CRIMINAL JURISDICTION

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

December 20, 2011

HARDY V. CROSS: CONFRONTATION CLAUSE QUAGMIRED IN LEGAL UNCERTAINTY

Filed under: Houston Criminal Lawyer — Tags: , , — johntfloyd @ 1:37 pm

Confusing Logic from SCOTUS and Conflict Among Appellate Courts Leave Trial Courts Guessing The Meaning Of Confrontation

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

The Sixth Amendment is one of the most important amendments of the United States Constitution. It ensures that an “accused shall enjoy the right … to be confronted with witnesses against him.” In 1988 the U.S. Supreme Court, in Coy v. Iowa, observed that “it is always more difficult to tell a lie about a person ‘to his face’ than ‘behind his back.’” Just two years later, in Maryland v. Craig, the Court made this follow up observation: “[F]ace-to-face confrontation enhances the accuracy of fact-finding by reducing the risk that a witness will wrongfully implicate an innocent person.” That observation is critically important because, as pointed out by the New York-based The Innocent Project, roughly 75 percent of the nation’s 282 DNA exonerations involved eyewitness misidentification.

Since the Confrontation Clause was forcefully made applicable to the states through the Fourteenth Amendment by the Supreme Court in 1965, in Pointer v. Texas, the Sixth Amendment has been a source of evolving, though conflicting, change in a long line of state cases. In an effort to resolve some of the conflict associated with Sixth Amendment cases, the Supreme Court in 2004 handed down Crawford v. Washington which held that a major underpinning of the Sixth Amendment is to prevent the admission of hearsay evidence because a criminal defendant cannot cross-examine what is called “out-of-court” testimony. Crawford clarified the difference between “testimonial” and “nontestimonial” hearsay evidence. Crawford specifically held that the use of testimonial hearsay violates a criminal defendant’s confrontation rights unless the individual making the hearsay statements is unavailable at trial and the defendant had a prior opportunity to cross-examine him/her. Non-testimonial hearsay, on the other hand, does not violate the Confrontation Clause and its admission would be determined by local rules of evidence. Crawford rejected the use of recorded statements given to the police by a wife incriminating her husband in a stabbing incident but who refused to testify against her husband by invoking the marital privilege (here).

Two years later, in Davis v. Washington, the Supreme Court provided a more definitive clarification of testimonial evidence. Davis held that hearsay is testimonial when, under the “totality of the circumstances,” a law enforcement interrogation is part of an investigation into past events about a case and not in response to an “ongoing emergency.” Davis upheld the use of out-of-court statements made to a 911 operator during an emergency call for police assistance which implicated the defendant in domestic violence. Then, in 2009 the Supreme Court handed decided Giles v. California which involved the use of incriminating statements against a husband/accused given to the police by a wife several weeks before she was killed by the accused. Giles held that the incriminating testimonial statements of the deceased wife used against the accused violated the Confrontation Clause.

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December 17, 2011

THE IMPACT OF PINHOLSTER ON NEWLY-DISCOVERED EVIDENCE AND BRADY VIOLATIONS

Filed under: Federal Crimes Lawyer, Houston Criminal Lawyer — Tags: , , , , — johntfloyd @ 3:21 pm

Federal Habeas Claims of “New Evidence” of Undisclosed Exculpatory Evidence Should be Remanded to State Courts

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

In January 1982, Scott Lynn Pinholster, a California native, was an Aryan Brotherhood-type who, along with two like-minded cohorts, went to the home of a local drug dealer named Michael Kumar. The drug dealer was not at home when the Neo-Nazi trio arrived so they began to ransack the residence in search of drugs and money. At this inopportune time, two of Kumar’s friends, Thomas Johnson and Robert Beckett, arrived at the drug dealer’s home where they confronted the burglars. That confrontation led to Pinholster and his cohorts brutally beating and repeatedly stabbing Johnson and Beckett until they were dead.

The total net of the robbery was $23 and approximately a quarter ounce of marijuana. As the trio drove away from the scene, Pinholster reportedly said: “We got ‘em, man, we got ‘em good.”

