CRIMINAL JURISDICTION

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

January 19, 2012

THE IMPACT OF SMITH V. CAIN

Filed under: Federal Defense Attorney — Tags: , , — johntfloyd @ 6:59 pm

High Court Misses Opportunity to Discuss Ethical Obligations of Prosecutors

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

For reasons we discussed in a previous post, the U.S. Supreme Court had an opportunity in Smith v. Cain to discuss the ethical discovery obligations of both federal and state prosecutors—an idea strongly suggested by the American Bar Association in their amicus brief filed in the case. While the issue before the Court was whether Louisiana prosecutors had committed a Brady violation in a murder case by suppressing favorable evidence, the ABA had encouraged the Justices to use the case to emphasize that a prosecutor’s pre-trial ethical obligations to disclose exculpatory and mitigating evidence under Rule 3.8(d) of the Model Rules of Professional Conduct, 3.09(d) in the Texas Disciplinary Rules of Professional Conduct, are broader and distinct from the post-conviction Brady analysis. In its amicus curiae brief, the ABA framed the issue as follows:

“The case involves numerous serious allegations of non-disclosure that, post-trial, a court must evaluate under this Court’s Brady jurisprudence. However, a prosecutor’s pre-trial ethical disclosure obligations, as governed by the attorney disciplinary rules of the state or jurisdiction in which the prosecutor practices, are separate from and broader than the constitutional standards. Specifically, the ABA Model Rule 3.8(d) [Model Rules of Professional Conduct] mandates disclosure of exculpatory and mitigating evidence without regard to materiality. This Rule’s widespread acceptance is reflected in the fact that 49 states, including Louisiana, as well as the District of Columbia, United States Virgin Islands, and Guam have adopted ethics rules that include a provision identical or substantially similar to it. Similarly, various provisions of the ABA Criminal Justice Standards promote broad disclosure of all exculpatory evidence, without regard to the materiality standard that is required for post-trial analysis under Brady. Accordingly, this Court should again recognize that a prosecutor’s pre-trial ethical disclosure obligations are distinct from the constitutional standards that control a court’s post-trial determination.”

Although the Court reversed the conviction in Smith v. Cain, the Justices did not even mention a prosecutor’s pre-trial ethical obligations to disclose Brady material. It was an affront to the ABA. But we suspect, as we long have, that the Supreme Court is determined to provide as much ethical and constitutional cover for “rogue prosecutors” as possible. Put simply, the Court wants the status quo to remain in place; namely, that the worst consequence a prosecutor can expect for committing a Brady violation is a slap-on-the-wrist reversal of the conviction involved, as it did in Smith v. Cain.

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December 14, 2011

A “SLIPPERY SLOPE” TO COMBAT HOMEGROWN TERRORISM

Filed under: Anti-Terrorism Lawyer, Federal Defense Attorney — Tags: , , , — johntfloyd @ 1:51 pm

Indefinite Detention of Homegrown Terror Suspects, Citizens inside U.S. Unnecessary and Dangerous Erosion of Civil Liberties

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Like it or not, the term “Jihadist” has become a commonly used term in today’s political lexicon.  In a Congressional Research Service (“CRS”) report titled “American Jihadist Terrorism: Combating a Complex Threat” and issued on November 15, 2011, the report’s author Jerome P. Bjelopera said the term “homegrown jihadist” describes “terrorist activity or plots perpetrated within the United States or abroad by American citizens, legal permanent residents, or visitors radicalized within the United States.” The analyst for the CRS in organized crime and terrorism said the term “jihadist” describes “radicalized individuals using Islam as an ideological and/or religious justification for their belief in the establishment of global caliphate, or jurisdiction governed by a Muslim civil and religious leader known as a caliph.”

The CRS’s report estimates there have been “53 homegrown violent jihadist plots or attacks in the United States since September 11, 2001.” Between May 2009 and October 2011, there were 32 arrests made in homegrown jihadist terror plots. And of the 53 terror plots since 9/11, only four were successful—and they were carried out by “lone wolves,” three of whom targeted military personnel through the use of firearms. There were three other lone wolf plots but they were unsuccessful as were the remaining plots that involved two or more participants.

The Fall issue of the Southern Poverty Law Center’s Intelligence Report also found that homegrown jihadist terror plots have risen since 9/11 with more than half occurring since May 2009. The Intelligence Report, like Bjelopera’s report, found that “most of those arrested were influenced by English-language jihadist websites that encourage violence in pursuit of a global caliphate ruled by Islamic fundamentalists.” The CRS cited eight terror plots in 2011 alone.

