CRIMINAL JURISDICTION

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

December 28, 2009

ARGUMENT AGAINST GITMO CLOSURE DEFEATED BY ACT OF TERRORISM

Filed under: Federal Crimes Lawyer — Tags: , , , , , — johntfloyd @ 1:04 pm

Recent Arrest, Detention and Charging of Attempted Airplane Bomber Illustrate Fed’s Ability to Handle Terror Suspects in Civilian Courts

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Two recent decisions by President Obama’s administration has drawn intense criticism designed to manipulate the natural fear Americans have of terrorism since 9/11: the decision to try the 9/11 mastermind Khalid Sheikh Mohammed (KSM), and his co-conspirators, in a New York federal civilian court and the decision to transfer “terror suspects” currently housed at the U.S. detention facility (“Gitmo”) in Guantanamo Bay, Cuba to the Thomson Correctional Center in Thomson, Illinois.

The critics, fueled primarily by a Republican political agenda to undermine the Obama administration and regain future control of the White House and Congress, have charged that confining and trying terror suspects on American soil would somehow endanger the American public with future terror attacks. If these charges were not so politically motivated and so readily accepted by many Americans, who believe every word launched out of the mouths of conservative wing nuts like Rush Limbaugh and Glenn Beck, they could be casually dismissed laughably ludicrous.

The Christmas Day attempted terror attack on a Detroit-bound Northwest Airlines flight by 23-year-old Umar Farouk Abdulmutallab who allegedly attempted to detonate the high explosive pentaerythritol tetranitrate (PETN) as the plane approached the Detroit Metropolitan Wayne County Airport for landing underscores this point. The Abdulmutallab terror attack was thwarted because his detonator either malfunctioned, or he did not correctly use it, and by the heroic efforts of fellow passengers who attacked and subdued the terrorist before he could fulfill his objective: to blow up an American plane on American soil on Christmas Day.

This attempted terror attack illustrate precisely why the politically-motivated criticisms of the decision to try KSM in federal civilian court and to house Gitmo prisoners in a super-max federal penal facility are in fact so wrong-headed. Abdulmutallab was charged in federal district court the day after Christmas. The United States Justice Department issued the following “press release” entitled “Nigerian National Charged with Attempting to Destroy Northwest Airlines Aircraft:”

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December 23, 2009

EXTRANEOUS OFFENSE EVIDENCE IN FEDERAL COURT

Filed under: Drug Defense Attorney — Tags: , , , — johntfloyd @ 6:30 am

Probative or Prejudicial:  Evidence of Previous Drug Convictions Admitted to Show Proof of Intent in Drug Case

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

We have written recently about the dangers of the use of extraneous offense evidence at the state trial level; specifically, that the Texas Court of Criminal Appeals has virtually eliminated the availability of any defense in sexual assault cases, particularly those involving a child, when the State has in its possession extraneous offense evidence and the defendant wished to avoid its admission in court. The Fifth Circuit Court of Appeals recently confronted and outlined the parameters of extraneous offense evidence at the federal trial level.

The case involved John Matthew Cockrell who was convicted of conspiracy to possess and intent to distribute heroin resulting in bodily injury in violation of Title 21, Section 846, of the Federal Criminal Code. The Cockrell case began in 2006 when the Plano Police Department informed the FBI’s High Drug Trafficking Area about several heroin drug overdoses in Collin County, some of which were fatal. The FBI soon determined that Cockrell was the local heroin dealer behind the drug overdoses.

The federal investigation produced two co-conspirators who agreed to cooperate with the government. They testified at Cockrell’s conspiracy trial, telling the jury they bought drugs from Cockrell during a two-year span between 2005 and 2007. One of the co-conspirators told the jury that she initially bought methamphetamines from Cockrell but later switched to heroin with two or three buys a week. Prosecutors also presented the following evidence:

  • Witnesses testified they saw balloon-packaged heroin inside Cockrell’s apartment, car, and that he distributed the heroin to other dealers as well as customers.
  • Other witnesses testified they joined with Cockrell in purchasing large quantities of heroin both for their own personal use and distribution as well.
  • Two witnesses testified they overdosed on heroin supplied by Cockrell and required emergency room treatment. Their testimony was corroborated by treating paramedics and ambulance records. 1

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December 19, 2009

THE REAL DANGER OF EXTRANEOUS OFFENSE EVIDENCE

Filed under: Sexual Assault Crime Attorney — Tags: , , , , , — johntfloyd @ 9:09 am

Man Convicted on 2 Counts Indecency with a Child Found Actually Innocent After Nearly Two Decades in Prison: Extraneous Evidence False, Expert Testimony Wrong.

