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

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

November 30, 2008

THE WAR ON TERROR ENJOYS RECENT VICTORIES

Filed under: Anti-Terrorism Lawyer — Tags: Hamas, Holy Land Foundation, Muslim, Terrorist, war on terror — johntfloyd @ 1:12 pm

Government Finally Reaches the Holy Land in Complex Case of Providing Financial Support to Terrorist

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

America has a disposition toward war. The nation was created through war, and except for brief periods of respite, America has been at war with itself and other countries throughout its history. When not at war with other nations, America has found a need to declare “war” on one social ill after another, particularly over the last five decades. Beginning with President Lyndon Johnson’s “war on poverty” through President George W. Bush’s “war on terror” following 9/11, government officials have consistently used a war slogan to justify one social crusade after another.

In 2007 we wrote in this column (under the title “The Holy Land Foundation Verdict”) about the efforts of the Bush administration, as part of its “war on terror,” to convict the Holy Land Foundation of Texas for terrorism-related activities. We will revisit some of the historical background of that column as a lead into this one.

Under its original name Occupied Land Fund, the Holy Land Foundation was established in California in 1989 by Ghassan Elashi and other Palestinian Activists. The purpose of the Foundation was to provide assistance to Palestinians displaced by a Palestinian uprising against Israel’s occupation of the West Bank and Gaza. The uprising became known as the “intifada.” The most aggressive resistance in the intifada came from the Iranian-backed organization called Hamas which had been established in 1987. The political leader of Hamas, Mousa Abu Marzook, was married to Elashi’s cousin.

Three years later, in 1992, Holy Land moved its headquarters to Richardson, Texas. The Foundation came under the scrutiny of the governments of the United States and Israel the following year. An Illinois businessman named Muhammad Salah detained in Israel informed authorities that Holy Land, which had become America’s largest Muslim charity, was actually a front for Hamas. While he later claimed that he had provided information to the Israelis under torture, he told the authorities that Marzook, who was living in the U.S. at the time, had actually funded the creation of Holy Land with hundreds of thousands of dollars of start-up money. (more…)

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November 23, 2008

RIGHT TO EXPUNCTION OF CRIMINAL RECORD UNDER § 55.01

Filed under: Houston Criminal Lawyer — Tags: Expunction, judicial clemency, no billed, order of nondisclosure — johntfloyd @ 3:14 pm

Erasing Criminal Records After Dismissal, Acquittal, Pardon or False Identification

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Criminal Defense Lawyers often get call from potential clients wanting their criminal records expunged/destroyed. However, the expunction statute in Texas is very specific and applies only to records of arrest when a case against a defendant is dismissed with no probation, no billed by a grand jury, acquitted by the trial court or the court of criminal appeals or the result of identity theft.

Individuals who cases were dismissed after successfully completing a deferred adjudication are not entitled to an expunction. However, they may have there criminal records hidden from public view if the criminal court issues an order of nondisclosure after the applicable waiting periods have expired. A order of nondisclosure prevents release of the information to the public but does not prevent disclosure to law enforcement and other state agencies. Orders of Nondisclosure are governed by Texas Government Code Sec. 411.081.

Expunctions:

Texas Code of Criminal Procedure Art. 55.01 provides:

(a) A person who has been placed under … arrest for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged if:

(1) the person is tried for the offense for which the person was arrested and is:
(A) acquitted by the trial court, …; or
(B) convicted and subsequently pardoned; or

(2) each of the following conditions exists:

(A) an indictment or information charging the person with commission of a felony has not been presented against the person for an offense arising out of the transaction for which the person was arrested or, if an indictment or information charging the person with commission of a felony was presented, the indictment or information has been dismissed or quashed, and: (more…)

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November 19, 2008

RIGHT TO KEEP AND BEAR ARMS

Filed under: Federal Defense Attorney — Tags: gun control, handguns, right to Bear Arms, Second Amendment, self-defense — johntfloyd @ 4:43 am

Supreme Court Discusses “Pre-Existing Right” to Keep and Bear Arms

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

There have been several recent national news reports concerning the dramatic increase in the sale of firearms, particularly in Texas, since the election of Barack Obama as the next president of the United States. The day after Obama was elected, the Cheaper than Dirt gun store in Fort Worth, Texas sold $101,000 worth of merchandise. Guns stores throughout Virginia have reported that sales have increased by 50 percent since Election Day. The FBI reported that by October 26, 2008 there were 62,000 more background checks for gun purchases than in October 2007 – a 25% increase.

