CRIMINAL JURISDICTION

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

May 13, 2010

DEFENDING THE WRONGLY ACCUSED

Filed under: Child Abuse Crimes Lawyer — johntfloyd @ 2:33 pm

Houston Press Reports Our Victory in Court and Client’s Life After False Allegations

By:  Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

One of our recent success stories was profiled in the cover story of the May 6-12, 2010, edition of the Houston Press.  In Oh Hold, The Press exposed the hard reality that charges of child sex crimes can haunt a person for life, even though he may be exonerated before a jury of his peers, or, as it was in this case, after two separate trials and two “not guilty” verdicts.

Michael Serges was a Houston deputy constable when he was arrested in March 2008 for aggravated sexual assault. He was fired by Precinct 4 Constable Ron Hickman immediately after his arrest. Serges retained the John T. Floyd Law Firm to represent him. We knew it was going to be a difficult case. All child sexual assault cases are. This one involved a 7-year delayed outcry. The alleged victim was a former inmate in a local juvenile detention facility where Serges worked at the time (2000). She charged that Serges had raped her in the shower of the facility. The prosecutor would attempt to support victim’s charge with testimony from another former inmate at the same facility who was a twice-convicted felon by the time Serges was put to trial.  The jury would also be presented with a very sympathetic complainant, one who was dying from lupus, who would be rolled into court in a wheel chair, wrapped in a blanket to warm her withering body and whose very breath required support from a nearby attached oxygen tank, a defense lawyer’s nightmare.  The case would only grow worse as the investigator from the D.A’s office seemed to magically come up with four new “victims,” who stories were eerily, and unsettlingly, similar.

The first case’s difficulty was primarily due to it being a classic “she said/he said” case. The prosecution, of course, portrayed the victim as a “helpless” troubled child taken advantage of by a demented, corrupt prison guard.  The opposite was the case. The complainants had long histories of lying (even by their own admissions), drug use, stealing, and serious psychological disorders. In fact, the sexual abuse allegations by one of the former inmates against Serges had been thoroughly investigated in 2000 by detention center staff, the Houston Police Department and the District Attorney’s office. The three law enforcement agencies determined the allegations were not credible, and, in fact, the alleged victim ultimately recanted the allegation, admitting that she had told lies against Serges in this particular instance and in other instances just to “get him in trouble.”

The District Attorney’s Office chose to continue with this case, we believe, primarily because of the massive scandal revealed in 2007 about prison guards abusing inmates throughout the state’s juvenile institutions. The prosecution bolstered its case by hauling in a “child sexual assault expert” from the Harris County Children’s Assessment Center (“CAC”) who testified that in such cases the “studies” and “literature” show that only 3 percent of children make false sexual assault allegations.

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May 8, 2010

THE PITFALLS OF EXPERT TESTIMONY IN CHILD SEXUAL ABUSE CASES

Filed under: Child Abuse Crimes Lawyer — Tags: , , , , — johntfloyd @ 2:58 am

Child Sexual Assault Expert Lies about Conclusions of Study

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

We have written previously about the prolific use of “child sexual abuse experts” in child sexual assault cases. In particular, we have criticized the testimony such experts from the Harris County Children’s Assessment Center (“CAC”). While seldom providing any specific source, these experts testify that the professional “literature” and “studies” reveal child sexual abuse victims rarely ever make “false” allegations about such abuse. The experts confidently inform juries that the rate of false allegations in child sexual abuse cases is about “three percent.” While our Texas Court of Criminal Appeals has held that such generalized testimony does not constitute impermissible “bolstering” of a child sexual abuse victim’s testimony, criminal defense attorneys who have faced this kind of “expert” testimony in emotionally-charged child sexual assault cases understand clearly that such testimony does lend tremendous bolstering-like credibility to the child’s testimony.

As Judge Alex Kozinski of the Ninth Circuit Court of Appeals said in a dissenting child sexual assault opinion nine years ago, “the testimony of a victim—particularly a very young one—is a highly tenuous ground on which to rest a conviction. A jury might develop a reasonable doubt from the total absence of corroborating [expert] evidence. If the jury nonetheless convicts, we are bound by that determination.” 1/

Judge Kozinski was dissenting in the case of Emanuel Sistrunk who was convicted in an Oregon state court in 1985 for the forcible rape of an 11-year-old girl. He was given a 30-year sentence with fifteen of those years being a statutory minimum. The child victim in the Sistrunk case, as in most child sexual abuse cases, knew her attacker because, according to her,  he had sexually abused her once before. The child provided a rather detailed account of the events leading up to and subsequent to the attack.

