CRIMINAL JURISDICTION

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

February 15, 2010

RELEASED SEX OFFENDERS – A GROWING UNDERCLASS

Filed under: Child Abuse Crimes Lawyer, Sexual Assault Crime Attorney — Tags: , , — johntfloyd @ 11:17 am

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

In 1994 the United States Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act which required all states to create programs mandating that certain kinds of sex offenders register with state or local authorities. Congress added teeth to the Act by threatening the states with a ten percent loss of federal anti-crime funding for failure to comply.

Child protection advocates like Marc Klaas, whose daughter (Polly) was brutally raped and murdered in the 1990s by a released sex offender who is currently on California’s death row, offer these reasons for sex offender registration laws:

  • Sex offenders pose a high risk of re-offending after release from custody;
  • Protecting the public from sex offenders is a primary governmental interest;
  • The privacy interests of persons convicted of sex offenses are less important than the government’s interest in public safety; and
  • Release of certain information about offenders to public agencies and the general public will assist in protecting the public safety.

Two years later, in 1996, Congress amended the Jacob Wetterling Act with Megan’s Law which mandated “community notification” when a sex offender moves into a given neighborhood. The notification laws make public virtually all private information about sex offenders. Klaas defends “notification” laws on these grounds:

  • Assists law enforcement in investigations;
  • Establishes legal grounds to hold known offenders;
  • Deters sex offenders from committing new offenses;
  • Offers citizens information they can use to protect children from victimization.

Then in 2006 President George W. Bush signed into law the Adam Walsh Child Protection and Safety Act. This Act requires the U.S. Justice Department to create a national sex offender database accessible to the public through the Internet allowing nationwide searches about registered sex offenders.

(more…)

December 19, 2009

THE REAL DANGER OF EXTRANEOUS OFFENSE EVIDENCE

Filed under: Sexual Assault Crime Attorney — Tags: , , , , , — johntfloyd @ 9:09 am

Man Convicted on 2 Counts Indecency with a Child Found Actually Innocent After Nearly Two Decades in Prison: Extraneous Evidence False, Expert Testimony Wrong.

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

We have written on numerous occasions about the dangers of “extraneous offense evidence” when allowed into evidence in a criminal trial. What is extraneous offense evidence?

Extraneous evidence is evidence of another crime, wrong or bad act that is not relevant to proving the specific allegation made in the charging instrument, information or indictment.  For example, a prior unrelated DWI conviction would be an extraneous crime in an arson case.  It would generally be inadmissible in the guilt/innocence stage of a criminal case because it is irrelevant to the arson charge and has no bearing on any fact that is of consequence in that case.

Evidence of other crimes, wrongs or acts that are extraneous to the underlying charge are specifically inadmissible to prove the character of a person to show that person acted in conformity therewith.  There are exceptions however when it can be shown that the evidence is relevant to prove motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. Texas Rules of Evidence 404(b).

If a court finds this evidence is admissible for one of the listed exceptions, and after proper defense objection, the judge must conduct a balancing test under which the court weighs the probative value (its relevance to some issue such as motive, intent, opportunity, plan etc.) against the risk of unfair prejudice, confusion of the issues or misleading the jury caused by the evidence.  Texas Rules of Evidence 403. (more…)

December 15, 2009

SEXUAL ASSAULT CASES: THE RIGHT TO PRESENT A DEFENSE EFFECTIVELY ELIMINATED

Filed under: Sexual Assault Crime Attorney — Tags: , , , , — johntfloyd @ 1:27 pm

Defense Attorneys Fight Prosecutors Prejudicing the Jury with Extraneous Acts, Wrong, Crimes

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

It is the firm belief of among defense attorneys that a criminal defendant should only have to defend against the charge leveled in a charging instrument: a bill of information or a grand jury indictment. But that is not the case in nearly every sexual assault case, especially those involving children. The prosecution will generally find a way to introduce what is called “extraneous offense evidence,” which is uncharged sexual offenses or bad acts involving either the victim or someone else. Thus, a sexual assault defendant frequently finds himself having to defend against not only the crime charged but against uncharged acts as well. Extraneous offense evidence is the most prejudicial and damaging evidence that can be introduced into a sexual assault trial because it usually involves nothing more than the classic “he said/she said” evidence—evidence the State generally does not have sufficient probable cause to bring in an indictment. In fact, in many instances the accusations have been rejected either by the district attorney’s office or grand jury as being insufficient to formally indict.

