CRIMINAL JURISDICTION

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

April 29, 2010

THE DANGERS OF CRIMINAL IDENTIFICATIONS

Filed under: Houston Criminal Lawyer — Tags: , , , , — johntfloyd @ 1:14 am

Legislatively Mandated Innocence Commission to Review Claims of Wrongful Convictions and Bring Accountability for Wrongful Convictions Needed

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

There have been 252 DNA exonerations in this country through April 2010. Seventy-five percent of those were the result of mistaken identification. KHOU television in Houston reported recently 85% of Texas’ DNA exonerations—the most in the nation—involved mistaken identification.

Two-thirds of all the DNA exonerations involving mistaken identifications were against black men. The KHOU report highlighted that Texas leads the nation in wrongful convictions. Television reporter Brad Woodard cited the Harris County case of Anthony Robinson. Twenty-three years ago a young, articulate, and pretty woman whom prosecutors described as a “dream witness” identified Robinson as the black man who raped her at the University of Houston. He was sentenced to 27 years in prison, and served nine years and 11 months before his innocence was established.

“Being placed into a very violent, primitive, evil situation where every morning you wake up and ask yourself, ‘Is this the day I’m going to die?’ or ‘Is this the day I’m going to have to kill someone so I can make it back to my cell, so I can sleep?’” Robinson told Woodard.

Since his exoneration, Robinson has worked closely with Sen. Rodney Ellis, D-Houston, to increase compensation from the state for those wrongly convicted.

“We ought to do everything we can to make sure another human doesn’t have to go through what Anthony Robinson went through,” Ellis told Woodard. “It’s not just that individual – it’s their family. It’s their children.”

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April 24, 2010

THE SUPREME COURT MAKES A DIFFICULT CHOICE

Filed under: Federal Crimes Lawyer — Tags: , , , , , — johntfloyd @ 5:48 pm

Free Speech:  Federal Law Criminalizing Depictions of Animal Cruelty Declared Unconstitutional

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

There are times when the U.S. Constitution protects human activity that is repugnant and seemingly socially irredeemable. The U.S. Supreme Court recently handed down a ruling in the case of Robert J. Stevens who was convicted under a federal statute titled 18 U.S.C. Sec. 48 which prohibits the “depiction of animal cruelty.” This statute was enacted by Congress to, as the Supreme Court said, “criminalize the commercial creation, sale, or possession of certain depiction of animal cruelty.”

Robert Stevens operated a business called “Dogs of Velvet and Steel” in Pittsville, Virginia. Through an associated website, he sold videos depicting pit bulls fighting each other or attacking other animals. Two of the videos, “Japan Pit Fights” and “Pick-A-Winna: A Pit Bull Documentary,” depicted pit bull fighting in Japan (a legal activity in that country) and pit bull fights in this country from the 1960s and ‘70s. A third video sold by Stevens was titled “Catch Dogs and Country Living.” This particular video was particularly gruesome, depicting pit bulls hunting wild boar and a dog attacking a domestic farm pig.

On the basis of these three videos, Steven was indicted by a federal grand jury for violating Sec. 48. A jury convicted him on three counts and he was sentenced to three concurrent 37-month prison terms followed by three concurrent 3-year terms of supervised release. In a pretrial motion Stevens sought to have the Sec. 48 indictment against him dismissed on the basis of a “free speech” challenge under the First Amendment. The trial court denied the motion, pointing out that the depiction of animal cruelty, like child pornography and obscenity, did not enjoy First Amendment protection.

An en banc Third Circuit Court of Appeals decision, however, found Sec. 48 “facially unconstitutional” and reversed Stevens’ convictions. The appeals court essentially said that Sec. 48 was an attempt to regulate speech, adding that the court was not prepared create a “new category of unprotected speech” for cruelty to animals. The constitutional underpinnings of the Third Circuit’s rationale was that Sec. 48 did not serve any “compelling government interest” because the statute was not tailored to prevent animal cruelty, or, at the very least, was not the least restrictive means of accomplishing that objective.

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April 21, 2010

THE POLITICS OF SUPREME COURT NOMINATIONS

Filed under: Federal Defense Attorney — Tags: , , , , , — johntfloyd @ 7:51 am

Obama Must Expose Judicial Activism of Right Wing and Nominate Justice with Abundance of Empathy for the Rights of the Individual and Protection of the Social Good

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

The recent retirement of Associate Justice John Paul Stevens has created the second opportunity for President Barak Obama to appoint a justice to the U.S. Supreme Court. The appointment of Supreme Court justices have always been roiled in political posturing by both Democrats and Republicans in Congress. In point of fact, Republicans have already laid out the gauntlet, warning the president that they are prepared fight the nomination of a “judicial activist.”

