CRIMINAL JURISDICTION

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

October 17, 2011

“PROSECUTOR OF THE YEAR!”

Filed under: Houston Criminal Lawyer — Tags: , , — johntfloyd @ 11:29 pm

Williamson County District Attorneys Gain Distinction for Hiding Evidence, Wrongful Conviction and Hard Fought Cover-Up

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Ken Anderson was a prosecutor in Williamson County, Texas, in 1986. In fact, he became Williamson County’s longest tenured district attorney with 16 ½ years as the county’s chief prosecutor and 5 ½ years as an assistant district attorney. Anderson knew his prosecuting business—so much so that his political pal, Gov. Rick Perry, appointed him to a District Judge position in January 2002. Why not, the State Bar of  Texas Criminal Justice Section named Anderson “Prosecutor of the Year” in 1995 and five years later the Texas Crime Victim’s Clearinghouse tagged him the “Outstanding Prosecutor Upholding Victims’ Rights.” Along the way, he became a “Board Certified Criminal Law Specialist” and was elected as President of the Texas District and County Attorneys Association. And as if this was not enough for one man to achieve, Anderson lectured at over 300 schools where he told the leaders of tomorrow about the value of honest public service.

John Bradley succeeded Anderson as Williamson County district attorney in 2001 after he was appointed to that position by none other than Gov. Perry. It was only natural that Bradley would get the political plum. He had been Anderson’s assistant since 1989. In 1993 Bradley decided to give the Texas Legislature a hand in re-writing the state’s Penal Code, and in 1996 he was appointed to former Gov. George W. Bush’s Committee to Rewrite the Code of Criminal Procedure. And, like Anderson, Bradley also likes to talk, speaking “regularly at continuing legal education seminars” in Texas and across the country. He also contributes frequently to “legal magazines and newspapers.”

And while Bradley’s professional resume does not stack up to Anderson’s, the current Williamson County district attorney gained national attention in September 2009 when Gov. Perry fired the chairman (and two other members) of the Forensic Science Commission which was about to investigate the Cameron Todd Willingham execution (here and here) and appointed Bradley as the commission’s chairman. The ensuing political firestorm notwithstanding, Bradley canceled a scheduled hearing in the Willingham case and made it clear that the commission under his direction would not investigate whether the condemned inmate was wrongly executed.

Besides being good talkers and an asset to their prosecutorial profession, what do Anderson and Bradley have in common? Most notably, one sent an innocent man to prison for 25 years and the other did everything he could to cover up this travesty. You would think that these two prosecutors, with all their credentials as top-notch, sate of the art prosecutors, would know that a district attorney’s primary duty is to prosecute the guilty and protect the innocent. Not these two birds of a feather. “Convict at any cost” was, and remains, their professional and political mantra.

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August 28, 2011

SUPREME COURT TO TACKLE WITNESS IDENTIFICATION ISSUE

Filed under: Houston Criminal Lawyer — Tags: , , — johntfloyd @ 10:21 am

Admissibility of Unreliable Identification Evidence

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

According to the New York-based Innocence Project, 75 percent of the nation’s 273 DNA exonerations involved eyewitness misidentification—and according to Harris County state senator Rodney Ellis, a longtime advocate of eyewitness identification reform, 86 percent of Texas’ 45 DNA exonerations (the most in the nation) involved eyewitness misidentification. Eyewitness misidentification, and its link to wrongful convictions, has been explored several times by us on this site (here, here and here).

