CRIMINAL JURISDICTION

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

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 5, 2009

TEXAS GOV RICK PERRY IMPEDES INQUIRY ABOUT WHETHER TEXAS EXECUTED AN INNOCENT MAN

Filed under: Death Penalty Crimes Lawyer — Tags: , , , , — johntfloyd @ 11:46 am

Governor’s abrupt Dismissal of Chairman, Two Members of Texas Forensic Science Commission on Eve of Hearing Smacks of Political Cover-up

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

It is one thing for a governor to have possibly presided over the execution of an innocent man but quite another for that governor to effectively shut down an official investigation into whether the forensic evidence used convict the man was reliable.

That’s precisely what Texas Gov. Rick Perry did on September 30, 2009 when he abruptly replaced three members of the Texas Forensic Science Commission two days before the commission was scheduled to hear testimony from a renowned forensic expert who has cast serious doubts on the forensic evidence that sent Cameron Todd Willingham to his death on February 17, 2004 under Perry’s watch.

The governor has denied any ulterior personal or political motives for the firing of commission chairman Sam Bassett, an Austin attorney, and two other commission members. Bassett was instrumental earlier this year in securing the services the highly touted Maryland fire scientist and expert named Craig Beyler. The commission charged Beyler with the very specific task of determining whether the forensic evidence used to convict Willingham was reliable and satisfied nationally recognized scientific standards for the use of such evidence in arson cases. Beyler was not charged with the task of making a determination of whether or not Willingham was actually innocent.

“He [Beyler] appears to be one of the pre-eminent people in the fire and arson investigation field,” Bassett was quoted as saying in a January 27, 2009 Chicago Tribune article. (more…)

October 2, 2009

THE JUNK SCIENCE OF DOG SCENT LINEUPS

Filed under: Houston Criminal Lawyer — Tags: , , , , — johntfloyd @ 9:16 am

Popular Law Enforcement Dog Handler Discredited After False Results, Exaggerated Claims of Accuracy Exposed

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

We have blogged (False Forensics: An Attorney’s Worst Nightmare, May 1, 2009) in the past about the dangers of “false forensic” evidence being used in courtrooms to convict innocent people. The New York-based Innocence Project reported in 2007 that 65% of the nation’s first 200 DNA exonerations in this country involved fraudulent, unreliable or limited forensic science. Wrongful convictions based on false forensics—or what is commonly referred to as “junk science”—in the State of Texas occur with the same or at a greater frequency.

And what is “junk science?”

In an September 21, 2009 special report titled “Dog Scent Lineups: A Junk Science Injustice,” the Texas Innocence Project (TIP) provided the following illustrative definition: “Even before the television show ‘CSI’ became popular, juries and judges have tended to believe what ‘scientific experts’ say in criminal cases—especially if these ‘experts’ are police officers or prosecution witnesses. One study found that ‘about one quarter of jurors who were presented with scientific evidence believed that had such evidence been absent, they would have changed their verdicts—from guilty to not guilty.’ In the hands of a skilled prosecutor, scientific-sounding testimony from any source, no matter how fraudulent, can be played to great dramatic effect and win convictions.

“Prosecutors have taken full advantage of the gullibility of jurors and the willingness of courts to allow the use of these techniques. In case after case, prosecutors have used phony ‘experts’ with little or no training or education, false results from shoddy labs and dubious ‘theories’ with no basis in fact to get convictions. Taken together, these abusive practices have come to be known as the use of ‘junk science.’ The use of this ‘evidence’ is not limited to the courtroom: law enforcement agencies have come more and more to rely on it in making arrests and getting indictments.”

There is no greater “junk science” than “dog scent lineups” and the phoniest “expert” involved in this particular junk science is a Fort Bend County deputy sheriff named Keith Pikett. A native of New York, Pikett served six years in the Navy after he graduated from high school before taking a job at a ship yard in the early 1970s in Mobile, Alabama, according to TIP. He then graduated from the University of South Alabama with a chemistry degree and in 1984 received a master’s degree in “Sport Science” at an Alabama institution called United States Sports Academy. (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…)

September 26, 2009

NEVER EVER TALK TO POLICE WITHOUT A LAWYER

Filed under: Anti-Terrorism Lawyer — Tags: , , , , , — johntfloyd @ 4:45 pm

Recent Terrorism Related Arrests Illustrate Need to Consult Lawyer Before Interviewing with Law Enforcement

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

This legal maxim is rooted in the very soul of every criminal defense attorney. Even if an individual is innocent, no one should ever talk to the police once the police make it clear they are investigating a crime, or a potential crime, and they feel the individual has either some involvement or knowledge about the crime. This advice is especially true when it comes to the FBI whose agents are skilled in the art of interrogation and proficient at tricking a person into making a false statement.

