CRIMINAL JURISDICTION

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

September 3, 2010

THE MINEOLA SWINGER CLUB CASE-A LEGAL NIGHTMARE

Filed under: Child Abuse Crimes Lawyer — johntfloyd @ 3:04 am

Lying Texas Ranger, Overzealous Child Advocate Experts and Pro-Prosecution Judge Mock Justice

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Most human tragedies are produced by random acts of Nature run amok. But far too often human tragedies are man-made, particularly in our criminal justice system. That’s what has happened in the so-called “Mineola swingers club” case. According to Michael Hall, in his latest Texas Monthly article about the case titled “Trial and Error,” this criminal justice tragedy began in 2005 when Margie Cantrell, a career “foster mom”  (27 adopted children over 36 years) who either fled or migrated from California to Texas in 2004, walked into the Mineola Police Department, located in Wood County (just north of Tyler), and informed the police that two of her foster children had been forced to perform “sex shows” at the Retreat Club, a local “swingers’ club.”

Before we get into the core facts of this legal nightmare, let us set the cast of characters who have made it all possible:  Judge Jack Skeen, Jr., who presides over the 241st District Court in Tyler, Smith County, Texas, and who has presided over all the criminal trials flowing out the Mineola swinger club case; Smith County District Attorney Matt Bingham who has prosecuted all the defendants thus far put to trial in the case; Sergeant Philip Kemp,  the Texas Ranger and lead investigator in the case; Shauntel Mayo, Jamie Pittman, Patrick “Booger Red” Kelly, Dennis Pittman, Sheila Sones, and Jimmy Sones, the six defendants indicted in 2007 in the case.

Three of the defendants, Mayo, Pittman and Kelly, were convicted in 2008 while a fourth defendant, Dennis Pittman, was convicted last month. All were sentenced to life imprisonment, although the convictions of Shauntel Mayo and Jamie Pittman’s convictions were reversed this past June by the 14th Circuit Court of Appeals.

And, finally, there are the five alleged child sexual abuse victims whose testimony alone—without any physical evidence or adult witness corroboration—produced the four convictions in this case. The children essentially said they had been trained in a “sex kindergarten” to dress and perform in sexually provocative ways before audiences at the Retreat Club.

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August 31, 2010

WRONGFUL CONVICTIONS-TRAGIC RUSH TO JUDGMENTS

Filed under: Houston Criminal Lawyer — Tags: , , , , , , — johntfloyd @ 2:55 am

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.

Fourteen years ago three authors, C. Ronal Huff, Arye Rattner and Edward Sargarin, published a book titled Convicted But Innocent: Wrongful Conviction and Public Policy (Sage Publications. Inc. 1996). The book was based on ten years of measured, conservative research which outlined not only the frequency and causes for wrongful convictions of innocent people but the tragic consequences that inevitably flow from them. The authors interviewed 188 judges, prosecutors, public defenders, sheriffs, and police chiefs in the state of Ohio to draw the conclusion that as many as 10,000 innocent people are wrongfully convicted each year in this country. The authors found, and the New York-based Innocent Project has long since confirmed, that mistaken identification is the leading factor for most wrongful convictions.

This was the overriding factor in the seven wrongful convictions of the innocent Texas inmates mentioned above. But underlying the mistaken identification syndrome is an even more troubling phenomenon discussed by Huff/Rattner/Sargarin. “If we had to isolate single ‘system dynamic’ that pervades a large number of these cases, we would probably describe it as police and prosecutorial overzealousness: the anxiety to solve a case; the ease with which having such anxiety is willing to believe, on the slightest evidence of the negligible nature, that the culprits in hand; the willingness to use improper, unethical and illegal means to obtain a conviction, when one believes that the person at the bar is guilty.”

We tackled this subject earlier this year. The practice is called “tunnel vision”—law enforcement and prosecutors locking in on one theory or one suspect at the exclusion of all others. It was law enforcement “tunnel vision” that led to the mistaken identification of Michael Green and caused him to serve 27 wrongful years in prison—more than any other wrongfully convicted inmate in Texas. And it was both law enforcement and prosecutorial “tunnel vision” that led to the wrongful conviction of Clarence Elkins, Sr. who spent seven years in the Ohio prison system for a murder and rapes he did not commit. Elkins was arrested for the June 6, 1998 murder/rape of his mother-in-law, Judith Johnson, and for assaulting and raping Johnson’s six-year-old granddaughter, Brooke Sutton (Elkins’ niece). The arrest came after the granddaughter went to a neighbor shortly after the crime was committed and said, “Uncle Clarence killed grandma.” But the child later that same day expressed doubt about her identification, telling a friend of her grandmother that “I think it sounded like [Uncle Clarence].” Homicide detectives were aware of the doubts expressed by their chief witness.

