CRIMINAL JURISDICTION

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

August 18, 2009

HOUSTON ATTORNEY ANDY NOLEN: A DISHONEST LAWYER?

Filed under: Houston Criminal Lawyer — Tags: , , , , , — johntfloyd @ 12:51 am

False, Anonymous Web Attacks on Fellow Members of the Harris County Bar; Unethical and Pathetic

By Houston Criminal Defense Lawyer John Floyd

This is a difficult and unfortunate article to post. It is about a fellow attorney: Andy Nolen, or someone associated with the law firm that carries his name. This Houston “criminal defense attorney,” as he calls himself, has been responsible for posting negative “comments” on the Yahoo Local websites about various Harris County criminal defense attorneys, including myself.

Nolen attempts to disguise these assaults on the professional character of fellow lawyers by using fictitious names. But, after a simple investigation, it is obviously apparent that Nolen’s firm has entered into a concerted campaign to slander others lawyers to promote his own website. Unfortunately, this appears to be a strategy not uncommon to Nolen.

Andy Nolen resides in a downtown high rise, where, according to property records, he owns two condo units. Residents say he has been a source of continuous discontent with the Home Owners Association in that building. The HOA has been forced to fine Nolen (after numerous warnings) for repeated violations of home owner rules.

This past May, Nolen created a website registered under his name with a P.O. address in Sunnyvale, California to fight the HOA. This site is highly critical of the building and the HOA. Nolen’s website has posted a series of racially charged and inflammatory anonymous “comments” obviously designed to provoke racial discord within the building. Nolen has also apparently refused to post other comments favorable to the building and/or the HOA. Given Mr. Nolen’s proclivity to post false comments anonymously on Yahoo, I can only guess how many of the comments on his HOA protest site are simply his own, designed for some self-serving goal. (more…)

July 8, 2009

SUPREME COURT CHANGES CONFESSION LANDSCAPE

Filed under: Houston Criminal Lawyer — Tags: , , , , , — johntfloyd @ 5:15 pm

Montejo v. Louisiana; Suspects in Criminal Investigations Must Invoke Right to Counsel and Remain Silent, Even if Represented by Counsel

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

Former U.S. Supreme Court Justice Robert H. Jackson often warned his judicial colleagues that the court was “forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added.”

In May, 2009, The Supreme Court removed a story from the constitutional rules protecting criminal suspects against police-coerced confessions. A criminal defense attorney’s most dreaded hurdle is incriminating statements obtained from his/her client outside the presence of legal counsel. The Supreme Court’s latest excursion into this constitutional arena has resulted in a definitive ruling that will make it easier for prosecutors and law enforcement authorities to secure such statements from criminal defendants, even those who are known to be represented by counsel.

St. Tammany and Tangipahoa Parishes are located in the southeastern corner of the state of Louisiana. It is an ultra-conservative part of the state—a region that sent former Ku Klux Klan leader David Duke to the Louisiana Legislature and voted overwhelmingly for the former Klan leader in his narrowly failed bid to become a U.S. Senator in the 1990s. The death penalty is a natural byproduct of this region’s conservative political mindset.

Lewis Ferrari owned nine dry-cleaning businesses in St. Tammany Parish and one in Tangipahoa Parish. So it was inevitable that his brutal murder in 2002 would demand the death penalty. (more…)

July 3, 2009

MICHAEL JACKSON’S DEATH, POTENTIAL CRIMINAL LIABILITY

Filed under: Houston Criminal Lawyer — Tags: , , , , — johntfloyd @ 12:23 pm

Doctors Move to Hire Criminal Defense Attorney Vital in Protecting His Reputation and Liberty in the Jackson Whirlwind

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

The death of celebrity brings out the worst in humanity. The recent death of singer/entertainer Michael Jackson has once again proven this tragic point. We have seen it all before: the lurid headlines, anonymous sources, and grist mill of rumors all designed to insinuate wrongdoing by any and every one associated with the celebrity-figure from nanny to granny. To paraphrase American author Ann Morrow Lindberg, we make our heroes in America only to destroy them.