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

We have written on numerous occasions about the dangers of “extraneous offense evidence” when allowed into evidence in a criminal trial. What is extraneous offense evidence?

Extraneous evidence is evidence of another crime, wrong or bad act that is not relevant to proving the specific allegation made in the charging instrument, information or indictment.  For example, a prior unrelated DWI conviction would be an extraneous crime in an arson case.  It would generally be inadmissible in the guilt/innocence stage of a criminal case because it is irrelevant to the arson charge and has no bearing on any fact that is of consequence in that case.

Evidence of other crimes, wrongs or acts that are extraneous to the underlying charge are specifically inadmissible to prove the character of a person to show that person acted in conformity therewith.  There are exceptions however when it can be shown that the evidence is relevant to prove motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. Texas Rules of Evidence 404(b).

If a court finds this evidence is admissible for one of the listed exceptions, and after proper defense objection, the judge must conduct a balancing test under which the court weighs the probative value (its relevance to some issue such as motive, intent, opportunity, plan etc.) against the risk of unfair prejudice, confusion of the issues or misleading the jury caused by the evidence.  Texas Rules of Evidence 403. (more…)

December 15, 2009

SEXUAL ASSAULT CASES: THE RIGHT TO PRESENT A DEFENSE EFFECTIVELY ELIMINATED

Filed under: Sexual Assault Crime Attorney — Tags: , , , , — johntfloyd @ 1:27 pm

Defense Attorneys Fight Prosecutors Prejudicing the Jury with Extraneous Acts, Wrong, Crimes

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

It is the firm belief of among defense attorneys that a criminal defendant should only have to defend against the charge leveled in a charging instrument: a bill of information or a grand jury indictment. But that is not the case in nearly every sexual assault case, especially those involving children. The prosecution will generally find a way to introduce what is called “extraneous offense evidence,” which is uncharged sexual offenses or bad acts involving either the victim or someone else. Thus, a sexual assault defendant frequently finds himself having to defend against not only the crime charged but against uncharged acts as well. Extraneous offense evidence is the most prejudicial and damaging evidence that can be introduced into a sexual assault trial because it usually involves nothing more than the classic “he said/she said” evidence—evidence the State generally does not have sufficient probable cause to bring in an indictment. In fact, in many instances the accusations have been rejected either by the district attorney’s office or grand jury as being insufficient to formally indict.

Texas Rule of Evidence 404(b) is the primary statute governing the admission of “other crimes, wrongs or acts.” 404(b) prohibits extraneous offense evidence from being introduced at trial to prove the defendant is more likely than not to have committed the crime charged because that is the nature of his character. The statute, however, does permit the use of extraneous offense evidence “for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

This rule requires the prosecution, upon being served with a timely request by the defendant, to provide the defense notice of its intention to use extraneous offense evidence. 1/ The defendant can then file pre-trial written objections to the prosecution’s intention to use the extraneous offense evidence and request that the trial court provide findings of fact and conclusions of law as to why it will allow the evidence to be introduced at trial.

After proper objection, the trial court’s decision of whether or not to permit extraneous offense evidence is then governed by Texas Rule of Evidence 403. This rule requires the trial court to conduct a balancing test under which it weighs the probative value of the extraneous offense evidence against its undue prejudice, confusion of the issues, tendency to mislead the jury, and undue delay. 2/ The court is permitted to consider the following factors in its balancing analysis: (more…)

December 8, 2009

MORE EVIDENCE OF BAD EVIDENCE

Filed under: Houston Criminal Lawyer — Tags: , , , , , — johntfloyd @ 8:34 am

Criminal Defense Attorneys Must Request and Analyze Procedures for Testing, Accepted Protocols and Handling of Forensic Evidence

By: Houston Criminal Attorney John T. Floyd and Paralegal Billy Sinclair

A criminal defense attorney’s worst nightmare is that the prosecution will rely upon bad evidence to convict his/her client. Defending against relevant, admissible evidence is difficult enough, but there is no real defense against shoddy law enforcement’s collection, processing, and storage of the evidence the prosecution will rely upon in criminal cases. The Houston City Police Department (“HPD”) has a long, sordid history of destroying, botching, and even manufacturing false evidence in criminal cases. The HPD crime lab had to be shut down by the Mayor’s Office in 2002 in the wake of disclosures that lab analysts had mishandled DNA evidence, destroyed evidence, and misrepresented evidence in criminal trials. The fallout from the crime lab scandal still reverberates in our criminal justice system with the exoneration of at least six individuals.

