CRIMINAL JURISDICTION

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

March 31, 2010

MIRANDA TAKES MORE HITS FROM SUPREME COURT

Filed under: Houston Criminal Lawyer — Tags: , , , , , — johntfloyd @ 11:46 pm

Florida v. Powell and Maryland v. Shatzer:  Why Criminal Suspects Should Never Talk to the Police Without an Attorney

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

In December 2008 police officer Timothy Abernethy was chasing a suspect through a Houston apartment complex when the suspect, M. J. Landor, reportedly fired several shots at the officer. According to official reports, one of the bullets knock the 11-year police veteran to the ground at which time Landor approached him and shot him in the head. A massive police manhunt was undertaken to apprehend Landor, a parole violator, who was captured several hours later. Landor reportedly gave the police a detailed confession to the crime during several hours of police questioning.

Landor’s capital murder trial got underway recently with the Harris County District Attorney’s Office seeking the death penalty. Laine Lindsey, Landor’s attorney, filed a motion to suppress the videotaped confession his client gave to the police. Evidence presented at the hearing, and reported in the Houston Chronicle, revealed that the police questioned Landor for approximately four hours before they actually began to videotape the suspect’s statement. Landor told the court he falsely confessed to shooting Abernethy because he was afraid the police were going to kill him. Assistant District Attorney Maria McAnulty dismissed Landor’s testimony as being untruthful, telling the court the videotape clearly shows the suspect was advised of right to remain silent.

Lindsey pressed the court to suppress the confession because the police, three of whom were in the interrogation room and a larger group standing outside the room, questioned Landor for more than four hours before turning on the recorder and videotaping just 20 minutes of the interrogation. During the 20-minute taped session, Landor said the shooting of Abernethy was a “freak accident;” that he fell while being chased by the officer and the gun went off at which time he kept shooting. McAnulty called several police officers who testified about what Landor reportedly told them when the interrogation session was not being taped; specifically, that Landor admitted he walked over and shot Abernethy in the head as he lay wounded on the ground.

Given the discrepancies between what Landor told the police during the 20-minute videotaped session and what he reportedly told the police during the four-hour non-taped session, Lindsey had every reason to press for the suppression of the all statements made by his client. Not unexpectedly, however, State District Judge Michael McSpadden denied the defense attorney’s suppression motion.

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March 30, 2010

IS HIV A DEADLY WEAPON?

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

Texas Prosecutors Use HIV as Deadly Weapon in Aggravated Sexual Assault Case

By:   Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Let us state quite emphatically at the outset that we do not know if K. L. Sellars is guilty of the crime the Harris County District Attorney’s Office has leveled against him. Many people are wrong accused of crimes they did not commit, so we will leave judgment that to a jury of his peers.

Sellars is charged with having a 15-year-old teenager, who he met on the social networking site myspace.com, fly from his Indiana home to Houston last December, where he spend 10 days with Sellars. Based on accusations made by the teenager, the District Attorney’s Office charged Sellars with aggravated sexual assault of a child, primarily because the teenager is under age according to Texas law and secondly because Sellars allegedly used a deadly weapon in the commission of the offense.

What makes this case different, and somewhat controversial, is that it marks the first time the District Attorney’s Office has elected to use HIV as a “deadly weapon” in an aggravated sexual assault case. While Texas prosecutors in other counties have used the HIV virus as a deadly weapon, dating back to 1997, Harris County prosecutor Eric Devlin decided the Sellars case was appropriate for such a prosecution because the defendant told the teenager that he would not pay his way back to Indiana unless the teen had sex with him (Sellars).

The decision by the District Attorney’s Office to use the HIV virus as a deadly weapon in the Sellars case aroused the ire of the New York-based Center of HIV Law and Policy. Catherine Hanssens, executive director of the center, told the Houston Chronicle that “HIV should not be an aggravating factor unless there’s some evidence that he intended to do some harm and did some harm. Criminal law in every state is adequate to deal with. But to treat it as evidence of guilt and a deadly weapon wasn’t appropriate in 1985, and it isn’t appropriate now.”

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March 26, 2010

OBAMA and MCCAIN: FORMER PRESIDENTIAL RIVALS EMBRACE TORTURE AND ASSASSINATION

Filed under: Anti-Terrorism Lawyer — Tags: , , , , — johntfloyd @ 5:29 pm

Continuing Bush’s War on Terror, Obama Continues Policy of Unfettered Presidential Power to Assassinate Americans Abroad and McCain Sponsorsthe Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Sen. John McCain was once an honorable man, a respected “war hero,” and a “maverick” politician who stood on principle before political expediency. In 2000 the Arizona senator waged a “maverick” campaign for the Republican presidential nomination from inside his Straight Talk Express bus and stunned the nation with a convincing victory over heavily favorite Texas Gov. George W. Bush in the New Hampshire primary. He became an instant media “darling” who suddenly had the respect and admiration of most moderate Republicans and independents. The Vietnam “war hero” had taken on the Republican Party establishment and won.

