CRIMINAL JURISDICTION

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

June 30, 2010

THE TIME HAS COME FOR AN INDEPENDENT REGIONAL CRIME LAB

Filed under: Houston Criminal Lawyer — johntfloyd @ 2:24 pm

Continued Scandals in Houston, Harris County Criminal Justice System Beg for Independent Regional Crime Lab

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

The “crime lab” for the Houston Police Department (HPD) has become a hotbed of flawed forensic evidence. Earlier this year we blogged about a Houston Chronicle report that taxpayers would have to pick up an $80,000 bill to a Science Laboratory and Training Centre contracted by the city to clear up a backlog of 300 firearms forensic cases in the HPD crime lab. Just weeks earlier we had blogged about yet another Chronicle report that found taxpayers would have to foot a $3 million bill to Ron Smith & Associates, a Mississippi-based consultant firm, for its consultants re-examine some 4,300 fingerprint cases processed by the HPD crime lab between 2004 and 2009, including significant number of violent cases, because the crime lab’s initial examinations were flawed. More recently the Chronicle reported that while the costly re-examination of the fingerprint cases for that five-year period did not reveal any wrongly identified suspects, Ron Smith consultants did find that HPD crime lab analysts had made “technical errors” in 62 percent of the cases it had examined. And the price tag to Ron Smith may now even go higher. The City Council is debating whether to give HPD an additional $2.3 million to keep the outside consultants operating in the crime lab’s troubled fingerprint unit during the next fiscal year.

And the costs of the flawed fingerprint forensics could even go higher than the coming year’s fiscal projections. The Chronicle found a 1996 capital murder investigation case in which a suspect was wrongly incarcerated because of a misidentification by the crime lab’s fingerprint unit. The fingerprint analyst who made the wrong identification was issued a “written reprimand” the following year. The newspaper reported that the analyst eventually retired in 1998 after receiving yet another written reprimand for destroying “the original notes instead of keeping them as required during the examination or re-examination of fingerprint evidence.”

Tim Oettmeier, Executive Assistant of the HPD and who oversees the department’s fingerprint unit, told the Chronicle he was “unaware” of the 1996 case and would have to gather more information about it before “deciding whether to extend the review of fingerprint cases to the 1990s.” Oettmeier could not provide the newspaper with any reason as to why he was not aware of the 1996 case.

Attorney Bob Wicoff, a forensic expert who has handled many of the wrongly accused cases involving the HPD crime, said revelations about 1996 case were “alarming—it’s a pretty scary scenario.” Wicoff, who is also a member of the HPD’s crime lab review panel, added the following concern: “I think it might be a good idea for HPD to undertake a review of all the convictions touch by these fingerprint people to see if these convictions were compromised.”

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June 25, 2010

TERRORISM LAW HELD CONSTITUTIONAL

Filed under: Anti-Terrorism Lawyer — Tags: , , , , , — johntfloyd @ 2:47 am

Material Support of Foreign Terrorist Organizations vs. Freedom of Speech and Association

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Founded in 1974, the Partiya Karkeran Kurdistan (PKK) was established as a Marxist-Leninist insurgent group composed of Turkish Kurds who formed to seek Kurdish independence from Turkey.  By the late 1990s the group had had morphed from a rural-based insurgent group into a full-fledged terrorist organization, sometimes using suicide bombings on civilian targets.

Founded in 1976, the Liberation Tigers of Tamil Eelam (LTTE) became one of the most lethal and well organized terrorist groups in the world that, beginning in 1983, waged an armed campaign in Sri Lanka to establish a separate Tamil homeland before the group was defeated by the Sri Lanka army in May 2009.  The LTTE pioneered the use of suicide belts.

Both groups are designated as Foreign Terrorist Organizations by the U.S Department of State.

The evidence is clear that the PKK and LTTE have engaged in terrorist activities, including suicide bombings, which have harmed innocent civilians. It was these kinds of international terrorist acts and the 1995 Oklahoma City bombing that prompted the U.S. Congress to enact the Anti-Terrorism and Effective Death Penalty Act (AEDPA) which was signed into law by former President Bill Clinton in April 1996.

