CRIMINAL JURISDICTION

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

November 18, 2009

THE AGONIZING GITMO DILEMMA

Filed under: Anti-Terrorism Lawyer — Tags: , , , , , — johntfloyd @ 5:04 am

Enemy Combatant Cases in Federal Courts Chart Uncertain Path

By Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

On January 22, 2009, just days after assuming the presidency, Barak Obama announced that he would close the Guantanamo Bay, Cuba, detention facility where hundreds “suspected terrorists” have been held for years without trial under an official Bush-administration created designation “enemy combatant.” Civil libertarians and prominent constitutional scholars have long advocated the closure of the facility while political conservatives have fought hard in the trenches to keep the internationally-criticized torture facility open.

A liberal policy think tank called Center for American Progress, a staunch ally of the Obama administration, charged in a recently released report that the administration has made a series of blunders following the President’s January 22nd Gitmo closure announcement. The report, authored by Ken Gude, a scholar for the Center, says these blunders will delay Gitmo’s ultimate closure for months. The most significant blunders, the report charged, was the administration’s failure to have enough people in place to handle the difficult closure process and misleading Congress about its intentions.

The Obama administration assigned two task forces to deal with the Gitmo dilemma: one to examine the overall “detention policy” of suspected terrorists and the second to review the files of more than 200 detainees to determine whether they should be prosecuted in federal civilian courts or by military commissions. The most high-profile of these “enemy combatants” were Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks who has been in custody since March 2003, and four of his co-conspirators—all of whom will now be tried in the United States District Court in the Southern District of New York based on a recent decision by U.S. Attorney General Eric Holder.

Just last month President Obama signed the Military Commissions Act of 2009 (officially titled the 2010 National Defense Authorization Act) which changes—but some would argue does not actually improve—the rules governing the military commissions created in 2006 to hear terrorism cases. In 2006 then-Sen. Obama, and 33 other U.S. senators, voted against the “military commission’s law,” calling it a “flawed document” that ran counter to American values. (more…)

November 13, 2009

NO ACCOUNTABILITY FOR PROSECUTORS GONE ROGUE

Filed under: Houston Criminal Lawyer — Tags: , , , , , — johntfloyd @ 3:59 am

Absolute Immunity from Civil Liability, Accountability for Prosecutors

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

The primary ethical and legal duty of a criminal prosecutor is to serve the interests of justice—not their personal interests of winning at any costs as is too often the case with a many prosecutors. This was made clear in October 2008 in the federal prosecution of then-Senator Ted Stevens (R-Alaska) for high-profile corruption charges. The federal prosecutors in the case were determined to bring down one of the most powerful lawmakers in this country—at any costs. D.C. District Court Judge Emmet Sullivan lambasted those prosecutors at the time saying that in his 25 years on the bench he had “never seen mishandling and misconduct like what I have seen” in Sen. Stevens’ case. The federal judge was so incensed at the prosecutorial misconduct that he appointed an outside attorney named Henry Schuelke to investigate the Stevens prosecutors for possible “criminal contempt.” The matter was essentially resolved when current U.S. Attorney Eric Holder requested, and secured, a reversal of Sen. Stevens’ conviction from Judge Sullivan earlier this year.

But the legal and political fallout from the Stevens case lingers in the federal judiciary.  Last month in a meeting with members of the federal Judiciary’s Criminal Rules Advisory Committee Assistant U.S. Attorney Larry Breuer informed the committee that while the Justice Department had implemented “new measures” to ensure that federal prosecutors fulfill their responsibility to disclose any potentially exculpatory information to the defense, the Department would stand firm against expanding the Brady disclosure requirements under Rule 16 of the Federal Rules of Criminal Procedure.  Why?  Do they seek justice or hide it?

Writing in www.mainjustice.com, Joe Palazzolo said that Breuer presentation was a rebuttal to an earlier request by Judge Sullivan urging the committee to consider amending Rule 16 requiring federal prosecutors to “turn over all exculpatory information to defense lawyers in criminal cases.” Sullivan informed the committee that “such a rule would eliminate the need for the court to enter discovery orders that simply restate the law in this area, reduce discovery disputes, and help ensure the integrity and fairness of criminal proceedings.”

