CRIMINAL JURISDICTION

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

March 31, 2009

A TEXAS BIGAMY DEFENSE

Filed under: Child Abuse Crimes Lawyer — Tags: , , , , , — johntfloyd @ 1:48 am

The Constitutional Implications of Lawrence v. Texas on the Texas Bigamy Statute

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

The State of Texas will probably experience of series of bigamy trials stemming from the mass arrests made in the “infamous FLDS case” last year. The John T. Floyd Law Firm has been asked on a number of cases if there is a legitimate constitutional challenge to the Texas bigamy statute. See: Tex. Penal Code, § 25.01.

This answer to this question must necessarily begin with an analysis of a 2006 decision by the Utah Supreme Court, which rejected a litany of constitutional challenges to that state’s bigamy statute, and compared to the Texas statute. See: Utah v. Holm, 137 P.3d 726 (UT 2006), cert. denied, 127 S.Ct. 1371, 167 L.Ed.2d 159 (2007).

Rodney Hans Holm was convicted in Utah for bigamy and unlawful sexual conduct of a minor. He was legally married to Suzie Stubbs in 1986. As a member of the Fundamentalist Church of Jesus Christ of Latter-day Saints (FLDS), he participated in a “religious marriage ceremony” with Wendy Holm. At age thirty-two, Holm participated in yet another “religious marriage ceremony” with the sister of Suzie Stubbs, sixteen-year-old Ruth Stubbs. Ruth moved into Holm’s house where Suzie, Wendy, and their children already resided. By the time Ruth turned eighteen, she had conceived two children with Holm. Id., at 730.

Holm was arrested, charged with three counts of unlawful sexual conduct with a minor, and charged with one count of bigamy. The jury returned a guilty verdict on each of the charges, and Holm was sentenced to five years on each conviction, with the sentences to be served concurrently, and fined $3,000.00. The sentences and fine were suspended conditioned on three years probation, one year in the county jail with work release, and two hundred hours of community service. Id., at 731-32. (more…)

March 25, 2009

FLDS REVISITED: ONE YEAR LATER

Filed under: Child Abuse Crimes Lawyer — Tags: , , , , , — johntfloyd @ 11:56 pm

Aftermath of the Texas CPS Raid

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

In the fall of 2003 members of the Fundamentalist Church of Jesus Christ of Latter Day Saints (“FLDS”) arrived in Eldorado, Texas. They purchased a 1700-acre ranch four miles outside of town. They called it the “Yearn for Zion Ranch” (“YFZ”). More members arrived. They constructed a mammoth temple and created their own community. They lived in peace.

While rumors circulated about in nearby Eldorado that the FLDS was a “polygamist cult” with older men taking multiple teenage girls as wives, there was no evidence of any criminal wrongdoing at the ranch. That is, until March 29, 2008 when a deranged African-American woman pretended to be a 16-year-old former FLDS resident twice impregnated by an older man and called a local domestic violence hotline saying she had been sexually and physically abused at the YFZ ranch. Women at the crisis center took this egregious false report to law enforcement, including the Texas Rangers, and the fires of one of the largest and most costly religious witch-hunts in Texas history were lit. There was no controlling the massive law enforcement and child protective services stampede that ensued.

Five days after the Rosita Swinton false report to the domestic violence hotline, the Texas Rangers and local law enforcement agencies, supported by Texas Child Protective Services (“CPS”), launched a massive, military-style raid on the YFZ compound. They threatened and generally terrorized the approximately 700 people living at the ranch, including more than 400 children. They conducted searches of all the buildings on the compound, including the temple. They seized documents and arrested people—all without any reasonable probable cause.

But worst of all, CPS seized and removed 439 FLDS children from the lawful custody of their parents. CPS had no legitimate cause, and certainly no legal authority, to sever the cherished child-parent relationship. While a local judge, apparently influenced by local politics and a mindset similar to CPS workers, held that the removal of the children was legal, she was quickly reversed by a state appeals court that pointed out just how flagrantly she had violated Texas family law. (more…)

March 22, 2009

THE RACHELL REPORT

Filed under: Sexual Assault Crime Attorney — Tags: , , , , , — johntfloyd @ 1:09 pm

Harris County District Attorney’s Office Discloses “Cascading, System-Wide Breakdown” Led to Wrongful Conviction and 6 Years Imprisonment of Innocent Man

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

On December 14, 2008, we posted a blog titled The Conflicting Faces of Crime. One of those faces involved the wrongful conviction of Ricardo Rachell in 2003 for the aggravated sexual assault of an eight year old boy. Rachell was released from custody in December 2008 after he was exonerated by DNA evidence. The Harris County District Attorney’s Office and the Houston Police Department undertook a joint investigation to determine what went wrong in the Rachell case. On March 12, 2009, the two law enforcement agencies released the “Rachell Report” (“report”) which concluded that Rachell’s wrongful conviction was the result of a “cascading, system-wide breakdown.”

