CRIMINAL JURISDICTION

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

January 30, 2009

JUDICIAL WAR OVER CRACK SENTENCING COMES TO AN END

Filed under: Drug Defense Attorney — Tags: , , , , , — johntfloyd @ 6:45 pm

Moore and Spears: District Courts have Discretion to Reject the 100:1 Crack/Powder Cocaine Ratio

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

Last October we posted a blog entitled “The Judicial Wars Invoked by Crack Sentencing” (Oct. 24, 2008). The blog focused on a judicial tiff between the U.S. Supreme Court and the Eighth Circuit Court of Appeals in the case of James Eric Moore. We are pleased to report that the Supreme Court has finally put this issue to bed in two cases this Term.

This judicial controversy actually began on January 12, 2005 when the Supreme Court issued a controversial ruling that federal district courts were not required to impose precise sentences recommended by the U.S. Sentencing Guidelines. See: United States v. Booker, 543 U.S. 220 (2005). The Court said the Guidelines were advisory in nature, and not mandatory sentencing requirements. Id., at 245-46.

As we reported last October, U.S. District Court Judge Linda Reade, Northern District of Iowa, on November 21, 2005, imposed a term of 188 months of confinement and six years of supervised release on James Eric Moore following a jury conviction for possession with intent to distribute crack cocaine. Relying upon the recent Booker decision, Moore asked Judge Reade to impose a sentence below the one recommended by the Guidelines. The judge replied:

“With regard to the crack and power cocaine difference, that is the law. I’m applying the law as it currently stands. If that is going to be changed, that is a congressional matter. Congress is the one who looks at the guidelines and decides whether or not they should be put in—in force … It isn’t the judges. It’s the lawmakers, and I have taken an oath to apply the law, and that’s what I will do in this sentencing.” (more…)

January 25, 2009

CSAAS IN TEXAS CRIMINAL TRIALS

Filed under: Sexual Assault Crime Attorney — Tags: , , , , , , — johntfloyd @ 2:07 pm

Rule 702 Expert Testimony v. Bolstering, Child Sexual Abuse Accommodation Syndrome

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

In 1983, Roland Summit in a published paper coined the phrase “Child Sexual Abuse Accommodation Syndrome” (CSAAS). See: 7 Child Abuse and Neglect 177 (1983).Summit’s syndrome set forth five specific characteristics children may exhibit following sexual abuse. Summit intended that CSAAS be utilized by law enforcement and child protective services investigators, as well as clinicians, to explain the coping behavior of children sexually abused by adults. He did not intend for CSAAS to be used, as it has been in some states, as a diagnostic tool to tell juries in criminal trials that sexual abuse has in fact occurred. The five CSAAS characteristics are listed below:

Secrecy – The child is told by adult that the sexual abuse must be kept secret. Secrecy is generally accomplished through threats such as “daddy will go to jail;” “momma will not believe you and will get angry;” or “I’ll kill you and the rest of the family.” Secrecy can also be achieved through positive reinforcement such as “this is our special secret”; or “you must not tell anyone because they won’t understand.”

Helplessness – Sexual abuse instills fear and powerlessness in a child. They feel helpless to stop the abuse. The abuse usually comes from a power figure (a father, uncle, or priest) that make the child feel too vulnerable to stop it.

Accommodation – The demand for secrecy by the abuser and the child’s sense of helplessness can make the child feel trapped in a hopeless situation. She/he, therefore, may create a need to accommodate the abuse which can lead to psychological torment that the victim is somehow the “bad person” who created the abuse.

Delayed Disclosure – More commonly known in the Texas legal system as “delayed outcry,” the child may not disclose the sexual abuse for years because of fear of personal harm, or because of the perceived harm it could cause her/his family, or because of fear that no one will believe her/him. This may cause the child to act out in rage or anger because she/he feels that no one in authority has protected her/him. This can delay the disclosure of abuse for years until there is a period of personal crises in the child’s life or crises within the family unit.