Then came South Carolina—a primary election battle that would change McCain and he would never quite be the same again. Republican Party insiders, and their South Carolina operatives, gutted McCain’s seemingly impenetrable “war hero” stature and seriously damaged his “maverick” political persona. They did it with a smear campaign The New York Times described as a “painful symbol of the brutality of American politics.” The smear campaign included unfounded charges that McCain “abandoned” veterans on POW/MIA and Agent Orange issues; that he fathered a black child out of wedlock; that he was a homosexual and his wife a drug addict; and that he was either mentally unstable because of his POW experiences or a traitorous “Manchurian Candidate.”

While the mainstream media did not give much serious coverage to the smear charges, the inherent problem about playing in mud is that you get muddy. Bush trounced McCain in the South Carolina primary and went on to assume his family-gifted presidency. McCain was a thoroughly whipped political puppy who had effectively disenfranchised himself from the Republican Party base, that is until the 9/11 terror attacks brought down New York City’s Twin Towers. In the wake of this worst-ever terror attack on American soil which resulted in a Bush declared “war on terror” and the invasion of two countries, Afghanistan and Iraq, Sen. John McCain had a new, invigorated political mission: he would be a “hawk” on the wars being fought on two fronts by American troops and he would lead the nation into the unchartered constitutional waters in its first-ever “war on terror.”

To his political credit, Sen. McCain voiced criticism of the use of “torture” on terror suspects captured by American authorities during the Bush era. As a former prisoner of war in North Vietnam and the victim of horrendous torture by North Vietnamese military officials, McCain become the most compelling moral voice against the practice of torture, such as water boarding, when it was advocated and condoned at the highest levels in the Bush administration, including Vice President Dick Cheney and Defense Secretary Donald Rumsfeld.

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March 22, 2010

CHILD PORN RESTITUTION RUN AMUK

Filed under: Child Abuse Crimes Lawyer — Tags: , , , , , — johntfloyd @ 12:13 pm

Federal Judges Split on Issue of Restitution in Possession of Child Pornography Cases

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Her name is “Amy.” She is twenty years of age. When she was a child, 8 or 9 (according to media reports), Amy was sexually abused by her uncle. The uncle took photos of the abuse and posted the images on the Internet. Amy’s images became some of “the most widely circulated child pornography images online,” according to Associated Press writer Amy Forliti in a recent report.

Then “Amy” met New York attorney James Marsh who either saw in the former victim of child sexual abuse what he believed to be an injustice in need of correction or an opportunity to expand his practice into the potentially lucrative area of child porn restitution. Marsh has used a federal restitution statute, 18 U.S.C. § 2259, to file approximately 250 requests for restitution on behalf of Amy in child pornography possession cases across the country. § 2259 was enacted in 1994 to provide restitution for offenses involving the sexual exploitation and abuse of children. The statute imposes a duty upon a federal sentencing court to order any defendant convicted of a child abuse-related offense to pay restitution to the victim of that offense. The statute is particularly exacting because the sentencing judge cannot refuse to order restitution based on the defendant’s deprived economic circumstances or because the victim has received compensation for his/her injuries from some other source, such as a civil judgment. 1/ § 2259 authorizes restitution for the following reasons:

  • “Medical services relating to physical, psychiatric, or psychological care” for the victim;
  • “Physical and occupational therapy or rehabilitation” for the victim;
  • “Attorney fees, as well as other costs incurred” by the victim; and
  • “Any other losses suffered by the victim as a proximate result of the offense.”

Then in 2004 Congress enacted the Crime Victims Rights Act, 18 U.S.C. § 3771, which requires that the victim of any crime be given timely notice of any court proceeding involving the perpetrator of the crime and the right to be heard at that proceeding. 2/

These two related statutes have generally been used to impose restitution orders against the defendant charged with committing specific offense(s) against a victim—for example, Amy’s uncle who sexually abused her and posted images of that abuse on the Internet. Attorney Marsh, however, has used these statutes to seek, and secure, restitution orders against defendants charged in possession of child pornography cases in which Amy’s images were discovered in their possession. Marsh is plowing his way through this new area of restitution law which has produced serious conflict in the judicial arena.