Texas Rule of Evidence 404(b) is the primary statute governing the admission of “other crimes, wrongs or acts.” 404(b) prohibits extraneous offense evidence from being introduced at trial to prove the defendant is more likely than not to have committed the crime charged because that is the nature of his character. The statute, however, does permit the use of extraneous offense evidence “for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

This rule requires the prosecution, upon being served with a timely request by the defendant, to provide the defense notice of its intention to use extraneous offense evidence. 1/ The defendant can then file pre-trial written objections to the prosecution’s intention to use the extraneous offense evidence and request that the trial court provide findings of fact and conclusions of law as to why it will allow the evidence to be introduced at trial.

After proper objection, the trial court’s decision of whether or not to permit extraneous offense evidence is then governed by Texas Rule of Evidence 403. This rule requires the trial court to conduct a balancing test under which it weighs the probative value of the extraneous offense evidence against its undue prejudice, confusion of the issues, tendency to mislead the jury, and undue delay. 2/ The court is permitted to consider the following factors in its balancing analysis: (more…)

October 7, 2009

ROGUE JUROR DID NOT PREVENT ACQUITTAL

Filed under: Sexual Assault Crime Attorney — Tags: , , , , — johntfloyd @ 5:32 pm

Another Not Guilty: Client Falsely Accused of Indecency with Child Acquitted After Trial by Jury

By: Houston Criminal Defense Lawyer John Floyd

Every prospective juror summoned to court for jury duty in a criminal case is questioned by counsel for the State and defendant as to his/her willingness to follow the law as given by the judge at the conclusion of the trial. A prospective juror who cannot, for whatever reason, state unequivocally that he/she will follow the law is excused for cause. Thus, a juror accepted by both the defense and the State for jury service has a solemn duty bound by a sworn oath to follow the law.

Myself, and Co-counsel Christopher Carlson, recently faced the dilemma of a recalcitrant juror who decided several hours into jury deliberations that she no longer wanted to participate in the proceedings. We were trying a particularly difficult indecency with a child case based on the allegation by a thirteen year old girl who charged that our client had inappropriately touched her during a recreational outing. The teenager had been sent to stay at our client’s residence while her mother recuperated from a serious illness. After her father picked her up at the residence, and as they drove home, the teenager reportedly told her father that our client had touched her inappropriately during her weekend stay at his residence. The father conveyed this information to his wife and together they contacted the police.

This case from the very beginning was a classic “he said, she said” case. It did not matter to law enforcement that our client was a law-abiding citizen with impeccable community credentials, who was known to be a decent, caring family man.

Unfortunately, Texas law is quite clear that the testimony of a child alone in a sex case is sufficient to support a criminal conviction. 1/ In fact, the statement the 13-year-old made to law enforcement, standing alone, was sufficient legal evidence to support a criminal conviction against our client. 2/ The State need not proffer medical evidence, forensic evidence, or corroborating testimony to support the victim’s testimony. “She said” evidence is all that is needed to not only bring about a criminal indictment but a conviction as well. (more…)

October 1, 2009

SEX OFFENDER REGISTRATION LAWS BEG REFORM

Filed under: Sexual Assault Crime Attorney — Tags: , , , , , , — johntfloyd @ 1:28 am

Some in Law Enforcement, Legislatures, Find Federal Sex Offender Registration Laws Too Broad, Onerous

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

In April 2009 CNN reported that there are 38 states in these United States which require juveniles convicted of sex offenses to “register” as sex offenders. The Houston Chronicle (September 21, 2009) featured a front page article by Renee C. Lee (“A Long Wait to Get Past Crime”) which reported that there are approximately 3,600 registered juvenile sex offenders in the State of Texas, according to the Texas Department of Public Safety. The newspaper noted that eleven of these juveniles were ten years of age when they were registered.