Discovery of most of these plots, and subsequent government efforts to shape their direction, were made pursuant to the Government’s chief strategy in combating homegrown terrorism: Government undercover operatives used “to infiltrate terrorist conspiracies.” The CRS report said that the Justice Department and FBI operate 104 Joint Terrorism Task Forces in this country, with 69 of them having been established since 9/11. These task forces include more than “4,000 federal, state, and local law enforcement officers and agents” who “’investigate acts of terrorism that affect the U.S., its interests, property and citizens, including those employed by the U.S. and military personnel overseas.’” The importance of this effort can be measured by the increase of 125 to 878 “top-secret security clearances” issued to local law enforcement between 2007 and 2009 alone.

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September 30, 2011

THE CRIMINAL TRIAL: AN ENDANGERED SPECIES?

Filed under: Federal Defense Attorney — Tags: , , , — johntfloyd @ 10:35 pm

Federal Judge Says Threat of Mandatory Sentences Used as “Chip” to Coerce Pleas

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

John L. Kane, Jr. is the Senior Judge of the United States District Court in Denver. This prominent jurist recently told the New York Times that criminal defendants are being ”coerced” into pleading guilty with threats of a harsher sentences should they decide to go to trial. “How many times is a mandatory sentence used as a chip in order to coerce a plea? They don’t keep records,” Judge Kane told the newspaper. “That’s what the public doesn’t see, and where the statistics become meaningless.” Judge Kane said that prosecutors “have grown more powerful than judges” and the end result is that “we hardly have trials anymore.”

The Times cited two groups with an interest in tracking statistics related to guilty pleas versus trials: the National Center for State Courts in Williamsburg, Va., found from available data that the percentage of felonies taken to trial in nine states dropped from 8 percent in 1976 to 2.3 percent in 2006. The Bureau of Justice Statistics, once again utilizing available data, found that the ratio of guilty pleas to trial doubled from 1986 to 2006. These figures are even more disturbing at the federal level. In the wake of the Sentencing Reform Act of 1984 (“SRA”) (here), the percentage of defendants exercising their right to trial in U.S. District Courts dipped to 3 percent in 2010 from nearly 15 percent before the SRA. The result: nearly 9 out of every 10 federal cases result in guilty pleas.

Writing in the New York Law Journal (Vol. 239, No. 7), attorneys Elkan Abramowitz and Barry A. Bohner discussed the disappearing criminal trials in federal courts in 2008. In their article, “Thoughts on Federal Plea Bargaining, Trials, Acquittals,” Abramowitz and Bohner hit the proverbial nail on the head with the following lead: “As one veteran prosecutor recently put it, ‘trials should be the showcase for how the criminal justice system operates.’ But as astute analysts of, and participants in, the criminal justice have observed, the number of trials (and acquittals) in the federal system has diminished in recent years.

“Ongoing discussions among commentators raise questions about whether this anti-trial culture or culture of accommodation is the result of the power imbalance between prosecutors and defense lawyers. Does the imposing combination of charging and sentencing options give federal prosecutors the power to shrink the number of criminal trials? Does the drop in the rate of acquittals indicate a problem with the quality of criminal justice? Is the trial lawyer becoming an endangered species?

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September 8, 2011

DOUBLE STANDARD OF EVIDENCE IN CONRAD MURRAY TRIAL

Filed under: Federal Defense Attorney — Tags: , , , , — johntfloyd @ 4:05 pm

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Jury selection has begun in the high profile criminal case against Dr. Conrad Murray, the physician charged with involuntary manslaughter in the drug overdose and death of Michael Jackson.  This comes the day after a California Court of Appeals denied Murray’s request to have the jury sequestered in what will assuredly be intense media coverage and “expert” speculation.

Defense attorney Edward Chernoff, who is defending Dr. Conrad Murray on an involuntary manslaughter charge in connection with Michael Jackson’s drug overdose death in 2009, wanted to call a number of witnesses to testify about Jackson’s 2005 acquittal on child molestation charges. One of the witnesses was a police detective who searched Jackson’s Neverland home in Santa Barbara County in 2003 where drugs, including Demerol, were found. Chernoff wanted to use the detective and a Dr. Arnold Klein, a dermatologist who gave Jackson Demerol, to show that the famous pop singer was addicted to prescription drugs.

