CRIMINAL JURISDICTION

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

May 11, 2012

PROSECUTORIAL MISCONDUCT GOES UNPUNISHED IN TEXAS

Filed under: federal Appeals Attorney — Tags: , , , — johntfloyd @ 8:23 pm

Preserving Error in Cases of “Contumacious” Prosecutorial Misconduct

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Let us say at the outset that many prosecutors are fine, decent people who honorably fulfill their charged task of seeking the truth and justice—to convict the guilty and free the innocent. They believe in a fair testing of their case in our adversarial criminal trial process. We respect prosecutorial zeal, even though we’re always on the other side.

But when it comes to prosecutorial misconduct, it’s truly disheartening. It’s a disease without a cure—a blight on our fundamental notions that the criminal trial process must seek the truth and ensure that the interests of justice are served. Yes, with this piece, as we have with others, we’re once again talking about that prosecutorial epidemic—the Ebola virus that infects our justice system. It’s like a plague of locusts consuming everything in sight. And there’s nothing we can do about these night riders lynching the very integrity of our judicial system under the cover of darkness and in pursuit of “conviction at any costs.” Punish them? Arrest them? Disbar them? It’s not going to happen. The marshals charged with protecting the integrity are turning a “blind eye” to these night riders. So what, some will say? Integrity, after all, is in the eyes of the beholder, and, of course, it’s subject to expanding definitions. The price of a few innocent people going to jail is well worth convicting the guilty.  This is not about Truth; it is about Justice and dispute resolution.

Given their consistent complicity, that must be the way our appellate courts see the issue of prosecutorial misconduct. A little Ebola is necessary to get all the bad apples out of the barrel, even if that means taking some good ones out in the process.

This past December we called your attention to a 2009 report titled “Preventable Error: A Report on Prosecutorial Misconduct in California 1997-2009.” The report was released by the Northern California Innocence Project at the Santa Clara University School of Law. The report dealt with 4,000 California and federal appellate court rulings rendered between 1997 and 2009 concerning prosecutorial misconduct.

As would be expected by seasoned criminal defense attorneys, the appellate courts determined that only 707 of the cases involved actual misconduct. In another 282 cases the courts did not even address the prosecutorial misconduct issue because, as the courts reasoned, the defendants received a “fair trial.” In the remaining 3000-plus cases the courts explicitly found that there was no prosecutorial misconduct involved in those convictions. Not surprisingly then, the courts could muster up just enough ethical fortitude to find that in only 159 of the 707 cases in which misconduct was found had the defendants suffered actual harm to result in some form of relief—new trials, new sentencing hearings, etc. In the remaining 548 cases the courts upheld the convictions that the prosecutorial misconduct did not deprive the defendants of a fair trial.

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May 2, 2012

THE SHIFTING LANDSCAPE OF THE CONFRONTATION CLAUSE

Filed under: federal Appeals Attorney — Tags: , , , — johntfloyd @ 4:14 pm

Courts of Appeal Continue Struggle with Crawford and Progeny

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Reinaldo Berrios, Troy Moore, Angel Rodriquez, and Felix Cruz were charged, and ultimately convicted, of a series of violent felonies in Puerto Rico and the Virgin Islands in 2004, including the murder of an off-duty police officer during an attempted robbery. They were sentenced to consecutive life sentences and dozens of years in both federal court and Virgin Island courts. The sentencing message in these cases was evident: the felons would spend the rest of their lives in prison.

That’s why the appeal of their convictions were so important—appeals that focused primarily on a claimed constitutional violation of the Confrontation Clause. While Berrios and Moore were housed in a detention facility in Guaynabo,  Puerto Rico, the Government sought, and secured, pursuant to 18 U.S.C. § 2510, a Title III surveillance application to monitor the conversations of the two pre-trial detainees. The surveillance included both video and sound recordings. A treasure trove of incriminating evidence was obtained through this surveillance method. In one captured conversation as the two men enjoyed the facility’s “recreational yard,” Berrios and Moore discussed the shooting of the off-duty police officer, their respective roles in the killing, and their getaway. Referring to him by nickname, the two men identified Rodriquez as the getaway driver. And, as if that was not enough, Moore threatened to kill someone who worked at a store with his girlfriend and who was being regularly interrogated by the police.

