CRIMINAL JURISDICTION

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

January 12, 2012

FEDERAL DISCOVERY AND INSPECTION PROCEDURES

Filed under: Federal Crimes Lawyer — Tags: , , — johntfloyd @ 7:48 pm

Tunnel Vision Interferes with Duty to Comply with Discovery Obligations

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Most litigation in federal criminal cases regarding discovery of evidence, or lack thereof, is based on claims of violations of due process protections found in the Fifth and Fourteenth Amendments of the Constitution.  These constitutional protections create duties upon the government to disclose to the defendant certain types of evidence that is favorable to the accused because it either questions the defendant’s guilt, exculpatory evidence, or is useful in impeaching a government witness.

There are, however, three federal statutes that create additional duties to disclose certain evidence.  Rule 12.1, 16 and 26.2 of the Federal Rules of Criminal Procedure governs “discovery and inspection” in criminal cases. The more often cited Rule 16 specifically provides:

(a) Government’s Disclosure.
(1) Information Subject to Disclosure.
(A) Defendant’s Oral Statement. Upon a defendant’s request, the government must disclose to the defendant the substance of any relevant oral statement made by the defendant, before or after arrest, in response to interrogation by a person the defendant knew was a government agent if the government intends to use the statement at trial.
(B) Defendant’s Written or Recorded Statement. Upon a defendant’s request, the government must disclose to the defendant and make available for inspection, copying, or photographing, all of the following:
(i) any relevant written or recorded statement by the defendant if: the statement is within the government’s possession, custody, or control; and the attorney for the government knows—or through due diligence could know—that the statement exists;
(ii) the portion of any written record containing the substance of any relevant oral statement made before or after if the defendant made the statement in response to interrogation by a person the defendant knew was government agent; and
(iii) the defendant’s recorded testimony before a grand jury relating to the charged offense.
(C) Organizational Defendant. Upon a defendant’s request, if the defendant is an organization, the government must disclose any statement described in Rule 16(a) (1) (A) and (B) if the government contends the person making the statement:
(i) was legally able to find the defendant regarding the subject of the statement because of that person’s position as the defendant’s director, officer, employee, or agent; or
(ii) was personally involved in the alleged conduct constituting the offense and was legally able to bind the defendant regarding that conduct because of that person’s position as the defendant’s director, officer, employee, or agent.

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December 17, 2011

THE IMPACT OF PINHOLSTER ON NEWLY-DISCOVERED EVIDENCE AND BRADY VIOLATIONS

Filed under: Federal Crimes Lawyer, Houston Criminal Lawyer — Tags: , , , , — johntfloyd @ 3:21 pm

Federal Habeas Claims of “New Evidence” of Undisclosed Exculpatory Evidence Should be Remanded to State Courts

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

In January 1982, Scott Lynn Pinholster, a California native, was an Aryan Brotherhood-type who, along with two like-minded cohorts, went to the home of a local drug dealer named Michael Kumar. The drug dealer was not at home when the Neo-Nazi trio arrived so they began to ransack the residence in search of drugs and money. At this inopportune time, two of Kumar’s friends, Thomas Johnson and Robert Beckett, arrived at the drug dealer’s home where they confronted the burglars. That confrontation led to Pinholster and his cohorts brutally beating and repeatedly stabbing Johnson and Beckett until they were dead.

The total net of the robbery was $23 and approximately a quarter ounce of marijuana. As the trio drove away from the scene, Pinholster reportedly said: “We got ‘em, man, we got ‘em good.”

Two weeks later one of Pinholster’s cohorts, Art Corona, surrendered to the police and named Pinholster as the mastermind of the Kumar residence robbery/double murder. Pinholster was arrested after which he threatened to have Corona killed if he did keep his mouth shut. The threat did little, if anything, to intimidate Corona who became the State’s key witness against Pinholster at his February 1984 trial. Two attorneys, Harry Brainard and Wilbur Dettmar, were appointed to represent Pinholster, but he rebuffed their representation and elected to represent himself—even though the prosecution had noticed him that it would seek the death penalty.

Pinholster testified in his own behalf during guilt phase of his trial. He admitted burglarizing Kuman’s residence and stealing some marijuana. He denied killing anyone, boasting to the jury that he was a “professional robber,” not a murderer, and insisting that during the hundreds of robberies he had committed during the previous six years he was always armed with a gun, not a knife. He also pointed the finger at Corona as the real killer of Johnson and Beckett.

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August 31, 2011

WHAT IS THE PURPOSE OF FEDERAL SENTENCING?