The “breakdown” in the Rachell case actually began outside the system. The report states that on Sunday, October 20, 2002, the eight year old boy “was observed running down Griggs Road, waving his hands in the air and crying.” An elderly man went to the child’s aid by taking him to Wyatt’s Cafeteria. Two women then took the boy home. The child did not convey to any of these people that he had been sexually assaulted. “He just stated that a man had a knife and was trying to kill him,” the report said. He did not provide a description of the attacker to these witnesses either.

Once home, patrol officers from the police department were summoned. The boy told these officers that a man had tried to kill him. The report does not indicate if the boy told these patrol officers the man had either tried or had actually sexually assaulted him. The report only stated that:

“The details he gave officers that night was that he was offered ten dollars to pick up trash and the man took him on the man’s bicycle. The location where he was abducted was the 3700 block of Southlawn. Those first officers did speak with the Complainant’s six year old friend who was with him just before the suspect took Complainant on his bike. The six year old also conveyed that the Complainant was offered ten dollars to pick up trash and was on a bicycle. The only description of the suspect in the offense report is that he was an unknown black male, age 30.” (more…)

March 16, 2009

COLD SHOULDER FROM LUBBOCK OFFICIALS IN COLE CASE

Filed under: Sexual Assault Crime Attorney — Tags: , , , , , — johntfloyd @ 6:27 pm

DNA Exonerations: Improper Eyewitness Identification Procedures and Poor Police Work; A Deadly Combination

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

Dying in prison is a sad, tragic affair. Timothy Cole died in a Texas prison in 1999 from asthma complications. He was 39 years of age. The prison’s health care officials notified the security staff of the inmate’s death. In all likelihood, a prison guard escorted an inmate orderly to Cole’s “bunk” where his blanket and sheets were stripped from a thin plastic-covered mattress. The guard used a master key to open a commissary-purchased combination lock on a foot locker that contained Cole’s “personal belongings.” The orderly sorted through the items to separate “state-issued” property from Cole’s personal belongings (letters, legal files, photos, etc.). The state and personal items were placed in separate plastic trash bags. The meager items in those trash bags represented the sum total of a man’s life in prison.

Timothy Cole was twenty-six years old in April 1985. He was a student attending Texas Tech University in Lubbock. It was a difficult time for both the city and the university community. A serial rapist had sexually assaulted five women dating back to December 1984. The police had developed a profile of the rapist: African-American, chain smoker (Winstons being his brand of choice), wore a terry cloth shirt and jeans (and sometimes tong sandals), approached women alone as they exited their vehicles, armed with a small pocket knife during the attacks, drove the women to remote areas where he raped them in their vehicles, talked incessantly about racism at Texas Tech University, stole their money and jewelry, and fled the attack scenes on foot.

The fifth woman raped was Michele Mallin. It was March 25, 1985. The 20-year-old Tech student had pulled her ’79 Cutlass Supreme into the eastern edge of a Methodist church parking lot located across the street from the university campus. She parked there because she didn’t have a student parking pass. It was 10:00 p.m. The night temperature had turned cool. But she was comfortable in her sweat suit as she prepared to get out of her car. She was approached by an African American man wearing a yellow terry cloth shirt, jeans, and tong sandals. The medium built man had short curly hair and bulging eyes. His demeanor and appearance did not arouse any suspicion in Mallin. He asked her something about some jumper cables. She pointed to the taillights of another car, suggesting they might be able to help him.

The black man did not say anything. He stood there watching as the other vehicle pulled out of the parking lot. He then turned quickly to Mallin’s car door and yanked it open. He jumped into the vehicle, pushing the student into the passenger seat. She recovered immediately, pulling at the attacker’s curly hair and biting deep into his thumb. He cursed and pulled a knife as Mallin continued to kick at him. He grabbed her into a headlock and threatened to kill her with the knife. It was at that point when Mallin realized the attacker had a knife. She ceased resisting. The attacker drove her car slowly out of the church parking lot and headed for the outskirts of Lubbock where there were no city lights. (more…)

March 15, 2009

CAPITAL PUNISHMENT:

Filed under: Death Penalty Crimes Lawyer — Tags: , , , — johntfloyd @ 1:45 pm

AN INDICTMENT BY A DEATH ROW SURVIVOR

By: Billy Sinclair

I am pleased to announce, through the website of the John T. Floyd Law Firm, that my wife, Jodie, and I have recently released our second book, Capital Punishment: An Indictment by a Death Row Survivor. Released by the prestigious publishing house Arcade Publishing (New York), Capital Punishment is a collection of fourteen essays that examines the entire spectrum of the subject of the death penalty: its methods of executions, its Southern regional phenomenon, its racism, its tortuous botched executions, and its impact on our society.