The Title III recorded conversations between Berrios and Moore formed what the Third Circuit Court of Appeals called earlier this month “the cornerstone of the prosecution’s case against Rodriquez, Cruz, and Moore. The Third Circuit elected to use this case as its precedent ruling to resolve a number of issues surrounding the Confrontation Clause in the wake of a number of Supreme Court rulings (rulings we have discussed here and here).

In 1980 the Supreme Court handed down the definitive application of the Confrontation Clause in crime cases in Ohio v. Roberts. In that case, the Court laid down what became known as the “indicia of reliability” test—an absent witness’s hearsay statements could be used in a criminal trial only if 1) the witness was unavailable at time of trial and 2) if the statements offered an “indicia of reliability,” which fell either in “a firmly rooted hearsay exception” or the prosecution made a showing of “particularized guarantees of trustworthiness.”

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April 25, 2012

MORE IMMUNITY FOR ROGUE PROSECUTORS

Filed under: Houston Criminal Lawyer — Tags: , , , , — johntfloyd @ 4:33 pm

Testifying Witness and Prosecutor Absolutely Immune from Civil Rights Claims stemming from False Testimony before Grand Jury

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Just when you think you’ve heard the worst about rogue prosecutors (here and here), some nastier, seedier episode comes along to remind you back into the reality that some prosecutors are so rogue that it defies adequate definition—even in the South where “justice” has always had a definition different from the rest of the country. Take the case of Charles Rehberg, for example. Between September 2003 and March 2004, Mr. Rehberg, a certified public accountant, became embroiled in a dispute with Phoebe Putney Memorial Hospital in Albany, Georgia.

And what was the source of the dispute? “Phoebe Factoids”! To understand this, you must understand the nature of Dougherty County. It is one of the poorest regions in Georgia where 95,000 people live. More than 60 percent of its population is African-American, many of whom are living in abject poverty. Phoebe Putney Memorial is part of the “Phoebe Putney Health System,” one of the largest health-care providers in the State of Georgia.

In 2003, Mr. Rehberg discovered financial documents which became known as the “Phoebe Factoids.” These documents showed that Phoebe Putney Memorial had $2.6 billion in cash and had transferred millions more into offshore bank accounts in the Cayman Islands, according to media sources. Under the headline of the “Top 10 Most Highly Guarded Secrets at Pheobe,” Mr. Rehberg anonymously faxed this information to businesses in Albany while criticizing and parodying the hospital’s executives. More revealing yet, Mr. Rehberg accused the “non-profit” hospital of over-charging “uninsured patients” and harassing them to make payments while its top executives ran up “lavish travel expenses for trips related to a for-profit subsidy.” These executives traveled in a private jet, spending $258 for one meal while staying at the Ritz in London and $538 for beverages during another meal—and through it all they enjoyed the finest Cuban cigars.

The picture is starting to get pretty clear here. Most of the uninsured, harassed patients were African-American while most, if not all, of these top executives were white. Of course, the Phoebe Putney executives were infuriated that this picture was given public exposure. They called upon their dear friend then-District Attorney Kenneth Hodges who, according to the Atlanta Journal-Constitution, “received political contributions from Phoebe executives and others connected to Phoebe,” not to mention that Hodges’ “wife had been hired by Phoebe Putney Memorial Hospital.” The executives demanded that Hodges investigate and take legal action against the anonymous source of the “Factoids.”

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April 19, 2012

SCOTUS: MORE INEFFECTIVE ASSISTANCE LITIGATION

Filed under: Houston Criminal Lawyer — Tags: , , , — johntfloyd @ 3:31 pm

Ineffective-Assistance-Of-Trial-Counsel Claims Not Barred From Federal Habeas if Ineffective Counsel at Initial State Habeas Proceeding

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

The U.S. Supreme Court handed down its third major decision this term dealing with ineffective assistance of counsel, Martinez v. Ryan. (The other two decisions can be found here and here.) Martinez deals with counsel who failed to take specific steps to protect a state prisoner’s right to present an ineffective assistance counsel claim in state post-conviction proceedings—a professional dereliction that procedurally barred the state prisoner from having the claim heard in federal court.

And what exactly is a “procedural bar,” more commonly referred to as a “procedural default? A federal court will almost always refuse to hear a state prisoner’s claimed constitutional violation presented in a federal habeas proceeding if the prisoner failed to present the claim in state court in the precise manner mandated by state procedural rules governing collateral attacks. A state prisoner can only get around a procedural bar by demonstrating either 1) cause to excuse the default and actual prejudice suffered by because of an alleged violation of federal law or 2) the failure to review the alleged violation would “result in a marriage of justice.”

