CRIMINAL JURISDICTION

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

August 29, 2009

REFORM OR INCOMPETENCE: THE PAT LYKOS ERA OFF TO UNCERTAIN START

Filed under: Houston Criminal Lawyer — Tags: , , , , , — johntfloyd @ 6:26 pm

Harris County District Attorney’s Office Administration Begins to Define Itself

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

The Houston Chronicle reported recently in yet another article that a number of veteran prosecutors have departed from the Harris County District Attorney’s Office. Throughout DA Pat Lykos’ 2008 campaign to replace the former district attorney, Charles “Chuck” Rosenthal who was forced to resign in disgrace, rumors dogged the “reform” candidate that, as a criminal district court judge, Lykos had a reputation for being intemperate, rude, and pronged to stirring unrest in both her courtroom and chambers.

Shortly after Lykos defeated Democratic candidate Johnny Bradford last November she promised to “clean house” as the Chronicle reported. Upon taking office, she immediately fired seven “veteran prosecutors” from the Rosenthal era. Some criminal defense attorneys hailed the firings as an indication that the “convict at any costs” prosecutorial philosophy of the Rosenthal administration was coming to an end and a more professional era was on the horizon. Other criminal defense attorneys, most with a lot of experience in the courthouse gang, were not so optimistic.

We accepted Lykos’ promise of reform at face value. In fact, we wrote about the so-called “new era of reform” (“District Attorney Pat Lykos Continues New Era of Reform in Harris County,” April 5, 2009). While, we were glad to see some of the old guard gone, we were not exactly convinced that Lykos’ early prosecutor dismissals were indicators of reform as opposed to old fashion politics. We nonetheless decided to subscribe to a time-honored principle and “give credit where credit is due.”

But then disappointment happened on the road to “reform” that caused us to view Lykos’ “reform” claims with a jaundice eye. She announced with much fanfare in the local media, fulfilling a campaign promise, that the district attorney’s office would make “offense reports” available to criminal defense attorneys. During the previous administrations, a criminal defense attorney had been forced to meet with the prosecutor handling a given case, put on a smiley face of deference, and request permission to hand copy notes from the prosecutor’s file, including offense reports. It was an arduous, time-consuming process—not to mention a sophomoric one—that sustained a perpetual attitude of animosity between defense attorney and prosecutor. (more…)

August 25, 2009

ASKING HARD QUESTIONS TO ARRIVE AT THE APPROPRIATE PUNISHMENT

Filed under: Sexual Assault Crime Attorney — Tags: , , , , — johntfloyd @ 2:27 pm

Judges Should Question Victims, Witnesses, About Offense Before Imposing Punishment

By: Houston Criminal Defense Lawyer John Floyd and Billy Sinclair

Under Texas law, a criminal defendant has the option of allowing either the jury that convicted him or the judge presiding over the trial to assess punishment.

In 2008, Emiliano Escobar, convicted by a jury of the sexual assault of an 18-year-old college student, elected to have 177th Criminal District Court Judge Kevin Fine decide the punishment he should receive. To arrive at a punishment that fit the crime, Judge Fine obviously believed he had a duty to closely question the victim about the nature and circumstances of the alleged sexual assault. At one point during the Judge’s examination of the victim, he commented that “sending a man to prison in the name of law and order is the greatest injustice this society can do.”

We agree. 75 percent of the nearly 250 DNA exonerations in this country over the last two decades involved mistaken eyewitness identification. In Texas, the mistaken eyewitness identification percentage is 82 percent in exoneration cases. Two recent Houston cases, Ricardo Rachell and George Rodriquez, come to mind. Both were wrongfully convicted based on false and/or mistaken eyewitness identification. 1/ Various reputable studies, including a 1996 study by the U.S. Justice Department, report that anywhere from 25 to 40 percent of all rape allegations made in this country are false. 2/

But Houston Chronicle columnist Lisa Falkenberg did not agree with Judge Fine’s questioning of the victim—not just with the manner of the Judge’s examination but more with the fact that he even conducted the examination. 3/ After reading the trial transcript of the Judge’s examination, Ms. Falkenberg conducted a telephone interview with the victim who also believed the Judge had “crossed the line” as she told the newspaper columnist.