There is an unbridled fear among gun advocates that President-elect Obama has some “secret” plan to disarm America. This fear exists despite a ruling by the United States Supreme Court on June 26, 2008 upholding a decision by the United States Court of Appeals for the District of Columbia, Parker v. District of Columbia, 478 F.3d 103 (D.C. Cir. 2007), that struck down a longstanding ban on the possession of handguns in the District of Columbia. See: District of Columbia b. Heller, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008).

The Second Amendment to the United States Constitution provides: “A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

The language of this amendment has been the subject of constitutional interpretation since its adoption on September 17, 1787. Over the last three decades the meaning of the Amendment has been one of the most hotly debated social and political issue in America. Two basic interpretations have evolved from this debate – both of which were put squarely before the Supreme Court in Heller.

Gun control proponents argue that the Second Amendment protects only the right to possess and carry a firearm in connection of with militia service. (more…)

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November 14, 2008

YES WE CAN

Filed under: Death Penalty Crimes Lawyer, Federal Crimes Lawyer — Tags: Barack Obama, death penalty, domestic surveillance, prison, torture, war on terror — johntfloyd @ 4:19 am

Now what do WE Do with It

By Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair

The “election” is over. Former Illinois Senator Barack Obama is now President-elect Obama. While it was a tremendous victory for the “Audacity of Hope” movement, it was an even greater victory for those who believe that social justice, racial tolerance, political unity, and strong presidential leadership are needed for this nation to heal its daunting economic woes and restore its proper role as moral leader in the world community.

While 48 percent (and 57% of the white voters) of the 131 million people who cast votes in the presidential election did not vote for President-elect Obama, the Illinois Senator told them in his victory acceptance speech that he heard their concerns and would be their president as much as he would be the president of those who voted for him. The nation desperately needs that kind of inclusive leadership.

Yes we can. This nation must find the political will and moral courage to thoroughly reject political partisanship, to find ways to protect the retirement savings of the elderly, to stymie the ruthless pace of home foreclosures, to make the power brokers on Wall Street as accountable as the small business owners on Main Street, and to make sure that every citizen in this country has a reasonable opportunity to secure health care coverage.

Yes we can. The American people have spoken, both loudly and clearly. They believe that Barack Obama is the person who can achieve these lofty but attainable goals. All Americans now have a fundamental civic responsibility to support the President-elect as he undertakes the awesome task of making our individual lives better, safer and more productive. Indeed Barack Obama now has the opportunity to be the Roosevelt of the 21st century just as Roosevelt was the Lincoln of the 20th century and Lincoln the Washington of the 19th century – and we believe he has the incredible gift of intelligence, courage and fortitude to not only seize but fulfill this opportunity. (more…)

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November 8, 2008

CAN ONE SPOUSE BE MADE TO TESTIFY AGAINST THE OTHER?

Filed under: Houston Criminal Lawyer — Tags: confidential communication privilege, husband-wife privilege, marital confidences, Spousal Privilege — johntfloyd @ 3:46 pm

The Spousal Privilege in Criminal Cases

By: Houston Criminal Defense Attorney John Floyd and Mr. Billy Sinclair

A potential client of the John T. Floyd Law Firm recently asked if his wife could be compelled to give testimony against him concerning possible criminal conduct. Like any answer to most legal questions, our answer to the potential client was “depends upon the circumstances.”