Two weeks later one of Pinholster’s cohorts, Art Corona, surrendered to the police and named Pinholster as the mastermind of the Kumar residence robbery/double murder. Pinholster was arrested after which he threatened to have Corona killed if he did keep his mouth shut. The threat did little, if anything, to intimidate Corona who became the State’s key witness against Pinholster at his February 1984 trial. Two attorneys, Harry Brainard and Wilbur Dettmar, were appointed to represent Pinholster, but he rebuffed their representation and elected to represent himself—even though the prosecution had noticed him that it would seek the death penalty.

Pinholster testified in his own behalf during guilt phase of his trial. He admitted burglarizing Kuman’s residence and stealing some marijuana. He denied killing anyone, boasting to the jury that he was a “professional robber,” not a murderer, and insisting that during the hundreds of robberies he had committed during the previous six years he was always armed with a gun, not a knife. He also pointed the finger at Corona as the real killer of Johnson and Beckett.

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December 14, 2011

A “SLIPPERY SLOPE” TO COMBAT HOMEGROWN TERRORISM

Filed under: Anti-Terrorism Lawyer, Federal Defense Attorney — Tags: , , , — johntfloyd @ 1:51 pm

Indefinite Detention of Homegrown Terror Suspects, Citizens inside U.S. Unnecessary and Dangerous Erosion of Civil Liberties

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Like it or not, the term “Jihadist” has become a commonly used term in today’s political lexicon.  In a Congressional Research Service (“CRS”) report titled “American Jihadist Terrorism: Combating a Complex Threat” and issued on November 15, 2011, the report’s author Jerome P. Bjelopera said the term “homegrown jihadist” describes “terrorist activity or plots perpetrated within the United States or abroad by American citizens, legal permanent residents, or visitors radicalized within the United States.” The analyst for the CRS in organized crime and terrorism said the term “jihadist” describes “radicalized individuals using Islam as an ideological and/or religious justification for their belief in the establishment of global caliphate, or jurisdiction governed by a Muslim civil and religious leader known as a caliph.”

The CRS’s report estimates there have been “53 homegrown violent jihadist plots or attacks in the United States since September 11, 2001.” Between May 2009 and October 2011, there were 32 arrests made in homegrown jihadist terror plots. And of the 53 terror plots since 9/11, only four were successful—and they were carried out by “lone wolves,” three of whom targeted military personnel through the use of firearms. There were three other lone wolf plots but they were unsuccessful as were the remaining plots that involved two or more participants.

The Fall issue of the Southern Poverty Law Center’s Intelligence Report also found that homegrown jihadist terror plots have risen since 9/11 with more than half occurring since May 2009. The Intelligence Report, like Bjelopera’s report, found that “most of those arrested were influenced by English-language jihadist websites that encourage violence in pursuit of a global caliphate ruled by Islamic fundamentalists.” The CRS cited eight terror plots in 2011 alone.

Discovery of most of these plots, and subsequent government efforts to shape their direction, were made pursuant to the Government’s chief strategy in combating homegrown terrorism: Government undercover operatives used “to infiltrate terrorist conspiracies.” The CRS report said that the Justice Department and FBI operate 104 Joint Terrorism Task Forces in this country, with 69 of them having been established since 9/11. These task forces include more than “4,000 federal, state, and local law enforcement officers and agents” who “’investigate acts of terrorism that affect the U.S., its interests, property and citizens, including those employed by the U.S. and military personnel overseas.’” The importance of this effort can be measured by the increase of 125 to 878 “top-secret security clearances” issued to local law enforcement between 2007 and 2009 alone.

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December 4, 2011

THE ETHICAL IMPLICATIONS OF A BRADY VIOLATION

Filed under: Houston Criminal Lawyer — Tags: , , — johntfloyd @ 5:35 pm

Disciplinary Action against Rogue Prosecutors Who Intentionally Engage in Wrongful Conduct, Brady Violations Rare

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Among lawyers practicing criminal law, “Brady violation” is probably second only to a “Miranda warning” as the most recognizable legal term in this country’s jurisprudence; and, significantly, both of these U.S. Supreme Court decisions are designed to curb prosecutorial and law enforcement misconduct. It’s an unfortunate commentary on our criminal justice system when these two important must be instructed by the highest court in the nation to obey the law and uphold our most cherished constitutional tenets: right to a fair trial and right to counsel.

