CRIMINAL JURISDICTION

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

November 18, 2010

THE CONSTITUTIONAL QUICKSAND OF JESSICAS LAW IN TEXAS

Texas Penal Code 21.02, Continuing Sexual Abuse of a Child, Thwarts Long Established Requirement of Unanimous Verdicts

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

It’s been called arguably the second “most serious offense” in the State of Texas: Texas Penal Code 21.02The Continuous Sexual Abuse of a Child. The statute provides that a person commits the continuous sexual abuse of a child if (1) during a period that is 30 or more days in duration, the person commits two or more acts of sexual abuse, regardless of whether the acts of sexual abuse are committed against one or more victims, and (2) at the time of the commission of each of the acts of sexual abuse, the actor is 17 years of age or older and the victim is a child younger than 14 years of age. This law was enacted by the Legislature is 2007 and was part of Texas’ version of Jessica’s Law. These laws have met with serious constitutional challenges across the country.

Beyond imposing a harsher punishment than 99% of all felonies in this state, the “continuous sexual abuse of a child” statute is particularly disturbing because the predicate offenses necessary to trigger the law do not require a unanimous jury verdict. Those predicate offenses, the “acts of sexual abuse,” are: aggravating kidnapping with intent to sexually abuse the victim; indecency with a child; sexual assault; aggravated sexual assault of a child; sexual performance by a child; and burglary if committed with intent to commit one of the foregoing sexual offenses. Subsection (d) of the Sec. 21.02, provides:

“If a jury is the trier of fact, members of the jury are not required to agree unanimously on which specific acts of sexual abuse were committed by the defendant or the exact date when those acts were committed. The jury must agree unanimously that the defendant, during a period that is 30 or more days in duration, committed two or more acts of sexual abuse.”

In other words, if the defendant is indicted under Sec. 21.02 based on the theory that he committed a sexual assault and indecency with a child under 14 years of age during a period of 30 or more days between January 1, 2010 and December 31, 2010, the jury does not have to be unanimous on the two underlying predicate offenses in order to unanimously convict the defendant of having committed these offenses sometime during the year 2010.

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November 4, 2010

SEXUAL ASSAULT DEFENSES SEVERELY RESTRICTED

Extraneous Offenses: The Impact of Bass on Admissibility of other Crimes, Wrongs and Bad Acts.

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

We wrote about the Curtis Bass case last year (here). We will restate the facts of the Bass case here to illustrate the profound effect the case has had on defending sexual assault cases, particularly those involving child victims.

Curtis Bass was a popular minister in Harris County. He had an impeccable reputation among his flock and in the general community as a fine, upstanding citizen. Bass’ reputation was so stellar that when in the fall of 1994 a 16-year-old church member told her mother, other family members and three educators where she attended school that Bass had sexually molested her in the church’s office in February of that year and again in the church’s parking lot in June of that year, no one believed her.

Then in 1995 or 1996 a member of Bass’ congregation named Richard Parmer went to the church to help clean it. He took his five-year-old daughter with him. During the cleaning, Parmer opened the door to Bass’ office and found his daughter sitting in the minister’s lap with her dress pulled up above her waist. Surprised, Bass told the father the girl’s dress had ridden up and he was helping her straighten it out. The police were contacted but no charges were filed.

In April 2002 an eleven-year-old church member went to the church, accompanied by her sister, to help clean it. Bass reportedly told the young girl to go inside the church with him to retrieve some cleaning supplies. The child said that after they entered the minister’s office, he touched her between the legs, kissed her on the lips, and fondled her breasts. The sexual activity ceased when Bass heard the outer front door of the church open. The girl told her sister about the incident once she got back outside the church and also told her mother when she got home. Once again no criminal charges were filed.