Ms. Falkenberg and the victim were particularly disturbed that Judge Fine not only challenged the victim’s version of the events but questioned her detailed description of the actual sexual assault itself. According to Ms. Falkenberg, the victim was “shocked” that Judge Fine found it “odd” the alleged rape actually occurred with the victim on top of Escobar during the sexual intercourse. (more…)

August 23, 2009

2009 CAIR AWARD: ASSISTING THE MUSLIM COMMUNITY

Filed under: Anti-Terrorism Lawyer, Homicide Crimes Lawyer — Tags: , , , , , , — johntfloyd @ 12:33 pm

Pro Bono Legal Representation in Voluntary Interviews, Profiling by FBI

By: John Floyd, Houston Criminal Defense Attorney

On August 15th, 2009, I received an award in recognition of my pro bono work for the Muslim community in Houston. CAIR-TX, Houston Chapter, presented the award upon which was inscribed: “In Recognition of: His personal dedication and committed assistance in providing protection to our community from undue harassment from federal agencies.” The award came after years, and hundreds of hours of pro bono work, representing individuals targeted under the Department of Justice’s voluntary interview program. In almost every case, these individuals were targeted for interview simply because of their religious beliefs, places of worship or country of origin and were not suspected of any criminal activity whatsoever. The voluntary interview program is simply an intelligence gathering effort designed to collect data about the Muslim community in hopes of preventing future acts of terrorism.

Sometime in 2004, I was approached by a fellow lawyer who had been offering his services pro bono to represent individuals targeted for “voluntary” interviews by the FBI and other agencies comprising regional Joint Terrorism Task Forces. He needed some criminal expertise and hoped I could help in what a growing problem in the Muslim community. As I soon realized, the term “voluntary” was somewhat misleading. Voluntary meant you were not under arrest, were probably not the target of a criminal investigation, and could refuse the interview. But, in practical and emotional terms, the process was hardly voluntary.

The agents would approach unsuspecting people at their homes and request entry to ask a few questions. As most legally untrained and intimidated people would do, the agents were allowed in and would begin to ask questions. If the interviewee began to feel uneasy, scared or insulted by the questions and refused to answer, or was intelligent and asked for a lawyer, the agents would persist, normally invoking the old reliable police tactics of “if you don’t have anything to hide or if you haven’t done anything wrong, you don’t need a lawyer and should talk with us.” If the person had resolve and refuse to talk, agents would threaten to begin interviewing neighbors, friends, family and even employers, knowing these threats would normally coerce compliance.

The interviewing agents were sometimes aggressive, insulting and asked questions contrary to the letter and spirit of the principles set out in our great Constitution. It was a new McCarthyism, but this time Big Brother was focused on the Muslim community and, after 911, nobody seemed to care. The common response to these abuses, and other Bush era tactics of terror mongering and the “you’re either with us or against us” propaganda, was fear inspired complicity. (more…)

August 19, 2009

THE MAGIC DNA BULLET LOSES SOME OF ITS LUSTER

Filed under: Houston Criminal Lawyer — Tags: , , , — johntfloyd @ 4:56 pm

Fabricating Fake DNA, Defending the Accused in the New World

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

We have blogged on several occasions in the recent past about the fallibility of forensic evidence, sharing the opinion of others that more often than not it’s “junk science.” However, DNA evidence has generally remained insulated from the ever increasing scientific indictment of forensic evidence in general. Not any more. The New York Times recently reported (August 18, 2009) about a paper published online by the journal Forensic Science Internal: Genetics. Citing this authoritative paper, the Times reported that scientists in Israel have established that it is now possible to fabricate DNA evidence, “undermining the credibility of what has been the gold standard of proof in criminal cases.”

Times reporter Andrew Pollack wrote that “the scientists fabricated blood and saliva samples containing DNA from a person other than the donor of the blood and saliva. They also showed that if they had access to a DNA profile in a database, they could construct a sample of DNA to match that profile without obtaining any tissue from that person.”

That’s scary Orwellian kind of stuff. The Harris County criminal justice system has suffered through nearly a decade of revelations about how the Houston City Police Department’s Crime Lab routinely fabricated forensic evidence to secure convictions and long term sentences in sexual assault and capital murder cases. DNA evidence was the “silver bullet” that frequently came to the rescue in these cases and resulted in the exoneration of innocent individuals framed by the Harris County District Attorney’s office and the Houston crime lab. There have been at least six such cases, and defense attorneys say there are probably hundreds more in the Texas prison system.