Filed under: Federal Crimes Lawyer — Tags: , , , — johntfloyd @ 5:16 pm

Tapia v. U.S.: Need for Rehabilitation not Proper Factor in Determining Sentence

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

The concept of penal rehabilitation began at the end of the 19th century in this country. Historically criminal sentences in America have been imposed for four reasons: deterrence, retribution, incapacitation, and rehabilitation. Although rehabilitation has been a subject of controversy as a reason for punishment, the State of Texas adopted it as a reason to punish through criminal sentencing. The U.S. Congress, however, has long dispensed with rehabilitation as a basis for criminal sentencing in federal courts. This was evidenced by a recent U.S. Supreme Court decision, Tapia v. United States, which declared that a federal district court judge abused his discretion by lengthening a defendant’s sentence in order to fulfill rehabilitation objectives.

The Tapia decision is indeed significant as is the court’s examination of the history of federal criminal sentencing. The background facts of the case are fairly simple: Alejandra Tapia was convicted of smuggling illegal aliens into the United States. At her sentencing hearing, the judge determined that the U.S. Sentencing Guidelines called for a sentence of 41 to 51 months. The judge elected to impose the high end 51-month term because he felt the defendant had a drug problem and he wanted her to spend enough time in the federal prison system to complete a 500 hour drug treatment program called Residential Drug Abuse Program (RDAP).At Tapia’s sentencing hearing, the judge specifically stated:

“The sentence has to be sufficient to provide needed correctional treatment, and here I think the needed correctional treatment is the 500 Hour Drug Program … Here I have to say that one of the factors that—I am going to impose a 51-month sentence … and one of the factors that affects this is the need to provide treatment. In other words, so she is in long enough to get the 500 Hour Drug Program, number one.”

While the judge said he was imposing the maximum recommended term “to deter her from committing other criminal offenses,” he strongly recommended to the U.S. Bureau of Prisons that Tapia “participate in [RDAP] and that she serve her sentence at” the Federal Correctional Institution in Dublin, California where “they have the appropriate tools to help her, to start to make a recovery.”

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June 27, 2011

Police Interrogations of Children

Filed under: Federal Crimes Lawyer — Tags: , , , — johntfloyd @ 4:42 pm

Age is Proper Factor in Miranda Custody Analysis

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

One thing you can depend upon, any time the U.S. Supreme is presented with an issue that involves extending or protecting the interests of a criminal “suspect,” Justices Scalia, Thomas and Alito will be opposed to it. And at first impression, most people will say, “heck, there’s nothing wrong with that—criminals shouldn’t have rights or interests.” But what if that criminal suspect was their 13-year-old son? Would they be so inclined to accept that the police could question and secure a confession from him without their being present? Didn’t think so!

Well, that’s precisely the question the Supreme Court addressed recently in J.D.B. v. North Carolina. In September 2005 two homes were broken into in Chapel Hill, North Carolina, and some jewelry and a digital camera were taken during the break-ins. Because J.D.B. was seen behind a residence in the neighborhood where the home break-ins occurred, the local police deemed that sufficient probable cause to stop and question the 13-year-old about the crimes. The cops were so convinced that they were on the right scent they spoke to J.D.B’s grandmother, the kid’s legal guardian, and his aunt that same day. J.D.B. was in the seventh grade at the time and attending “special education classes,” according to the North Carolina Supreme Court.

A few days later someone “informed” the police that a digital camera matching the description of one stolen during the house break-ins had been found at Chapel Hill’s South Middle School and that J.D.B. had been seen with a digital camera at the school—and the camera was ultimately shown to be one of the items taken from the two house break-ins. Joseph DiCostanzo, an investigator with the Chapel Hill Police Department who had been assigned to investigate the two break-ins, went to the school to “question” (or “interrogate”) J.D.B. about the crimes. It marked the second time within a week that the local police questioned the juvenile suspect.

Once he got to South Middle School, DiCostanzo told the assistant principal, an administrative intern, and a uniformed police officer “on detail” at the school that he wanted to question J.D.B. about the break-ins. The juvenile detective had school officials verify J.D.B.’s date of birth, his address, and parental contact information in his school records. Neither DiCostanzo nor school administrators contacted J.D.B.’s grandmother to inform her about the detective’s impending interrogation.

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June 23, 2011

JOINT REPRESENTATION: THE PITFALLS OF UNCHECKED CONFLICTS OF INTERESTS

Filed under: Federal Crimes Lawyer — Tags: , , , — johntfloyd @ 5:05 am

Identifying Conflicts when Representing Businesses and their Employees

By: White Collar Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Issues surrounding joint representation by attorneys in criminal cases are fairly straightforward. The U.S. Supreme Court three decades ago, in Cuyler v. Sullivan, held that a defendant in a criminal case may demonstrate a denial of effective representation of counsel, guaranteed under the Sixth Amendment, by satisfying a dual criteria: 1) defense counsel was actively representing conflicting interests, and 2) the conflict(s) had an adverse impact on counsel’s performance while representing the defendant.

