June « 2009 « CRIMINAL JURISDICTION

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

June 30, 2009

THE DNA FALLOUT CONTINUES

District Attorney’s Office of the Third Judicial District v. Osborne; U.S. Supreme Court Blocks Ability for Wrongfully Convicted to Prove Innocence

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

George Rodriquez spent 17 years in the Texas prison system for a crime he did not commit. He was 26 years of age in 1987 when he was wrongfully convicted by a Harris County jury for the rape of a 14-year-old girl. The jury based its decision on a critical piece of forensic evidence; a pubic hair found in the victim’s underwear. A serologist with the Houston City Police Department’s Crime Lab determined that the pubic hair did not belong to another suspect in the rape case, Isidro Yanez. The serologist testified at Rodriquez’s trial, saying that while his forensic testing ruled out Yanez, it did not rule out Rodriquez.

Seventeen years later DNA testing established that the pubic hair in fact belonged to Yanez and not to Rodriquez. Rodriquez was released from prison in 2004. The Harris County District Attorney’s office refused to declare Rodriquez “actually innocent” of the crime. That official refusal to acknowledge his innocence precluded him from receiving a pardon and being awarded state compensation for his wrongful confinement. He filed a federal civil rights suit against the City of Houston and a federal court jury on June 25, 2009 awarded him $5 million dollars in damages for the 17-year wrongful imprisonment.

The Rodriquez case has not been the only Texas DNA case is the news lately. Two men convicted in the infamous 1991 Austin “yogurt shop” murder case were recently released on bond from jail. The convictions of the two men, Michael Scott and Robert Springsteen, were reversed several months ago on appeal after DNA tests on the state’s evidence indicated the presence of an unknown suspect. Attorneys for the two men say the presence of DNA evidence of the unknown suspect exonerates their clients. Prosecutors do not agree. They believe the new evidence only indicates that yet another person was involved in the crime; therefore, prosecutors plan to continue their prosecution of Springsteen and Scott for the murders of the four teenage girls killed during the robbery of the Austin yogurt shop.

These two Texas cases illustrate the potentially devastating impact of a recent U.S. Supreme Court decision in an Alaska case that held state prisoners do not enjoy a constitutional right to post-conviction access to the State’s evidence for DNA testing. 1/ (more…)

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June 23, 2009

A DEFENSE ATTORNEY IN THE HEAT OF BATTLE

Filed under: Child Abuse Crimes Lawyer, Sexual Assault Crime Attorney — Tags: child sex crime, child sexual abuse, juror misconduct, mistrial — johntfloyd @ 12:03 pm

Rule 606(b) of the Texas Rules of Evidence; Conducting Inquiry into Juror Misconduct

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

Johnny Ray Ocon was put on trial in Ector County, Texas for the crime of aggravated sexual assault of a child. Sex offense cases involving children are the most difficult for a criminal defense attorney to try. Defense attorneys must be very careful and thorough during the voir dire of prospective jurors to identify any hidden biases a juror may harbor in such cases. It is not always easy to sift through an individual juror’s personality in the short period of time, and with a limited number of questions, to identify and isolate any prejudices the juror may have against the defendant.

Ocon’s attorney conducted a diligent and comprehensive voir dire of several dozen prospective jurors before twelve were chosen to hear the case against Ocon. Those twelve jurors took a solemn oath to be fair and impartial. Like most defense attorneys at the conclusion of voir dire and after the jurors were sworn, Ocon’s attorney knew there were probably a couple jurors who would not approach the case with an open mind despite their sworn duty to do so. But the attorney had put forth his best effort to select the kind of fair and impartial jury to which his client was entitled under both the federal and Texas constitutions.

But nothing throughout the jury selection process had prepared Ocon’s attorney for what he would encounter on the second day of the trial. During a brief recess, the attorney entered the men’s restroom in the county courthouse. He overheard someone in the next stall talking on a cell phone. The following are portions of the conversation the defense attorney heard:

Brenda – They’ve got me on this damn jury … I don’t know why the hell they picked me … I would rather be on a double ax murderer then [sic] this damn case … It’s dirty, disgusting … No, unless we convict the bastard today, then I’m kind of stuck here. (more…)

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June 20, 2009

U.S. SUPREME COURT LIMITS VEHICLE SEARCHES

Filed under: Drug Defense Attorney — Tags: drugs, marijuana, unreasonable search, vehicle searches, warrantless search exception — johntfloyd @ 1:59 pm