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August 28, 2010

ROGER CLEMENS TAKES THE MOUND AGAINST U.S. GOVERNMENT

Filed under: Federal Crimes Lawyer — Tags: , , , , , — johntfloyd @ 12:36 am

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.

Over the next year MLB reeled under one revelation after another about the magnitude of PED use among its star athletes. Home run and hitting records, as well as pitching wins/strikeouts, were being called into question. The word “asterisk” became routinely associated with Barry Bonds’ single season and career home run records along with McGwire’s smashing of Roger Maris’ single season 61 home run record. “Juiced” became part of our daily vernacular. It caught our attention last year.

In March 2006 MLB Commissioner Bud Selig asked former U.S. Senator and Ambassador George J. Mitchell to investigate PED use in major league baseball. The former federal judge and U.S. Attorney was imminently qualified to lead such an investigation. Twenty months later Mitchell issued a 409-page report titled “Report to the Commissioner of Baseball of an Independent Investigation into the Illegal Use of Steroids and Other Performance Enhancing Substances by Players in Major League Baseball” (“The Mitchell Report”).

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August 25, 2010

THE SKILLING EFFECT

Filed under: Federal Crimes Lawyer — johntfloyd @ 2:59 am

18 USC 1346, Honest Services Prosecutions Require Bribes or Kickbacks

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

The Enron Corporation was founded in 1985. Its headquarters were located in downtown Houston. It became the seventh highest revenue grossing company in America. Between 1995 and 2000 alone, its annual revenues rose from $9 billion to $100 billion. Jeffery Skilling, a longtime Enron officer, was an integral component in company’s phenomenal rise to economic success and corporate power. Between February and August 2001, he served as CEO of the company before he abruptly resigned. Less than four months later Enron declared bankruptcy and its stock value plummeted. The nation’s economic and political institutions were stunned by the far-reaching economic and political implications of the company’s collapse.

In February 2004 Jeff Skilling was indicted by a grand jury sitting in the Southern District of Texas on 36 charges. The Government charged Skilling and Richard Causey, Enron’s former chief accounting officer, with conspiring to defraud Enron shareholders by misrepresenting the financial condition of the company for their own profit. Count 1 of the indictment alleged their conspiracy had three objects: honest-services wire fraud, money-or-property wire, and securities fraud. The conspiracy charge was brought under 18 U.S.C. Sec. 371 and the wire fraud charges were brought under 18 U.S.C. Sec. 1343. The “honest-services” wire fraud was brought under 18 U.S.C. Sec. 1346. The “honest-services” part of the conspiracy was premised on the Government’s theory that Skilling and Causey conspired to deprive Enron and its shareholders of the “intangible right” of their honest services.

This part of the indictment, and Skilling’s conviction based on it, were doomed from the beginning, as his defense team quickly recognized, because the former CEO never took any bribes or kickbacks as part of the alleged conspiracy scheme. For more than two decades federal prosecutors have used the “honest services” provisions of § 1346 to expand the original congressional intent of prosecuting conspiracies under the wire fraud statute. And, fortunately, the United States Supreme Court on June 24, 2010 in Skilling v. United States put the skids on the Government’s frequent abuse of the “honest services” provisions. Absent proof beyond a reasonable doubt that an individual took bribes or kickbacks, the Government cannot prosecute him for conspiracy under the wire fraud statue. The ScotusBlog succinctly conveyed the basis for Skilling decision this way:

“Almost from the day Congress enacted the law (1987) specifying that fraud can be committed by denying someone the ‘intangible right’ to one’s ‘honest services,’ lower courts have struggled to define just what kind of wrongdoing would fit within that concept. Perhaps to illustrate just how uncertain the meaning of the law is, the Justices themselves could not agree on Thursday on how to read the string of lower court decisions that have interpreted the law; six Justices thought the pattern of those rulings was quite clear and definite, but three other Justices said the rulings were a hodgepodge.