Michael Jackson was a phenomenal individual. His creative genius transcended even greatness. It was that creative genius that allowed him to survive child sexual molestation scandals, a seemingly endless array of medical problems, and nagging reports of a litany of drug addictions. The public will never know the whole truth about the private life of Michael Jackson. The purveyors of smut and misinformation will see to that. Mark Twain once said that a lie will travel around the world before the truth can put on its socks.

Dr. Conrad Murray, a cardiologist with practiced in Houston and Las Vegas, discovered the singer’s near lifeless body in the bedroom of the Los Angeles mansion where Jackson was living. The doctor performed CPR in an effort to revive Jackson and was present when Jackson was pronounced dead in the emergency room of the Ronald Reagan UCLA Medical Center. The doctor is discovering quickly that the media does not always get it right the first time.

Almost immediately media reports began to circulate linking Dr. Murray to injections of the narcotic drug Demerol (and now Morphine, Vicodin, Diprivan and who knows what else), prior to Jackson’s death. The reports were fueled by misinformation that Dr. Murray had mysteriously disappeared after reporting Jackson’s death; that he had refused to meet with Jackson family members; that he refused to sign a death certificate; and was even evading the police who wanted to discuss with him the timeline of events leading up to the singer’s death. (more…)

May 12, 2009

JUDGE SAMUEL KENT: SHOULD HE BE IMPEACHED?

Filed under: Houston Criminal Lawyer — Tags: , , , — johntfloyd @ 1:47 pm

SHOULD HE CONTINUE TO RECEIVE HIS PENSION?

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

These two questions have stirred considerable debate in both the legal community and general public in south Texas. Normally it is not a subject that would provoke a response by us. But the tenor of those demanding the impeachment of Judge Kent and those who have said he should not receive his pension have caused us some concern. Now that the federal judge has sentenced to 33 months in prison, we decided to weigh in on these two important questions.

The impeachment question is the most difficult one to address. Normally we would say that Judge Kent should be impeached because he was convicted of a serious felony. But the current congressional view of when a federal judge should be impeached gives us pause for concern.

Ninth Circuit Court of Appeals Judge Jay Bybee was head of the U.S. Justice Department’s Office of Legal Counsel under the George W. Bush administration before the former president rewarded Bybee with a life time federal judgeship appointment. Judge Bybee was the top Justice Department official who signed the legal memorandums authorizing the CIA to use torture techniques such as water boarding, wall-slamming and sleep deprivation during the interrogation of “terror suspects” in the wake of 9/11. Judge Bybee’s conduct at the time violated clearly established international law, existing federal law, and America’s longstanding policies for the treatment of captured “enemies of war.”

A significant number of organizations and media outlets have begun pushing for either the resignation or impeachment of Judge Bybee. For example, The New York Times in a recent editorial said that Judge Bybee’s role in the torture approval process “made it clear that [he] was not fit to make judgments about the law and the Constitution.” (more…)

May 5, 2009

INADVERENT TRIAL ERROR COSTLY FOR CLIENT

Filed under: Houston Criminal Lawyer — Tags: , , — johntfloyd @ 12:39 pm

Offer of Proof; Preserving Error for Appellate Review under Rule 103(a) (2)

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

In a recent article (“False Forensics: An Attorney’s Worst Nightmare.” 05-01-09), we reported on the increasing problems associated with the specialized field of forensic science. Prestigious organizations and scientists are calling now for a National Institute of Forensic Science with strict standards and enforcement mechanisms set up to insure that only truthful and valid forensic evidence is used to convict criminal defendants. It was faulty forensic science and lack of professional standards that prompted a former Houston Police Department crime lab technician to testify falsely in the rape and robbery trial of Gary Alvin Richard in 1987. Richard was recently released from prison after serving 22 years on a life sentence for violent crimes he did not commit. He case marked the fourth criminal defendant wrongfully convicted in Harris County because HPD crime lab technicians either lied or misrepresented forensic evidence test results to produce criminal convictions for unethical county prosecutors.