Arizona v. Gant, 129 S.Ct. 1710, (2009); Vehicle Searches after Arrest

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Consider the following hypothetical. Two patrol officers with the Houston Police Department were following a Cadillac in an area known for gang and drug activity. Loud music was coming from the vehicle as it swerved several times from lane to lane. The officers decided to stop the vehicle for failure to maintain a single lane of traffic. In Texas, a law enforcement officer may lawfully stop a person for a traffic law violation. 1/

Once such a lawful investigative stop has been made, the law enforcement officer may temporarily detain a motorist if the officer has reasonable suspicion based upon clear facts which, when combined with reasonable inferences from those facts, permits the officer to conclude that a person detained is, has been, or soon will be engaged in criminal activity. 2/

The two officers that stopped the Cadillac approached the vehicle from different sides. One officer stopped at the driver’s side window while the other stopped at the rear passenger side of the vehicle. Both officers smelled a strong odor of marijuana and the officer at the driver’s side spotted an open bottle of tequila on the seat next to the driver.

At that point the officers had probable cause to arrest the driver for an open container violation. But they did not do so. Instead they instructed the driver to exit the vehicle. While the driver had not been arrested at this juncture, the two officers made a decision to search the vehicle based on the smell of marijuana. (more…)

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June 17, 2009

DNA CHICKENS COME HOME TO ROOST

Filed under: Sexual Assault Crime Attorney — Tags: child predator, child sex crime, DNA, rape, Texas justice, Wrongful Conviction — johntfloyd @ 3:11 am

City of Houston Sued; Disgraced Crime Lab on Trial After Wrongfully Convicted Man Exonerated After 17 Years in Prison

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

George Rodriquez was a 26-year-old young man in 1987 when he was convicted of raping a 14-year-old girl in Harris County. A critical piece of evidence that led to his conviction was a pubic hair found in the girl’s underwear. A serologist with the Houston City Police Department’s crime lab, who we now know had a history of fabricating evidence to suit local prosecutorial and law enforcement needs, determined that the hair did not belong to a suspect named Isidro Yanez but the serologist did not eliminate Rodriquez as the owner of the hair. Seventeen years later DNA, which was not used as evidence in criminal trials in 1987, established that the hair in fact belonged to Yanez and not to Rodriquez.

At age 43 Rodriquez was released from the Texas prison system to be embraced by three daughters who had grown up while he was wrongfully imprisoned. He was able to visit the grave site of his deceased father who had not survived long enough to see his son vindicated. It was indeed a hard 17-year ordeal. There is no comfort for innocent men in prison—not even from their fellow inmates, especially if they have been convicted a sex offense against a child. The “sex offender” stigma places these individuals at the bottom of the prison subculture. The only real support they have are family members who refuse to accept the validity of the “criminal conviction” imposed upon their loved one.

It’s now payback time. George Rodriquez is now appearing before a local federal court where his attorney Barry Scheck, co-director of New York’s Cardozo School of Law’s Innocence Project, is demanding that the City of Houston to pay his client “tens of millions” of dollars in damages for the 1987 wrongful conviction. In his opening statement in U.S. District Court Judge Vanessa Gilmore’s courtroom, Scheck told jurors: “We will prove a false and misleading serology report violated [Rodriquez’s] constitutional right to a fair trial.”

Scheck announced his intention to call former Harris County District Attorney Johnny Holmes and former Houston Police Chief Lee Brown as witnesses. Attorney Robert Cambrice, who is representing the City of Houston, did spare the rod of accountability for Holmes or Rodriquez’s defense attorney. The Houston Chronicle reported (June 17, 2009) that Cambrice laid the blame for Rodriquez’s wrongful conviction “on bad lawyering by the prosecutor and Rodriquez’s late defense attorney that led to the false conviction, not an unquestioned lie by a city employee.” (more…)

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June 11, 2009

THE HARRIS COUNTY CRIMINAL JUSTICE SYSTEM

Filed under: Sexual Assault Crime Attorney — Tags: child molester, child predator, child sex crime, Texas justice, wrongly accused — johntfloyd @ 3:07 am

Past Abuses, Hopes for Better Future

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Three recent stories in the Houston Chronicle exposed serious flaws in the Harris County criminal justice system. The first story concerned a 60-year prison term imposed on Andrew Wayne Hawthorne, a serial child molester. Hawthorne molested an eight year old boy in the fall of 2002. A crime for which a wrongly accused man, Ricardo Rachell, was convicted and sentenced to prison. Ricardo Rachell was convicted for this sexual assault and spent more than six years in the Texas prison system before readily available DNA evidence at the time of his arrest was finally tested and established his innocence.