Former Harris County District Attorneys Johnny Holmes and Charles “Chuck” Rosenthal left a deplorable legacy of prosecutorial misconduct involving cases where prosecutors not only withheld clearly exculpatory information but fabricated evidence, including the knowing use of perjured testimony, to secure criminal conviction—even in death penalty cases. The administration of these two former district attorneys, which spanned nearly 30 years, was proud of their “win-at-any-costs” philosophy that ultimately morphed into unofficial policy. And things really have not improved much under current “reform” District Attorney Pat Lykos who took office earlier this year. One of her prosecutors was recently discovered hiding potentially exculpatory information in a sexual assault case. The alleged victim had initially identified her attacker as being “black” but he actually turned out to be white. This information was apparently deliberately withheld from the defense attorneys involved in the case. (more…)

November 7, 2009

THE RIGHT TO AN IMPARTIAL TRIAL STRUCK WITH CRITICAL BLOW

Filed under: Child Abuse Crimes Lawyer — Tags: , , , — johntfloyd @ 4:17 pm

Failure to Strike Prosecutor, Victim of Sex Crime, from Jury not Ineffective Assistance of Counsel

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

The Sixth Amendment to the United States Constitution guarantees every criminal defendant a right to an impartial trial. 1/ Selecting a jury of twelve men and women to hear a criminal case is perhaps the most critical stage in the trial process where a defense attorney must provide effective representation. He has a pool of prospective jurors representing a cross-section of the community from which to select the people who will hear the facts and fairly consider the case. This jury pool is a minefield of human experiences that range from concealed bias and prejudice to open fairness and impartiality. The task of the defense attorney is to navigate through the minefield without exploding a mine that will injure his client’s opportunity for an impartial trial.

The constitutional guarantee of an impartial trial, in all actuality, begins with voir dire—a French term meaning “to speak the truth.” Voir dire is a pre-jury selection phase of the trial during which the prosecution and defense are afforded an opportunity, under the strict supervision of the trial judge, to question prospective jurors to determine if they are qualified and suitable to serve on a jury. These questions are often initially influenced by the questionnaires prospective jurors are required to fill out before the voir dire gets underway.

Texas criminal procedure grants ten peremptory challenges—the right of either party to exclude a potential juror for any reason or no reason at all so long as the challenge is not use to discriminate on the basis of race, gender, or ethnicity—to both the prosecution and the defense in non-capital felony cases and capital cases in which the State does not seek the death penalty. If two or more defendants are jointly tried, each defendant and the prosecution are entitled to six peremptory challenges. 2/

A defense attorney must utilize these peremptory challenges in a judicious manner. They are generally exercised when the attorney detects, either through direct responses from the prospective juror to specific questions or from mere instinct honed by years of trial practice, that a prospective juror is biased in a very specific sense or harbors prejudices in a general sense against particular defendants. And a defense attorney in Texas does not have a lot of time to make these calls. Most judges impose very restrictive time frames for completing the voir dire examination—ranging from twenty minutes to an hour. It is critical, therefore, that an attorney be thoroughly prepared before he/she enters the jury selection arena. (more…)

October 30, 2009

TEXAS ATTORNEY DISCREDITS SPIRIT OF LEGAL PROFESSION

Filed under: Homicide Crimes Lawyer — Tags: , , , , — johntfloyd @ 11:09 pm

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

We’re not in the habit of criticizing fellow criminal defense attorneys, but, and unfortunately, we feel compelled to discuss the antics of Mr. David Martin, of Corsicana, Texas, recently displayed on nationwide television. Martin was Cameron Todd Willingham’s defense attorney during Willingham’s August 1992 capital murder trial. Willingham had been charged with intentionally setting fire to his Corsicana, Texas house in December 1991 which killed his three small children. Martin was appointed to defend Willingham who maintained from the outset that he was innocent of starting the fire that killed the three children.

The evidence presented at Willingham’s is listed below:

1. State arson experts testified to the effect that Willingham poured a combustible liquid on the floors throughout his house and intentionally set it ablaze which resulted in the death of his three children (twin girls aged 1 and a third daughter aged 2) by acute carbon monoxide due to smoke inhalation.
2. An expert witness specifically testified the floors, front threshold, and front concrete porch were burned, and that this can only occur when an accelerant has been purposely used.
3. Neighbors testified that Willingham “crouched down” in the front yard as the house began to smolder and refused to heed the neighbors’ pleas for him to make some effort to recuse the children.
4. Neighbors also testified that when the fire “blew out” windows in the house, Willingham “hollered about his car” and ran to move it away from the fire so that it would not be damaged.
5. A firefighter at the scene testified that Willingham was upset because his dart board had been burned in the fire.
6. Another neighbor testified that the morning after the fire, Christmas Eve, Willingham and his wife pored through the fire debris while laughing and playing loud music.
7. Witnesses testified that Willingham did not display any grief for the loss of his children either at the fire scene or at the hospital later that night.
8. A “jailhouse snitch” testified that Willingham told him that he killed his children to cover-up prior abuse of them. 1/