To say that the nation’s criminal justice system has a festering constitutional problem with eyewitness misidentification is putting the issue mildly. More than four decades ago the U.S. Supreme Court in a pair of cases, Wade v. United States and Gilbert v. California, announced the groundbreaking rule that post-indictment lineups are a “critical stage” of the criminal proceedings at which a defendant enjoys the right to counsel. The following year the Supreme Court in Simmons v. United Stateslineup evidence is inadmissible if it was unduly influenced by an improper pre-trial photo array and that the test for determining whether such a photo array was “impermissibly suggestive,” trial court would be guided by the “totality of the circumstances” surrounding the lineup. Four years later the Supreme Court, in Neil v. Biggers, once again entered the lineup fray by establishing five non-exclusive factors which  should be “weighed against the corrupting effect of any suggestive identification procedure in assessing [the] reliability [of a police lineup] under the totality of the circumstances.” Those factors are:

  • The opportunity of the witness to view the criminal at the time of the crime;
  • The witness’ degree of attention;
  • The accuracy of the witness’ prior description of the criminal;
  • The level of certainty demonstrated by the witness at the confrontation; and
  • The length of time between the crime and the confrontation.

In decades following the pronouncement of the Biggers factors, state and federal courts have carved out differing application of those factors. Some federal courts of appeal have held that due process is violated in all identifications made under suggestive circumstances while other courts, especially state courts, have held that due process is violated only if the suggestive circumstances were orchestrated by the police. The U.S. Supreme Court recently accepted a case from New Hampshire, Perry v. New Hampshire, to resolve this conflict among the courts. The facts and circumstances surrounding the identification procedures used in the Perry case were sufficiently outlined by his counsel in his brief before the New Hampshire Supreme Court who summarily denied Perry’s appeal without oral arguments relying solely on the Biggers factors. Perry sought, and secured, certiorari review before the U.S. Supreme Court on the question listed below:

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August 26, 2011

PUNISHMENT-TEXAS STYLE

Filed under: Houston Criminal Lawyer — Tags: , , , , — johntfloyd @ 10:15 am

Life Sentences for DWI, Shoplifting for Habitual Offenders

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Two years ago the Houston Chronicle carried report about a Montgomery County jury imposing a life sentence on a criminal defendant who shoplifted five compact discs from a Wal-Mart in Conroe. The defendant, Brian K. Balentine, was understandably stunned by the sentence. We just posted a piece about how a defendant’s criminal history, and even uncharged prior bad conduct, can come back to haunt him during the punishment phase of a trial.

That’s what happened to Balentine. The jury learned about his extensive criminal background and decided he would always pose a threat to society, so they sent him away for life. The evidence the jury considered was a 1984 murder in Freestone County of a man trying to protect his wife from Balentine and his brother, Terry, who wanted to rape the wife during a robbery attempt. Although the brothers were given three life sentences for this crime, Brian Balentine was released on parole in 2006. Besides the murder, the Montgomery County jury heard evidence about prior thefts as well as the fact that he had been linked to at least three additional thefts while on parole.

“They (the jurors) agreed with us that he needed to go away for the rest of his life,” Montgomery County District Attorney Brett Peabody told the Chronicle.

A criminal past never truly goes away. Last August (2010) ABC News carried a report about 54-year-old Randy Stovall who was involved in a drunk driving accident in Round Rock, Texas. A judge sentenced Stovall to life imprisonment for the non-fatal accident because he was a “habitual drunken driver” with eight prior DWI convictions. John Bradley, the former district attorney of Williamson County and the former controversial chairman of the Texas Forensic Science Commission, who was recently booted from the commission by the state legislature, was quoted by ABC News as saying about Stovall: “This is someone who very deliberately has refused to make changes and continued to get drunk and get in a car and before he kills someone we decided to put him away … He basically walked through the penal system for the past twenty years without any regard for safety or society. In every single one of his cases he had an opportunity to change.”

These two cases illustrate, through the comments of DAs Bradley and Patterson, that district attorneys in Texas will seek, and often secure, life sentences based more on a defendant’s prior criminal history, both charged and uncharged, than the current offense for which he was convicted.  This is a reality that defense attorneys must explain seriously with repeat and habitual criminal offenders before risking it all at trial.