Luis Mariano Martinez was convicted in the State of Arizona for a sexual offense involving a minor. Under Arizona law, as in Texas and most other states, Martinez was constitutionally and statutorily entitled to a “direct appeal” to a state court of appeals and to the Arizona Supreme Court. In Arizona, and in Texas, an ineffective assistance of counsel claim is not favored on direct appeal. Because such claims generally require a factual development, state courts generally require that these claims be raised in a post-conviction application—in Arizona, the collateral proceeding is known as “post-conviction relief” while in Texas it is habeas corpus relief. The Supreme Court in Martinez elected to call these post-conviction remedies “initial-review collateral proceedings.”

Martinez’s ineffective assistance claim against his trial counsel centered around two primary issues:

  1. Defense counsel did not object to testimony by a state expert witness that recanted testimony in child sexual abuse cases is not uncommon. The State introduced a forensic interview with the child detailing the abuse; however, at trial the victim said no abuse occurred.
  2. Defense counsel did not pursue an exculpatory explanation for Martinez’s DNA being found on the victim’s nightgown. The State offered the DNA as evidence indicating sexual abuse.

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April 11, 2012

GIDEON’S GREAT GRANDCHILDREN

Filed under: Houston Criminal Lawyer — Tags: , , — johntfloyd @ 4:49 pm

Supreme Court Solidifies Right to Effective Assistance of Counsel during Plea Bargaining

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

There are two primary movers in our criminal justice system: criminal prosecution and criminal defense. We have posted many pieces on this blog dealing with prosecutorial misconduct. We have called it a blight on our criminal justice system. While we have touched upon specific instances where a criminal defense attorney either did or failed to do something that resulted in a finding effective assistance by the courts, we have not approached the subject as the “dirty little secret” on our side of the adversarial criminal justice process. We will now.

Eighteen months ago Dr. Emily D. West, Research Director, Innocence Project, issued the findings of her study concerning the association between DNA exonerations and ineffective assistance of counsel: Court Findings of Ineffective Assistance of Counsel Claims in Post-Conviction Appeals Among the First DNA Exonerations. The results were disturbing: 54 of the first 255 DNA exonerations in this country involved ineffective assistance of counsel claims—44 of which were rejected by the courts. Of the remaining ten, the courts found that three of the ineffective assistance claims did not “harm” the client; one secured the assignment of new counsel; and the remaining resulted in a reversal of conviction.

The most common types of ineffective assistance of counsel clams found by Dr. West were:

  • Failure to present a defense (often related to establishing/confirming alibi);
  • Failure to seek DNA testing or have serology testing done to exclude client;
  • Failure to object to prosecutor argument or to evidence introduced by the State;
  • Failure to interview witnesses in preparation for trial or to cross examine State witnesses;
  • Failure to investigate;
  • Failure to object to identification procedures; and
  • Failure to present expert testimony.

The reason Dr. West’s findings is so disturbing is because roughly 90 to 95 percent of all criminal defendants plead guilty, mostly through arranged plea bargains between defense counsel and the prosecutor. Virtually every defendant in a capital case must face a jury trial. The remaining defendants who plead not guilty can be placed in two categories: they are either innocent or are facing such lengthy prison sentences that a “plea deal” would still result in an unacceptable period of incarceration.

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April 8, 2012

TRAYVON MARTIN: ANOTHER VICTIM OF WILLIE HORTON POLITICS

Filed under: Houston Criminal Lawyer — Tags: , , , — johntfloyd @ 11:07 am

Tragedy Stirs debate on Stand Your Ground Laws and Racial Stereotypes

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

In February, 2012, we posted a piece about Texas’ version of the “stand your ground” law which was passed by the Legislature in 2007. Our piece examined a November 2011 decision by the Texas Court of Criminal Appeals, Morales v. State—the court’s first real opportunity to interpret the “stand your ground” self-defense which was inspired by the Florida “stand your ground” law and which has been the focus of bitter controversy surrounding the February 26, 2012 shooting death of Trayvon Martin by George Zimmerman.

For purposes of this discussion, we will only utilize some of the different accounts placed in the public record about what transpired that night. A grand jury will soon hear the case and determine if there is sufficient “probable cause” to indict Zimmerman for killing the 17-year-old Martin. ABC News and Reuters have assembled excellent timelines about the emotionally and politically charged case. We would only comment that pundits for Fox News and MSNBC have shamefully fueled the racial tension this case has unleashed across the country.