We have written about this travesty of justice in previously but what disturbed us most about the recent Chronicle article (June 5, 2009; http://www.chron.com/disp/story.mpl/front/6457829.html ) were the photos of Rachell and Hawthorne. Rachell’s face at the time the photo was taken, and as it appeared at the time of his arrest and subsequent conviction, was horribly disfigured by a shotgun blast. There is no way these two men could have been mistaken for each other.

Unless, of course, the child victim was influenced into making the mistaken identification by someone bent on revenge and who was convinced that the disfigured Rachell, a neighborhood “freak,” was the man who molested the boy. The Houston Police Department accepted the child’s mistaken identification without any meaningful independent investigation to determine if the identification was correct. As a result, an innocent man spent six years in prison for something he didn’t do – and even with his innocence established through DNA testing, he will forever have the haunted memories of years in Texas prison labeled as a child sex offender.

The second Chronicle story (June 6, 2009) involved the release of a U.S. Justice Department report that found poor access to health care in life-threatening situations, unnecessary use of physical force, denial of mental health care, and inattention to suicide prevention violates the constitutional rights of inmates in the Harris County Jail. (more…)

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June 7, 2009

A GLIMPSE AT THE NATION’S DRUG PROBLEM

Filed under: Drug Defense Attorney — Tags: cocaine, Crack, drugs, Illegal drugs, prison industrial complex — johntfloyd @ 2:56 am

20:1 Crack/Powder Ratio Still Flawed; Incarceration of Most Drug Offenders Absurd and Obscene

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

In May 2007 the U.S. Sentencing Commission sent a report to Congress recommending that the 100:1 sentencing ratio in crack/powder cocaine cases be reduced to 20:1. The 100:1 ratio under the U.S. Sentencing Guidelines required federal district courts to treat one gram of crack cocaine as the equivalent of 100 grams of powder cocaine. That disparate sentencing scheme created thousands of horrendous miscarriages of justice in the federal sentencing process with all sorts of ugly racial implications. Crack cocaine offenders, disproportionately African American, were routinely punished 100 times more severely than powder cocaine offenders.

In November 2007 Congress approved the 20:1 ratio amendment suggested by the Sentencing Commission—a modification designed to reduce the disparity between crack/powder cocaine sentences. But the official reasoning of the 20:1 ratio is just as flawed as was the 100:1 ratio. It just as offensive, with its inherent racial disparity, to punish crack cocaine offenders 20 times more severely than powder cocaine offenders as it was to punish them 100 times more severely.

The month after Congress adopted the 20:1 ratio the U.S. Supreme Court gave this Sentencing Guidelines (“Guidelines”) amendment more legal force in the case of Derrick Kimbrough. In the Kimbrough case the court held a sentence imposed within the Guidelines could be unreasonable because of disparity between crack and powder cocaine sentencing recommendations.

Section 3582 of Title 18 of the United States Code allows federal inmates who believed they had received unreasonably harsh sentences for crack cocaine offenses to file for a reduction of their sentences following the 2007 amendment. Hundreds, if not thousands, immediately did so. (more…)

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June 3, 2009

JUICED BY THE DESIRE FOR FITNESS

Filed under: Drug Defense Attorney — Tags: Anabolic steroids, drugs, fitness, Illegal drugs, JUICED, STEROIDS — johntfloyd @ 2:49 am

Addiction to Pumping Iron and Juicing Leads to Massive Arrests in Houston Area and Ft. Bend County

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

It was billed by raiding law enforcement officials as the “largest drug operation” in Fort Bend County history. The stark, glaring headlines and the “perp walks” would lead one to believe that a violent Mexican drug cartel had just been “busted” in Fort Bend County.

But that wasn’t the case. The “drug operation,” coined Operation “Farmacia de Juicy Phruit,” involved about six dozen personal fitness trainers and body builders who sold human growth hormones, anabolic steroids, Hydrocodone, and Ecstacy in area fitness centers. The mass arrests, which included a Houston firefighter (as if the Houston Fire Department needed more adverse publicity), culminated a two-year investigation led by the U.S. Drug Enforcement Administration and Fort Bend County Sheriff Milton Wright. Fifty-one of those arrested were booked on state charges while the remaining 22 were indicted on federal charges, including money laundering and conspiracy to possess, distribute and manufacture a controlled substance.

“The investigation started here with the sheriff’s office and we ended up following it to other areas where they were bringing in raw products, or were connected otherwise,” DEA special agent Zoran Yankovich told the media. “And it led us into California, Indiana, Louisiana, Georgia, and internationally where raw products were being imported from Mexico, Canada and China.”

Now the primary targets of the investigation face a 46 count federal indictment, a maximum period of incarceration of 20 years and forfeiture of all property and money traceable to their alleged crimes. A stiff price to pay for the endless pursuit of getting bigger and better. (more…)

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