State prosecutors called an “expert” witness named Dr. Jan Bays who, as a three-judge Ninth Circuit panel concluded, “testified falsely.” 2/ The appeals court added that Dr. Bays testified about “a scientific study [which] proved that ‘it is very, very rare that a child lies about sex abuse’ and that the chance of such a lie is only with teenagers, ‘never with the younger children.’ She testified the study established that ‘if the child comes forward with the story, themselves [sic], then it is the truth. If the child is younger than a teenager, then it is the truth.’” 3/

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May 6, 2010

POLICE BRUTALITY: A GROWING PANDEMIC

Filed under: Houston Criminal Lawyer — Tags: , , , , — johntfloyd @ 5:23 pm

Houston Police Department Embroiled in Allegations of Brutality Again

By Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

In a 2007 blog, Paul Craig Roberts wrote that “ … Americans are in a far greater danger from their own police force than they are from foreign terrorists … The only terrorists most Americans will ever encounter is a policeman with a badge, nightstick, mace and Taser. A Google search for ‘police brutality videos’ turns up 2,210,000 entries. Some entries are foreign and some are probably duplications, but the number is so large that a person could do nothing but watch police brutality videos for the rest of his life. A search on ‘You Tube’ alone turned up 2,280 police brutality videos.”

Roberts is no wimpy-nimbi liberal. He was Secretary of Treasury in the Reagan administration. He was Associate Editor of the Wall Street Journal editorial page and Contributing Editor of the National Review. He is the author or co-author of eight books, including “The Supply-Side Revolution” (Harvard University Press).

Thus, Roberts has impeccable conservative credentials. But he now sees the police as “Public Enemy No. 1,” not the criminals. Why? Roberts offers some insights:

“Police forces have always attracted bullies with authoritative personalities who desire to beat senseless anyone who does not quake in their presence. In the past police could get away with brutalizing blacks but not whites. Today white citizens are as likely as racial minorities to be victims of police brutality.

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May 1, 2010

THE TRAGEDY OF POSTPARTUM DEPRESSION, PSYCHOSIS, AND INFANTICIDE

Filed under: Houston Criminal Lawyer — Tags: , , , , , — johntfloyd @ 4:37 pm

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

The postpartum depression debate has awakened once again in Harris County in the case of Narjes Modarresi, who is accused of killing her two-month old son. Anytime a mother harms her child deep-seated emotions are stirred in the community. Mothers are protective by nature. It’s an instinct rooted in the DNA of all animals, especially humans.

Modarresi’s attorney, George Parnham, recently informed the local media that his client was walking around “zombie-like” in the days preceding the death of little Masih Golabbakhsh.

“After the birth of the first child, she was treated at Ben Taub (General Hospital) for 36 days,” Parnham said. “By all family accounts, after the birth of the second child, she was zombie-like for two months.”

Parnham said he is still trying to gather and assess all the facts before deciding whether the present an insanity defense as he successfully did in the Andrea Yates case—a Clear Lake mother who drowned her five children in a bathtub in 2001. Yates was found not guilty by reason of insanity at her second trial in 2006 and committed to a state mental hospital.

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April 29, 2010

THE DANGERS OF CRIMINAL IDENTIFICATIONS

Filed under: Houston Criminal Lawyer — Tags: , , , , — johntfloyd @ 1:14 am

Legislatively Mandated Innocence Commission to Review Claims of Wrongful Convictions and Bring Accountability for Wrongful Convictions Needed

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

There have been 252 DNA exonerations in this country through April 2010. Seventy-five percent of those were the result of mistaken identification. KHOU television in Houston reported recently 85% of Texas’ DNA exonerations—the most in the nation—involved mistaken identification.

Two-thirds of all the DNA exonerations involving mistaken identifications were against black men. The KHOU report highlighted that Texas leads the nation in wrongful convictions. Television reporter Brad Woodard cited the Harris County case of Anthony Robinson. Twenty-three years ago a young, articulate, and pretty woman whom prosecutors described as a “dream witness” identified Robinson as the black man who raped her at the University of Houston. He was sentenced to 27 years in prison, and served nine years and 11 months before his innocence was established.