Absent the testimony of the state’s fire experts, there was no real evidence that Willingham committed the crime. It was the state’s expert arson testimony that convicted Willingham of capital murder and resulted in the death penalty being imposed.

As Willingham’s state and federal appeal remedies drew to a close in November 2003, his family contacted a prominent, Cambridge-educated fire scientist from Austin, Texas named Gerald Hurst. The family persuaded this expert to examine the state’s arson evidence to determine if it was reliable. Skeptical at the outset, Hurst nonetheless undertook the pro bono task of reviewing the Willingham evidence. He was astonished not only by the evidence relied upon by the state experts but the procedures they utilized to draw the conclusions they presented to the jury; namely, that the fire had been intentionally set and Willingham was the only person capable of setting it. (more…)

October 26, 2009

DISTRACTED DRIVING - A MENACE TO SOCIETY

Filed under: Homicide Crimes Lawyer — Tags: , , , , , — johntfloyd @ 1:32 pm

Death Cause by Distracted Driving While on Cell Phone Leads to Conviction for Negligent Homicide

By Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair.

It was an emotional crime, to be sure. The father of the daughter convicted of the crime now no longer believes in the criminal justice system, and the convicted daughter still does not believe she committed a crime at all—even though the 25-year-old father of a child is dead because of the daughter’s behavior.

The daughter is 24-year-old Jeri Montgomery who was recently convicted in Harris County for the offense of criminally negligent homicide. Assistant District Attorney Brent Mayr prosecuted the case. The prosecutor convinced a jury that Montgomery committed the homicide against Chance Wilcox in March 2008 when she illegally changed lanes while trying to get on an interstate highway resulting in a fatal three car pileup. Mayr presented evidence, through Montgomery’s cell phone records, that the woman had just terminated a cell phone conversation when she realized she was about to miss the on-ramp to the interstate and abruptly changed lanes in front of Wilcox.

“She [Montgomery] made the decision to talk on her cell phone,” Mayr was quoted as saying in the Houston Chronicle. “That distracted her from knowing where she was, where other cars were around her, and, ultimately, she made the choice to make an extremely negligent decision and the jury found it was criminal negligent.”

U.S. Transportation Secretary Ray LaHood last month called “distracted driving” a “menace to society” which killed nearly 6,000 people last year and injured a half-million more. The two leading causes of “distracted driving” are talking on cell phones, as Montgomery was doing, and texting while driving. USA Today reported recently that some 38 states have either enacted legislation or are currently considering pending legislation that would ban these forms of distracted driving. (more…)

October 24, 2009

DOMESTIC VIOLENCE - A SENSITIVE SUBJECT TO APPROACH

Filed under: Houston Criminal Lawyer — Tags: , , , , , — johntfloyd @ 1:50 pm

October is Domestic Violence Awareness Month: Friends and Family Need to Get Involved to Stop the Cycle of Abuse, Save a Life

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

This past August Christiana “Tina” Guerra Lewis became another statistic; a victim of a social epidemic far more deadly than the HINI virus. The night before her death, according to the Houston Chronicle, Lewis asked her mother to go with her the next day to get a restraining order against R.P., a man with a lengthy criminal record with at least two dozen arrests including an assault on a family member and injuring a child.

Lewis did not live to see the next day.  She became one of the every three women murdered each day in this country by their spouses or intimate partners, according to a recent Chronicle op-ed article by Rebecca L. White, president and CEO of the Houston Area Women’s Center, and James L. Postl, former CEO of Pennzoil Quaker State. Police charged that R.P. stabbed Lewis numerous times in the neck in her trailer residence in Channelview.

R.P. has a long history of domestic violence. He was committed to the Texas Department of Criminal Justice on at least four occasions, the last commitment being for an assault on a family member. He came from a family environment of domestic violence. In 2000 his mother was convicted of killing her live-in boyfriend by dropping a 40-lb cinder block on his head.

