CRIMINAL JURISDICTION

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

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…)

January 8, 2009

STANDARDS OF PROOF

Filed under: Houston Criminal Lawyer — Tags: , , — johntfloyd @ 7:28 pm

Reasonable Doubt; Foundation of a Free Society

By: Houston Criminal Lawyer John Floyd and Mr. Billy Sinclair

Every one has heard of the phrase “proof beyond a reasonable doubt.” But there are three primary standards of proof: preponderance of evidence; clear and convincing evidence; and reasonable doubt. Black’s Law Dictionary (8th Ed. 1990) provides the definitions of each in order of importance:

Preponderance of the Evidence: the greater weight of evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Clear and convincing evidence: Evidence indicating that the thing to be proved is highly probable or probably certain. This is a greater burden than preponderance of the evidence, the standard applied in most civil trials, but less than evidence beyond a reasonable doubt, the normal in criminal trials.

Reasonable doubt: The doubt that prevents one from being firmly convinced of a defendant’s guilt, or the belief that there is a real possibility that the defendant is not guilty. ‘Beyond a reasonable doubt’ is the standard used by a jury to determine whether a criminal defendant is guilty. In determining whether guilt has been proved beyond a reasonable doubt, the jury must begin with the presumption that the defendant is innocent.

(more…)

December 24, 2008

HISD CONSIDERS RANDOM DRUG SEARCHES

Filed under: Drug Defense Attorney, Houston Criminal Lawyer — Tags: , , , , , — johntfloyd @ 3:48 pm

The War on Drugs at School vs. Teachers’ Expectation of Privacy

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

Over the last two months sixteen Houston Independent School District employees, including 11 teachers, have been arrested on drug charges—mostly involving marijuana or prescription drugs found in parked vehicles on school campuses. Two of the employees were arrested twice. Most of the arrests came after anonymous tips, prompting HISD police to use drug-sniffing dogs to hit on narcotics in the vehicles.

“This is a matter of great concern to us and we wanted to make sure that our community understood that we will take whatever action is necessary to make sure our schools are safe,” HISD Superintendent Abelardo Saavedra said in response to the sudden rash of arrests.

Besides pressing for the immediate termination of the arrested employees, Saavedra informed the Houston Chronicle that the school district is contemplating a plan to use drug sniffing dogs to search for narcotics in employee parking lots in every HISD school.

Current HISD policy, according to the Chronicle, only permits random drug tests for bus drivers, police officers, and other security personnel. While the executive director of the Congress of Houston Teachers said he was a little concerned that the drug-dog searches might violate civil liberties, Chuck Robinson minimized his concern by adding that “we have to maintain public confidence and trust in our employees.” (more…)

December 17, 2008

A DISTRICT ATTORNEY’S OFFICE IN NEED OF REFORM

Filed under: Houston Criminal Lawyer — Tags: , , , , — johntfloyd @ 6:05 pm

Ethical Lapses, Forensic Impropriety and Extreme Carelessness; Another Day at the Harris County Criminal Justice Center

By Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair

In October 2002 two young boys were playing together in downtown Houston when they were approached by a stranger who offered them money in exchange for removing some trash. One of the boys, who was eight years of age at the time, was lured into a nearby vacant house and sexually molested by the stranger.

Based on information supplied by the boy’s mother, Houston police officer Lisa Clemmons arrested a neighborhood resident named Ricardo Rachell for the sexual assault. The two boys identified Rachell as the attacker. That identification at the outset should have raised a red flag. Rachell has a terrible facial disfigurement caused by a shotgun blast years earlier. The molested boy did not mention any facial disfigurement to his mother when he initially told her about the sexual assault on the day it happened.

And the boy knew Rachell from seeing him around the neighborhood. The facial disfigurement caused Rachell to drool and he usually had a towel wrapped around his neck to wipe away the drool. While the young victim thought Rachell was “scary,” he did not identify the disfigured man as his attacker until the day after the sexual assault and only after his mother had talked to him about Rachell.

Officer Clemmons apparently did not perceive the significance of the boy’s failure to finger Rachell on the day of the attack. But she did collect biological evidence—clothing and medical swabs—from both the victim and Rachell. However, Rachell’s DNA was not processed so that it could be compared to biological evidence collected from the victim. Had Rachell’s DNA been properly processed and tested, he would not have been wrongfully convicted and sentenced to 40 years in prison in 2003.

In January 2008 Harris County Criminal District Court Judge Susan Brown issued a belated order that Rachell’s DNA be tested. In October the results of that testing disclosed unequivocally that Rachell was not the “stranger” who attack the boy. The wrongfully convicted man was released from custody on December 12, 2008 after six long years of protesting his innocence to anyone who would listen. (more…)

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