According to a report in the Washington Post, lead prosecutor David Walgren lamented that Dr. Murray’s defense team was trying to “character assassinate” the victim. “The people are concerned about this trial deteriorating into an attack on Michael Jackson,” Walgren was quoted by the Post.

The courtroom indignation of prosecutor Walgren is nothing short of pure hypocrisy. Prosecutors in Jackson’s 2005 trial sought, and secured, approval from Judge Rodney Melville to present testimony concerning Jackson’s prior molestation of five boys, ages 10 to 13. It was okay, from a prosecutorial point of view, to “character assassinate” Jackson as a serial pedophile in 2005 but somehow it is not okay to allow Chernoff to show the singer was a drug addict/pedophile.

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March 30, 2011

HARRIS COUNTY DISTRICT ATTORNEY USES LINGUISTICS TO TRANSFORM OLD CASES INTO COLD CASES

Filed under: Federal Defense Attorney — Tags: , , , , , , — johntfloyd @ 3:00 am

Decades old cases are prosecuted without any new evidence and with critical fact witnesses missing or dead, increasing likelihood of wrongful convictions

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Roy McCaleb was murdered in Harris County on September 22, 1985. The Houston Chronicle reported that McCaleb’s wife, Carolyn Sue Krizan-Wilson, told the police that a gloved man entered their Galena Park home, raped her, and then shot her husband as he lay sleeping. She said the intruder was the same man who had raped her ten days earlier and he had somehow tracked her down in order to do it again. According to the newspaper, Krizan-Wilson did not report the earlier sexual assault to the police although her son at the time was in the Houston Police Department’s Training Academy. Krizan-Wilson, however, did make an “outcry” to a fellow employee shortly after the first rape occurred. She would later say she was too “embarrassed” to report the first rape.

Law enforcement interest settled on Krizan-Wilson early in the McCaleb murder investigation for several reasons: first, there was no sign of forcible entry into the McCaleb’s east Houston residence; second, she didn’t stay at the hospital long enough to undergo a rape examination; third, she was the primary beneficiary of McCaleb’s estate and insurance policy; fourth, she refused to take a polygraph examination; and, fifth, she was married to another man at the time she married McCaleb and had left him taking a $4,000 tax refund check with her.

Realizing that she had become the police’s only suspect in her husband’s murder, Krizan-Wilson hired local attorney Clarence Thompson to represent her. Thompson hired a private investigator named Rafael Gonzales to investigate the case. The attorney also hired a forensic examiner named Floyd McDonald to process the vehicle in which the first rape of Krizan-Wilson occurred. The vehicle has never been examined or processed by the police department.

Detective Robert Parish was one of the homicide investigators who worked the McCaleb case. He simply could not develop sufficient evidence to arrest Krizan-Wilson. He and other investigators met with an assistant district attorney in the Harris County District Attorney’s office. They unanimously agreed “they just didn’t have enough evidence to go forward with a winnable case.” That was a significant decision in 1985. Johnny Holmes was the county’s district attorney at the time. He, and his entire staff, including his successor Charles “Chuck” Rosenthal, were as pro-prosecution as they come, especially in murder cases. In fact, as legend has it, the Holmes crowd once successfully prosecuted a ham sandwich for theft of the cheese.

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March 8, 2011

5C12-SAFETY VALVE-ANOTHER FAILED SENTENCING REFORM EFFORT

Filed under: Federal Defense Attorney — Tags: , , , , , , — johntfloyd @ 6:42 am

U.S. Sentencing Guidelines, Mandatory Minimums, Safety Valve Encourage Snitches, Promote False Testimony, Prevent Just Sentences

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Anytime a new penal statute uses the term “reform” you can take to it the bank that the result will produce just the opposite; that its objective to correct a perceived and politically charged threat will, more than likely than not, harvest a new crop of worse injustices.

Thus is the case with the federal Sentencing Reform Act of 1984 (“SRA”), passed with strong bipartisan support during the Reagan presidency after many years of debate and study. The first indicator that the SRA was not about “reform” was that it was born out of the omnibusComprehensive Crime Control Act which was designed to overhaul the federal criminal justice system. Notwithstanding that SRA was the afterbirth of a sweeping congressional effort to “get tough” on crime, proponents of SRA hailed its primary purposes which were: “(1) to establish comprehensive and coordinated statutory authority for sentencing [currently found in 18 U.S.C. § 3553]; (2) to address the seemingly intractable problem of unwarranted sentencing disparity and enhance crime control by creating an independent, expert sentencing commission to devise and update periodically a system of mandatory sentencing guidelines; and (3) principally through the sentencing commission to create a means of assembling and distributing sentencing data, coordinating sentence research and education, and generally advancing the state of knowledge about criminal behavior.”