Conservative Republicans, of course, will be buoyed by the support of media jocks like Rush Limbaugh and Glenn Beck. In a recent Newsweek article (April 13, 2010), Andrew Romano described Beck’s perpetual “paranoid” ranting about President Obama’s political agenda: “Last week Beck focused on two [Obama] conspiracy theories in particular. The first one was about how Obama can’t be ‘anything but a Marist,’ given that he’s spent his entire life surrounded by Marxists—his mother, his father, his grandparents, his neighbor (Frank Marshall), his pastor, his new spiritual adviser (Jim Wallis). The second was about how the ongoing boycotts of Beck’s show by various Democratic groups—labor unions, progressive evangelicals, Color of Change—are actually evidence of an unprecedented campaign by the ‘president and [his] administration to destroy the livelihood of a private citizen with whom they disagree.’”

The political hot-button term “judicial activism” has more often been used by republicans to demonize “liberal” judges who are often accused of inserting their social philosophy into their judicial decision-making. University of Chicago law professor and editor of the Supreme Court Law Review Geoffrey R. Stone in a recent The New York Times Op-Ed piece spoke of this phenomenon: “Liberals [Supreme Court] judges … have tended to exercise the power of judicial review to invalidate laws that disadvantage racial and religious minorities, political dissenters, people accused of crimes and others who are unlikely to have their interests fully and fairly considered by the majority.”  In other words, individual rights and protections the Bill of Rights was intended to address.

Professor Stone listed several of these historical liberal Supreme Court decisions: ending racial segregation, 1/ establishing the “one person, one vote” principle, 2/ prohibiting the censorship of the Pentagon Papers, and extending the right of due process of law to Guantanamo Bay detainees. 3/ Political conservatives point to these kinds of decisions by liberal Supreme Court justices as overriding legislative mandates because of their “empathy” for certain social views. As Professor Stone pointed out, President Obama was criticized by conservatives shortly before he appointed Justice Sonia Sotomayor to the court because he simply observed that a “sense of empathy” could contribute to judges fulfilling their responsibilities.

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April 16, 2010

TEXAS COURT OF CRIMINAL APPEALS STRIKES BALANCE FOR RULE OF LAW

Filed under: Homicide Crimes Lawyer — Tags: , , , , , — johntfloyd @ 12:53 pm

Wilson v. State; Court Reverses Conviction Obtained After Finding Investigator Used False Fingerprint Lab Report to Obtain Confession

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

It was New Year’s Day, 2006. Ronald Wilson called 911 to report he had discovered a man’s body on a San Antonio street while walking with his son. The police responded to the call and found the body of Amos Gutierrez who had been killed with a single fatal gunshot. The police also found a magazine clip near Gutierrez’s body. The investigation into Gutierrez’s death quickly revealed information implicating Wilson in the crime. He was arrested on misdemeanor charges. 1/

A San Antonio police detective named Roberts was assigned to the case. One of his preliminary tasks was to interrogate the suspect. He was an experienced law enforcement officer. He knew both state and federal courts have sanctioned the use of deception and trickery by law enforcement to get a suspect to confess to a crime. 2/ Roberts decided to employ a extraordinary kind of deception on Wilson.  He used an old crime lab report as a template to create a false crime lab report on his computer. He changed the heading on the old report to read, “Bexar County Criminal Investigation Laboratory.” He then typed in the following information: “Results: Examination of Item I revealed the Two Latent Prints lifted from the Firearm Magazine belong to those of Ronald Wilson, a Black Male with the date of birth 11-13-84.” The false report listed Wilson’s city, county, state and federal law enforcement identification numbers.

Armed with the impressive albeit false crime lab report, Roberts entered the interrogation room at 10:02 p.m. He asked Wilson if he had touched anything at the crime scene. Wilson repeatedly said he had not. At 10:13 p.m. Roberts showed the report to Wilson who, while shaking his head in disbelief, studied its contents. Roberts told the suspect “they had his fingerprints” along with other incriminating evidence which the detective began to recite. At 10:17 Wilson interrupted the detective to say he didn’t how his prints wound up on the clip. Not deterred, Roberts continued to press Wilson, recounting for the suspect at 10:20 p.m. the laundry list of evidence against him beginning with the fingerprint report. “[I] can’t get over the prints,” Roberts said at 10:24 p.m. “Let me remind you, I’ve got that report. Those guys are experts. They’re like DNA experts. They’re like experts. What they say is the truth” Wilson put his hands on his head and looked down, saying: “Okay. Okay.” 3/

Detective Roberts apparently was not aware of Article 37.09(a)(2) of the Texas Penal Code which states that if a person, “knowing that an investigation is pending or in progress, makes, presents, or uses a document with knowledge of its falsity and acts with the intent to affect the course or outcome of the investigation,” he has violated Texas law. And the detective must not have been aware of Article 37.10 of the Texas Penal Code which provides: “A person commits an offense if he makes, presents, or use any record, document, or anything with knowledge of its falsity and with the intent that [it] be taken as a genuine governmental record.”

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