While the Lewis family told the Chronicle that Lewis was probably unaware of R.P’s extensive criminal record and history of domestic violence, she was aware of his propensity for violence. The Chronicle reported that four days before R.P killed her, he broke into Lewis’ residence, beat her up, raped her, and stole money from her. He warned her not to call the police, threatening to kill her family if she did. She didn’t. She even refused to go to the hospital for treatment, telling a sister: “For what? They’re not going to do anything.” (more…)

October 16, 2009

STOP AND FRISK

Filed under: Houston Criminal Lawyer — Tags: , , , — johntfloyd @ 10:18 pm

Increased Use of Stop and Frisk Leads to Increased Constitutional Abuses, Legitimizes Racial Profiling

By: Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair

Law enforcement officials claim “stop and frisk” is one of their most effective crime prevention practices. Civil libertarians, however, claim that “stop and frisk” is being used as another racial profiling tool against hundreds of thousands of innocent citizens each day across the country. The Associated Press recently released statistics showing that law enforcement stop and question more than one million people each year in the nation’s largest cities—a figure that reflects a sharp increase in the use of “stop and frisk” over the past few years. The AP figures revealed that most of the individuals stopped and frisked were black and Hispanic men, most of whom were innocent of any criminal wrongdoing.

The fact that the “stop and frisk” practice often targets racial minorities who have not violated any law does not deter New York City Police Commissioner Raymond Kelly from being an ardent and vocal supporter of the practice. The Commissioner informed AP that his officers will stop as many as 600,000 individuals this year alone but will arrest only 10 percent of them.

“This is a proven law enforcement tactic to fight and deter crime, one that is authorized by criminal procedure,” he told AP.

But the New York figures are indeed troubling. AP reported that of the 531,159 people stopped by the city’s police department in 2008, 51 percent were black, 32 percent were Hispanic, and 11 percent were white. Even more troubling is the fact that New York City police stopped five times as many people in 2008 than they did in 2002.

David Harris is a law professor at the University of Pittsburgh. As an expert on stop and frisk, Harris has become increasingly troubled by the practice because it yields very few weapons, drugs or evidence of any crime. (more…)

October 14, 2009

WHO ARE THE REAL HOME GROWN TERRORISTS?

Filed under: Anti-Terrorism Lawyer — Tags: , , , , — johntfloyd @ 3:24 pm

Right-Wing Patriot Groups, White Supremest, Neo-Nazis Pose Growing Threat

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

The mainstream media over the past two weeks has been saturated with an endless stream of stories about Najibullah Zazi, a suspected Afganhani terrorist reportedly involved in a plot of bomb New York City’s mass transit system; Michael Fenton, an American converted to Islam who allegedly planted and attempted to trigger a fake vehicle bomb in front of a Springfield, Illinois federal court building with the help of undercover FBI operatives; and Hosam Maher Smadi, a Jordanian who also allegedly planted and attempted to trigger a fake vehicle bomb at a Dallas skyscraper with the help of undercover FBI operatives. All three allegedly terrorist plots were exposed by the FBI this past September following the arrests of these individuals.

These three individuals—all of whom were linked to what some in the media refer to as “radical Islam”—have become the most recent faces of the term “home grown terrorism” in the United States. It has become almost second nature for Americans to associate virtually every threat of terrorism with the religion of Islam. But do radical jihadists pose the greatest threat of terrorism in this country?

James G. Cummings is not a household name in America. He is certainly not as well known as Zazi, Fenton or Smadi. He was shot to death by his wife on December 9, 2008. Two months later an FBI field intelligence report from the Washington Regional Threat and Analysis Center was posted online by WikiLeaks which revealed that “radioactive materials” had been removed from Cummings’ Belfast, Maine home following his shooting death.

“On 9 December 2008, radiological dispersal device components and literature, and radioactive materials, were discovered at the Maine residence of an identified deceased [person] James Cummings,” WikiLeaks quoted the intelligence report as saying.

The report listed the following “dirty bomb” making materials found at Cummings’ residence: four 1-gallon containers of 35 percent hydrogen peroxide, uranium, thorium, lithium metal, thermite, aluminum powder, beryllium, boron, black iron oxide, and magnesium. In addition to these materials, the report stated that literature about how to construct a “dirty bomb” and other information about radioactive materials (cesium-137, strontium-90 and cobalt-60) were found at the residence. (more…)

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