The increased number of juveniles being compelled to register as “sex offenders” when convicted of any sex-related offense is a direct result of the 2006 Adam Walsh Child Protect and Safety Act. Title I of the Walsh Act is called the Sex Offender Registration and Notification Act (“SORNA”) which expanded the National Sex Offender Registry and established sanctions up to a maximum of twenty years for sex offenders who do not comply with the law’s registration requirements. SORNA applies to all 50 states, the District of Columbia, the five principal U.S. territories (Guam, American Samoa, the Northern Mariana Islands, the Virgin Islands, and Puerto Rico), and the federal Indian tribes whose jurisdictions are defined by the statute.

But with its frequency of application to juveniles, SORNA has triggered a growing debate among child protection advocates who favor registration of all sex offenders regardless of age and some who say the registration law creates more harm than good when it comes to juvenile sex offenders. A growing number of law enforcement officials have weighed in on the debate saying the by placing so many relatively minor sex offenders—such as most juveniles—in the sex offender registry limits their ability to track far more dangerous sex predators. And some state legislatures such as California, already faced with dire fiscal restraints on their budgets, have begun to seriously question the costs involved in tracking non-dangerous, especially juvenile. sex offenders through sex offender registries.

In a March 1, 2008 article (The Walsh Act And Its “SORNA” Implications), we reported about the growing dissatisfaction in Texas among “an unlikely coalition of law-and-order conservatives: victims’ rights advocates, prosecutors, and ‘tough-on-crime’ legislators. These critics now believe that SORNA is too costly, unnecessarily strict, and has the potential of harming the very victims it was designed to protect.” (more…)

August 25, 2009

ASKING HARD QUESTIONS TO ARRIVE AT THE APPROPRIATE PUNISHMENT

Filed under: Sexual Assault Crime Attorney — Tags: , , , , — johntfloyd @ 2:27 pm

Judges Should Question Victims, Witnesses, About Offense Before Imposing Punishment

By: Houston Criminal Defense Lawyer John Floyd and Billy Sinclair

Under Texas law, a criminal defendant has the option of allowing either the jury that convicted him or the judge presiding over the trial to assess punishment.

In 2008, Emiliano Escobar, convicted by a jury of the sexual assault of an 18-year-old college student, elected to have 177th Criminal District Court Judge Kevin Fine decide the punishment he should receive. To arrive at a punishment that fit the crime, Judge Fine obviously believed he had a duty to closely question the victim about the nature and circumstances of the alleged sexual assault. At one point during the Judge’s examination of the victim, he commented that “sending a man to prison in the name of law and order is the greatest injustice this society can do.”

We agree. 75 percent of the nearly 250 DNA exonerations in this country over the last two decades involved mistaken eyewitness identification. In Texas, the mistaken eyewitness identification percentage is 82 percent in exoneration cases. Two recent Houston cases, Ricardo Rachell and George Rodriquez, come to mind. Both were wrongfully convicted based on false and/or mistaken eyewitness identification. 1/ Various reputable studies, including a 1996 study by the U.S. Justice Department, report that anywhere from 25 to 40 percent of all rape allegations made in this country are false. 2/

But Houston Chronicle columnist Lisa Falkenberg did not agree with Judge Fine’s questioning of the victim—not just with the manner of the Judge’s examination but more with the fact that he even conducted the examination. 3/ After reading the trial transcript of the Judge’s examination, Ms. Falkenberg conducted a telephone interview with the victim who also believed the Judge had “crossed the line” as she told the newspaper columnist.

