CRIMINAL JURISDICTION

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

December 24, 2008

HISD CONSIDERS RANDOM DRUG SEARCHES

Filed under: Drug Defense Attorney, Houston Criminal Lawyer — Tags: , , , , , — johntfloyd @ 3:48 pm

The War on Drugs at School vs. Teachers’ Expectation of Privacy

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

Over the last two months sixteen Houston Independent School District employees, including 11 teachers, have been arrested on drug charges—mostly involving marijuana or prescription drugs found in parked vehicles on school campuses. Two of the employees were arrested twice. Most of the arrests came after anonymous tips, prompting HISD police to use drug-sniffing dogs to hit on narcotics in the vehicles.

“This is a matter of great concern to us and we wanted to make sure that our community understood that we will take whatever action is necessary to make sure our schools are safe,” HISD Superintendent Abelardo Saavedra said in response to the sudden rash of arrests.

Besides pressing for the immediate termination of the arrested employees, Saavedra informed the Houston Chronicle that the school district is contemplating a plan to use drug sniffing dogs to search for narcotics in employee parking lots in every HISD school.

Current HISD policy, according to the Chronicle, only permits random drug tests for bus drivers, police officers, and other security personnel. While the executive director of the Congress of Houston Teachers said he was a little concerned that the drug-dog searches might violate civil liberties, Chuck Robinson minimized his concern by adding that “we have to maintain public confidence and trust in our employees.” (more…)

December 17, 2008

A DISTRICT ATTORNEY’S OFFICE IN NEED OF REFORM

Filed under: Houston Criminal Lawyer — Tags: , , , , — johntfloyd @ 6:05 pm

Ethical Lapses, Forensic Impropriety and Extreme Carelessness; Another Day at the Harris County Criminal Justice Center

By Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair

In October 2002 two young boys were playing together in downtown Houston when they were approached by a stranger who offered them money in exchange for removing some trash. One of the boys, who was eight years of age at the time, was lured into a nearby vacant house and sexually molested by the stranger.

Based on information supplied by the boy’s mother, Houston police officer Lisa Clemmons arrested a neighborhood resident named Ricardo Rachell for the sexual assault. The two boys identified Rachell as the attacker. That identification at the outset should have raised a red flag. Rachell has a terrible facial disfigurement caused by a shotgun blast years earlier. The molested boy did not mention any facial disfigurement to his mother when he initially told her about the sexual assault on the day it happened.

And the boy knew Rachell from seeing him around the neighborhood. The facial disfigurement caused Rachell to drool and he usually had a towel wrapped around his neck to wipe away the drool. While the young victim thought Rachell was “scary,” he did not identify the disfigured man as his attacker until the day after the sexual assault and only after his mother had talked to him about Rachell.

Officer Clemmons apparently did not perceive the significance of the boy’s failure to finger Rachell on the day of the attack. But she did collect biological evidence—clothing and medical swabs—from both the victim and Rachell. However, Rachell’s DNA was not processed so that it could be compared to biological evidence collected from the victim. Had Rachell’s DNA been properly processed and tested, he would not have been wrongfully convicted and sentenced to 40 years in prison in 2003.

In January 2008 Harris County Criminal District Court Judge Susan Brown issued a belated order that Rachell’s DNA be tested. In October the results of that testing disclosed unequivocally that Rachell was not the “stranger” who attack the boy. The wrongfully convicted man was released from custody on December 12, 2008 after six long years of protesting his innocence to anyone who would listen. (more…)

December 14, 2008

THE CONFLICTING FACES OF CRIME

Filed under: Houston Criminal Lawyer — Tags: , , , , , — johntfloyd @ 12:32 pm

Slain Police Officer, Exonerated Convict

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

The front page of the December 13, 2008 Houston Chronicle, in bold headlines, presented a stunning paradox: two tragic, conflicting faces of crime in Harris County. The first face was captured in the headline “A Touching Tribute to Slain Policeman.” The second face was captured by the headline “Freed by DNA to Life as an Innocent Man.” The two faces inevitably evoked a torrent of conflicting emotions in the average reader.

The slain police officer, Timothy Abernethy, was senselessly gunned down while protecting a crime-ridden neighborhood in northwest Houston. A well-respected law enforcement officer and a deeply loved father and husband, the 13-year police veteran was simply trying to protect and serve the community he loved when an ex-felon on parole reportedly shot him in the head at point-blank range in the dangerous Luxor apartment complex.