One of the SRA’s chief sponsors, the late Sen. Edward M. Kennedy, believed the U.S. Sentencing Commission (“Commission”) and the U.S. Sentencing Guidelines (“Guidelines”) the Commission would promulgate would accomplish three primary policy goals: 1) produce just punishment, deterrence, incapacitation and rehabilitation; 2) provide certainty and fairness by eliminating the sentencing disparity, which had plagued the federal court system, through individualized sentencing that considered both aggravating and mitigating factors; and 3) enhance the knowledge of human behavior as it pertained to the criminal justice system.

Last year, the Commission issued a report based upon independent analysis and research,Demographic Differences in Federal Sentencing Practices: An Update of the Booker Report’s Multivariate Regression Analysis, which made the following findings:

  • Black male offenders received longer sentences than white male offenders. The differences in the sentence length have steadily increased since Booker [a 2005 U.S. Supreme Court decision which held the U.S. Sentencing Guidelines are “advisory” and not mandatory as they had been uniformly interpreted since SRA’s enactment].
  • Female offenders of all races received shorter sentences than male offenders. The difference in sentence length fluctuated at different rates in the time periods studied for white females, black females, Hispanic females, and “other” female offenders (such as those of Native American, Alaskan Native, and Asian or Pacific Islander origin).
  • Non-citizen offenders received longer sentences than offender who were U.S. citizens. The differences in sentence length have steadily increased since Booker.
  • Offenders with some college education received shorter sentences than offenders with no college education. The differences in sentence length have remained relatively stable across the time periods studied.
  • The data were inconsistent as to the association between an offender’s age and the length of sentence imposed.

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October 9, 2010

PROSECUTORIAL MISCONDUCT-THE SCOURGE OF THE CRIMINAL JUSTICE SYSTEM

Filed under: Federal Defense Attorney — Tags: , , , , , , — johntfloyd @ 7:56 am

Thompson v. Connick; Jury Awards 14 Million Dollars to Man Who Served 18 Years in Prison for Crime he Did Not Commit After Prosecutors Hid Favorable Evidence

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Last year the U.S. Supreme Court in Van de Kamp v. Goldstein effectively reinforced a longstanding constitutional rule of law that prosecutors who engaged in unethical and criminal misconduct to secure criminal convictions are immunized from civil liability. They are protected by the doctrine of absolute immunity which insulates public officials from civil liability when performing their official duties, even if their conduct is unethical and criminal so long as the conduct is carried out within the scope of the official’s duties.

The Supreme Court will again this Term entertain a case, Connick v. Thompson, concerning prosecutorial misconduct and civil liability attached to that misconduct. This time under a different rule of law. The sole question before the court in Thompson is whether the failure of a District Attorney to train his assistant prosecutors about the requirements of Brady v. Maryland is sufficient to trigger the rigorous culpability and causation standards associated in municipality liability cases. The Thompson case involves prosecutors deliberately withholding exculpatory evidence which led to the capital murder conviction of John Thompson and causing him to spend 18 years in prison, most on death row. There is no dispute about this fact. The Orleans Parish District Attorney’s Office concedes as much. A jury subsequently awarded Thompson $14 million dollars in damages, one million dollars for each year he was wrongfully held in solitary confinement on death row.  The District Attorney’s Office has appealed this award all the way up to the U. S. Supreme Court.

Thompson’s horrific saga in the criminal justice system began in December 1984 when prominent New Orleans businessman Raymond T. Liuzza, Jr. was killed outside his home. The Orleans Parish District Attorney’s office, then headed by Harry Connick, Sr., was under considerable pressure to see the crime solved and its perpetrator(s) prosecuted. In the heat of the Liuzza investigation, Jay LaGarde and his two siblings faced an attempted armed robbery/carjacking outside the city’s Superdome. Shortly after the LaGarde attempted robbery (January 1985) Thompson and a co-defendant named Kevin Freeman were arrested for the Liuzza murder.

The Thompson/Freeman arrest set in motion a sequence of events that would lead to gross prosecutorial misconduct by Connick’s office. LaGarde’s father saw Thompson and Freeman’s photographs in the local newspaper and figured they were probably the individuals who had tried to rob his children. He contacted Connick’s office about his suspicions which led to Thompson and Freeman being charged with armed robbery.