In our “False Forensics” blog, we concluded by saying: “Because of all the recent revelations and developments in the forensic science system, criminal defense attorneys now have an increased responsibility to challenge all forensic evidence offered at a criminal trial; to demand the methods used for gathering, processing, and preservation of that evidence; and to request for discovery of all notes by any analysts testing the evidence. Defense attorneys can no longer take this evidence as ‘scientifically’ infallible. Not only must defense lawyers thoroughly cross-examine these pro-prosecution witnesses about testing methodology, they must also identify all the analysts and support personnel involved in the testing process. Finally, defense attorneys must press for disclosure of testing mistakes made by the testifying ‘expert’ as well as all other mistakes made by others in the crime lab for which he works. This information goes to the heart of ‘reliability’ of the expert testimony, an issue open to cross-examination in Texas criminals.”

A decision by the Texas Court of Criminal Appeals (“CCA”), Woodall v. State, issued on April 29, 2009 not only revised the manner in which expert testimony and evidence must be challenged but underscored the responsibility of defense counsel to properly object to this kind of testimony in order to preserve the issue for review. 1/ The Woodall case involved a DWI conviction obtained in Harrison County. The Sixth District Court of Appeals (“Sixth District”) had reversed his conviction on February 22, 2007. 2/ The Sixth District had seven other DWI cases pending before it at the time, all raising the same issue decided in the Woodall case. The Sixth District consolidated these seven cases and overturned the convictions in each on March 7, 2007. None of the seven cases were designated for publication. The CCA granted the state’s petition for discretionary review in all eight cases and consolidated them for one decision.

The issue upon which the Sixth District based its reversals involved the science associated with the Intoxilyzer 5000, a machine that tests samples of breath for alcohol content. The attorneys in all the cases, except for Woodall’s attorney, filed motions to cross-examine the State’s expert on the operation of the Intoxilyzer 5000 and each motion listed the following eight areas of concern about the internal workings of this breath testing machine: (more…)

April 5, 2009

DISTRICT ATTORNEY PAT LYKOS CONTINUES NEW ERA OF PROSECUTORIAL REFORM IN HARRIS COUNTY

Filed under: Houston Criminal Lawyer — Tags: , , , — johntfloyd @ 4:34 pm

Successful Batson Challenge Reveals Racial Discrimination in Harris County Jury Selection

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

Assistant District Attorneys Mark Donnelly and Rifian Newaz are considered seasoned, professional prosecutors by their colleagues in the Harris County District Attorney’s Office. Many Harris County defense attorneys also hold the prosecutors in high professional esteem. In fact, we recently paid tribute to ADA Donnelly for his recent professional efforts to undo the tragic wrong done to Ricardo Rachell who was wrongfully convicted and who spent six years in prison for the aggravated sexual assault of a child.

But this level of professional respect did not spare the two prosecutors from the reform rod of newly-elected District Attorney Pat Lykos. Determined to remove the District Attorney’s Office from the ugly specter of corruption, mismanagement, and racism that characterized the prosecutor’s office under her predecessor, Charles “Chuck” Rosenthal, DA Lykos took the recent extraordinary action of publicly chastising and reprimanding Donnelly and Newaz for their handling of jury selection in the case of Ricky Whitfield, a black defendant charged with murder.

The two prosecutors used seven of their 10 jury strikes to remove seven blacks from the jury pool. The end result was an all-white jury. This jury result did not set well—and rightly so—with Whitfield’s attorneys, Jacquelyn Carpenter and Eric Davis. They promptly filed a Batson motion under the Supreme Court decision in Batson v. Kentucky that imposed a three-step evaluation test on a trial judge to be utilized in determining whether a prosecutor’s use of jury strikes constitutes intentional racial discrimination.