Retraction – Disclosure inevitably creates turmoil. The child may be subjected to disbelief by the outside world, including law enforcement. Shame and humiliation become inevitable psychological byproducts of the disclosure. “The world knows,” the child thinks. And when the “world” does not truly support the child’s disclosure, she/her may retract the sexual abuse allegation. (more…)

January 20, 2009

CHILD PREDATORS AND PUNISHMENT

Filed under: Sexual Assault Crime Attorney — Tags: , , , , — johntfloyd @ 5:53 am

Disparate Treatment of Sex Offenders, Punishment and Public Policy

Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair

“Child predator” is now among the two worst words in the American lexicon. A 42-year-old Houston resident, we will call him John Doe, recently learned as much. According to allegations by law enforcement, the Magnolia High School institutional aide decided last October to look up former students on Facebook from high schools where he had worked.

Law enforcement authorities believe it started out as an innocent venture. But it did not remain innocent. A 16-year-old boy responded to John Doe’s query. John Doe had known the teenager at Westwood High School in the Round Rock school district between 2004 and 2007. Austin Detective Joel Pridgeon said the communications between the school employee and student quickly escalated from innocent online chatting to sexual solicitation.

The Houston Chronicle report about the episode did not disclose how law enforcement got involved in the case. The newspaper briefly reported that John Doe confessed when he was confronted by Pridgeon in Houston. The detective then returned to Austin where he secured a warrant charging John Doe with online solicitation of a minor. The school employee could have been charged under either of the two Texas solicitation of a minor statutes.

First, Texas Penal Code Article 33.021 defines “online solicitation of a minor”:

(a) In this section:
(1) ”Minor” means:
(A) an individual who represents himself or herself to be younger than 17 years of age; or
(B) an individual whom the actor believes to be younger than 17 years of age.
(2) ”Sexual contact,” “sexual intercourse,” and “deviate sexual intercourse” have the meanings assigned by Section 21.01.
(3) ”Sexually explicit” means any communication, language, or material, including a photographic or video image, that relates to or describes sexual conduct, as defined by Section 43.25.
(b) A person who is 17 years of age or older commits an offense if, with the intent to arouse or gratify the sexual desire of any person, the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, intentionally:
(1) communicates in a sexually explicit manner with a minor; or
(2) distributes sexually explicit material to a minor.
(c) A person commits an offense if the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, knowingly solicits a minor to meet another person, including the actor, with the intent that the minor will engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the actor or another person. (more…)

January 14, 2009

SAME CLIENT: ANOTHER TRIAL, ANOTHER ACQUITTAL

Filed under: Sexual Assault Crime Attorney — Tags: , , , , — johntfloyd @ 7:24 pm

Client Falsely Accused of Child Sexual Abuse Wins Second Acquittal Against Determined Public Integrity Unit Prosecutor

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

In early 2008 the Harris County District Attorney’s Office launched an investigation into alleged sexual abuse of inmates housed at a county detention facility. It is unclear exactly what prompted the inquiry, but a reasonable assumption can be made that the decision was influenced by the massive media and legislative attention given to evidence uncovered in 2007 by the Texas Rangers about widespread sexual abuse of inmates by staff in the state’s juvenile detention facilities.

Whatever the reason, a former Harris County detention facility officer was indicted between April and July of last year on multiple counts of sexual abuse of three female inmates during the time they were housed at the detention center in 2000. The former corrections officer, who had since become a deputy constable, retained the John T. Floyd Law Firm to represent him on the charges.

Two of the inmates were between 10 and 11 years of age and one was 13 or 14 years of age at the time of the alleged abuse [one instance of alleged sexual intercourse and numerous instances of inappropriate touching]. The teenage victim had already given birth to one of her six illegitimate children and was pregnant with the second at the time of the alleged abuse. All three victims had long histories of lying (even by their own admissions), drug use, stealing, and serious psychological disorders. The sexual abuse allegations by one of the former inmates against our client were thoroughly investigated in 2000 by detention center staff, the Houston Police Department and the District Attorney’s Office. The three law enforcement agencies determined the allegations were not credible, and, in fact, the alleged victim ultimately recanted the allegation, admitting that she had lied against our client in this particular instance and other instances just to “get him in trouble.”