As far back as 1908, when the American Bar Association adopted its Canons of Professional Ethics (“Canons”), prosecutors have been instructed that “[t]he primary duty of a lawyer engaged in public prosecution is not to convict, but see that justice is done. The suppression of facts or secreting of witnesses capable of establishing the innocence of the accused is highly reprehensible.”

It is telling that more than a century ago the ABA felt the need to instruct prosecutors to do the obvious: obey the law. It is evident that the overseer of professional conduct of our Country’s legal system had witnessed enough misconduct by prosecutors before 1908 to feel the need to establish Canon 5 as “guidance” for prosecutors.

Twenty-seven years after the Canons were adopted the U.S. Supreme Court, in Mooney v. Holohan, was forced to inform prosecutors that the “knowing use” of perjured testimony to convict a criminal defendant violated “due process” of law. The Attorney General for the State of California had argued before the Court that the acts or omissions by a prosecutor could never rise to the level of a due process violation. The Court said that such a position would violate “the fundamental conceptions of justice which lie at the base of our civil and political institutions.” Not stopping there, the Court added that the requirement of due process,

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December 1, 2011

BRADY VIOLATIONS IN WHITE COLLAR, CORRUPTION CONVICTIONS

Filed under: Houston Criminal Lawyer — Tags: , , , — johntfloyd @ 7:18 pm

Serious, Widespread and Intentional Concealment of Evidence by DOJ and US Attorneys

By: Houston Criminal lawyer John T. Floyd and Paralegal Billy Sinclair

Former Alaska lawmaker, Vic Kohring, has entered a guilty plea admitting he accepted bribes from an “oil man” for his help in keeping taxes low on the Alaskan oil industry.  The plea comes after an appellate court tossed out Kohring’s original conviction, along with others convicted in the scandal, after finding that the Government had intentionally withheld evidence in the trials.  Kohring’s case documents the years of scandal resulting from official corruption between the oil industry and Alaska’s politicians and the disturbing pattern of misconduct by prosecutors, hell bent on getting the bad guys, that followed.

Alaska State Rep. Victor Kohring was convicted in a federal court in 2007 on corruption charges that alleged he took bribes from oil industry insiders. He was sentenced to 42 months in prison and had served a year incarcerated before his case was reversed after a finding that the Government had intentionally mishandled the trials of the defendants.

One year after securing the Kohring conviction, federal prosecutors sought and secured a conviction of Alaska’s most powerful politician, Ted Stevens, who was the longest serving lawmaker in Washington at the time of his conviction in 2008. Despite his corruption conviction, Stevens barely lost his reelection bid just eight days later.

But, before his death in a plane crash in August 2010 at age 87, the former lawmaker would have vindication in the same federal court system which had convicted him. In April 2009 U.S. District Court Judge Emmet G. Sullivan reversed Stevens’ conviction at the behest of U.S. Attorney General Eric Holder, telling the U.S. Justice Department (“DOJ”) that, “in 25 years on the bench, I have never seen anything approaching the mishandling and misconduct that I have seen in this case.” Adding that the misconduct of six DOJ prosecutors was so “shocking and disturbing” that the judge felt compelled to  appoint Henry F. Schuelke to investigate the egregious prosecutorial misconduct to determine if criminal charge should be brought against the prosecutors.