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September 3, 2010

THE MINEOLA SWINGER CLUB CASE-A LEGAL NIGHTMARE

Filed under: Child Abuse Crimes Lawyer — johntfloyd @ 3:04 am

Lying Texas Ranger, Overzealous Child Advocate Experts and Pro-Prosecution Judge Mock Justice

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Most human tragedies are produced by random acts of Nature run amok. But far too often human tragedies are man-made, particularly in our criminal justice system. That’s what has happened in the so-called “Mineola swingers club” case. According to Michael Hall, in his latest Texas Monthly article about the case titled “Trial and Error,” this criminal justice tragedy began in 2005 when Margie Cantrell, a career “foster mom”  (27 adopted children over 36 years) who either fled or migrated from California to Texas in 2004, walked into the Mineola Police Department, located in Wood County (just north of Tyler), and informed the police that two of her foster children had been forced to perform “sex shows” at the Retreat Club, a local “swingers’ club.”

Before we get into the core facts of this legal nightmare, let us set the cast of characters who have made it all possible:  Judge Jack Skeen, Jr., who presides over the 241st District Court in Tyler, Smith County, Texas, and who has presided over all the criminal trials flowing out the Mineola swinger club case; Smith County District Attorney Matt Bingham who has prosecuted all the defendants thus far put to trial in the case; Sergeant Philip Kemp,  the Texas Ranger and lead investigator in the case; Shauntel Mayo, Jamie Pittman, Patrick “Booger Red” Kelly, Dennis Pittman, Sheila Sones, and Jimmy Sones, the six defendants indicted in 2007 in the case.

Three of the defendants, Mayo, Pittman and Kelly, were convicted in 2008 while a fourth defendant, Dennis Pittman, was convicted last month. All were sentenced to life imprisonment, although the convictions of Shauntel Mayo and Jamie Pittman’s convictions were reversed this past June by the 14th Circuit Court of Appeals.

And, finally, there are the five alleged child sexual abuse victims whose testimony alone—without any physical evidence or adult witness corroboration—produced the four convictions in this case. The children essentially said they had been trained in a “sex kindergarten” to dress and perform in sexually provocative ways before audiences at the Retreat Club.

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August 7, 2010

OSTRICH INSTRUCTION REJECTED IN FEDERAL ONLINE SOLICITATION

Deliberately Avoiding the Truth to Deny Criminal Knowledge

By Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

What is an “ostrich instruction?”

Also known as a “willful blindness” or “deliberate indifference” instruction in many federal circuits, an ostrich instruction is a jury instruction given when a criminal defendant claims a lack of guilty knowledge about the crime but there is some evidence the defendant deliberately elected to remain ignorant to avoid confirmation. Put succinctly, an ostrich instruction is generally given in cases where defendants deliberately close their eyes to the truth. It is not routinely used in federal online solicitation cases filed under 18 U.S.C. § 2422(b), which prohibits the knowing persuasion, inducement, enticement or coercion of a minor under 18 years of age to engage in prostitution or other illegal sexual activity.

The Seventh Circuit Court of Appeals on July 26, 2010 in the case of United States v. Mark Ciesiolka addressed the issue of whether an ostrich instruction was appropriate in a federal online solicitation case. In that case a police detective named Carrie Costello, who worked with the Purdue University Police Department, was playing the role of a 13-year-old teenager in an online “sting operation” set up to ensnare and prosecute suspected pedophiles. In a Yahoo “adults-only chat room” under the name “Indiana Romance,” Costello created a photo of a woman named “Ashley” in her late 20s with interests in “beer” and “Purdue University.” In August 2006 Ciesiolka walked into Ashley’s trap, and over the next two and one-half weeks, he shared a series of sexually explicit IM messages with her. Ciesiolka commented during these exchanges that although she claimed to be 13 years old, Ashley appeared to be 21 by her online photo. Ashley, however, insisted she was just thirteen and agreed to meet Ciesiolka at a pizza parlor. But before the meet could take place Ciesiolka got “cold feet,” and despite repeated efforts by Ashley, he refused to meet the purported teenager.