The United States Supreme Court in 1934 held that “The basis of the immunity given to communications between husband and wife is the protection of marital confidences, regarded as so essential to the preservation of the marriage relationship as to outweigh the disadvantages to the administration of justice which the privilege entails.” Wolfe v. United States, 291 U.S. 7, 14 (1934).

Five years ago prosecutors in Pacific County, Washington found themselves confronted with a “classic” husband and wife privilege situation. Tracy Johnson, a reporter with the Seattle Post-Intelligencer, wrote in a January 2005 story that David and Michelle Knotek lived in a “little red farmhouse” in rural Raymond, Washington. The couple had a 19-year-old nephew and two “boarders” living with them. All three eventually turned up missing. The Knotek’s daughters, reported Johnson, had “disjointed memories” of their parents beating the nephew and the boarders about the head, forcing them to take medication, and making them do outdoor chores in the extreme cold without any clothes on.

Prosecutors began talking to the daughters after the body of one of the boarders turned up in the Knoteks’ back yard. Forensic experts could not determine a cause of death and blood found in the Knoteks’ farmhouse could not be identified. The bodies of the nephew and other boarder were never found.

Prosecutors knew they had a triple homicide on their hands. But they also feared that they could not prove first degree murder in a courtroom because neither David nor Michelle Knotek could be compelled to testify against the other.
“[This] was a classic case where the husband saw the acts of the wife, the wife saw the acts of the husband, and everyone knew we couldn’t use the testimony of either one of them,” Assistant Attorney General Brian Moran told the Post-Intelligencer. (more…)

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November 4, 2008

PROSECUTORIAL OVERCHARGING

Filed under: Uncategorized — Tags: aggravated robbery, child pornography, double jeopardy, Murder, PROSECUTORIAL OVERCHARGING — johntfloyd @ 6:38 pm

Multiple Counts, Lesser-Included Offenses and Double Jeopardy

By Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

One of the quiet abuses in the nation’s criminal justice system is prosecutors overcharging criminal defendants. In their zeal to prosecute and convict, prosecutors file multiple counts against a defendant in a single indictment involving the same criminal conduct knowing – or least possessing the duty to know – that two convictions based on the same conduct will almost always be reversed on appeal. Criminal defense lawyers argue that many prosecutors charge multiple counts against a defendant in an attempt to prejudice a defendant, insinuating that the defendant must have done something to justify the multiple counts. There were two recent examples of this prosecutorial abuse – one involving a Texas case and the other involving a federal case in California.

Jared Daniel Littrell was charged in a multi-count indictment in Potter County, Texas, with felony murder and aggravated robbery. The charges stemmed from a criminal scheme by Littrell and a prostitute to rob a former client of the prostitute. Littrell and the prostitute entered the client’s hotel room where a struggle ensued during which the client was shot and killed. See: Littrell v. State, 2008 Tex. Crim. App. LEXIS 1306 (Tex. Crim. App. Oct. 15, 2008).

The trial judge charged the jury with an instruction that it could convict the Littrell on both counts. The jury did just that, and assessed Littrell’s punishment at 30 years on the felony murder and 25 years on the aggravated robbery conviction. Littrell appealed his convictions contending that the Fifth Amendment’s prohibition against double jeopardy had been violated by his punishment for offenses based on the same conduct. The Amarillo Court of Appeals disagreed, holding that because the murder and aggravated robbery each contained an element the other does not, double jeopardy did not attach. See: Littrell v. State, 2007 Tex.App. 5988 (Tex.App.-Amarillo July 25, 2007). The Court said:

”To prove aggravated robbery as alleged in the indictment, the State had to prove, among other things, the commission of theft coupled with aggravating circumstances; such was not required to prove . . . murder . . . . To prove murder, the State had to establish that an act of appellant caused [the complainant]’s death; that element is missing in . . . aggravated assault [sic] . . . . So, the test espoused in Cervantes [v. State, 815 S.W.2d 569, 571-75 (Tex.Crim.App. 1991)] was met and no problems with double jeopardy arose.” Id. LEXIS at 6. (more…)

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