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November 21, 2011

THE JERRY SANDUSKY CASE

Filed under: Sexual Assault Crime Attorney — Tags: , , — johntfloyd @ 1:07 pm

Outrageous Allegations of Child Sexual Abuse and Failure to Report Devastate Presumption of Innocence and Shift Burden of Proof

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Contrary to the screaming media pundits, who have thrown the presumption of innocence out the window, we do not know if former Penn State defensive coordinator is guilty of the 40 child sexual abuse allegations leveled against him by a “Happy Valley” grand jury. We certainly do not presume his guilt. As a criminal defense law firm, we are deeply disturbed, although not surprised, that Sandusky has already been tried, convicted, and sentenced in the court of public opinion. The presumption of innocence and the right to a fair trial has been eroded into oblivion by the cable news networks, like former prosecutor and HLN’s guilt-announcing host Nancy Grace. We would caution the general public to remember the California McMartin “preschool” child sex abuse scandal that began with outrageous allegations of child sex abuse, three years of investigation and six years of trials which did not produce a single conviction, but ended with exposure an array of misconduct by the media covering the story, law enforcement investigators prosecutors who brought it to trial, the child victims and their parents.

The Pennsylvania Sandusky case is likely on the fast track to becoming a “McMartin” case—perhaps not with the same results, but certainly with similar media, law enforcement, prosecutorial, and victim misconduct. And it will all be rocket fueled by the likes of Nancy Grace, a host of television lawyers, and a slew of so-called “experts” who will see “evidence” of child sexual abuse in everything from the design of Nitany Lions’ jerseys to the color of their football field.

The Huffington Post has compiled a chronological “timeline” of the allegations in the Sandusky case from which we draw heavily, for discussion purposes:

1963-65 – Sandusky played defensive end with Penn State under Joe Paterno.

1966 – Sandusky became a “graduate assistant” under Paterno.

1967 – Sandusky became an assistant coach at Juniata College.

1968 – Sandusky became an assistant coach at Boston University.

1969 – Sandusky begins his “coaching career” as the Nitany Lions’ defensive line coach. He was 25 years of age.

1977 – Sandusky establishes The Second Mile, a foster home and later a “charity” whose purpose was to help “troubled boys” who either had no families or came from dysfunctional families.

1983 – Penn State is named national champions for the 1982 season.

1987 – Penn State is named national champions for the 1986 season.

1994 – A ten-year-old boy, identified only as Victim 7, met Sandusky through The Second Mile.

1994-95 – A seven or eight year old boy, identified only as Victim 6, met Sandusky at a Second Mile picnic.

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November 12, 2011

SMITH V. CAIN: A LOOK AT PROSECUTOR’S DUTY TO DISCLOSE

Filed under: Houston Criminal Lawyer — Tags: , , , — johntfloyd @ 3:48 pm

ABA Files Amicus Demanding Disclosure of Exculpatory Evidence Regardless of Materiality, Broader than Brady

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

The Orleans Parish and Williamson County district attorney offices have something in common: both have a disturbing history of withholding exculpatory information that resulted in innocent men being sent to prison (or death row) for long periods of time (here, here and here). The U.S. Supreme Court, in the case of Smith v. Cain, is being asked by Juan Smith’s attorneys and the American Bar Association (“ABA”) to address a prosecutor’s pretrial ethical obligations to disclose exculpatory evidence. A “summary” of the ABA’s argument is outlined in its amicus curiae brief:

“The [Smith v. Cain] case involves numerous serious allegations of non-disclosure that, post-trial, a court must evaluate under this Court’s Brady jurisprudence. However, a prosecutor’s pre-trial ethical disclosure obligations, as governed by the attorney disciplinary rules of the state or jurisdiction in which the prosecutor practices, are separate from and broader than the constitutional standards. Specifically, the ABA Model Rule 3.8(d) [Model Rules of Professional Conduct] mandates disclosure of exculpatory and mitigating evidence without regard to materiality. This Rule’s widespread acceptance is reflected in the fact that 49 states, including Louisiana, as well as the District of Columbia, United States Virgin Islands, and Guam have adopted ethics rules that include a provision identical or substantially similar to it. Similarly, various provisions of the ABA Criminal Justice Standards promote broad disclosure of all exculpatory evidence, without regard to the materiality standard that is required for post-trial analysis under Brady. Accordingly, this Court should again recognize that a prosecutor’s pre-trial ethical disclosure obligations are distinct from the constitutional standards that control a court’s post-trial determination.”