Rule 44 of the Federal Rules of Criminal Procedure permits a trial court in cases where multiple defendants are represented by the same counsel to promptly hold a hearing to determine the existence of potential conflicts and to advise each defendant of their right to separate representation. The trial court’s failure or refusal to conduct a Rule 44 hearing is not reversible error unless it is established that there was an actual conflict of interest. That’s because Rule 44 is not a mandatory “shall” statute prohibiting the joint representation in a criminal case because such representation is not per se violation of the right to effective assistance of counsel.  Although the statute does not use a mandatory “shall,” lawyers who represent clients with potential conflicts are treading on very thin ice and should seriously consider referring one of the clients to another lawyer, possibly working under a joint defense agreement.

Joint representation in quazi-criminal situations, such as government regulatory investigations, is far more complex and complicated.  This is especially so in cases where an attorney represents both a corporation and its individual officers, or employees, in government investigations or court proceedings. This was underscored in a 2009 United States District Court ruling in the case of United States v. Nicholas involving the suppression of privileged communications. In 2006 the law firm of Irell & Manella LLP (“Irell”) undertook joint representation of Broadcom Corporation (“Broadcom”) and its Chief Financial Officer, William J. Ruehle. Irell was representing Broadcom in an “internal investigation of its stock option granting practices” while simultaneously representing Ruehle against two shareholder lawsuits “regarding those same stock option granting practices.” Significantly, prior to undertaking these multiple representations which had clear “adverse interests,” Irell did not obtain an informed written consent from Ruehle agreeing to the joint representation.

One month after undertaking the multiple representations Irell lawyers met with Ruehle to discuss the “stock option granting practices at Broadcom.” Before the meeting got underway, the Irell lawyers did not inform Ruehle that they were there representing “only Broadcom” and that “whatever he said to them could be used against him by Broadcom or disclosed by the company to third partied.” As a consequence, Ruehle freely told the lawyers how the practices worked and his role in them. Following the meeting Broadcom instructed Irell to disclose what Ruehle had told them to the company’s auditors, the Securities and Exchange Commission (“SEC”), and the U.S. Attorney’s Office (“Government”) without obtaining the CFO’s consent.

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June 5, 2011

SUPREME COURT BLESSES LAW ENFORCEMENT MISCONDUCT

Filed under: Federal Crimes Lawyer — Tags: , , , — johntfloyd @ 11:55 am

Lack of Criminal and Civil Accountability Points to Need for Criminal Justice Reform Commissions

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

This session of the U.S. Supreme Court should be noted for its zealous protection of official misconduct by prosecutors and law enforcement officials. In two decisions, Connick v. Thompsonand Ashcroft v. Al-Kidd, the nation’s highest court extended a constitutional license to prosecutors and police to violate the law. We have detailed the background facts of both these cases in previous posts (here and here). In the Thompson case, the Court ruled that several New Orleans assistant district attorneys, who were responsible for railroading an innocent man to Louisiana’s death row for 14 years, and the City of New Orleans were not liable for damages under the federal civil rights statute, 42 U.S.C. Sec. 1983. In the al-Kidd case, former U.S. Attorney John Ashcroft was insulated from civil damages under the same statute for permittingal-Kidd and other terrorists suspects to be held indefinitely, without any meaningful evidence of either personal wrongdoing or knowledge about wrongdoing, under the federal material witness statute, 18 U.S.C. Sec. 3144, in the wake of the 9/11 terrorist attacks.

The Thompson case turned on the issue of what liability local governments face when their actions violate the rights of individuals. To secure monetary damages, the individual must establish that an “action pursuant to an official municipal policy” caused the injury incurred. There seems to be no doubt that several Orleans Parish assistant district attorneys conspired to sendThompson to death row and have him put to death, even though they knew he was innocent. The al-Kidd case turned on the issue of whether Attorney General Ashcraft was entitled to qualified immunity for his decision in the wake of the 9/11 terrorist attacks to allow federal prosecutors to use the material witness statute to confine and isolate individuals suspected of having ties to terrorists organizations. Both decisions reversed U.S. district court and federal appellate court rulings which permitted both wronged individuals to recover monetary damages against the government officials involved in the injuries done to them.

Our previous posts in these two cases outlined the immunity from civil damages enjoyed by public officials who violate the law. It is a subject matter that has drawn considerable interests from our blog (here and here). We truly believe that prosecutors, and other law enforcement officials, should enjoy immunity from frivolous lawsuits designed to vex, harass, and impede the overriding interests of our criminal justice system; namely, to arrest, prosecute, and confine those individuals who pose very real threats to society.

But the constitutional immunity protections extended by the Supreme Court in the Thompsonand al-Kidd cases are dangerous and weaken the underpinnings of our criminal justice system. It is one thing to permit prosecutors and law officials to do their jobs but quite another when prosecutors frame an innocent man, send him to death row, and conspire to have him executed; or when the police plant evidence, solicit perjured testimony, and manufacture incriminating evidence to send an innocent person to prison.