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August 9, 2011

EXTRANEOUS OFFENSE EVIDENCE DURING PUNISHMENT

Filed under: Houston Criminal Lawyer — Tags: , , — johntfloyd @ 10:10 pm

37.07: The Use of Prior Criminal Record, Bad Acts, Reputation and Character at Sentencing

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Once a defendant has been convicted in Texas, either by a jury or a judge, a separate hearing under Art. 37.07 of the Texas Code of Criminal Procedure must be conducted to determine the punishment of the defendant. The prosecution may offer, and the trial judge has broad discretion to admit, evidence of extraneous offenses during this punishment phase. The defense may offer evidence of good character and reputation, as well as evidence contradicting the state’s offer of prior bad acts. Section 3(a)(1) of Art. 37.07 governs the use of extraneous offense and character evidence “after a finding of guilty.” It provides:

“Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged or finally convicted of the crime or act…”

The Texas Court of Criminal Appeals (“CCA”) two years ago, in Hayden v. State, discussed the kind of evidence that can be admitted during an Art. 37.07 hearing:

“In a non-capital felony trial, evidence is admissible during the punishment phase if ‘the court deems [it] relevant to sentencing. The Legislature did not define the term ‘relevant’ in the Code of Criminal Procedure, and beyond the few items enumerated in Article 37.07, it has not given any guidance as to what evidence is relevant to punishment. Borrowing from the definition of ‘relevant’ in Texas Rule of Evidence 401 is of little avail because the factfinder’s role during the guilt phase is different from its role during the punishment phase. Unlike the guilt phase, where the factfinder must decide discrete factual issues, deciding what punishment to impose is a ‘normative process, not intrinsically factbound. Thus, what is ‘relevant’ to assessing punishment is ‘a function of policy rather than relevancy.’ Evidence is relevant if it helps the factfinder decide what sentence is appropriate for a particular defendant given the facts of the case.”

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July 30, 2011

IT IS TIME TO OVERHAUL NO REFUSAL DWI WEEKENDS

Filed under: Houston Criminal Lawyer — johntfloyd @ 12:25 pm

HPD, Harris County District Attorney’s Office Present Flawed Evidence in DWI Cases

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

We have thus far this year posted three articles reflecting our disdain, and distrust, of the Houston Police Department’s crime lab and the department’s “no refusal” DWI weekends (here, here, and here). The Houston Chronicle carried a recent article that not only vindicates our criticisms but raised red flags about how the crime lab operates its six “mobile breath-testing vans” used in its “no refusal” DWI weekend campaigns. The newspaper reported that a crime lab supervisor and two other scientists quit their jobs because they did not “trust the integrity” of the vans’ breath-testing results.

The HPD crime lab has a long, sordid history of knowingly producing flawed forensic evidence and maintaining other flawed evidence-gathering procedures. No matter how much political criticism or media scrutiny that is directed toward the crime lab, it continues to produce evidence that cannot be trusted. This was made clear by crime lab supervisor Amanda Culbertson who told the Chronicle that she and other crime lab personnel “documented” the problems with HPD’s breath-testing vans before they quit out of fear of being fired in “retaliation” for their overseeing of the police officers and “breath testing technicians” who determined whether a DWI offense had occurred.

“We could no longer choose between a paycheck and our integrity,” the Chronicle quoted Culbertson who testified at a pretrial hearing in Harris County Judge Pam Derbyshire’s court.

The problem with the DWI vans lies in their air conditioning systems needed to “regulate the temperature” of the breath testing machines used to measure blood alcohol levels. Culbertson told Judge Derbyshire that there was “an electrical glitch” which caused the machines to “reset” each time the van’s air conditioner was turned on. HPD was aware of and never fixed the problem. Culbertson and others were concerned about the “accuracy of the test results” produced in this unstable environment.

“In theory it’s a great idea, but it depends on who is in charge of the environmental conditions,” Culbertson told the court.