Capital Punishment is not an academic study. The death penalty is told through the human drama it inevitably creates: the persons put to death, those put them to death, and those who tried to stop it. When Jodie and I decided to write my prison memoir, A Life in the Balance: The Billy Wayne Sinclair Story (Arcade Publishing, New York 2000), we did so with one overriding objective—to tell as honestly and realistically as possible the story of one man’s struggle to survive inside one of the nation’s most brutal and violent prisons, the Louisiana State Penitentiary. We would like to believe that we were true to that literary objective. The media critics thought we were as the following book reviews suggest:

Associated Press – “A hopeful tale of an unbreakable human spirit.”

New York Times Book Review – “A numbing tale of crime, punishment, and redemption.

Boston Globe – “Well researched, persuasive, and morbidly compelling … Sinclair’s firsthand account of life in prison offers an authentic, sometimes grisly narrative.”

New Orleans Times-Picayune – “What Sinclair’s book does most eloquently is to tell us how little we know about justice.’

Loyola New Orleans Magazine – “Louisiana’s corrupt prison system, sex, violence, and a mismatched love story unfold in the nonstop, gut-wrenching pages of … a seamless narrative.”

Publishers’ Weekly – “A powerful tale, and readers will be shaken by the sorrow, greed, and corruption they encounter in it.”

But we approached the writing of Capital Punishment with a completely different literary objective. We had an obvious biased objective from the outset. We tell the reader as much in the “Preface” of the book. We both strenuously oppose the death penalty, and as individuals and authors, we have often spoken out against it and published written opposition to it. But first and foremost we are journalists. Jodie earned a master degree in journalism from the prestigious Columbia University School of Journalism and was an award-winning television journalist for many years who witnessed the execution of Gary Lockhart in Huntsville in 1997. I was the recipient of the highly acclaimed George Polk and Sidney Hillman journalism awards writing about death penalty as co-editor of the THE ANGOLITE, the newsmagazine of the Louisiana State Penitentiary. (more…)

March 13, 2009

BOOK RELEASE

Filed under: Death Penalty Crimes Lawyer — Tags: , , — johntfloyd @ 5:05 pm

CAPITAL PUNISHMENT:
AN INDICTMENT BY A DEATH ROW SURVIVOR

By: Houston Criminal Defense Lawyer John Floyd

I am happy to announce the release of another book by my good friends Billy and Jodie Sinclair entitled Capital Punishment: An Indictment by a Death Row Survivor, released by Arcade Publishing (New York). The book is a compelling collection of essays commenting on the death penalty from many different perspectives about this controversial and, in my opinion, most despicable, inhumane and arcane of punishments that continues to thrive in this so called modern world.

I have always been an opponent of the death penalty. I first seriously considered the issue in 1987 when I was in college and was required to do a research paper on the subject. Our assignment was to look at the death penalty objectively from both sides. It was the type of project typical of a freshmen government class intended to force the student to examine both sides of a controversial issue in order to appreciate its pro and con policy arguments. I was shocked when I came across a pro-death penalty article which attempted to do a cost/benefit analysis on the issue. The author supported the death penalty even after factoring in the variable that perhaps 30 innocent people had been executed. This study concluded that the cost of 30 innocent souls being executed was outweighed by the benefits derived from the death penalty, namely deterrence and justice/revenge for the crime victim’s friends and families.

I guess until that point in my life, I had never seriously considered the possibility that innocent people might be found guilty and sentenced to death. I had certainly never considered the horrid possibility that such innocents would have been executed.

That was enough for me. In my naïve state as a college freshman, I had single handedly concluded that the death penalty was immoral simply because an innocent person might be executed. Simple and straight forward, huh?