In 1963, the Supreme Court, in Brady v. Maryland, held that a prosecutor under the Fifth and Fourteenth Amendments has a duty to disclose favorable evidence to defendants upon request, if the evidence is material to guilt or punishment. Two decades later, in United States v. Bagley, the Supreme Court redefined Brady by holding that a prosecutor’s duty to disclose material favorable evidence exists regardless of whether the defendant makes a specific request. The Bagley court defined “material favorable evidence” as any evidence that probably would have changed the outcome of the trial. In 1999, the Court, in Strickler v. Greene, held that a Brady violation occurs: (1) evidence is favorable when it is exculpatory or impeaching; (2) the evidence was either willfully or inadvertently withheld by the prosecution; and (3) the withholding of the evidence was prejudicial to the defendant.

Juan Smith was convicted of five counts of first degree murder and sentenced to life without parole in the Louisiana prison system. The convictions stem from a home invasion by a group of men in New Orleans in 1995 that left five people dead. Smith was the only person arrested and convicted for the crimes. The only evidence against him was an identification made by one of the surviving victims. His conviction and sentence were upheld on appeal by the Louisiana Supreme Court. Following the denial of direct appeal, Smith’s Supreme Court brief explains what happened next:

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November 10, 2011

DEFENSE ATTORNEY PLACES ACADEMIC INTEREST BEFORE ETHICAL DUTY TO CLIENT

Filed under: Houston Criminal Lawyer — Tags: , , — johntfloyd @ 3:20 pm

Defense Lawyer Intentionally Failed to Comply with Longstanding Pleading Requirements in Death Penalty Writ

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

It is not our habit, nor is it in our nature, to second guess any strategy employed by a fellow defense attorney, unless that strategy is patently harmful to the client. The Hector Rolando Medina case is such a case—and it indeed begs public exposure. To understand this case we must first discuss the habeas corpus statute involved: Article 11.071, Texas Code of Criminal Procedure (Procedure in Death Penalty Cases), and the case law setting forth longstanding pleading requirements under the statute. A prerequisite to securing habeas corpus relief in a death penalty case requires the applicant to “plead specific facts” which, if proven true, might entitle him to relief. Thus, the initial burden rest with the habeas applicant to file a fact-specific petition, which raises issue(s) of constitutional magnitude; in other words, a constitutional violation which has harmed the applicant.

In October 2008 Medina was convicted in Dallas County of capital murder and sentenced to death. On his direct appeal to the Texas Court of Criminal Appeals (“CCA”), Medina argued he had been ineffectively represented during the punishment phase of his trial by his defense counsel. Without designating its opinion for publication, the CCA on January 12, 2011 affirmed Medina’s conviction and death sentence. The appeals court concluded: “By not specifying what evidence his counsel should have presented, the appellant has failed to present a basis to conclude that defense counsel’s decision not to present evidence was unreasonable, or that there is a reasonable probability that the result would have been different.”

Medina then filed a habeas corpus application in the trial court pursuant to Art. 11.071, and the court appointed veteran criminal defense attorney R. Norris to represent the condemned inmate. Norris over his distinguished career of more than thirty-five years had previously represented between ten and twenty death row inmates. In all the habeas applications he filed for these condemned inmates, each application was supported by exhibits and well-pled facts in support of the legal issues presented in the applications.

However, for a reason we cannot fathom, Norris did not follow this standard practice in the Medina case. He told the CCA that he “did not think the law was settled that a habeas application must contain facts. He said he had thoroughly investigated the facts underlying his claims, but filed his pleading on the last possible day and refused the State’s offer to give him more time to replead and add those crucial facts.” The application Norris submitted to the CCA—what the court referred to as a “document” or a “non-application”—was “only four pages” that stated “mere … factual and legal conclusions” in support of a ten-point ineffective assistance of counsel claim. The CCA observed that Norris “intended to force this Court to readdress the pleading requirements, as he filed a thorough brief on that very issue in opposition to the State’s motion to dismiss the ‘application.’”

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