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August 17, 2010

ARSON MURDER-TOO MANY MISTAKES DEMANDS SCRUTINY

Filed under: Homicide Crimes Lawyer — Tags: , , , , , — johntfloyd @ 12:36 pm

Flawed Forensics in Arson Cases: One Executed, One on Death Row, Four in Prison

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

The question hangs like ugly morning moss from a large swamp oak tree: Did the State of Texas execute an innocent man when it put Cameron Todd Willingham to death on February 17, 2004? Just last month the Texas Forensic Science Commission ruled that Willingham’s August 1992 murder conviction was based on flawed forensic evidence. The Willingham case—and the way it has been handled by state officials and in particular Tex. Gov. Rick Perry and especially by Willingham’s former defense attorney—has proven to be a national and international embarrassment to the state’s criminal justice system.

And just as the Texas Forensic Science Commission is trying to undo some of the damage caused by the wrongful conviction and execution of Willingham, we learn that the State of Pennsylvania now finds itself in the peculiar position of having to deal with a death penalty case that mirrors the Willingham case. Like Willingham, Daniel Dougherty was an excessive drinker who abused his wife but loved his children—and like Willingham, Dougherty was forced to watch his two children (Danny 4 and Johnny 3) die in a fire that destroyed his home in 1985, according to a recent CNN report.

Today the 50-year-old Dougherty sits in a prison in Waynesburg, Pennsylvania—a prison that state officials told CNN’s Stephanie Chen houses “the worst of the worst”—awaiting execution. Although Willingham was arrested and indicted a little over a month after the December 1991 residential fire that took the lives of his three children, Dougherty was not arrested until 14 years after the fire that killed his two children and only after his estranged wife told the authorities he had “confessed” to her that he deliberately set the fatal fire.

Like Willingham, Daniel Dougherty has also maintained his innocence from the day of his arrest. His attorney claims that Dougherty, like Willingham, was convicted on the same kind of “flawed arson science” that sent the Texas inmate to the state’s death chamber. “We have an innocent man on death row who has been languishing there, and there is absolutely no evidence that a crime occurred,” Dougherty’s attorney, David Fryman, told CNN. “We’ve been trying our best to right that wrong.”

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August 15, 2010

APPELLATE COURTS DO NOT ALWAYS GET IT RIGHT EITHER

Filed under: Federal Crimes Lawyer — Tags: , , , — johntfloyd @ 12:10 pm

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.”

This “glaring problem” recognized by law enforcement perhaps influenced the U.S. Supreme Court in 2005 to decide Whitfield v. United States which held that federal prosecutors do not have to prove an “overt act” in order to secure a money laundering conspiracy conviction. In a legal sense, an “overt act” is an open, outward action, or step, taken to carry out the intention to commit a crime, from which criminal intent can be implied. The Whitfield decision followed the lead of an earlier Supreme Court decision in United States v. Shabani which held in 1994 that the government did not have to prove an “overt act” as an element in a drug conspiracy case.

The Whitfield decision was particularly significant in this federal circuit because the Fifth Circuit Court of Appeals in United States v. Wilson, which was decided in 2001, held that an “overt act” was an essential element in money laundering conspiracy cases. However, even though Whitfield effectively overruled the Wilson decision, the Fifth Circuit in United States v. Armstrong, which was decided in 2008, and United States v. Bueno, which was decided in 2009, kept saying in dicta that an overt act had to be proven by federal prosecutors to secure a money laundering conspiracy conviction. Apparently this was a mistake.

But the appeals court last month in United States v. Balleza (in a per curiam decision) finally resolved the conflict. In a one sentence paragraph, the court held that “in conformity with Whitfield, we recognize that an overt act is not an element of the offense of conspiracy to launder money.”

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August 13, 2010

NO EXCUSE FOR POLICE BRUTALITY

Filed under: Houston Criminal Lawyer — Tags: , , , , — johntfloyd @ 12:44 pm

Misdemeanor Charges for Beating of Handcuffed 15-Year Old Lead to Community Outrage

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Four Houston police officers were indicted on June 23, 2010 on misdemeanor charges of “official oppression” in connection with the beating of  a handcuffed 15-year-old black burglary suspect—an incident “caught on tape” by a private business surveillance camera.  The officers were immediately terminated from duty by Houston Police Chief Charles McClelland after the complaints were announced. Three others involved in varying degrees in the beating and its aftermath were also fired. Five other officers were given two-day suspensions for “policy violations unrelated to the arrest” of the burglary suspect, although Chief McClelland did not disclose the roles of these five officers in the wake of the beating incident.