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July 29, 2010

CAMERON TODD WILLINGHAM: IMPROPER OR WRONGFUL CONVICTION?

Filed under: Federal Defense Attorney — Tags: , , , , , , — johntfloyd @ 1:09 pm

Texas Forensic Science Commission Concludes Flawed Science Used In Trial That Led To Conviction and Execution

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

It was December 1991 in Corsicana, Texas. Cameron Todd Willingham was alone in his residence with his three small children—Amber 2, and one-year-old twins, Karmon and Kameron. A fire broke out in the residence. Willingham managed to escape the fire. The three children did not, dying a horrible death trapped in the flames that quickly engulfed the residence. Willingham was immediately targeted as a suspect for arson murder. He was indicted on January 8, 1992. After turning down an opportunity to plead guilty for a life sentence, he was tried, convicted, and sentenced to death in August 1992. He was executed on February 17, 2004, angrily telling all those present that he was an innocent man. The political and media fallout from Willingham’s execution began before his remains were laid to rest. The case’s controversial history can be found on Billy Sinclair’s blog here, here, here, here, here, here, here, and here. But essentially Willingham was convicted and executed because state officials involved in the case—and with a lot of help from the condemned inmate himself—successfully portrayed him as a “monster” throughout the trial and execution process. The basis for this portrait was:

  • According to neighbors who witnessed the fire at the Willingham residence, he “crouched down” in his front yard and refused to make any effort to rescue his children from the fire despite repeated pleas by neighbors for him to do so. These statements, of course, influenced arson investigators at the scene of the fire to conclude Willingham must have had something to do with the fire.
  • When the fire blew out the windows of the house, Willingham reported hollered out concern about his car which was parked close to the residence. Witnesses said he jumped up, ran toward it, and moved it away from the house so it would not be damaged by the fire.
  • Willingham did not express any grief over the loss of his children at the fire scene or at the hospital after the fire.
  • Willingham reportedly expressed upset to firefighters at the scene that his dart board had been lost in the fire.
  • The morning after the fire, which was Christmas Eve, Willingham and his wife went to their burnt out house and were seen by neighbors laughing as they pored through the debris with loud music blaring from their nearby vehicle.
  • A neighbor testified that Willingham had once beaten his pregnant wife in an effort to induce an abortion, but his wife testified at the trial and disputed the neighbor’s claim by saying Willingham had never beaten her, much less when she was pregnant.
  • Another witness said he once saw Willingham slap his wife, but Willingham’s wife denied the incident ever happened.
  • Willingham reportedly bragged to a friend that he once brutally killed a dog.
  • Willingham reportedly told a “jailhouse snitch” that he killed his children to cover up evidence of abuse. Willingham’s wife, however, testified that her husband never abused the children.
  • Dr. James Grigson, a prosecution “expert,” testified at Willingham’s trial, telling the jury that Willingham was a violent sociopath who did not have a conscience and had no regard for other people’s property or for other human beings (even though there was nothing in Willingham’s criminal history to support this violent assessment).
  • In April 1986 Willingham was arrested for carrying a concealed weapon and public intoxication. He was sentenced to four days in the county jail, and ordered to pay a fine and court costs.
  • In May 1986 Willingham was arrested for second degree burglary. He was placed on probation and assigned to a Non-Violent Intermediate Offender Act.
  • In May 1986 Willingham was again arrested: this time for entering a building with unlawful intent and contributing to the delinquency of a minor (supplying paint to a 12-year-old to sniff). He was sentenced to 15 days in the county jail, ordered to pay restitution, and placed on probation for six months.
  • In November 1986 Willingham was arrested for contributing to the delinquency of a minor (supplying paint to a 12-year-old and an 11-year-old to sniff). He was sentenced to 60 days in the county jail.
  • In April 1987 Willingham was arrested for grand larceny. He was sentenced to 60 days in the county jail and placed on two years probation.
  • In November 1988 Willingham was arrested for driving under the influence of drugs (sniffing paint). He was sentenced to one year probation on the condition that he would check into an in-patient rehabilitation program for paint abuse.
  • In February 1989 Willingham was arrested for shoplifting. His probations for the previous 1987 grand larceny and 1988 DUI convictions were revoked and he was placed in a special boot camp program, given a 2-year sentence with all but 74 days suspended on the conditions that 1) he complete a substance abuse program, 2) attend AA once a week, and 3) undergo urinalysis every week and a half.

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