Criminal Law Blog by Defense Lawyer John Floyd and Mr. Billy Sinclair
Inadmissible Evidence under 608(b) of the Texas Rules of Evidence May be Admissible under 613(b), Rule 412 or Confrontation Clause
By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair
A Harris County federal jury recently awarded $5 million to George Rodriquez for the 17 years he spent in the Texas prison system after being wrongfully convicted of the rape of a 14-year-old girl. And a Harris County district court judge last December ordered Ricardo Rachell released after he spent six years in the Texas prison system after being wrongfully convicted of sexually molesting an eight-year-old boy.
These two cases are just a series of wrongful convictions in sex offense cases that have been uncovered in Harris County and throughout the State of Texas. It is easier to wrongfully convict a person of a sex offense than any other crime. There are few crimes that carry such a heinous social stigma. Just the mention of a child sex crime often creates a presumption of guilt (Just look to Michael Jackson). It is one of the few crimes that require only the word of the alleged victim to establish the guilt of the person accused. These are generally “she said/he said” kinds of facts scenarios. Just last year, this Firm successfully defended, at two separate trials, a corrections officer who had been charged with child sex crimes based solely on the word of the female inmates. Although our client was acquitted of the false rape accusations, he and his family were put through an ordeal of financial sacrifice, shame and embarrassment, and the loss of his career in law enforcement.
Beyond intentionally submitted false forensic evidence and mistaken identification, why is it so easy to wrongfully convict defendants charged in sex offense cases? The primary reason is that the evidentiary rules of evidence are stacked against the defendant in favor of protecting the alleged victim from further emotional “trauma” associated with sexual assault. For example, in Texas, a defendant does not have a per se right to impeach a sexual assault victim about prior false sexual assault allegations made by the victim.
The Texas Court of Criminal Appeals (“CCA”) made this abundantly clear in 2000 in the case of Rudolfo Lopez. 1/ Lopez was convicted of sexually assaulting a 12-year-old boy (forcing the boy to perform oral sex on him over a period of several months) and sentenced to twelve years in prison. At his trial Lopez had sought to introduce evidence that two years earlier the boy had made a false allegation of physical abuse against his mother; namely, that his mother had thrown him against a washing machine. Lopez sought to use this false allegation the boy had made to the Department of Human Services, but the trial court refused to allow the evidence under Rule 608(b) of the Texas Rules of Evidence. Although a state appeals court would later rule that the evidence should have been admitted, the CCA reversed the appeals court ruling and upheld the trial court decision not to admit the false allegation evidence. 2/ (more…)
District Attorney’s Office of the Third Judicial District v. Osborne; U.S. Supreme Court Blocks Ability for Wrongfully Convicted to Prove Innocence
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
George Rodriquez spent 17 years in the Texas prison system for a crime he did not commit. He was 26 years of age in 1987 when he was wrongfully convicted by a Harris County jury for the rape of a 14-year-old girl. The jury based its decision on a critical piece of forensic evidence; a pubic hair found in the victim’s underwear. A serologist with the Houston City Police Department’s Crime Lab determined that the pubic hair did not belong to another suspect in the rape case, Isidro Yanez. The serologist testified at Rodriquez’s trial, saying that while his forensic testing ruled out Yanez, it did not rule out Rodriquez.
Seventeen years later DNA testing established that the pubic hair in fact belonged to Yanez and not to Rodriquez. Rodriquez was released from prison in 2004. The Harris County District Attorney’s office refused to declare Rodriquez “actually innocent” of the crime. That official refusal to acknowledge his innocence precluded him from receiving a pardon and being awarded state compensation for his wrongful confinement. He filed a federal civil rights suit against the City of Houston and a federal court jury on June 25, 2009 awarded him $5 million dollars in damages for the 17-year wrongful imprisonment.
The Rodriquez case has not been the only Texas DNA case is the news lately. Two men convicted in the infamous 1991 Austin “yogurt shop” murder case were recently released on bond from jail. The convictions of the two men, Michael Scott and Robert Springsteen, were reversed several months ago on appeal after DNA tests on the state’s evidence indicated the presence of an unknown suspect. Attorneys for the two men say the presence of DNA evidence of the unknown suspect exonerates their clients. Prosecutors do not agree. They believe the new evidence only indicates that yet another person was involved in the crime; therefore, prosecutors plan to continue their prosecution of Springsteen and Scott for the murders of the four teenage girls killed during the robbery of the Austin yogurt shop.
These two Texas cases illustrate the potentially devastating impact of a recent U.S. Supreme Court decision in an Alaska case that held state prisoners do not enjoy a constitutional right to post-conviction access to the State’s evidence for DNA testing. 1/ (more…)
Rule 606(b) of the Texas Rules of Evidence; Conducting Inquiry into Juror Misconduct
By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair
Johnny Ray Ocon was put on trial in Ector County, Texas for the crime of aggravated sexual assault of a child. Sex offense cases involving children are the most difficult for a criminal defense attorney to try. Defense attorneys must be very careful and thorough during the voir dire of prospective jurors to identify any hidden biases a juror may harbor in such cases. It is not always easy to sift through an individual juror’s personality in the short period of time, and with a limited number of questions, to identify and isolate any prejudices the juror may have against the defendant.