As I continued my college education, my opposition to the death penalty only solidified, but the reasons for that opposition remained basically the same. From my vantage point it was intrinsically immoral to exact the most serious, final and irrevocable punishment, if the system could not guarantee that innocent people would not be executed. (more…)

March 9, 2009

THE PERILS OF POWER

Filed under: Houston Criminal Lawyer — Tags: , , , , — johntfloyd @ 6:33 pm

Power Corrupted and the Struggle for the Rule of Law

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Harris County District Attorney Pat Lykos recently announced that local defense attorneys will be provided with copies “offense report(s)’ prepared by police in criminal cases. This new policy in Harris County, which should have been standard practice for years, is slowing making its way to the court rooms.  Of course, the policy comes with caveats such as confidentiality agreements, redactions etc.  This disclosure policy removes another corrupt vestige from the era of former District Attorney Charles “Chuck” Rosenthal—an era when suppression of favorable evidence, perjured testimony, manufactured evidence, and corruption of forensic evidence passed for the “rule of law” as his assistant district attorneys competed in a “conviction at any cost” prosecutorial environment.

There is no way to gauge how many innocent people were sent to prison, or possibly executed, during the administrations of the two previous Harris County District Attorneys: Chuck Rosenthal and Johnny Holmes. What can be gauge, however, is that both district attorneys, especially Rosenthal, operated with such a “hang ‘em high” prosecutorial mentality that a sense of “above the law” entitlement existed in all ranks of the district attorney’s office. That “above the law” sense of privilege became so ingrained that Rosenthal himself saw nothing wrong with using his office computers to carry on an inner-office romance and share racist and pornographic emails with friends.

We recently opined in an article (posted Feb. 25, 2009) about how an unbridled exercise of judicial power led to federal district court judge Samuel Kent pleading guilty of an obstruction of justice charge and Court of Criminal Appeals Chief Judge Sharon Keller being charged with judicial misconduct. Both of these judges were renowned in the legal community for not only their disrespect of judicial decorum but their disregard for the established rule of law.

Power is indeed a dangerous thing in the hands of the wrong people.

This was made clear by the recent disclosure that five days before George Bush left the Oval Office and departed for the exclusive Dallas neighborhood where he now rides his bicycle, his Justice Department rescinded a 2001 legal memorandum prepared by one of its attorneys, John Yoo, advising the president that the military could search any home in America without a warrant if the homeowner was designated as a “suspected terrorist.” The Yoo memo essentially conveyed to President Bush that he, as the nation’s commander in a time of war, had the unlimited power to treat terror suspects as an “invading army.” (more…)

March 5, 2009

UN-INDICTED CO-CONSPIRATOR(S): AN UNNECESSARY STIGMA

Filed under: Anti-Terrorism Lawyer — Tags: , , , — johntfloyd @ 6:09 am

The Right Wing and the Council on American-Islamic Relations; No Due Process for the Unindicted

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

What exactly is a un-indicted co-conspirator?

Attorney Peter R. Rient defined the term as any person the Government alleges “agreed with others to violate the law but who is not charged with an offense and who, consequently, will not be tried or sentenced for his criminal conduct.” 1/

While the “un-indicted co-conspirator” designation may not have immediate legal consequences, it definitely has long term social consequences. As Ira P. Robbins, Bernard T. Welsh Scholar and Professor of Law and Justice, has written: “Although a criminal defendant is presumed innocent until proven guilty and has a Sixth Amendment right to a speedy trial, these procedural protections do little to shield an individual who is identified as an unindicted co-conspirator. Because trials focus on the guilt or innocence of the indicted individuals, the practice of naming an individual as an unindicted co-conspirator in effect accuses the person of a crime without providing him or her with a forum for seeking vindication. Thus, the practice routinely results in injury to their reputations, lost employment opportunities, and a practical inability to run for public office.” 2/

Three decades earlier the Fifth Circuit Court of Appeals in United States v. Briggs came to much the same conclusion: “”[t]the grand jury that returns an indictment naming a person as an unindicted conspirator does not perform its shield function [protecting the innocent] but does exactly the reverse. If the charges are baseless, the named person should not be subjected to a public branding, and if supported by probable cause, he should not be denied a forum.” 3/

That’s precisely what happened to some of the nearly 300 individuals or entities named as un-indicted co-conspirators in the “Holy Land Foundation terrorism case” tried in Dallas last year. One of the groups named as an un-indicted co-conspirator was the Council on American-Islamic Relations (CAIR). This group found itself in the Government’s cross hairs after one of the Holy Land leaders, Ghassam Elashi, who founded the Texas chapter of CAIR and chaired on the Holy Land Foundation, was indicted on terrorism related charges. (more…)

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