One of the controversial components of AEDPA was codified at 18 U.S.C. § 2339B which makes it a federal crime to provide “material support or resources to designated foreign terrorist organizations.” While Congress has amended the definition of “material support or resources” a number of times since 1996, Subsection 2339A (b) (1) offers the current definition:

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June 19, 2010

ADAM WALSH ACT UNDER CONSTITUTIONAL SCRUTINY

Filed under: Child Abuse Crimes Lawyer — Tags: , , , , , — johntfloyd @ 7:22 pm

Growing Practice of “No Bond” and Unreasonably Harsh Sentences for Some Child Sex Crimes Sparks Judicial Concern

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

In July 2006 former President George W. Bush signed into law the Adam Walsh Child Protection and Safety Act (“Walsh Act”). Title I of the Walsh Act, the Sex Offender Registration and Notification Act (“SORNA”), received the most media attention because it expanded the National Sex Offender Registry and established sanctions up to a maximum of twenty years for sex offenders who do not comply with the law’s registration requirements.

One of the lesser publicized impacts of the Walsh Act has been the restrictions on bail and the increased sentencing disparity for defendants charged with simple possession of computerized child pornography. The latter problem was succinctly described by Judge Merritt’s dissent in a January 9, 2009 decision by the Sixth Circuit Court of Appeals, United States v. Paull, in which he said: “As a recent October 23, 2008, Wall Street Journal article by Amir Efrati points out, our federal legal system has lost its bearings on the subject of computer-based child pornography. Our ‘social revulsion’ against these ‘misfits’ downloading these images is perhaps somewhat more rational than the thousands of witchcraft trials and burnings conducted in Europe and here from the Thirteenth to the Eighteenth Centuries, but it borders on the same thing. In 2008 alone the Department of Justice has brought 2,200 cases… in the federal courts. Some trial and federal judges are sending these mentally ill defendants like Paull to federal prison on very long sentences. But the 17-1/2 year sentence for Paull may be the longest yet. He is a 65-year-old, psychologically disabled, former minister with Type I diabetes with many complications. How could this sentence be ‘not greater than necessary’ to punish this crime?”

Some federal prosecutors in the Southern District of Texas (“Southern District”) have expanded the “witchcraft” mindset from harsh sentencing practices to the unilateral practice of requesting detention pending trial, no bail, for all defendants charged with possession of child pornography. This creates a situation where child porn defendants in some federal districts are granted bail, albeit with strict conditions, while defendants in the Southern District are denied bail. This harsh policy of pretrial detention for child pornography defendants in the Southern District raises serious constitutional concerns; primarily, that the Eighth Amendment prohibition that “excessive bail shall not be required” is violated. The Supreme Court nearly 60 years ago in Stack v. Boyle held that criminal defendants charged in non-capital cases “shall” be released on bail if they give adequate assurances that they will appear at trial and submit to sentence if convicted.

With the Bail Reform Act of 1984, Congress codified the presumption in favor of pretrial release but also firmly established that bail is not a matter of constitutional right in all cases. Three years later the Supreme Court in United States v. Salerno upheld this congressional mandate by saying that “when Congress has mandated detention on the basis of a compelling interest other than prevention of flight … the Eighth Amendment does not require release on bail.”

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June 12, 2010

TEXAS MAKING FUTURE CRIMINALS

Filed under: Houston Criminal Lawyer — Tags: , , , , , — johntfloyd @ 12:05 pm

Children in Foster Care Residential Treatment Centers at High Risk of Neglect, Mistreatment and Abuse

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

In a 2002 article for Child Trends, Dr. Richard Werthheimer, Ph.d, said there were more than 556,000 children in foster care in this country—many of whom suffered from serious emotional, behavioral, developmental, and other health problems. That figure represented an increase from 302,000 in 1980. While black children at the time accounted for 15 percent of the nation’s children, they represented 30 percent of those entering foster care and 42 percent of those living in foster care. Hispanic children, who represented 16 of the nation’s children, represented just 18 percent entering and living in foster care.

By 2006, as some states began to reform their foster care systems, the number of children in foster care decreased to 510,000, but the prognosis for future success of those children was as bleak as it was in 2002 – 60 percent of them between ages two months and two years were at still at a high risk for developmental delay and neurological impairment. The number of those “aging out” of foster care was increasing and studies were consistently showing that these “aged out” children had serious adjustment problems transitioning to adulthood: 38 percent had emotional problems, 50 percent used drugs, 48 percent did not have a high school education, and 25 percent had prior involvement with legal system. They were the most likely candidates for homelessness, unemployment, and incarceration.