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March 18, 2010

ARE WE ALL POTENTIAL JIHADISTS?

Filed under: Anti-Terrorism Lawyer — Tags: , , , , — johntfloyd @ 2:28 am

Arrest of “Jihad Jane” Adds Fuel to Fight Against Racial Profiling

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Leonard Pitts is an excellent columnist. He recently wrote a piece about Colleen LaRose, the Pennsylvania housewife turned Islamic jihadist, whose arrest made it abundantly clear why airport security is not only necessary but essential. Whether conscious or not, most Americans believe “terrorists” can be easily profiled by their physical appearance,” unusual” accents, the clothes they wear, or the facial hair they sport. “Terrorists” are not white, blond, and mainstream in dress and mannerisms. American media has convinced us that real terrorists are either bearded Arabs or dark-skinned Africans who dress like Muslims.

If Timothy McVeigh taught us anything, it should be that individuals willing to inflict mass casualties on Americans in the name of “government opposition” come in all sizes, stripes, and colors. The arrest of LaRose, dubbed “Jihad Jane” by either the media or law enforcement officials, reinforces the McVeigh lesson. A blond, green-eyed former Texas teenager, LaRose would not have triggered much, if any, interest from fellow passengers had she boarded an airliner for any destination in America with bomb-making material concealed somewhere on her body or in her possessions.

Collen LaRose and her counterpart, Jamie Paulin-Ramirez who was arrested several days after LaRose in connection with an international terror plot to kill a Swedish cartoonist who offended many Muslims world-wide with his cartoons, are the very reason why all Americans must undergo strict security checks and monitoring before boarding airliners in this country and why there should be no “profile” for terrorists. As Mr. Pitts wrote in his column:

“[The LaRose arrest] ought to serve as a rebuke to the guy standing in the airport security line grumbling at how the TSA agent is running his wand over some dewy-eyed grandmother who obviously isn’t a threat. Even more, it should rebuke pundits like Cal Thomas, Ann Coulter, and Kathleen Parker, who, in the wake of 9/11 argued for ethnic profiling in airport security. Pat down swarthy, bearded young men with Middle Eastern accents and exotic headgear, they said, and leave the rest of us alone.

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March 17, 2010

CAN THE SMELL OF POT LEAD TO WARRANTLESS ARREST?

Filed under: Drug Defense Attorney — Tags: , , , — johntfloyd @ 1:23 am

Odor of Burnt Marijuana, alone, may be sufficient for a warrantless entry but insufficient to establish probable cause for a specific arrest.

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Some defense attorneys—and not without a legitimate basis—mistakenly believe that if a police officer detects the odor of marijuana inside a residence, the officer does not have probable cause to enter the residence and arrest the suspected owner of the drug without a warrant. This belief can be traced to a 2002 decision by the Texas Court of Criminal Appeals in State v. Steelman which held that “the detection of the odor of marijuana in a certain place will not inevitably provide probable cause to arrest a person who is at that place.” 1/

Lubbock attorneys Chuck Lanehart and Ralph H. Brock argued the Court of Criminal Appeals (“CCA”) had established a blanket rule, or at least the impression of a blanket rule, in Steelman so they filed a motion to suppress evidence seized from their client, Christopher Chad Parker, on the night of April 2, 2001. A local resident named Ms. Vangie Leal had informed two Lubbock police officers named Ralph Sanchez and Rodney Stevens that night at a local convenience store about alcohol allegedly being served to minors at a nearby residence. Acting on this information, which they believed to be reliable, officers Sanchez and Stevens drove to the nearby two-story house where they saw several vehicles parked outside but no unusual activity. Then Sanchez spotted someone parting the blinds inside the residence and heard someone say, “it’s the police.” 2/

Sanchez and Stevens believed these actions warranted further investigation. They approached the residence and knocked. Christopher Parker opened the door. Officer Stevens saw what appeared to be a juvenile run up the stairs and recognized him from previous minor encounters the officer had with the juvenile. Stevens also immediately smelled the odor of burnt marijuana. He informed Parker that he and officer Sanchez were there to investigate a report of “kids drinking alcohol.” Stevens also told Parker the two officers would have to enter the residence because of the smell of marijuana. Parker allowed the officers inside the residence. 3/

Stevens and Sanchez gathered all the occupants of the residence into the living room. Stevens went to find the person he had seen running up the stairs and in the process found Parker’s mother sleeping. The officer asked her to join everyone in the living room. A short time thereafter two police supervisors arrived. Just as one of the supervisors was asking Parker’s mother for consent to search the residence, officer Stevens saw a marijuana cigarette butt and some loose marijuana in plain sight on top of a pizza box in the living room. While the mother consented to a search of the residence, the marijuana had been already spotted and seized before she actually consented. 4/