We know the Government not only lies but routinely suborns perjury on a regular basis, especially in terrorism, narcotics and organized crime cases. Defense attorneys must now face the very real prospect that in high profile criminal cases, such as those involving “terrorism” and national security, the Government could literally manufacture a crime scene with the fabricated DNA evidence to convict suspected “home-grown” terrorists, drug cartel kingpins, and Mafia bosses. This is not just idle speculation by a criminal defense attorney with a vested interest. (more…)

August 18, 2009

HOUSTON ATTORNEY ANDY NOLEN: A DISHONEST LAWYER?

Filed under: Houston Criminal Lawyer — Tags: , , , , , — johntfloyd @ 12:51 am

False, Anonymous Web Attacks on Fellow Members of the Harris County Bar; Unethical and Pathetic

By Houston Criminal Defense Lawyer John Floyd

This is a difficult and unfortunate article to post. It is about a fellow attorney: Andy Nolen, or someone associated with the law firm that carries his name. This Houston “criminal defense attorney,” as he calls himself, has been responsible for posting negative “comments” on the Yahoo Local websites about various Harris County criminal defense attorneys, including myself.

Nolen attempts to disguise these assaults on the professional character of fellow lawyers by using fictitious names. But, after a simple investigation, it is obviously apparent that Nolen’s firm has entered into a concerted campaign to slander others lawyers to promote his own website. Unfortunately, this appears to be a strategy not uncommon to Nolen.

Andy Nolen resides in a downtown high rise, where, according to property records, he owns two condo units. Residents say he has been a source of continuous discontent with the Home Owners Association in that building. The HOA has been forced to fine Nolen (after numerous warnings) for repeated violations of home owner rules.

This past May, Nolen created a website registered under his name with a P.O. address in Sunnyvale, California to fight the HOA. This site is highly critical of the building and the HOA. Nolen’s website has posted a series of racially charged and inflammatory anonymous “comments” obviously designed to provoke racial discord within the building. Nolen has also apparently refused to post other comments favorable to the building and/or the HOA. Given Mr. Nolen’s proclivity to post false comments anonymously on Yahoo, I can only guess how many of the comments on his HOA protest site are simply his own, designed for some self-serving goal. (more…)

August 15, 2009

TRIAL OBJECTIONS MUST BE CLEAR AND PRECISE

Filed under: Drug Defense Attorney — Tags: , , , — johntfloyd @ 2:49 pm

Court of Criminal Appeals of Texas Finds Lawyer’s Careful and Repeated Objections did not Preserve Error

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

Criminal trials are governed by strict rules of evidence and procedures. It is the duty of a defense attorney to not only know but understand these rules and procedures precisely. We have written several times in the past about the harm caused by a defense attorney’s inadvertent failure to make specific, timely and properly lodged objections during the course of a criminal trial. The Texas Court of Criminal Appeals recently delivered that same unreasonable message once again and in no uncertain terms.

The case involved Luis Pena who, in 1998, was charged with possession of marijuana seized during a traffic stop. He was put on trial in 2003. His attorney had learned that the evidence in the case had been destroyed in 2000. The attorney also learned through a thorough investigation that all of the records and documents associated with the lab report of the Texas Department of Public Safety concerning the marijuana had been lost. So prior to trial the attorney diligently filed a motion for an independent lab analysis of the seized marijuana and moved to suppress the DPS lab results. These motions were denied by the trial court.

Not to be deterred, Pena’s attorney lodged general evidence-custody objections based on the laws of Texas, the Texas Constitution, and the U.S. Constitution. The trial judge denied these objections, citing U.S. Supreme Court precedents that require a state criminal defendant to not only show that the lost or destroyed evidence was both material and favorable to his defense but that the state act in bad faith when it lost or destroyed the evidence.