Now the Houston Chronicle informs the public about the results of an adult released in October detailing how HPD’s fingerprint comparison unit mishandled fingerprint evidence in thousands of cases, many involving violent offenders, over the past six years. Taxpayers will now have to subsidize a review of at least 4000 violent crime cases. City Councilwoman Anne Clutterbuck told the Chronicle an amended contract with the firm that conducted the original audit, Ron Smith and Associates, could costs taxpayers between $2 million to $8 million.

This latest “bad evidence” scandal is having its own rippling effect across the political and criminal justice systems in Harris County. Houston Mayor Bill White told the Chronicle he believes criminals went free because of the deliberate mishandling and negligent ineptitude of the fingerprint comparison unit. “I think it’s unacceptable the quality of work the chief and the command staff found in the fingerprint unit,” the Mayor told the newspaper. (more…)

December 3, 2009

TRYING KHALID SHEIKH MOHAMMAD IN FEDERAL COURT IS NOT END OF WORLD

Filed under: Anti-Terrorism Lawyer — Tags: , , , , — johntfloyd @ 3:25 am

Federal Trials Open to the Public, for Terrorism Cases Support American Constitutional Concepts of Fair Trials, Justice

By Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair

While there are many security and legal problems associated with major terrorism trials conducted in federal courts in the United States, Republican critics of the Obama administration’s decision to try Khalid Sheikh Mohammad (“KSM”) in a New York federal court have methodically spread unnecessary fear in order to politicize that decision. What may be good for the country, much less our legal system, does not factor into their conservative political agenda to undermine the Obama presidency at every turn. It’s tantamount to an irresponsible lunatic standing up in a crowded theater and hollering “fire” just to see how much panic and chaos he can cause.

To begin with, the KSM civilian trial critics charge that the “9/11 mastermind” and his 9/11 co-conspirators will use their incarceration in a federal penal facility to spread their message of terror both within and outside the facility. The critics fail to inform the public that KSM and his co-conspirators will probably be housed in Unit 10 South of the Special Housing Unit in the Metropolitan Correctional Center (“MCC”) located in Manhattan. Unit 10 South is considered the most secure housing unit in any federal facility operated by the Federal Bureau of Prison (“BOP”) in the New York City area. 1/ It’s an ultra maximum security unit used almost exclusively to house terrorism suspects and other offenders who pose a proven danger to other inmates or prison guards. Placement in Unit 10 South has been called the “’nuclear option’ of indefinite solitary confinement.” 2/

Federal regulations grant the BOP tremendous authority to impose “special administrative measures (“SAMs”) on terror suspects for the specific reason of preventing them from instigating acts of terrorism or violence. These regulations, codified in 28 CFR 501.3, provide:

(a) Upon direction of the Attorney General, the Director, Bureau of Prisons, may authorize the Warden to implement special administrative measures that are reasonably necessary to protect persons against the risk of death or serious bodily injury. These procedures may be implemented upon written notification to the Director, Bureau of Prisons, by the Attorney General or, at the Attorney General’s direction, by the head of a federal law enforcement agency, or the head of a member agency of the United States intelligence community, that there is a substantial risk that a prisoner’s communications or contacts with persons could result in death or serious bodily injury to persons, or substantial damage to property that would entail the risk of death or serious bodily injury to persons. These special administrative measures ordinarily may include housing the inmate in administrative detention and/or limiting certain privileges, including, but not limited to, correspondence, visiting, interviews with representatives of the news media, and use of the telephone, as is reasonably necessary to protect persons against the risk of acts of violence or terrorism. The authority of the Director under this paragraph may not be delegated below the level of Acting Director. (more…)

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