“Being placed into a very violent, primitive, evil situation where every morning you wake up and ask yourself, ‘Is this the day I’m going to die?’ or ‘Is this the day I’m going to have to kill someone so I can make it back to my cell, so I can sleep?’” Robinson told Woodard.

Since his exoneration, Robinson has worked closely with Sen. Rodney Ellis, D-Houston, to increase compensation from the state for those wrongly convicted.

“We ought to do everything we can to make sure another human doesn’t have to go through what Anthony Robinson went through,” Ellis told Woodard. “It’s not just that individual – it’s their family. It’s their children.”

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April 24, 2010

THE SUPREME COURT MAKES A DIFFICULT CHOICE

Filed under: Federal Crimes Lawyer — Tags: , , , , , — johntfloyd @ 5:48 pm

Free Speech:  Federal Law Criminalizing Depictions of Animal Cruelty Declared Unconstitutional

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

There are times when the U.S. Constitution protects human activity that is repugnant and seemingly socially irredeemable. The U.S. Supreme Court recently handed down a ruling in the case of Robert J. Stevens who was convicted under a federal statute titled 18 U.S.C. Sec. 48 which prohibits the “depiction of animal cruelty.” This statute was enacted by Congress to, as the Supreme Court said, “criminalize the commercial creation, sale, or possession of certain depiction of animal cruelty.”

Robert Stevens operated a business called “Dogs of Velvet and Steel” in Pittsville, Virginia. Through an associated website, he sold videos depicting pit bulls fighting each other or attacking other animals. Two of the videos, “Japan Pit Fights” and “Pick-A-Winna: A Pit Bull Documentary,” depicted pit bull fighting in Japan (a legal activity in that country) and pit bull fights in this country from the 1960s and ‘70s. A third video sold by Stevens was titled “Catch Dogs and Country Living.” This particular video was particularly gruesome, depicting pit bulls hunting wild boar and a dog attacking a domestic farm pig.

On the basis of these three videos, Steven was indicted by a federal grand jury for violating Sec. 48. A jury convicted him on three counts and he was sentenced to three concurrent 37-month prison terms followed by three concurrent 3-year terms of supervised release. In a pretrial motion Stevens sought to have the Sec. 48 indictment against him dismissed on the basis of a “free speech” challenge under the First Amendment. The trial court denied the motion, pointing out that the depiction of animal cruelty, like child pornography and obscenity, did not enjoy First Amendment protection.

An en banc Third Circuit Court of Appeals decision, however, found Sec. 48 “facially unconstitutional” and reversed Stevens’ convictions. The appeals court essentially said that Sec. 48 was an attempt to regulate speech, adding that the court was not prepared create a “new category of unprotected speech” for cruelty to animals. The constitutional underpinnings of the Third Circuit’s rationale was that Sec. 48 did not serve any “compelling government interest” because the statute was not tailored to prevent animal cruelty, or, at the very least, was not the least restrictive means of accomplishing that objective.

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April 21, 2010

THE POLITICS OF SUPREME COURT NOMINATIONS

Filed under: Federal Defense Attorney — Tags: , , , , , — johntfloyd @ 7:51 am

Obama Must Expose Judicial Activism of Right Wing and Nominate Justice with Abundance of Empathy for the Rights of the Individual and Protection of the Social Good

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

The recent retirement of Associate Justice John Paul Stevens has created the second opportunity for President Barak Obama to appoint a justice to the U.S. Supreme Court. The appointment of Supreme Court justices have always been roiled in political posturing by both Democrats and Republicans in Congress. In point of fact, Republicans have already laid out the gauntlet, warning the president that they are prepared fight the nomination of a “judicial activist.”

Conservative Republicans, of course, will be buoyed by the support of media jocks like Rush Limbaugh and Glenn Beck. In a recent Newsweek article (April 13, 2010), Andrew Romano described Beck’s perpetual “paranoid” ranting about President Obama’s political agenda: “Last week Beck focused on two [Obama] conspiracy theories in particular. The first one was about how Obama can’t be ‘anything but a Marist,’ given that he’s spent his entire life surrounded by Marxists—his mother, his father, his grandparents, his neighbor (Frank Marshall), his pastor, his new spiritual adviser (Jim Wallis). The second was about how the ongoing boycotts of Beck’s show by various Democratic groups—labor unions, progressive evangelicals, Color of Change—are actually evidence of an unprecedented campaign by the ‘president and [his] administration to destroy the livelihood of a private citizen with whom they disagree.’”