During Pena’s trial, the prosecution called a DPS chemist to testify about the lab test results. Pena’s attorney not only properly objected but requested that he be allowed to question the chemist outside of the jury’s presence to assess his qualifications and to determine the admissibility of the test results. The trial judge granted the attorney’s request, and after both sides had an opportunity to question the chemist about the destruction of the evidence, the judge personally questioned the chemist to determine if DPS had acted in bad faith when it destroyed the evidence. The judge concluded the law enforcement agency had not only acted in bad faith but that the destroyed evidence was not favorable to Pena. (more…)

August 12, 2009

SIXTH INNOCENT HARRIS COUNTY MAN FREED

Filed under: Sexual Assault Crime Attorney — Tags: , , , , , — johntfloyd @ 12:36 pm

Hall of Shame: Texas Leads Nation in DNA Exonerations

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

That the Houston City Police Department’s Crime Lab was a lawless, rogue unit serving the “convict at any costs” philosophy of the Harris County District Attorney’s Office during the Johnny Holmes and Charles “Chuck” Rosenthal administrations, between 1980 and 2005, is no longer a subject of serious debate. Dozens, possibly hundreds, of innocent people—mostly poor minorities charged with homicides or sex crimes—were railroaded off to Texas prisons based on fabricated (or at best faulty) forensic evidence supplied by the Crime Lab and/or due to mistaken identification secured to corrupt pretrial photo lineup procedures.

On June 13, 2007, former U.S. Justice Department Inspector Michael Bromwich issued a 400-page report that concluded the crime lab’s DNA and serology departments had made hundreds of “serious and pervasive” mistakes in homicide and sexual assault cases. Bromwich two-year investigation examined more than 3500 cases processed by the crime lab over the previous quarter century. 135 of those were DNA cases handled by the crime lab between 1992 and 2002, Bromwich’s investigators found “major issues” in 43 of those cases, and, even more disturbing, found “major issues” in 4 of the 18 death penalty cases it examined.

Before Bromwich initiated his investigation, and following a 2002 “audit” of the crime lab ordered by city officials, two Harris County criminal defendants were ordered released by local courts after it was determined that the crime lab’s false forensic evidence had resulted in their wrongful rape convictions. George Rodriquez was released in 2004 after serving 17 years in the Texas prison system for kidnapping and rape. A Harris County federal jury awarded him $5 million this past June based on the city’s “deliberate indifference” to the recurring problems at the crime lab. In 2003 Josiah Sutton was released after serving 4 ½ years for a rape conviction after DNA tests discredited forensic tests performed by the crime lab. The following year Gov. Rick Perry granted a “full pardon” to Sutton.

Since the June 2007 release of the Bromwich report, four additional Harris County criminal defendants have been ordered released by local courts after it was determined they had been wrongfully convicted of sex offenses. The first was Ronald Gene Taylor who was released in October 2007 after serving 14 years for a rape conviction. DNA evidence—semen on the rape victim’s bed sheet which had not been tested by the crime lab—revealed that the semen belonged to another man who had a history of violent sexual assaults. (more…)

August 3, 2009

SENTENCING ENTRAPMENT: A FALLOUT OF REFORM

Filed under: Drug Defense Attorney — Tags: , , , — johntfloyd @ 6:56 pm

Prosecutors and Law Enforcement Officials Manipulate Investigations, Defendants Receive Greater Sentences

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

What is sentencing entrapment?

In a syndicated column that appeared in the Houston Chronicle (July 23, 2009), Larry Frankel, the legislative counsel for the ACLU in Washington, D.C., called sentencing entrapment “a little-known phenomenon in our criminal justice system” and it occurs “when the government through its agents or informants makes a person, who may have a predisposition to engage in one sort of criminal activity, to engage in more serious criminal activity that exposes that person to harsher punishment.”

Frankel illustrated this institutionalized form of governmental misconduct with a series of cases, including the highly-publicized case of Willie M. Aikens. This former major league baseball player recently testified before Congress about his fall from social grace through a debilitating crack cocaine habit. Aikens told the lawmakers he was contacted by an undercover police officer who asked him to “score” some drugs for her. The undercover officer encouraged Aikens several times to cook powder cocaine down into crack cocaine which provides a far more intense “high.”

Aikens’ original criminal predisposition was to provide the undercover officer with “powder” cocaine. The officer, however, kept urging the former World Series hero to cook the cocaine powder down into crack cocaine which ultimately caused him to be charged and convicted of possessing crack cocaine rather than powder cocaine. Under the United States Sentencing Guidelines in place at the time, possession of crack cocaine was considered 100 times more serious than possession of powder cocaine..

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 a 20:1 ratio. The 100:1 ratio required federal judges to treat one gram of crack cocaine as the equivalent of 100 grams of powder cocaine. This disparate sentencing scheme created thousands of horrendous miscarriages of justice in the federal sentencing process with serious racial implications. Black crack cocaine offenders, like Aikens, were routinely punished 100 times more severely than white powder cocaine offenders. (more…)

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