The police were able to track Ciesiolka through the IM messages and he was arrested in late August 2006. He was put to trial at the close of which the judge gave the following ostrich instruction:

“You may infer knowledge from a combination of suspicion and indifference to the truth, if you find that a person has a strong suspicion that things were not as they seemed or that someone had withheld some important facts, yet shut his eyes for fear of what he would learn, you may conclude that he acted knowingly, as I have used that word. You may not conclude that the defendant had knowledge if he were merely negligent in not discovering the truth.”

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June 19, 2010

ADAM WALSH ACT UNDER CONSTITUTIONAL SCRUTINY

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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May 29, 2010

THE RIGHT TO CONFINE FOREVER

Indefinite Detention: Preemptive Punishment for Future Sex Crimes

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

On May 17, 2010 the United States Supreme Court in United States v. Comstock upheld a federal statute that gives Government the power to civilly commit indefinitely a “sexually dangerous person” after he has completed serving his criminal sentence. The statute, 18U.S.C. Sec. 4248, was the subject of one of our blogs earlier this year. §4248 has three basic components. First, it allows a federal district court to civilly commit an offender currently in the “custody of the [Federal] Bureau of Prisons” if that offender (1) has previously “engaged or attempted to engage in sexually violent conduct or child molestation,” (2) currently “suffers from a serious mental illness, abnormality, or disorder,” and (3) “as a result of” those conditions is “sexually dangerous to others” in that “he would have serious difficulty in refraining from sexual violent conduct or child molestation if released.”

Second, before the “sexually dangerous” determination can be made, the U.S. Justice Department must certify to the federal district court that the offender meets the “sexually dangerous” criteria. When the Government files this certification, the offender’s release from custody on his criminal sentence is automatically stayed until the Government has an opportunity at a fact-finding hearing to prove by “clear and convincing evidence” (psychiatric reports, etc) that the offender is “sexually dangerous.” § 4248 permits an offender to be represented by counsel, the right to testify at the hearing, present evidence, subpoena witnesses on his behalf, and confront and cross examine Government witnesses.

Third, if the Government carries the “sexually dangerous” burden, the district court will order the offender’s continued commitment in “the custody of the Attorney General” who must “make all reasonable efforts to cause” the State where the offender was convicted or his domicile State to “assume responsibility for his custody, care, and treatment.” If neither State will accept the offender under that legal obligation, the Attorney General “shall place the person for treatment in a suitable [federal] facility.”

All 50 states have established some kind of system for the mandatory registration of sex offenders and community notification. A few states have gone so far as to impose residency restrictions on sex offenders. But less than half of the States (22) have enacted civil commitment statutes similar to § 4248. The primary reason for the lack of overwhelming support at the state level for such statutes is costs: $64,000 a year to confine a “sexually dangerous” offender under civil commitment. That is precisely why most states with civil commitment provisions will not accept federal offenders determined to be “sexually dangerous.”  They simply cannot afford to confine them for indefinite and extended periods of time. They already have too many on their hands.

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May 13, 2010

DEFENDING THE WRONGLY ACCUSED

Filed under: Child Abuse Crimes Lawyer — johntfloyd @ 2:33 pm

Houston Press Reports Our Victory in Court and Client’s Life After False Allegations

By:  Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

One of our recent success stories was profiled in the cover story of the May 6-12, 2010, edition of the Houston Press.  In Oh Hold, The Press exposed the hard reality that charges of child sex crimes can haunt a person for life, even though he may be exonerated before a jury of his peers, or, as it was in this case, after two separate trials and two “not guilty” verdicts.