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April 1, 2011

ROGUE PROSECUTORS GET LICENSE TO LIE AND CHEAT

Filed under: Federal Crimes Lawyer — Tags: , , , , , , — johntfloyd @ 2:59 pm

Connick v. Thompson: U.S. Supreme Court Allows Prosecutors to Hide Evidence Favorable to the Accused without Consequence

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

John Thompson spent over 18 years in a Louisiana prison, 14 isolated on death role, after a prosecution described as fundamentally unfair by prosecutorial design.
In Thompson’s struggle for justice, prosecutors intentionally withheld favorable evidence, which indicated he was innocent, prior to trial, during trial and throughout the years he spent in prison.  The Supreme Court has now held this was not a civil rights violation.

Our criminal justice system, including its court proceedings, should be an adversarial process in which the “search for truth” entails vigorous, but ethical, advocacy, with the “evidence” put to every possible challenge. But, the truth is sometimes like that proverbial needle in the haystack: it’s hard to find.

Both sides in a criminal case, the prosecution and the defense, start at the same point: the haystack. The judge sits on a bench nearby to make sure that the rule of law is followed and that neither side has an illegal or constitutionally prohibited advantage. But sometimes, the judges are cut from a pro-prosecution cloth; these judges tend to forget they are put in place to ensure that the process is fair and that the law is followed, regardless of the outcome of the case.  Whether intentionally or not, these judges tend to allow the prosecution to lie and cheat, often telling frustrated defense lawyers to “take it up on appeal.”

We don’t know why some prosecutors lie and cheat, especially considering, in a majority of the cases, they have a factual and procedural advantage throughout the process. We suspect it’s rooted in a desire to “make the bad guy pay” while simultaneously building a career resume with “wins.” We all saw the kids at the playground who lied and cheated to get the upper-hand; they had to win, to be first, and to stand out as the best, no matter the means.

Unfortunately, some of these rogue prosecutors come by cheating quite naturally and are good at it; they find rules, ethics, and codes of professional behavior binding—a restriction of their self-anointed role of “convicting at any costs.” We have encountered plenty in the past and are quite confident we will encounter even more in the future.  The reason we can be so sure about this is because our U.S. Supreme Court recently gave “rogue prosecutors” a license to lie and cheat with impunity.

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March 4, 2011

THE SUPREME COURT BACK PEDALS ON THE SIXTH AMENDMENT

Filed under: Federal Crimes Lawyer — Tags: , , , , , — johntfloyd @ 7:03 pm

Constitutional Right to Confront Witnesses Watered Down: Statements Describing Shooter Not Testimonial, Admissible Without Confrontation and Cross Examination

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

What a strange Supreme Court we have! You know it’s strange when Justice Sonia Sotomayer authors a lead opinion, joined by Roberts, Kennedy, Breyer and Alito, which curtails longstanding constitutional jurisprudence regarding the Sixth Amendment’s Confrontation Clause over the dissent of Justice Antonin Scalia.  However, this was exactly the case in the Court’s recent opinion in Michigan v. Bryant, in which the Court held that statements made to police identifying and describing a “shooter” were not testimonial and thus were admissible in trial, even though the witness was dead and could not testify.

But we should not have been taken aback. We have become accustomed to seeing the Court in recent years redefining and restricting historical precedents to the point that they have little or no constitutional value, i.e., the Miranda decision (here, here and here).

This time it’s the Sixth Amendment’s Confrontation Clause which guarantees a criminal defendantthe right to confront and cross-examine adverse witnesses against him. The Supreme Court thirty years ago in Maryland v. Craig made it clear that the historical foundation of the Sixth Amendment is rooted in the constitutional premise that “face-to-face confrontation enhances the accuracy of fact-finding reducing the risk that a witness will wrongfully implicate an innocent person.” Just two years before its Craig decision the Court had observed in Coy v. Iowa that “it is always more difficult to tell a lie about a person ‘to his face’ than ‘behind his back.’”

Then the Supreme Court in 2004 in a landmark decision in Crawford v. Washington held that a major underpinning of the Sixth Amendment is to prevent the admission of hearsay evidence because a criminal defendant cannot cross-examine what is called “out-of-court” testimony. TheCrawford court clarified the difference between “testimonial” and “nontestimonial” hearsay evidence. Crawford specifically held that the use of testimonial hearsay violates a criminal defendant’s confrontation rights unless the individual making the hearsay statements is unavailable at trial and the defendant had a prior opportunity to cross-examine him/her. Nontestimonial hearsay, on the other hand, did not violate the Confrontation Clause and its admission would be determined by local rules of evidence. The Crawford court rejected the use of recorded statements given to the police by a wife incriminating her husband in a stabbing incident who refused to testify against her husband by invoking the marital privilege.

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