According to the Houston Chronicle (March 27, 2009), Donnelly and Newaz responded to the Batson motion by telling District Judge Jeannine Barr that the black prospective jurors were eliminated because they were “indecisive about whether the criminal justice system should punish or rehabilitate [and] they didn’t want indecision in the jury room,” reported the Chronicle. (more…)

March 9, 2009

THE PERILS OF POWER

Filed under: Houston Criminal Lawyer — Tags: , , , , — johntfloyd @ 6:33 pm

Power Corrupted and the Struggle for the Rule of Law

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Harris County District Attorney Pat Lykos recently announced that local defense attorneys will be provided with copies “offense report(s)’ prepared by police in criminal cases. This new policy in Harris County, which should have been standard practice for years, is slowing making its way to the court rooms.  Of course, the policy comes with caveats such as confidentiality agreements, redactions etc.  This disclosure policy removes another corrupt vestige from the era of former District Attorney Charles “Chuck” Rosenthal—an era when suppression of favorable evidence, perjured testimony, manufactured evidence, and corruption of forensic evidence passed for the “rule of law” as his assistant district attorneys competed in a “conviction at any cost” prosecutorial environment.

There is no way to gauge how many innocent people were sent to prison, or possibly executed, during the administrations of the two previous Harris County District Attorneys: Chuck Rosenthal and Johnny Holmes. What can be gauge, however, is that both district attorneys, especially Rosenthal, operated with such a “hang ‘em high” prosecutorial mentality that a sense of “above the law” entitlement existed in all ranks of the district attorney’s office. That “above the law” sense of privilege became so ingrained that Rosenthal himself saw nothing wrong with using his office computers to carry on an inner-office romance and share racist and pornographic emails with friends.

We recently opined in an article (posted Feb. 25, 2009) about how an unbridled exercise of judicial power led to federal district court judge Samuel Kent pleading guilty of an obstruction of justice charge and Court of Criminal Appeals Chief Judge Sharon Keller being charged with judicial misconduct. Both of these judges were renowned in the legal community for not only their disrespect of judicial decorum but their disregard for the established rule of law.

Power is indeed a dangerous thing in the hands of the wrong people.

This was made clear by the recent disclosure that five days before George Bush left the Oval Office and departed for the exclusive Dallas neighborhood where he now rides his bicycle, his Justice Department rescinded a 2001 legal memorandum prepared by one of its attorneys, John Yoo, advising the president that the military could search any home in America without a warrant if the homeowner was designated as a “suspected terrorist.” The Yoo memo essentially conveyed to President Bush that he, as the nation’s commander in a time of war, had the unlimited power to treat terror suspects as an “invading army.” (more…)

January 10, 2009

NO RIGHT TO SUE INTERNET SEX SERVICE

Filed under: Houston Criminal Lawyer — Tags: , , , — johntfloyd @ 8:18 pm

Looking for Love in all the Wrong Places, Turning a Blind Eye

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

SexSearch is an “online adult dating service.” It charges a fee to assist its paid members in their search of sexual encounters. An Ohio gentleman identified only as John Doe became a “Gold Member” of SexSearch in October 2005 for a fee of $29.95 per month. John Doe accepted the “Terms and Conditions” of the website which included a “promise” that he was at least 18 years of age.

Jane Roe was also a “Gold Member” of SexSearch in October 2005. She had likewise agreed to the “Terms and Conditions” of the website, attesting that she was at least 18 years of age. In fact, she stated in her “profile” that she was born on June 15, 1987.

John Doe and Jane Roe met online through SexSearch. Jane Roe was apparently a generous spirit. She wanted sexual adventures. That’s why she paid SexSearch the $29.95 Gold Member fee. She apparently seized the opportunity to invite John Doe to her home on November 15, 2005. The Ohio couple engaged in mutually agreeable sex on three occasions after that first invitation.

But at some point in December 2005, for some reason, Jane Roe notified the local police that she was only fourteen years of age and had been sexually involved with the older John Doe. Faced with this serious criminal threat to social order, the local police on December 30, 2005 armored up, rushed to John Doe’s home, surrounded it, and demanded that the criminal menace surrender immediately. (more…)

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