The political hot-button term “judicial activism” has more often been used by republicans to demonize “liberal” judges who are often accused of inserting their social philosophy into their judicial decision-making. University of Chicago law professor and editor of the Supreme Court Law Review Geoffrey R. Stone in a recent The New York Times Op-Ed piece spoke of this phenomenon: “Liberals [Supreme Court] judges … have tended to exercise the power of judicial review to invalidate laws that disadvantage racial and religious minorities, political dissenters, people accused of crimes and others who are unlikely to have their interests fully and fairly considered by the majority.”  In other words, individual rights and protections the Bill of Rights was intended to address.

Professor Stone listed several of these historical liberal Supreme Court decisions: ending racial segregation, 1/ establishing the “one person, one vote” principle, 2/ prohibiting the censorship of the Pentagon Papers, and extending the right of due process of law to Guantanamo Bay detainees. 3/ Political conservatives point to these kinds of decisions by liberal Supreme Court justices as overriding legislative mandates because of their “empathy” for certain social views. As Professor Stone pointed out, President Obama was criticized by conservatives shortly before he appointed Justice Sonia Sotomayor to the court because he simply observed that a “sense of empathy” could contribute to judges fulfilling their responsibilities.

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April 16, 2010

TEXAS COURT OF CRIMINAL APPEALS STRIKES BALANCE FOR RULE OF LAW

Filed under: Homicide Crimes Lawyer — Tags: , , , , , — johntfloyd @ 12:53 pm

Wilson v. State; Court Reverses Conviction Obtained After Finding Investigator Used False Fingerprint Lab Report to Obtain Confession

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

It was New Year’s Day, 2006. Ronald Wilson called 911 to report he had discovered a man’s body on a San Antonio street while walking with his son. The police responded to the call and found the body of Amos Gutierrez who had been killed with a single fatal gunshot. The police also found a magazine clip near Gutierrez’s body. The investigation into Gutierrez’s death quickly revealed information implicating Wilson in the crime. He was arrested on misdemeanor charges. 1/

A San Antonio police detective named Roberts was assigned to the case. One of his preliminary tasks was to interrogate the suspect. He was an experienced law enforcement officer. He knew both state and federal courts have sanctioned the use of deception and trickery by law enforcement to get a suspect to confess to a crime. 2/ Roberts decided to employ a extraordinary kind of deception on Wilson.  He used an old crime lab report as a template to create a false crime lab report on his computer. He changed the heading on the old report to read, “Bexar County Criminal Investigation Laboratory.” He then typed in the following information: “Results: Examination of Item I revealed the Two Latent Prints lifted from the Firearm Magazine belong to those of Ronald Wilson, a Black Male with the date of birth 11-13-84.” The false report listed Wilson’s city, county, state and federal law enforcement identification numbers.

Armed with the impressive albeit false crime lab report, Roberts entered the interrogation room at 10:02 p.m. He asked Wilson if he had touched anything at the crime scene. Wilson repeatedly said he had not. At 10:13 p.m. Roberts showed the report to Wilson who, while shaking his head in disbelief, studied its contents. Roberts told the suspect “they had his fingerprints” along with other incriminating evidence which the detective began to recite. At 10:17 Wilson interrupted the detective to say he didn’t how his prints wound up on the clip. Not deterred, Roberts continued to press Wilson, recounting for the suspect at 10:20 p.m. the laundry list of evidence against him beginning with the fingerprint report. “[I] can’t get over the prints,” Roberts said at 10:24 p.m. “Let me remind you, I’ve got that report. Those guys are experts. They’re like DNA experts. They’re like experts. What they say is the truth” Wilson put his hands on his head and looked down, saying: “Okay. Okay.” 3/

Detective Roberts apparently was not aware of Article 37.09(a)(2) of the Texas Penal Code which states that if a person, “knowing that an investigation is pending or in progress, makes, presents, or uses a document with knowledge of its falsity and acts with the intent to affect the course or outcome of the investigation,” he has violated Texas law. And the detective must not have been aware of Article 37.10 of the Texas Penal Code which provides: “A person commits an offense if he makes, presents, or use any record, document, or anything with knowledge of its falsity and with the intent that [it] be taken as a genuine governmental record.”

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