To combat this persistent trend, states like New York, California, Florida, Georgia, Illinois, New Jersey, and Ohio began to make concerted efforts to reform their foster care systems, to aggressively push for adoption over institutionalization—and with significant, albeit surprising results. Associated Press reported recently that the number of children in foster care through 2008 had declined to 463,000, thanks in large part to the reforms implemented by these seven states. That represented an 11 percent decrease in the foster care population since 2002. Of these states implementing reforms, Florida led the way by reducing its foster care population from 29,300 in 2006 to 18,700 as of June 2010.  AP said Florida accomplished this by “obtaining a statewide waiver from federal funding rules. This allows federal foster care money to be used for a variety of child welfare initiatives rather than being limited to out-of-home care – enabling the state to support troubled families with economic aid, parenting classes and substance abuse so a child doesn’t need to be removed.”

Texas, along with Arizona, Nevada, and Indiana, chose not join the reform trends between 2002 and 2008, although Texas did make some strides in reducing its foster care population. As of 2005, Texas had 32,474 children in foster care, by 2008 the number had minimally decreased only to 31,058, but by 2009 the number had decreased significantly to 27,422. As impressive as the 2009 numbers may appear at first glance, Texas nonetheless saw a 45 percent increase in its foster care population since 2001. Worst yet, as of September 2006, the state had identified 3,409 of its foster care children as having “special needs,” second only to California. And all these figures must be measured against the disturbing fact that in 2009 Texas saw 280 of its children die from child abuse and neglect—a shocking 30 percent increase over the previous year.

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June 9, 2010

HOUSTON LAW ENFORCEMENT FACES TOUGH TIMES

Filed under: Homicide Crimes Lawyer — Tags: , , , , , — johntfloyd @ 2:50 pm

Decreased Police Budget: Increased Unsolved Crime, Botched Investigations, Wrongful Arrests and Convictions

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Thomas Hargrove, Scripps Howard News Service, reported last month that 6,000 homicides go unsolved in this country each year. Hargrove said the number of “unsolved homicides” has risen at an alarming rate even though the nation’s homicide rate has decreased to levels last seen in the 1960s. Most of these unsolved homicides occur in dozens of the nation’s largest cities.

“This is very frightening,” Bill Hagmaier, Executive Director of the International Homicide Investigators Association, said of the Scripps Howard study which involved a detailed examination of crime records provided by the FBI.  “We’d expect that – with more police officers, more scientific tools like DNA analysis and more computerized records – we’d be clearing more homicides now.”

Network television shows like CSI and NCIS, which hail the so-called marvels of “forensic evidence,” have lulled Americans into thinking that crime fighting will surely catch the bad guys and put them away. Not so, and it is indeed “frightening” to realize that between 1980 and 2008 nearly 185,000 homicides in this country went unsolved. The Scripps Howard study reported “experts” as saying the traditional “crimes of passion” involving assailants who are quickly identified have been replaced with “drug-and-gang related” killings in areas where lack of witness cooperation is a major problem. The “don’t snitch” mentality.

Valencia Mohammed lives in Washington, D.C., an area with a significant number of unsolved homicides relating to drug/gang violence. “When my first son was killed,” she told Hargrove, “I was embarrassed and ashamed. Why did this happen to me? But when my second son died, I decided I’d had enough and wanted to be an advocate for murder victims.”

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June 8, 2010

U.S. SUPREME COURT TAKES ANOTHER BITE OUT OF MIRANDA

Filed under: Federal Crimes Lawyer — johntfloyd @ 4:58 am

Suspects Must Invoke Rights Unambiguously; Justice Sotomayer Strongly and Forcefully Dissents as High Court Narrows Miranda

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Our last post dealt with the prospect that the Obama administration may modify the long-standing “public safety exception” of Miranda v. Arizona—the 1966 Supreme Court that established the following prophylactic rules for warning criminal suspects taken into police custody: 1) right to remain silent, 2) anything a suspect says can be used against him in a court of law, 3) suspect has right to have an attorney present during police questioning, and 4) if the suspect cannot afford an attorney, one will be appointed to him prior to police questioning.

In another post earlier this year, we discussed two cases handed down by the Supreme Court which seriously restricted these Miranda warnings. In that post we wrote:

“Miranda has been one of the most controversial decisions ever rendered by the Supreme Court. Law enforcement hates it, prosecutors have consistently tried to overrule it, and the High Court itself has in recent years taken every legal opportunity to undermine it. That is precisely what the Court did this session in two cases: Florida v. Powell and Maryland v. Shatzer. Both of these cases involve situations where the State’s highest courts found a Miranda violation and the Supreme Court elected to overturn those decisions. Significantly, the opinions of the Supreme Court were delivered by its most conservative and liberal justices: Justice Scalia in the Shatzer case and Justice Ginsburg in the Powell case.