Michael Serges was a Houston deputy constable when he was arrested in March 2008 for aggravated sexual assault. He was fired by Precinct 4 Constable Ron Hickman immediately after his arrest. Serges retained the John T. Floyd Law Firm to represent him. We knew it was going to be a difficult case. All child sexual assault cases are. This one involved a 7-year delayed outcry. The alleged victim was a former inmate in a local juvenile detention facility where Serges worked at the time (2000). She charged that Serges had raped her in the shower of the facility. The prosecutor would attempt to support victim’s charge with testimony from another former inmate at the same facility who was a twice-convicted felon by the time Serges was put to trial.  The jury would also be presented with a very sympathetic complainant, one who was dying from lupus, who would be rolled into court in a wheel chair, wrapped in a blanket to warm her withering body and whose very breath required support from a nearby attached oxygen tank, a defense lawyer’s nightmare.  The case would only grow worse as the investigator from the D.A’s office seemed to magically come up with four new “victims,” who stories were eerily, and unsettlingly, similar.

The first case’s difficulty was primarily due to it being a classic “she said/he said” case. The prosecution, of course, portrayed the victim as a “helpless” troubled child taken advantage of by a demented, corrupt prison guard.  The opposite was the case. The complainants had long histories of lying (even by their own admissions), drug use, stealing, and serious psychological disorders. In fact, the sexual abuse allegations by one of the former inmates against Serges had been thoroughly investigated in 2000 by detention center staff, the Houston Police Department and the District Attorney’s office. The three law enforcement agencies determined the allegations were not credible, and, in fact, the alleged victim ultimately recanted the allegation, admitting that she had told lies against Serges in this particular instance and in other instances just to “get him in trouble.”

The District Attorney’s Office chose to continue with this case, we believe, primarily because of the massive scandal revealed in 2007 about prison guards abusing inmates throughout the state’s juvenile institutions. The prosecution bolstered its case by hauling in a “child sexual assault expert” from the Harris County Children’s Assessment Center (“CAC”) who testified that in such cases the “studies” and “literature” show that only 3 percent of children make false sexual assault allegations.

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May 8, 2010

THE PITFALLS OF EXPERT TESTIMONY IN CHILD SEXUAL ABUSE CASES

Child Sexual Assault Expert Lies about Conclusions of Study

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

We have written previously about the prolific use of “child sexual abuse experts” in child sexual assault cases. In particular, we have criticized the testimony such experts from the Harris County Children’s Assessment Center (“CAC”). While seldom providing any specific source, these experts testify that the professional “literature” and “studies” reveal child sexual abuse victims rarely ever make “false” allegations about such abuse. The experts confidently inform juries that the rate of false allegations in child sexual abuse cases is about “three percent.” While our Texas Court of Criminal Appeals has held that such generalized testimony does not constitute impermissible “bolstering” of a child sexual abuse victim’s testimony, criminal defense attorneys who have faced this kind of “expert” testimony in emotionally-charged child sexual assault cases understand clearly that such testimony does lend tremendous bolstering-like credibility to the child’s testimony.

As Judge Alex Kozinski of the Ninth Circuit Court of Appeals said in a dissenting child sexual assault opinion nine years ago, “the testimony of a victim—particularly a very young one—is a highly tenuous ground on which to rest a conviction. A jury might develop a reasonable doubt from the total absence of corroborating [expert] evidence. If the jury nonetheless convicts, we are bound by that determination.” 1/

Judge Kozinski was dissenting in the case of Emanuel Sistrunk who was convicted in an Oregon state court in 1985 for the forcible rape of an 11-year-old girl. He was given a 30-year sentence with fifteen of those years being a statutory minimum. The child victim in the Sistrunk case, as in most child sexual abuse cases, knew her attacker because, according to her,  he had sexually abused her once before. The child provided a rather detailed account of the events leading up to and subsequent to the attack.

State prosecutors called an “expert” witness named Dr. Jan Bays who, as a three-judge Ninth Circuit panel concluded, “testified falsely.” 2/ The appeals court added that Dr. Bays testified about “a scientific study [which] proved that ‘it is very, very rare that a child lies about sex abuse’ and that the chance of such a lie is only with teenagers, ‘never with the younger children.’ She testified the study established that ‘if the child comes forward with the story, themselves [sic], then it is the truth. If the child is younger than a teenager, then it is the truth.’” 3/

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