Nonetheless, the District Attorney’s Office in 2008 determined that this thoroughly investigated and recanted sexual abuse allegation, as well as the other similar allegations of sexual abuse leveled against our client in 2000, warranted criminal prosecution. Our client bravely stood trial in September 2008 on the most serious sexual abuse allegation [aggravated sexual assault of a child]. The victim, who is now an adult with a substantial criminal history, testified about the alleged sexual assault. The assistant district attorney prosecuting the case made a serious tactical blunder: she relied almost exclusively on the victim’s testimony which, in Texas, is sufficient alone to sustain a criminal conviction in sexual assault cases involving minors. (more…)

January 10, 2009

NO RIGHT TO SUE INTERNET SEX SERVICE

Filed under: Houston Criminal Lawyer — Tags: , , , — johntfloyd @ 8:18 pm

Looking for Love in all the Wrong Places, Turning a Blind Eye

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

SexSearch is an “online adult dating service.” It charges a fee to assist its paid members in their search of sexual encounters. An Ohio gentleman identified only as John Doe became a “Gold Member” of SexSearch in October 2005 for a fee of $29.95 per month. John Doe accepted the “Terms and Conditions” of the website which included a “promise” that he was at least 18 years of age.

Jane Roe was also a “Gold Member” of SexSearch in October 2005. She had likewise agreed to the “Terms and Conditions” of the website, attesting that she was at least 18 years of age. In fact, she stated in her “profile” that she was born on June 15, 1987.

John Doe and Jane Roe met online through SexSearch. Jane Roe was apparently a generous spirit. She wanted sexual adventures. That’s why she paid SexSearch the $29.95 Gold Member fee. She apparently seized the opportunity to invite John Doe to her home on November 15, 2005. The Ohio couple engaged in mutually agreeable sex on three occasions after that first invitation.

But at some point in December 2005, for some reason, Jane Roe notified the local police that she was only fourteen years of age and had been sexually involved with the older John Doe. Faced with this serious criminal threat to social order, the local police on December 30, 2005 armored up, rushed to John Doe’s home, surrounded it, and demanded that the criminal menace surrender immediately. (more…)

January 8, 2009

STANDARDS OF PROOF

Filed under: Houston Criminal Lawyer — Tags: , , — johntfloyd @ 7:28 pm

Reasonable Doubt; Foundation of a Free Society

By: Houston Criminal Lawyer John Floyd and Mr. Billy Sinclair

Every one has heard of the phrase “proof beyond a reasonable doubt.” But there are three primary standards of proof: preponderance of evidence; clear and convincing evidence; and reasonable doubt. Black’s Law Dictionary (8th Ed. 1990) provides the definitions of each in order of importance:

Preponderance of the Evidence: the greater weight of evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Clear and convincing evidence: Evidence indicating that the thing to be proved is highly probable or probably certain. This is a greater burden than preponderance of the evidence, the standard applied in most civil trials, but less than evidence beyond a reasonable doubt, the normal in criminal trials.

Reasonable doubt: The doubt that prevents one from being firmly convinced of a defendant’s guilt, or the belief that there is a real possibility that the defendant is not guilty. ‘Beyond a reasonable doubt’ is the standard used by a jury to determine whether a criminal defendant is guilty. In determining whether guilt has been proved beyond a reasonable doubt, the jury must begin with the presumption that the defendant is innocent.

(more…)

January 2, 2009

ONLINE SOLICITATION OF A MINOR

Filed under: Child Abuse Crimes Lawyer — Tags: , , , , , — johntfloyd @ 5:35 pm

Online Solicitation of a Minor Statutes and Free Speech

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

In 2005 the Texas Legislature enacted Article 33.021, Texas Penal Code, which prohibits “sexually explicit” communications between someone who is 17 years or older and someone who “represents himself or herself to be younger than 17 years of age.” Some respected legal bloggers have opined that such online sexually explicit “communications” may violate the First Amendment’s guarantee of free speech.

Existing case law, however, indicates this will be a difficult constitutional violation to establish. A First Amendment challenge to a criminal statute must be based on two established constitutional doctrines: overbreath and vagueness. First, “the overbreath doctrine prohibits the Government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process.” Ashcroft v. Free Speech Coalition, 535 U.S. 234, 255 (2002).

Although similar, the vagueness doctrine is not identical to the overbreath doctrine. A criminal statute runs afoul of the First Amendment for vagueness if it “forbids or requires the doing of an act in terms so vague that [persons] of common intelligence must necessarily guess at its meaning and differ as to its application.” See: Connally v. General Constr. Co., 269 U.S. 385, 391 (1926)

The issue of whether § 33.021 violates either doctrine has not been addressed by either the Texas Court of Criminal Appeals or the federal courts. But it should be pointed out that § 33.021 is similar to 18 U.S.C. § 2422(b) which prohibits: (more…)

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