“ … Kevin Dwayne Powell was arrested in Tampa, Florida in August 2004 in connection with a robbery investigation. The suspect was taken to the local police headquarters where he was read the standard Miranda rights form: right to silence and right to ‘talk to a lawyer before answering any of our questions.’ Powell signed the waiver form and agreed to talk to the officers. He thereafter told the officers the handgun found in his girlfriend’s apartment was his, and as a convicted felon, he knew it was a crime to possess it. He was charged and subsequently convicted of illegal possession of a firearm by a convicted felon.

“The trial court denied Powell’s attempt to have the statements made to the police suppressed under Miranda. Relying upon a line of Miranda-related decisions, its own decisions, and the Florida Constitution, the Florida Supreme Court overruled the trial court and reversed Powell’s conviction. The Florida high court based its reversal on the fact that a suspect has a right to be ‘clearly informed’ of his right to an attorney’s presence ‘during questioning.’ The Court concluded the advice given to Powell about his right to an attorney had been misleading and added ‘a right that has never been expressed cannot be reiterated.’

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June 1, 2010

THE CONTINUED ASSAULT ON MIRANDA

Filed under: Anti-Terrorism Lawyer — Tags: , , , , , — johntfloyd @ 4:52 pm

Abandoning Miranda in Terrorism Cases Contrary to Constitution and Beginning of Slippery Slope towards Neo-Con Police State

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

The United States Supreme Court in 1966 handed down Miranda v. Arizonawhich mandated to every law enforcement agency in this country that they advise all criminal suspects their right to silence; that anything they say can and may be used against them in a court of law; and that they have a right to an attorney. Findlaw columnist and former White House counsel John Dean has written two (here and here) recent columns in response to comments made by U.S. Attorney General Eric Holder on May 9, 2010 on several Sunday morning news/talk shows that the “Miranda warnings” given to terror suspects should perhaps be modified. Dean warned the Obama administration that, if the Holder comments represented possible “new policy,” it is navigating down a constitutional “slippery slope” by “messing with Miranda rights to fight terrorism.”

Dean pointed out that simple Google research will reveal study after study which has shown that Miranda has never impeded legitimate law enforcement efforts to solve crimes and that there is “no evidence” it has been a serious problem in producing results through the many terrorism investigations the government has conducted over the last two decades. Since the Christmas Day airline bombing attempt by Farouck Abdulmuttalab, the Miranda warnings have become the rallying linchpin for conservatives in this country who want any person, American citizen or not, who is arrested for any terrorist act or suspected terrorist act against this country, to be treated as an “unprivileged enemy belligerent” under the Military Commissions Act of 2009 so that “harsh interrogation techniques” can be employed to extract whatever information the suspect may know about other possible terror attacks against the country. As Dean pointed out: “… the only people complaining about Mirandizing terrorists are Republicans.”

The modifications proposed by Attorney General Holder deal with the “public safety exception” to Miranda. This exception was carved out by the Supreme Court in 1984 in the case of New York v. Quarles. In that case Benjamin Quarles was convicted of possessing a gun. The conviction stemmed from a series of events in which a woman stopped two New York policemen and told them she had been raped. She said her attacker had fled into a nearby supermarket carrying a gun.  One of the officers entered the store and saw Quarles, He ordered him to stop, placed his hands over his head, frisked him, and found only an empty shoulder holster. When the officer asked he suspect where the gun was, he nodded toward some empty cartons and said “over there.” The officer retrieved the gun and formally placed the suspect under arrest. The lower courts threw out Quarles statement about the gun and the gun itself because the officer had not given him the Miranda warnings. The U.S. Supreme Court reversed the lower courts, finding that there are situations where “public safety” trump the “prophylactic rules” of Miranda.

The “public safety exception”—sometimes called the “rescue” or “emergency” rule—has been used many times since. Coleen Rowley recently posted the following example on Huffington Post:

“One spring morning in the mid 1990s, a man whose last name was Liberatore rang a doorbell pretending to be a delivery man. Threatening a weapon, he gained entrance to the home somewhere in the Quad Cities, Illinois, tying up a teen-aged babysitter along with the young boy the babysitter was watching. Then he left, kidnapping the family’s 11 month old baby. Eventually the young boy was able to free himself and call for help. The hysterical parents rushed home and quickly notified the police and FBI.

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