Ms. Falkenberg and the victim were particularly disturbed that Judge Fine not only challenged the victim’s version of the events but questioned her detailed description of the actual sexual assault itself. According to Ms. Falkenberg, the victim was “shocked” that Judge Fine found it “odd” the alleged rape actually occurred with the victim on top of Escobar during the sexual intercourse. (more…)

August 12, 2009

SIXTH INNOCENT HARRIS COUNTY MAN FREED

Filed under: Sexual Assault Crime Attorney — Tags: , , , , , — johntfloyd @ 12:36 pm

Hall of Shame: Texas Leads Nation in DNA Exonerations

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

That the Houston City Police Department’s Crime Lab was a lawless, rogue unit serving the “convict at any costs” philosophy of the Harris County District Attorney’s Office during the Johnny Holmes and Charles “Chuck” Rosenthal administrations, between 1980 and 2005, is no longer a subject of serious debate. Dozens, possibly hundreds, of innocent people—mostly poor minorities charged with homicides or sex crimes—were railroaded off to Texas prisons based on fabricated (or at best faulty) forensic evidence supplied by the Crime Lab and/or due to mistaken identification secured to corrupt pretrial photo lineup procedures.

On June 13, 2007, former U.S. Justice Department Inspector Michael Bromwich issued a 400-page report that concluded the crime lab’s DNA and serology departments had made hundreds of “serious and pervasive” mistakes in homicide and sexual assault cases. Bromwich two-year investigation examined more than 3500 cases processed by the crime lab over the previous quarter century. 135 of those were DNA cases handled by the crime lab between 1992 and 2002, Bromwich’s investigators found “major issues” in 43 of those cases, and, even more disturbing, found “major issues” in 4 of the 18 death penalty cases it examined.

Before Bromwich initiated his investigation, and following a 2002 “audit” of the crime lab ordered by city officials, two Harris County criminal defendants were ordered released by local courts after it was determined that the crime lab’s false forensic evidence had resulted in their wrongful rape convictions. George Rodriquez was released in 2004 after serving 17 years in the Texas prison system for kidnapping and rape. A Harris County federal jury awarded him $5 million this past June based on the city’s “deliberate indifference” to the recurring problems at the crime lab. In 2003 Josiah Sutton was released after serving 4 ½ years for a rape conviction after DNA tests discredited forensic tests performed by the crime lab. The following year Gov. Rick Perry granted a “full pardon” to Sutton.

Since the June 2007 release of the Bromwich report, four additional Harris County criminal defendants have been ordered released by local courts after it was determined they had been wrongfully convicted of sex offenses. The first was Ronald Gene Taylor who was released in October 2007 after serving 14 years for a rape conviction. DNA evidence—semen on the rape victim’s bed sheet which had not been tested by the crime lab—revealed that the semen belonged to another man who had a history of violent sexual assaults. (more…)

July 21, 2009

MENTALLY RETARDED TEEN GETS 100 YEARS

Filed under: Sexual Assault Crime Attorney — Tags: , , , , , , — johntfloyd @ 3:29 am

Mentally Disabled Youth with IQ Of 47, Allowed to Plead Guilty to Sexual Assault of a Child, Judge Orders Sentences to be Served Consecutively

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

The jury said it did not like the sentencing options made available to it. The judge said he was not pleased that he had to sentence an 18-year-old Paris, Texas teenager to 100 years in prison. The district attorney said he “sympathized” with teenager’s situation but it had to be remembered that he “committed a violent sexual crime against a little boy.”

What exactly did Aaron Hart do? A neighbor said she discovered the mentally retarded teenager, who has an IQ of 47, fondling her stepson last November. Hart was arrested and charged with five counts of aggravated sexual assault of a child and indecency with a child.

Hart’s attorney allowed the mentally disabled youth to plead guilty at the punishment phase of his trial but elected to have the jury assess punishment at the penalty phase. After hearing all the evidence, jurors were not convinced that prison was the best option for Hart. They sent notes to the judge requesting guidance on possible alternatives to imprisonment. Jurors told the media following the trial that the judge’s responses did not provide them with any “clear answers.” They assumed the judge would impose concurrent sentences on the five convictions.

But that is not what the judge did. He sentenced Hart to 5-year terms on two counts and 30-year terms on three counts. The judge ordered the sentences to be served consecutively for a total of 100 years. Lamar Count Judge Eric Clifford’s offered the lame excuse that he didn’t believe he had any other sentencing options because “in the state of Texas, there isn’t a whole lot you can do with people like him.” (more…)

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