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July 16, 2011

OUR TAKE ON THE CASEY ANTHONY VERDICT

Filed under: Houston Criminal Lawyer — Tags: , , — johntfloyd @ 4:13 pm

Lack of Evidence and Reasonable Doubts Lead to Acquittal

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Now that Casey Anthony has been acquitted on the most serious charges resulting from the death of her young daughter, Caylee, and is scheduled for release next week, virtually every media pundit, along with their side-kick “expert” attorneys has had their say about the case.  And now, after one of the jurors chose to flee the state of Florida in fear of retaliation, we also feel compelled to add a few comments—both about the verdict and the conduct of those expert attorneys leading up to and subsequent to the verdict.

It has been said that “A ‘not guilty’ verdict is the final disposition of a case from which, under normal circumstances, there is no review. Thus in this sense, it is the juries of this nation which finally define the laws. This places the power of the jury, in this respect, above that of the supreme court of the nation.”  In this light, we must all remember Casey Anthony has been acquitted by a jury of her peers, who heard all the evidence in a court of law, and is not guilty, no matter what the pundits continue to scream.

On July 15, 2008 Casey Anthony told her mother, Cindy, that her two-year-old daughter Caylee had been missing for 31 days. Cindy called 911. The following day Casey Anthony was arrested for child neglect. Law enforcement and private searches were launched in an effort to find Caylee. On October 14, 2008, with Caylee still missing, Casey Anthony was indicted for capital murder, aggravated child abuse, aggravated manslaughter, and four counts of lying to law enforcement officials. On December 11, 2008, the partial remains of Caylee were discovered a half mile from the Anthony residence. Six months after her arrest, April 13, 2009, Orange County prosecutors in Orlando announced they would seek the death penalty.

The Anthony case probably would not have become a national media sensation had HLN’s controversial talk show host Nancy Grace not leaped on the story like a starving dog on a bone. Nancy Grace is Nancy Grace, and she is probably the only talk show host who can regularly make Glenn Beck look like an intellectual giant. The former prosecutor does what most former prosecutors do when given a media outlet after they leave the adversarial trial system: she tries to convince the jury of public opinion that anyone arrested and indicted for a highly-publicized or controversial crime is guilty. It’s a new form of lynching—not with a rope but with cable news outlets.

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July 12, 2011

BULLCOMING v NEW MEXICO- A DWI CASE WITH IMPORTANT CONSTITUTIONAL IMPLICATIONS

Filed under: Houston Criminal Lawyer — Tags: , , , , — johntfloyd @ 12:42 pm

DWI Forensic Laboratory Reports are “Testimonial” for Confrontation Clause Purposes

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

It is not often that a DWI case will find itself in the trenches of constitutional law before the Supreme Court of the United States. But that’s precisely what happened last month when the high court handed down Bullcoming v. New Mexico. The Donald Bullcoming case began in 2005 with a set of background facts similar to many other DWI cases. Bullcoming’s vehicle rammed into the rear of a pickup truck at an intersection in Farmington, New Mexico. The pickup’s driver got out of his truck to exchange insurance information with Bullcoming, but upon noticing that Bullcoming’s eyes were bloodshot and he smelled of alcohol, the pickup’s driver instructed his wife to call the police.

Bullcoming fled the wreck scene but was quickly caught by a police officer who conducted a field sobriety test on him. Failing the test, Bullcoming was arrested for DWI after which he refused to take a breath test. The officer secured a warrant for a forced blood draw to determine the level of alcohol in Bullcoming’s system. The officer sent the blood sample to a lab maintained by the New Mexico Department of Health where a standard report was generated confirming Bullcoming’s intoxication. The “forensic analysis” of Bullcoming’s blood was conducted by an analyst named Curtis Caylor.

