CRIMINAL JURISDICTION

Houston Criminal Defense Attorney Discusses Latest Developments in FLDS case and the Beginnings of a Grand Jury Investigation

A West Texas grand jury sitting in Schleicher County heard testimony from a few of the dozens of witnesses subpoenaed to testify concerning allegations made by the Attorney General’s Office that members of the Fundamentalist Church of Jesus Christ of Latter Day Saints forces underage girls into “spiritual marriages.”

The grand jury probe stems from the April 2008 military-styled raid on the Yearning for Zion Ranch in Eldorado during which the State’s Child Protective Services and law enforcement authorities, including the Texas Rangers, forcefully seized custody of the 467 children – two-thirds of whom were five years of age or younger – and placed them in state foster care. CPS officials immediately began issuing irresponsible public statements and leaking erroneous information to the media that dozens of the teenage girls had been impregnated through forced spiritual marriages, had been subjected to other forms sexual abuse, and that other children had been subjected to physical abuse.

During hearings conducted in mid-April before San Angelo County District Court Judge Barbara Walhter, CPS paraded into court with a number of witnesses carrying volumes of documents who could not substantiate a single incident of either sexual or physical abuse. That a state agency would conduct itself in such an incompetent manner was disturbing enough but that a state court judge would permit its court to be turned into a carnival venue for such a spectacle was nothing short of astonishing.

Two courts of review - the Third Circuit Court of Appeals and the Texas Supreme Court – agreed. They reversed Judge Walhter’s ruling that upheld CPS’ decision to place the children in state foster care. The two appellate courts in May ordered the FLDS children returned to their parents. The decisions were not only a rebuke of CPS’ handling of the case but they were also a reasonable, rational reinforcement of the natural parent-child relationship so honored in the State of Texas throughout its storied history. (more…)

Houston Criminal Defense Attorney John Floyd Discusses the U.S. Supreme Court’s Decision in Boumediene v. Bush, The Balance of Powers

In a sharply divided 5-4 ruling, the United States Supreme Court recently extended the privilege of the writ of habeas corpus to “detainees” held Guantanamo Bay, Cuba – commonly referred to as “Gitmo.” The decision marked the first time in the court’s history that it has ruled that non-citizens held in custody by the United States in a territory over which another country has de jure sovereignty enjoys the protection of the Constitution.

The far-reaching implications of this decision not only drew blistering criticism from the four dissenting justices – most notably Justice Antonin Scalia – but triggered a firestorm of debate among politicians and media pundits (many of whom now consider themselves an indispensable component of any social discussion) about its potential impact in the “war on terrorism.” Anticipating this sort of intense political and social reaction, the majority in two of its concluding paragraphs tried to allay these concerns by saying:

“Our opinion today does not undermine the Executive’s powers as Commander in Chief. On the contrary, the exercise of these powers is vindicated, not eroded, when confirmed by the Judicial Branch. Within the Constitution’s separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the executive to imprison a person. Some of these petitioners have been in custody six years with no definitive judicial determination as to the legality of their detention. Their access to the writ is a necessity to determine the lawfulness of their status, even if, in the end, they do not obtain the relief they seek.

“”Because our Nation’s past military conflicts have been of limited duration, it has been possible to leave the outer boundaries of war powers undefined. If, as some fear, terrorism continues to pose dangerous threats to us for years to come, the Court might not have this luxury. This result is not inevitable, however. The political branches, consistent with their independent obligations to interpret and uphold the Constitution, can engage in a genuine debate about how best to preserve constitutional values while protecting the Nation from terrorism.” See: Boumediene v. Bush, 553 U.S. _____ (2008), Slip Opinion Nos. 06-1195 and 06-1196.
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Houston Criminal Defense Attorney John Floyd Discusses Bush Administrations “Torture” Policy and Downstream Consequences

In 1994 America ratified a treaty entitled “Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.” This treaty defined “torture” as “ … any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession,” when it is “inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”

In May 2008 the U.S. Justice Department’s Office of Inspector General released a report that revealed American military and intelligence officials have engaged in severe interrogation tactics against terror suspects since September 11, 2001. The OIG report said that FBI agents observed and at times participated in these interrogations. As a rule the law enforcement agency was uncomfortable with the harsh methods used by CIA and military interrogators to extract information from terror suspects. The FBI observed the following of what it described as “detainee treatment” at Quantanamo Bay:

• Beating or physically abusing a detainee
• Prolonged shackling and stress positions
• Sleep deprivation or sleep disruption
• Extreme temperatures
• Use of working dogs
• Isolation
• Mistreatment of the Koran
• Touching or acting toward a detainee in a sexual manner
• Use of bright flashing lights or loud music
• Use of duct tape on detainees
• Forced shaving
• Withholding medical care
• Forced cell extractions
• Placing women’s clothing on a detainee
• Transfer to another country for more aggressive interrogation
• Threatened transfer to another country
• Threatening a detainee’s family
• Depriving a detainee of food and water
• Depriving a detainee of clothing
• FBI impersonation

