/she “suffers from a serious mental illness, abnormality, or disorder as a result of which he would have serious difficulty in refraining from sexually violent conduct or child molestation if released.” 5/

Section 4248 is implemented by the government in the following manner: “A responsible federal official (the Attorney General, the director of the BOP, or the designee of either) may initiate [civil] commitment proceedings by petitioning the federal district court in the judicial district in which a targeted person is confined. The petition must certify to the court that the target, whom we shall call respondent, ‘is a sexually dangerous person.’ The filing of the petition stays the respondent’s release from federal custody, notwithstanding the expiration of his sentence, ‘pending completion of procedures’ described in the Walsh Act.

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January 9, 2010

MILITARY COMMISSIONS ACT OF 2009

Filed under: Federal Crimes Lawyer — Tags: , , , , , , — johntfloyd @ 3:06 am

Fear Mongers Continue Calls for Military Tribunals to Avoid Burdens of Complying with Constitution and Rule of Law

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

The day after we posted our blog “Argument Against Gitmo Closure Defeated By Act of Terrorism” (Dec. 28, 2009), in which we pointed out that Republican opponents of the Obama administration’s decision to close Guantanamo Bay, had not suggested that Christmas Day attempted airline bomber Umar Farouck Abdulmutallab be tried before a military tribunal rather than in a civilian court, Rep. Peter King (R-N.Y.) led an awakened chorus of Republican voices saying Abdulmutallab should not be tried as a “criminal defendant” in a federal civilian court but rather as a “terrorist” before a military tribunal.

“I think that the administration has made a mistake by treating this terrorist as a common criminal … by putting him into the criminal justice system,” King stated in a December 29 interview with NBC. “I wish they would have put him into a military tribunal so we could get as much intelligence and information out of him as we could … My concern is that we did miss the opportunity because once we put him into the criminal justice system, he gets a lawyer and Miranda rights.”

King’s statements suggest that military interrogators would have been able to employ the “harsh interrogation methods” long advocated by former Vice President Dick Cheney (such as water boarding, sleep deprivation, physical abuse, etc.) to secure the “intelligence and information” the congressman assumes Abdulmutallab possesses. Apparently Rep. King, along with the others who share this point of view, forgot that in 2005 Congress (a body to which the New York representative belongs) passed the Detainee Treatment Act which prohibits cruel, inhuman and degrading treatment of “terror suspects” during military or CIA interrogations. Torture is no longer a permissible method to extract “intelligence and information” from terror suspects, despite Dick Cheney’s lamentations to the contrary.

Rep. King, who is a ranking member of the House Homeland Security Committee, must have also forgotten (or has never been aware) that in October 2009 President Obama signed the 2010 National Defense Authorization Act (which is called the “Military Commissions Act of 2009”) which significantly altered the legal landscape in the interrogation of “terror suspects.” The previous Military Commissions Act, enacted by King and his congressional colleagues in 2006, allowed coerced statements obtained through torture to be admitted into evidence against terror suspects tried before military tribunals. The new Act, which was law at the time of Abdulmutallab’s arrest, no longer permits the use of such statements obtained through the “harsh interrogation” techniques supported by Dick Cheney and others. In a recent Findlaw column, Human Rights Watch attorney Joanne Mariner discussed the provisions of the revised 2009 Act:

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January 5, 2010

A CALL FOR ACTION – A NEED FOR REAL CHANGE

Filed under: Houston Criminal Lawyer — Tags: , , , , , , , , , — johntfloyd @ 12:11 pm

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

Houston’s Mayor Annise Parker announced recently that she will replace the city’s outgoing police chief, Harold Hurtt, with someone from within the command rank of the Houston Police Department (HPD). We do not view this as a compelling promise of change. The HPD under Hurtt’s leadership was rocked by one “evidence gathering” scandal after another. It would be foolish to assume all these scandals were attributable to Hurtt’s management style alone. The scandals actually revealed a systemic problem within the HPD from its top command echelon down to the rank and file patrol officers. Thus, tapping someone within this problematic agency does not invite encouragement that integrity and professionalism in the department will improve immediately after Hurtt’s welcomed departure.

The latest HPD scandal, examiners not properly analyzing fingerprint evidence or failing to examine the evidence at all, will cost taxpayers nearly $3 million to fix. This will require a team of outside consultants, who are already running the fingerprint unit’s day-to-day operations, to re-examine some 5,000 of what the Houston Chronicle called “violent crime cases as well as sift through a backlog of thousands more violent and property crime cases that have been waiting to be reviewed.”

As a result of this fingerprint scandal, one part-time employee was forced to resign under pressure and three others were placed on administrative leave. To make matters worse, the HPD recently submitted a report to the City Council informing its members that it will probably cost taxpayers an additional $2 million to hire new examiners to run the department’s fingerprint unit.

To be fair, the HPD is not the only law enforcement agency to experience a “fingerprint analysis” problem. The Houston Chronicle recently reported that the Los Angeles Police Department earlier this year acknowledged its fingerprint unit was a “sloppy operation” in which files were “left lying around, prints sometimes lost and at least two people had been wrongly identified as criminal suspects because of botched fingerprint analysis.” It was a similar story in 2007 involving Florida’s Seminole County Sheriff’s Department, prompting the sheriff to discipline numerous employees after it was discovered that, as the Chronicle reported, “analysts [were] cutting corners and pegging fingerprints to the wrong suspects.”

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December 28, 2009

ARGUMENT AGAINST GITMO CLOSURE DEFEATED BY ACT OF TERRORISM

Filed under: Federal Crimes Lawyer — Tags: , , , , , — johntfloyd @ 1:04 pm

Recent Arrest, Detention and Charging of Attempted Airplane Bomber Illustrate Fed’s Ability to Handle Terror Suspects in Civilian Courts

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Two recent decisions by President Obama’s administration has drawn intense criticism designed to manipulate the natural fear Americans have of terrorism since 9/11: the decision to try the 9/11 mastermind Khalid Sheikh Mohammed (KSM), and his co-conspirators, in a New York federal civilian court and the decision to transfer “terror suspects” currently housed at the U.S. detention facility (“Gitmo”) in Guantanamo Bay, Cuba to the Thomson Correctional Center in Thomson, Illinois.

The critics, fueled primarily by a Republican political agenda to undermine the Obama administration and regain future control of the White House and Congress, have charged that confining and trying terror suspects on American soil would somehow endanger the American public with future terror attacks. If these charges were not so politically motivated and so readily accepted by many Americans, who believe every word launched out of the mouths of conservative wing nuts like Rush Limbaugh and Glenn Beck, they could be casually dismissed laughably ludicrous.

The Christmas Day attempted terror attack on a Detroit-bound Northwest Airlines flight by 23-year-old Umar Farouk Abdulmutallab who allegedly attempted to detonate the high explosive pentaerythritol tetranitrate (PETN) as the plane approached the Detroit Metropolitan Wayne County Airport for landing underscores this point. The Abdulmutallab terror attack was thwarted because his detonator either malfunctioned, or he did not correctly use it, and by the heroic efforts of fellow passengers who attacked and subdued the terrorist before he could fulfill his objective: to blow up an American plane on American soil on Christmas Day.

This attempted terror attack illustrate precisely why the politically-motivated criticisms of the decision to try KSM in federal civilian court and to house Gitmo prisoners in a super-max federal penal facility are in fact so wrong-headed. Abdulmutallab was charged in federal district court the day after Christmas. The United States Justice Department issued the following “press release” entitled “Nigerian National Charged with Attempting to Destroy Northwest Airlines Aircraft:”

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