While no one really knows exactly what happened that February 26 night when Martin and Zimmerman confronted each other on a street in the gated community in which they both resided in Sanford, Florida, a number of indisputable core facts have emerged. Trayvon was living with his father, Tracy, at the time he was killed. The 17-year-old went to a convenience store where he purchased some Skittles and a bottle of tea. He was wearing a hooded sweatshirt, much like many other teenagers do in America. He was talking to his girlfriend on a cell phone as he walked home.

George Zimmerman was a member of a neighborhood “crime watch” group. These groups consist of volunteers who patrol the streets of their community looking for suspicious behavior, or real criminal activity. Some of the volunteers are individuals who want to be policemen. George Zimmerman was one of those individuals who wanted to be a cop. That February 26 night Zimmerman saw Trayvon walking down the street. He thought the teenager was acting suspiciously. He called and reported his concerns to a 911 operator—something he had done on other occasions. Zimmerman told the 911 operator he was going to follow Trayvon. He was instructed not to do that by the 911 operator.

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April 6, 2012

THE SCARY WORLD IN WHICH WE LIVE

Filed under: Federal Crimes Lawyer — Tags: , , — johntfloyd @ 11:52 am

Warrants for Government Eavesdropping, Targeted Killings and Torture

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

We live in a scary world! No doubt about that. We have street crime, gang crimes, hate crimes and terrorist violence, military violence, insurgent violence, police violence, and, less we forget, domestic violence. Clearly, there is more than enough crime and violence to go around in the world—violence that protects government-sponsored famine, political oppression, military suppression, and government spying.

In its March 19, 2012 e-edition, Newsmax Magazine carried reports about two well-known American personalities and how they feel our government should approach the “threat” of violence against our country. David Petraeus, CIA Director and former military commander, prefers utilizing “technological advances” to spy on every facets of American daily life to gather information as means of identifying and preventing potential violence.

Newsmax cited Wired magazine’s “Danger Zone” national security blog as the source for Director Patraeus’ comments at a recent summit for In-Q-Tel (now that’s a scary name by itself). The nation’s spy chief said an “Internet of things”—everything from phone applications used to control home lighting to car navigation systems—“can now be tapped by the CIA or other intelligence agencies and used to monitor the activities of persons of interest,” Newsmax reported.

What that means is that when a “person of interest” turns on or off the lights in his/her bedroom, CIA snoops could be there listening and, yes, watching. That takes voyeurism to whole other level. Director Patraeus made sure to point out at this summit of information gatherers that the subject to the electronic surveillance would, of course, have no “knowledge” of the surveillance.

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March 28, 2012

OUR SURVEILLANCE STATE

Filed under: Houston Criminal Lawyer — Tags: , , — johntfloyd @ 2:12 pm

Technology allows Government to Cheat Constitutional Protections

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

The U.S. Supreme Court’s recent decision in U.S. v. Jones, finding that the attachment of a GPS device to a suspect’s car is a search triggering Constitutional protections,has caused some interesting discussion regarding technology and law enforcement and doubts about what the Founding Fathers intended when drafting our Country’s greatest document.   What is not in doubt is that technology will surely continue to press the capability and intent behind the Constitution of the United States.

Technology from the beginning always tempted man with its boundless potential to serve the good of mankind. But, with every technological advance, society encumbered a disadvantage.  Technology has made George Orwell’s Nineteen Eighty Four “Big Brother” society an acceptable reality today. The technology of surveillance has made all of us prisoners in cells without bars. Our conversations are no longer private, our habits (good and bad) are monitored, our thought-processes are mined to develop a “profile” on each of us, and virtually every movement we make in the public arena are digitally stored in either a or corporate database.

On December 16, 2005, James Risen and Eric Lichtblau informed the country in a New York Times headline that read: Bush Lets U.S. Spy on Callers without Courts. The two reporters began their article with this lead: “Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.”

The “9/11” attacks created the “war” on terror. Law enforcement, intelligence and military agencies, with the blessing of President Bush and high-level congressional leaders, launched covert surveillance of virtually every aspect of American society. The right to privacy, on our person and in our homes, may as well have been lynched in Times Square. The constitution, the very document that separates this country from rogue nations that sponsor terrorism, slowly wasted away as the Government mined every nook and cranny for more and more information, false or otherwise, and obtained by any means necessary—torture, secret prisons, kidnapping, killing of innocents, etc—in the name of the “war on terror.”

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