CRIMINAL JURISDICTION

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

March 19, 2011

CONSENSUAL SEX WITH A MINOR-RAPE AND MASS HYSTERIA

Filed under: Sexual Assault Crime Attorney — Tags: , , , , , — johntfloyd @ 6:25 pm

Shocking Allegations Of Sexual Assault In Cleveland, Texas

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Allegations of mass rape have literally ripped apart the social fabric of Cleveland, Texas, a Liberty County community of 7000-plus people just 45 miles north of Houston. The town has never been known as a bastion of racial harmony, but the sexual assault of an 11-year-old Hispanic girl there last Thanksgiving by as many as two dozen suspects—most of whom African-American—has splintered the town’s racial coexistence, which according to some was already as tattered as the neglected American flag flying above so many double-wide trailers in small Texas towns like Cleveland.

The case has drawn the social ire of community activists like Houston’s Quannell X and politicians like U.S. Rep. Ted Poe. While Quannell X roundly condemned the sexual assault of the young girl, he directed pointed criticism at the child’s parents who, according to some reports, did not supervise the 11-year-old’s promiscuous life style which included pretenses at being older and desires to be a “porn star.” Cleveland resident Kisha Williams echoed Quannell X’s criticism, telling the Houston Chronicle: “Where were [the parents] when this girl was seen wandering at all hours of the night with no supervision and pretending to be much older.”

Addressing a group of supporters of the African-American suspects arrested in the case, Quannell X pointed out that while some of the suspects have admitted their guilt, others are probably innocent. The community activist then raised a penetrating question: “She lives in another community. You mean to tell me the only men that had sex with that girl were black men, locked up in that jail?”

Rep. Poe issued a statement calling for a “thorough investigation” and “swift justice” for the 11-year-old victim.  While we agree that a thorough investigation should be done, we are perplexed, as is Quannell X, that all those arrested come from the African-American community of this small town.  It begs the question: Are law enforcement focusing only on black suspects.

(more…)

August 10, 2010

FEDERAL INMATE SAMUEL KENT DESERVES FAIR TREATMENT

Filed under: Sexual Assault Crime Attorney — Tags: , , , , — johntfloyd @ 2:18 am

Unpopular Judge Deserves Humane and Fair Treatment While in Federal Custody

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Last year former U.S. District Court Judge Samuel Kent pleaded guilty to an obstruction of justice charge and received a 33-month sentence. He was committed to the U.S. Bureau of Prisons. Kent’s attorneys, Dick DeGuerin and Sean Buckley, recently filed a comprehensive motion in the U.S. District Court for the Houston Division to vacate and correct his prison sentence because of the physical and psychological abuse he has endured at the hands of federal prison officials. The abuse includes being mislabeled a “sex offender”—a status which precludes him from participating in certain substance abuse counseling programs—and being held in harsh solitary confinement while being transferred from one federal or state penal facility to another.

The federal prison system can be a brutal place, particularly if the inmate is a former law enforcement official and especially if he is a former federal judge. DeGuerin’s motion, according to Hair Balls blog of the Houston Press, charged that “contrary to public interest, the Federal Bureau of Prisons has subjected Sam Kent to abusive psychological and physical conditions that have jeopardized his ongoing recovery from depression and alcoholism.” The motion added that on the very day that Kent formally resigned his position as a federal judge (and gave up his pension), prison officials placed him in a “filthy, completely empty cell” (commonly called “admin seg”) where the “temperature was kept at 60 degrees” and with Kent “wearing only a smock and carrying only a single sheet.”

Cold is an extreme form of torture. Prison officials routinely place inmates with severe emotional and psychological problems who engage in disruptive behavior in “admin seg” cells where the temperature is deliberately kept low to make them as uncomfortable as possible. A concrete slab is the only bed in these cells. An inmate is sometimes (not always) given a sheet or a thin blanket used to cover the slab or himself. He is clad in either a sheer-like “smock” or what is called a “paper gown.” Inmates are frequently kept in these torture-like chambers for days, weeks, and even months, depending upon the level of disruptive behavior they have engaged in. The only relief, if any, comes when “pill call” arrives and a medical technician dispenses heavy dosages of psychotropic medication in a futile effort to quell the curses and screams and protestations against the physical abuse.

While these cells are generally used to remove and isolate “psychotic” inmates, they are frequently used against certain inmates “to get their mind right.” It is designed to not only destroy their personal self-esteem but break their will as well. The famous line spoken by the warden in the old “Cool Hand Luke” movie describes the process: “Luke, what we have here is a failure to communicate.” Many people may feel this is appropriate treatment for a former federal judge who built a reputation, earned or not, as being a tyrant in his courtroom. We refuse to bite into that tempting jelly-filled donut. Accepting DeGuerin’s motion as factual (and we have no reason to doubt its merit), we find it not only disturbing but downright offensive that some of the most dangerous and violent drug lords, who have cut deals with the federal government to “spill their guts,” are receiving better treatment from federal prison officials than Sam Kent. When ruthless drug cartel leaders are given preferential treatment and held in higher regard by federal prison officials than a former federal judge, then our federal prison system has become so skewed that legitimate penological objectives are impossible to achieve in it.

(more…)

March 30, 2010

IS HIV A DEADLY WEAPON?

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

Texas Prosecutors Use HIV as Deadly Weapon in Aggravated Sexual Assault Case

By:   Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Let us state quite emphatically at the outset that we do not know if K. L. Sellars is guilty of the crime the Harris County District Attorney’s Office has leveled against him. Many people are wrong accused of crimes they did not commit, so we will leave judgment that to a jury of his peers.

Sellars is charged with having a 15-year-old teenager, who he met on the social networking site myspace.com, fly from his Indiana home to Houston last December, where he spend 10 days with Sellars. Based on accusations made by the teenager, the District Attorney’s Office charged Sellars with aggravated sexual assault of a child, primarily because the teenager is under age according to Texas law and secondly because Sellars allegedly used a deadly weapon in the commission of the offense.

What makes this case different, and somewhat controversial, is that it marks the first time the District Attorney’s Office has elected to use HIV as a “deadly weapon” in an aggravated sexual assault case. While Texas prosecutors in other counties have used the HIV virus as a deadly weapon, dating back to 1997, Harris County prosecutor Eric Devlin decided the Sellars case was appropriate for such a prosecution because the defendant told the teenager that he would not pay his way back to Indiana unless the teen had sex with him (Sellars).

The decision by the District Attorney’s Office to use the HIV virus as a deadly weapon in the Sellars case aroused the ire of the New York-based Center of HIV Law and Policy. Catherine Hanssens, executive director of the center, told the Houston Chronicle that “HIV should not be an aggravating factor unless there’s some evidence that he intended to do some harm and did some harm. Criminal law in every state is adequate to deal with. But to treat it as evidence of guilt and a deadly weapon wasn’t appropriate in 1985, and it isn’t appropriate now.”

(more…)

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…)

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