Community activists were not pleased by what they perceive a “slap on the wrist” treatment of the officers by the grand jury. Saying he was “absolutely disappointed” by the grand jury’s actions, community activist Quanell X said the officers should have been indicted for felony assault. “You’re watching a handcuffed young man being beaten by law enforcement officers and the only charge is official oppression,” he was quoted by the Houston Chronicle. “Where’s the assault charge?”

Quanell X was quite specific with his charges that the grand jury’s decision was “racially motivated.” He pointed out that the grand jury was comprised of mostly “white males” and that the grand jury’s “compromised” decision was indeed “racially motivated.” In effect, Quanell X charged that the “white” grand jury did not indict the “white” officers for an assault felony because the beating involved a “black” criminal suspect.  Harris County District Attorney Pat Lycos described the grand jury make-up as diverse.

There is a legitimate and historical basis for Quanell X’s concern about the misdemeanor complaints.

Surprisingly, there are many studies available on the issue of police brutality. A U.S. Justice Department study in 2001 found that in 1999 “approximately 422,000 people 16 years or older were estimated to have had contact with the police in which force or the threat of force was used.”

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August 10, 2010

FEDERAL INMATE SAMUEL KENT DESERVES FAIR TREATMENT

Filed under: Sexual Assault Crime Attorney — Tags: , , , , — johntfloyd @ 2:18 am

Unpopular Judge Deserves Humane and Fair Treatment While in Federal Custody

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Last year former U.S. District Court Judge Samuel Kent pleaded guilty to an obstruction of justice charge and received a 33-month sentence. He was committed to the U.S. Bureau of Prisons. Kent’s attorneys, Dick DeGuerin and Sean Buckley, recently filed a comprehensive motion in the U.S. District Court for the Houston Division to vacate and correct his prison sentence because of the physical and psychological abuse he has endured at the hands of federal prison officials. The abuse includes being mislabeled a “sex offender”—a status which precludes him from participating in certain substance abuse counseling programs—and being held in harsh solitary confinement while being transferred from one federal or state penal facility to another.

The federal prison system can be a brutal place, particularly if the inmate is a former law enforcement official and especially if he is a former federal judge. DeGuerin’s motion, according to Hair Balls blog of the Houston Press, charged that “contrary to public interest, the Federal Bureau of Prisons has subjected Sam Kent to abusive psychological and physical conditions that have jeopardized his ongoing recovery from depression and alcoholism.” The motion added that on the very day that Kent formally resigned his position as a federal judge (and gave up his pension), prison officials placed him in a “filthy, completely empty cell” (commonly called “admin seg”) where the “temperature was kept at 60 degrees” and with Kent “wearing only a smock and carrying only a single sheet.”

Cold is an extreme form of torture. Prison officials routinely place inmates with severe emotional and psychological problems who engage in disruptive behavior in “admin seg” cells where the temperature is deliberately kept low to make them as uncomfortable as possible. A concrete slab is the only bed in these cells. An inmate is sometimes (not always) given a sheet or a thin blanket used to cover the slab or himself. He is clad in either a sheer-like “smock” or what is called a “paper gown.” Inmates are frequently kept in these torture-like chambers for days, weeks, and even months, depending upon the level of disruptive behavior they have engaged in. The only relief, if any, comes when “pill call” arrives and a medical technician dispenses heavy dosages of psychotropic medication in a futile effort to quell the curses and screams and protestations against the physical abuse.

While these cells are generally used to remove and isolate “psychotic” inmates, they are frequently used against certain inmates “to get their mind right.” It is designed to not only destroy their personal self-esteem but break their will as well. The famous line spoken by the warden in the old “Cool Hand Luke” movie describes the process: “Luke, what we have here is a failure to communicate.” Many people may feel this is appropriate treatment for a former federal judge who built a reputation, earned or not, as being a tyrant in his courtroom. We refuse to bite into that tempting jelly-filled donut. Accepting DeGuerin’s motion as factual (and we have no reason to doubt its merit), we find it not only disturbing but downright offensive that some of the most dangerous and violent drug lords, who have cut deals with the federal government to “spill their guts,” are receiving better treatment from federal prison officials than Sam Kent. When ruthless drug cartel leaders are given preferential treatment and held in higher regard by federal prison officials than a former federal judge, then our federal prison system has become so skewed that legitimate penological objectives are impossible to achieve in it.

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