Ocon’s attorney conducted a diligent and comprehensive voir dire of several dozen prospective jurors before twelve were chosen to hear the case against Ocon. Those twelve jurors took a solemn oath to be fair and impartial. Like most defense attorneys at the conclusion of voir dire and after the jurors were sworn, Ocon’s attorney knew there were probably a couple jurors who would not approach the case with an open mind despite their sworn duty to do so. But the attorney had put forth his best effort to select the kind of fair and impartial jury to which his client was entitled under both the federal and Texas constitutions.
But nothing throughout the jury selection process had prepared Ocon’s attorney for what he would encounter on the second day of the trial. During a brief recess, the attorney entered the men’s restroom in the county courthouse. He overheard someone in the next stall talking on a cell phone. The following are portions of the conversation the defense attorney heard:
Brenda – They’ve got me on this damn jury … I don’t know why the hell they picked me … I would rather be on a double ax murderer then [sic] this damn case … It’s dirty, disgusting … No, unless we convict the bastard today, then I’m kind of stuck here. (more…)
City of Houston Sued; Disgraced Crime Lab on Trial After Wrongfully Convicted Man Exonerated After 17 Years in Prison
By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair
George Rodriquez was a 26-year-old young man in 1987 when he was convicted of raping a 14-year-old girl in Harris County. A critical piece of evidence that led to his conviction was a pubic hair found in the girl’s underwear. A serologist with the Houston City Police Department’s crime lab, who we now know had a history of fabricating evidence to suit local prosecutorial and law enforcement needs, determined that the hair did not belong to a suspect named Isidro Yanez but the serologist did not eliminate Rodriquez as the owner of the hair. Seventeen years later DNA, which was not used as evidence in criminal trials in 1987, established that the hair in fact belonged to Yanez and not to Rodriquez.
At age 43 Rodriquez was released from the Texas prison system to be embraced by three daughters who had grown up while he was wrongfully imprisoned. He was able to visit the grave site of his deceased father who had not survived long enough to see his son vindicated. It was indeed a hard 17-year ordeal. There is no comfort for innocent men in prison—not even from their fellow inmates, especially if they have been convicted a sex offense against a child. The “sex offender” stigma places these individuals at the bottom of the prison subculture. The only real support they have are family members who refuse to accept the validity of the “criminal conviction” imposed upon their loved one.
It’s now payback time. George Rodriquez is now appearing before a local federal court where his attorney Barry Scheck, co-director of New York’s Cardozo School of Law’s Innocence Project, is demanding that the City of Houston to pay his client “tens of millions” of dollars in damages for the 1987 wrongful conviction. In his opening statement in U.S. District Court Judge Vanessa Gilmore’s courtroom, Scheck told jurors: “We will prove a false and misleading serology report violated [Rodriquez’s] constitutional right to a fair trial.”
Scheck announced his intention to call former Harris County District Attorney Johnny Holmes and former Houston Police Chief Lee Brown as witnesses. Attorney Robert Cambrice, who is representing the City of Houston, did spare the rod of accountability for Holmes or Rodriquez’s defense attorney. The Houston Chronicle reported (June 17, 2009) that Cambrice laid the blame for Rodriquez’s wrongful conviction “on bad lawyering by the prosecutor and Rodriquez’s late defense attorney that led to the false conviction, not an unquestioned lie by a city employee.” (more…)
Past Abuses, Hopes for Better Future
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
Three recent stories in the Houston Chronicle exposed serious flaws in the Harris County criminal justice system. The first story concerned a 60-year prison term imposed on Andrew Wayne Hawthorne, a serial child molester. Hawthorne molested an eight year old boy in the fall of 2002. A crime for which a wrongly accused man, Ricardo Rachell, was convicted and sentenced to prison. Ricardo Rachell was convicted for this sexual assault and spent more than six years in the Texas prison system before readily available DNA evidence at the time of his arrest was finally tested and established his innocence.
We have written about this travesty of justice in previously but what disturbed us most about the recent Chronicle article (June 5, 2009; http://www.chron.com/disp/story.mpl/front/6457829.html ) were the photos of Rachell and Hawthorne. Rachell’s face at the time the photo was taken, and as it appeared at the time of his arrest and subsequent conviction, was horribly disfigured by a shotgun blast. There is no way these two men could have been mistaken for each other.
Unless, of course, the child victim was influenced into making the mistaken identification by someone bent on revenge and who was convinced that the disfigured Rachell, a neighborhood “freak,” was the man who molested the boy. The Houston Police Department accepted the child’s mistaken identification without any meaningful independent investigation to determine if the identification was correct. As a result, an innocent man spent six years in prison for something he didn’t do – and even with his innocence established through DNA testing, he will forever have the haunted memories of years in Texas prison labeled as a child sex offender.