Bullcoming was tried in November 2005—one year after the Supreme Court decision in Crawford v. Washingtonwhich clearly defined the parameters of testimonial and non-testimonial evidence under the Sixth Amendment. Under the Crawford rule, a forensic report like the one prepared by Curtis Caylor is “testimonial” evidence that has to be personally verified in court by live testimony of the analyst who prepared it, subject to cross-examination by the criminal defendant. The constitutional problem in the Bullcoming case arose when Caylor was not available to testify at the defendant’s DWI trial. The prosecution was forced to use another forensic analyst who had performed similar blood alcohol concentration tests as Caylor had done on Bullcoming’s blood sample. The substitute analyst confirmed Caylor’s finding that Bullcoming’s level of alcohol exceeded the legal limits of intoxication.

Bullcoming was convicted and appealed his conviction to the New Mexico Supreme Court. While the appeal was pending, the Supreme Court handed down Melendez-Diaz v.  Massachusetts which held that a forensic lab report on cocaine was testimonial and could not be offered into evidence without a live witness to very its authenticity. While the New Mexico Supreme Court held that Caylor’s report was testimonial evidence, the court reasoned that the Sixth Amendment did not require the certifying analyst to testify at trial. And that was the important question that worked its way to the U.S. Supreme Court: whether the live testimony of another analyst who did not conduct or write a forensic report satisfies the Sixth Amendment’s confrontation guarantee?

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May 28, 2011

TRANSGENDER RIGHTS-A DEVELOPING LEGAL FRONT

Filed under: Houston Criminal Lawyer — Tags: , , , — johntfloyd @ 12:29 pm

Transgendered Issues Confound Courts and Prison Officials

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

The case of Justin Purdue has captured the interest and emotions of residents of Wharton County, as well as Harris County, for much of the past year. Purdue was born anatomically a man on June 4, 1975 in Camel, California but at some point in his life he believed he was more suited as a woman. He went through several medical procedures to change his appearance so as to be better able to live socially as a woman, although he continued to maintain male genitalia. In 1996 Pardue filed a pro se petition for a name change in Harris County changing his male name from “Justin” to “Nikki Paige Purdue.” Between 1999 and 2007 she used the name of Nikki Purdue-Mata because of a marriage to a man named Emilo Mata. The couple divorced in 2007.

Sometime after her divorce from Mata, she met and married firefighter Thomas Trevino Araguz III.  In August 2008 they were married. The firefighter was killed in a blaze last July at an egg farm in Wharton County. Araguz had previously been married to Heather Delgado with whom he had two children. And that’s where this case becomes a thorny legal issue. The heirs of Thomas Araguz stood to gain $600,000 in death benefits. Nikki Araguz claimed, as the “widow,” she was entitled to the benefits. Heather Delgado and other Araguz family members did not agree. They believed the death benefits should go to Araguz’s two children, ages 7 and 10.

The Araguz family filed a lawsuit to block Nikki Araguz from receiving the death benefits. The family claimed that Nikki was a male at the time of the marriage to Thomas and, thus, under Texas Law, the marriage was void—a law which has been upheld in the Texas appellate process. Nikki countered that her deceased husband knew about her gender before the marriage and that they lived as a same-sex married couple throughout their marriage. While the Araguz family did not believe Thomas’ knew Nikki was anatomically a man, it defies reason to accept that the firefighter lived with Nikki for nearly a year before his death without knowing her birth gender. Although Nikki had previously requested the State of California to issue her a birth certificate designating him as a “female,” she later asked that state to reissue that birth certificate in July 2010, apparently in either anticipation or in defense of the Araguz family lawsuit.

The sole issue faced by Wharton County District Judge Randy Clapp was not whether the Araguz(s) lived as a married same-sex couple but whether the 2008 marriage itself was legal. The Houston Chronicle reported on May 26, 2010 that Judge Clapp had ruled in favor of the Araguz family by declaring the marriage between Thomas and Nikki Araguz was illegal under Texas law and, thus, null and void. Frank Mann III, the attorney representing the Araguz family, released a prepared statement carried in the Chronicle which read: “It is our understanding, having read a draft order circulated by Judge Clapp, that he has ruled that any marriage between Thomas Araguz and Nikki Araguz is void as a matter of law.”

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