The cold blooded and senseless nature of Abernethy’s murder shocked and outraged Houston residents who have seen their unfair share of horrendous violence. Letters to the Chronicle editor about the Abernethy killing reflected the community demand for swift justice and absolute retribution for a killer who has a troubled history of violence and criminal behavior. Just hours before killing Abernethy the accused killer was trying to break into the apartment of an estranged girlfriend. This media revelation served only to fuel the community anger against the accused killer.

The man recently freed following DNA exoneration is Ricardo Rachell who was convicted six years ago for the sexual assault of an 8-year-old boy. Terribly disfigured by a shotgun blast to the face, Rachell had always vehemently claimed he was innocent during his six-year wrongful incarceration. He wrote letters to lawyers and judges pleading his case and protesting the 40-year sentence imposed on him but to no avail. (more…)

December 12, 2008

PROBATION ELIGIBILITY: NEW LIMITATIONS

Filed under: Houston Criminal Lawyer — Tags: , , , , , — johntfloyd @ 4:13 am

Texas Juries Can No Longer Recommend Community Supervision When Victim is Child Under 15, Elderly or Disabled

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

Community supervision, or probation as most people know it, has been defined by federal courts as an “imprisonment substitute” because the criminal sentence is not served in a penal institution. See: United States v. Elkins, 176 F.3d 1016, 1020 (7th Cir. 1999).

In the State of Texas community supervision is a privilege, not a right. See: Flores v. State, 904 S.W.2d 129, 130 (Tex. Crim. App. 1995), cert. denied, 516 U.S. 1050 (1996). It is a punishment alternative that must either be agreed to between the state and defendant, ordered by a judge or recommended by a jury.

The Flores court specifically stated that “there is no fundamental right to receive probation [community supervision]; it is within the discretion of the trial court to determine whether an individual is entitled to probation.” Id.

In Texas, community supervision can be granted either by the trial judge or assessed by the jury. See: Tex. Code Crim. Proc. art. 42.12(3)(a); (4)(d).

While there is no fundamental right to community supervision, § 42.12(3)(a) requires that the judge impose community supervision “in the best interest of justice, the public, and the defendant” – all three of which are legitimate government purposes. Flores, 904 S.W.2d at 131.

Similarly, in federal court a district judge may depart from the U.S. Sentencing Guidelines’ prison recommendation and impose probation but only after he/she has considered all the sentencing factors listed in 18 U.S.C. § 3353. See: United States v. Toohey, 448 F.3d 542, 546-47 (2d Cir. 2006).

The discretion of the trial judge in Texas to grant, and the jury’s authority to assess, community supervision are likewise limited by statute. For example, Subsection 3g(a) of § 42.12(3) prohibits the trial judge from granting community supervision: (more…)

December 5, 2008

INEFFECTIVE ASSISTANCE OF COUNSEL IN CAPITAL CASES

Filed under: Death Penalty Crimes Lawyer — Tags: , , , — johntfloyd @ 5:02 am

Failure to Properly Prepare for Trial, Basis for Federal Habeas Relief

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

In 2001 the two female justices on the U.S. Supreme Court spoke out about the quality of legal representation afforded to criminal defendants facing the death penalty in this nation.

“After 20 years on (the) high court,” Justice Sandra Day O’Connor said, “I have to acknowledge that serious questions are being raised about whether the death penalty is being fairly administered in this country. Perhaps it’s time to look at minimum standards for appointed counsel in death cases and adequate compensation for appointed counsel when they are used.”

In April of that year Justice Ruth Bader Ginsburg was more direct in an Associated Press account: “People who are well represented at trial do not get the death penalty … I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-executions stay applications in which the defendant was well represented at trial.”

Before the 2001 public criticisms offered by Justices O’Connor and Ginsburg, three major newspapers had conducted investigations that offered compelling evidence about the deplorable legal representation provided in capital cases. The Chicago Tribune reported on November 15, 1999
that 12% of those condemned to death from 1976 to 1999 were represented by “an attorney who had been, or was later, disbarred or suspended—disciplinary sanctions reserved for conduct so incompetent, unethical or even criminal that the state believes an attorney’s license should be taken away.” The newspaper said that an additional 9.5% had “received a new trial or sentencing because their attorney’s competence rendered the verdict or sentence unfair, court records show.” (Ken Armstrong and Steve Mills, “Inept Defenses Cloud Verdict”). (more…)

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