The second Chronicle story (June 6, 2009) involved the release of a U.S. Justice Department report that found poor access to health care in life-threatening situations, unnecessary use of physical force, denial of mental health care, and inattention to suicide prevention violates the constitutional rights of inmates in the Harris County Jail. (more…)
Gary Alvin Richard; Wrongly Convicted Man Released after 22 Years
By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair
They are called “experts.” Prosecutors parade them into court dressed in respectful suit ware and carry resumes packed with a laundry list of degrees. They then testify about the science of “forensic evidence” in ways that more often confuse rather than clarify the issues being tried in a criminal case. Worst yet, many of these “CSI” experts testify falsely, or in misleading fashion, about test results they either did not perform correctly or whose results they manufactured to fit a given prosecutorial objective. Incompetent or unethical “forensic experts” are a criminal defense attorney’s worst nightmare.
The Houston Chronicle (April 25, 2009) carried a report about yet another Harris County case where an potentially innocent person spent 22 years in prison for a rape and robbery he did not commit because of false testimony and faulty “forensic evidence” from the now thoroughly discredited Houston Police Department’s (HPD) crime lab. The case involves Gary Alvin Richard who was released after 22 years in prison on his personal recognizance. Mr. Richard was convicted by a jury in connection with a 1987 attack on a nursing student who was abducted from a local Laundromat, robbed, and taken to an abandoned apartment where she was repeatedly raped.
During a seven-month period after the attack, the victim called the police twice to report that she had seen the man who assaulted her. The HPD did not respond to these calls. Seven months after the attack the victim called the police department a third time to report that she had just seen her attacker in a store. This time the police responded to the call and arrested Richard. Although Richard had a minor criminal history involving petty drug use, there was no violence in his record.
The victim’s mistaken identification of Richard was supported by forensic evidence developed by the HPD crime lab. New tests conducted on that same evidence on April 24 revealed that the crime lab analyst not only lied to the jury but withheld evidence that was exculpatory to Richard. (more…)
Factors Contributing to Wrongful Convictions and Unjust Imprisonment
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
In a March 16, 2009 article (“Cold Shoulder from Lubbock Officials in Cole Case”), we wrote extensively about the tragic wrongful conviction of Timothy Cole. A military veteran and college student, this son of a school teacher and Bell Helicopter manager was convicted in 1986 for the December 1985 rape of a Texas Tech student in Lubbock, Texas. Despite vigorous protestations of innocence from Cole and his family, Cole was convicted and sentenced to 25 years in prison where he died fourteen years later.
In February, state district judge Charles Baird indicated from the bench that Cole had been wrongfully convicted after DNA evidence established his innocence and pointed the finger of guilt at another convicted rapist already housed in the Texas prison system for several other Lubbock rapes. On April 7, 2009, Judge Baird made his February finding official and formally ruled that Cole had been wrongfully convicted. That ruling made Timothy Cole the first person in Texas history to be exonerated posthumously by DNA evidence.
Cole’s family recently met with Texas Gov. Rick Perry to request a posthumous pardon. All indications are that the governor will honor the request.
“When we started this back on September 26, 1986, when Tim was convicted, we knew this would not be a sprint race,” Cory Session, Timothy’s brother, recently told AP writer Jeff Carlton. “It was going to be a marathon. Here we are a quarter of a century later.” (more…)
Federally Funded Task Forces Make Online Crimes Against Children Top Priority
By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair
There has been a recent rash of media reports about local residents getting arrested or sentenced for possession of child pornography. For example, on March 13, 2009, the Houston Chronicle carried a report about a Houston attorney being given a six and one-half year sentence by U.S. District Court Judge Sim Lake. Williamson possessed 84 child pornography images on his computer. After he completes his prison sentence, the suspended attorney will be under “supervised release” for the rest of his life, must register as a sex offender, and attend a sex offender treatment program.
The following day the Chronicle carried a story about a 24-year-old Somerset, Kentucky man being charged with promotion of child pornography, online solicitation of a minor and sexual performance of a child. He was indicted for persuading an 11-year-old Humble girl to send him nude photographs of herself while the two played video games online with their PlayStation 3 consoles last December.
“This is another venue these guys are getting to use now that hasn’t been seen before,” Sgt. Gary Spurger, a Harris County Precinct 4 deputy constable, told the Chronicle. “They’re on PlayStation or Xbox playing online games.”
A March 19, 2009 Chronicle article featured the arrest of a former member of Bikers Against Child Abuse, a child abuse prevention organization. He was also arrested for possession of child pornography. And that same day the Chronicle carried yet another story about the federal child pornography indictment of a convicted sex offender already serving time in a state prison for a 1996 possession of child pornography conviction. This man had been given a state probation but had it revoked after he failed to register as a sex offender. The current federal indictment charged Hale with possessing child pornography while he was on state probation. (more…)
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