The FBI observed the following “detainee treatment” in Afghanistan:

• FBI knowledge of detainee beating deaths
• Beating, choking, strangling, or other abusive handling of detainees
• Sexually abusive or humiliating contact
• Abusive body cavity searches
• Stressful or painful positions or calisthenics
• Deprivation of clothing
• Hooding or blindfolding
• Sleep deprivation or interruption
• Undocumented “Ghost” detainees
• Actual or threatened transfer to a third county
• Isolation of detainees
• Impersonation of FBI agents

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Houston Criminal Attorney John Floyd Discusses Perjury, Obstruction of Justice and the Barry Bonds Case

Barry Bonds was 21 years of age when he joined the Pittsburgh Pirates in 1986. He was lean, mean, and fast – and certainly not considered a fearsome home run slugger. During his first seven years in the majors, he averaged 25 home runs a year. Then in 1998 St. Louis Cardinals first baseman Mark McGuire eclipsed Roger Maris’ record of 61 home runs in a season by pumping out 70 home runs. The following year Bonds showed up for spring training with the San Francisco Giants with a “bulked up” upper body. In 102 games that year, he still managed to hit 39 home runs. In 2000, Bonds appeared in 143 games and the new “Giant slugger” hammered out 49 home runs. The following year Bonds’ “ballooned up” upper body looked awkward in what appeared to be match-stick legs but it was enough for him to easily breezed by McGuire’s record with 73 home runs. During his last seven full playing seasons (not including 2005 in which he played only 14 games and hit a meager 5 home runs), Bonds averaged 44 home runs.

Most home run kings hit more home runs during the early years of their careers than in the final years. For example, major league home run king Hank Aaron averaged 31 home runs a season during his first seven years in the majors while averaging 28 a season during his final seven years; and Willie Mays averaged 35 home runs during his first seven years while averaging only 18 during his final seven years.

With home run power displays becoming a fixture in major league baseball,  beginning in 1998 with the Mark McGuire and Sammy Sosa’s chase to break the Babe Ruth/Roger Maris 60-61 home run records and culminating with Bonds’ 73 home run performance in 2001, rumors began to swirl inside and outside of Major League Baseball that rampant performance enhancing drug use was corrupting the cherished sport.

In 2003 the federal government was investigating what became known as the “Balco steroids ring” – the Bay Area Laboratory Co-Operative in San Francisco which was owned and operated by Victor Conte. In September of that year federal agents conducted a raid on Conte’s lab and seized documents that, according to the San Francisco Chronicle, included the “doping calendars,”  “drug regime,” and “payment records” for performance enhancement drugs used by Barry Bonds. The documents also included “positive” tests results for steroid use against Bonds in 2000, the year before he hit his record-breaking 73 home runs. (more…)

Swift Justice?  Houston Criminal Defense Attorney John Floyd Opines on the FLDS Debacle

This column has examined the FLDS case extensively since the military-style raid on the Yearning for Zion Ranch in Eldorado, Texas on April 3, 2008. There are two things that stand out about this tragic case: First, the raid was totally unnecessary and most certainly unlawful; and, second, the financial cost to the state of Texas is a staggering $7 million and the emotional cost to the FLDS parents and children is immeasurable.

Texas residents were from the very beginning outraged at the sight of grieving mothers having their children – a total of 468, two-thirds of whom were 5 years of age or younger – snatched from their bosom. Equally outrageous was the fact that the state’s Child Protective Services on April 17 and 18 waltz into a court of law amidst national media attention and presented its “evidence” to justify the decision to remove these children from their parents and place them in foster care. It was a pathetic spectacle. A state district court endorsed the spectacle by approving CPS’s actions.

But on May 22, 2008 the Third Circuit Court of Appeals in Austin overturned the decision by San Angelo County District Judge Barbara Walters who had ruled that CPS had presented adequate evidence that the FLDS children were in “immediate danger” of physical and sexual abuse at the YFZ ranch which warranted their removal from the custody of their parents and their placement in foster care. The Texas Supreme Court upheld the appeals court decision on May 29, 2008.

And what was this “evidence” of “immediate danger”? Nothing except that CPS believed the children were in such danger of abuse because of a “pervasive belief system” by FLDS church members that girls can, and should, get married at the age of puberty. CPS did not present an iota of evidence that FLDS members at the YFZ ranch practiced this religious tenet. CPS did not present an iota of evidence that any underage child had been forced into “spiritual marriage” as it had indicated through leaks to the media. CPS did offer evidence that five teenage girls had been impregnated – presumably at the YFZ ranch. It was conceded by CPS that these pregnancies had occurred when the girls were 15 or 16 years of age. Until 2005, it was lawful for a teenage girl with parental consent to marry at 14 and the current age for parent consent marriage is 16. The five marriages that produced these pregnancies, therefore, could have been legal under Texas law. CPS did not offer any evidence that the pregnancies occurred as a result of some unlawful “sexual assault” by an older FLDS members, as had been repeatedly suggested through media leaks. (more…)