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March 14, 2010

“BAD MOON ON THE RISE”

Filed under: Anti-Terrorism Lawyer — Tags: , , , , — johntfloyd @ 3:52 pm

Keep America Safe: Right Wing Fanatics Attack Lawyers, Constitution, and Fundamental Right to Legal Representation

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Every major movement or cause throughout this nation’s history which sought constitutional protections for those the government had denied, from racial minorities ostracized by segregationists laws to those persecuted for their religious beliefs, was led by lawyers. Our fundamental notions of social justice, which are grounded in this nation’s Bill of Rights and in Federal and state constitutions form the original colonies, exist because of the courage of lawyers to form, frame and preserve those notions. Lawyers have always borne the brunt of criticism from political conservatives who really believe in many respects that our government should be run as a totalitarian state like fascism. We saw this tragic reality when the Klu Klux Klan was once one of the most powerful political forces in this country, when McCarthyism’s “guilt by association” became the rule of law, and when segregationists labeled civil rights leaders like Martin Luther King “agents of communism.” It was lawyers who led the way in bringing about an end to the underlying fanatical political ideology that created and sustained the government-sponsored repression of social justice during each of these dark moments in our nation’s history.

This repressive McCarthyism-like political ideology has once again reared its ugly head. This time the charge is being led by a conservative political group called Keep America Safe. The target of the group’s anti-Democratic efforts are lawyers who represent suspected terrorists, and in particular government lawyers who, as the New York Times reported in a March 9, 2010 article by John Schwartz, “worked in the past on behalf of detained terrorism suspects.”

Keep America Safe is led by Liz Cheney, the daughter of former White House Vice-President Dick Cheney who has repeatedly expressed his disdain for anyone who believes terror suspects enjoy “rights.” Keep America Safe earlier this month released a video that questioned the loyalty of a number of U.S. Justice Department lawyers in the Obama administration who have represented Guantanamo Bay prison detainees before the courts.

The Keep America Safe video is so far out there in McCarthyism’s lunatic right fringe that even some traditional mainstream conservative political groups, like the Federalist Society, have rebuked it on the fundamental constitutional principle that even the most unpopular individual charged with an offense against the laws of this country has a right to a lawyer. Perhaps Liz Cheney was buoyed by the recent stunning upset election of Massachusetts Senator Scott Brown who made the “war on terror” the central feature of his campaign with rhetoric like the government should not be “wasting” money providing lawyers to terrorists. We suspect Ms. Cheney and Keep America Safe wanted to curry favor with those elements of the Tea Party movement who regularly show up at rallies dressed in revolutionary war garb waving signs proclaiming the government has been taken over by socialists.

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March 9, 2010

TEXAS DEATH PENALTY PROCEDURE UNCONSTITUTIONAL?

Filed under: Death Penalty Crimes Lawyer — Tags: , , , , — johntfloyd @ 12:37 am

Judge Acknowledges Innocent People Have Likely been Executed

Harris County Criminal District Court Judge Kevin Fine on Thursday, March 4, 2010, created a tsunami of controversy in the Texas legal community when he reportedly made a comment that he was declaring the state’s death penalty unconstitutional. The comment was made during a hearing on a motion filed by defense attorneys in the case of John Edward Green Jr. who is facing a capital murder charge. What Judge Fine actually did was to declare Article 37.071 of the Texas Code of Criminal Procedure unconstitutional which is the statute that outlines the procedures for imposing the death sentence in this state.

“Are you willing to have your brother, your father, your mother be the sacrificial lamb, to be the innocent person executed so that we can have a death penalty, so that we can execute those who are deserving of the death penalty?” Judge Fine mused from the bench. “I don’t think society’s mindset is that way now.”

The reaction to Judge Fine’s comment/ruling was immediate and volatile. Harris County District Attorney Pat Lykos issued a statement respectfully disagreeing with the ruling: “We respectfully, but vigorously, disagree with the trial judge’s ruling, as it has no basis in law or fact. Words are inadequate to describe the Office’s disappointment and dismay with the ruling; sadly it will delay justice for the victims and their families. We will pursue all [appeal] remedies.”

But Texas Gov. Rick Perry and Attorney General Greg Abbott were not so understanding in their reactions to Judge Fine’s ruling. Abbott called the decision “an act of unabashed judicial activism.”

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