This FBI strategy was recently highlighted in a suspected al-Qaeda terror plot involving Najibullah Zazi, a lawful permanent resident of the United States who hails from Afghanistan. News media reports, based on official accounts or leaked accounts by the FBI, have linked Zazi and at least three other Denver-area men, along with a number of suspected or unknown individuals in New York and other cities in the United States, with an alleged al-Qaeda plot to use hydrogen peroxide bombs carried in backpacks to attack New York City’s mass transit system or other mass transit systems in this country.

(The following fact pattern is taken from FBI affidavits, which are notoriously one-sided, and news reports and may be incorrect, misleading or wrong. These men are presumed innocent and the use of these facts in this article is for illustrative purposes only.)

Zazi and his father, Mohammed Zazi (a naturalized U.S. citizen from Afghanistan), and a New York City imam named Ahmad Wais Afzali (also a lawful permanent U.S. resident from Afghanistan) were arrested on September 19, 2009 by the FBI for allegedly making false statements to federal agents in violation of 18 U.S.C. Sec. 1001(a)(2). The “false statement” charges indicated that the FBI, and Homeland Security agents, had not yet compiled enough evidence to bring terror-related conspiracy charges under 18 U.S.C. Sec. 371 or specific acts of “international terrorism” under 18 U.S.C. Sec. 2331(1) against anyone they suspect were involved in the alleged New York City mass transit terror plot. The government has since indicted Najibullah Zazi on terrorism related charges. (more…)

September 23, 2009

COURT TAKES HARDLINE STAND IN CHILD EXPLOITATION CASE

Filed under: Child Abuse Crimes Lawyer — Tags: , , , , — johntfloyd @ 9:53 am

Video Taped Consensual Sex with Minor Gets Federal Time

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

The federal statute that governs the production of child pornography provides, in part, that “any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in . . . any sexually explicit conduct for the purpose of producing any visual depiction of such conduct or for the purpose of transmitting a live visual depiction of such conduct, shall be punished as provided under subsection (e) . . . if that visual depiction was produced or transmitted using materials that have been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means . . . .” 1/

Most people think of the production of child pornography as child molesters collecting large quantities of the material for their own perverse use or as “smut peddlers” producing the material for profit on the black market. But the statute has the ability to reach into an individual’s bedroom and ensnare him in a web of serious legal consequences if he has consensual sex with a minor and records the event on a video camera.

That is what happened to 28-year-old Rubio Gadea Pliego in September 2006 when he invited four young males, including a 14-year-old, to his Minneapolis apartment for a party. 2/ During the course of the party, Pleigo performed consensual, although illegal, oral sex on the 14-year-old minor. Two days later Pliego called the minor and invited him, as well as the other young men, back over to his apartment for yet another party. This time, however, Pliego had secretly set up a video camera in his bedroom to record some of the party’s activities.

The camera recorded the three of the young men, including the minor, entering Pliego’s bedroom where they voluntarily watched porno movies. At some point the other two young men left the room leaving the minor alone with Pliego in the bedroom. The hidden camera then recorded the two engaged in a series of consensual sexual activities. (more…)

September 21, 2009

LIFE WITHOUT PAROLE FOR JUVENILES ELIMINATED

Filed under: Houston Criminal Lawyer — Tags: , , , — johntfloyd @ 11:59 am

Texas Takes Small First Step Towards Humane Treatment, Punishment for Youthful Offenders

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

The Texas Criminal Defense Lawyers Association (TCDLA) releases every two years after each session of the Texas Legislature a summary of new or amended laws enacted during the legislative session. This year Kristin Etter (TCDLA’s Voice of the Defense) has provided this continuing education service from TCDLA to criminal defense attorneys throughout the state. It is not only a continuing education service but an invaluable research tool as well. This blog over the next couple months will feature in depth articles about the most significant pieces of legislation that emanated out of the 2009 Texas Legislature and their potential impact on the state’s criminal justice system with special appreciation to the TCDLA.

For example, one of the most significant changes in our laws was the Legislature decision to eliminate life without parole for juvenile offenders who are certified as adults under Texas Penal Code § 54.02 and tried for capital murder under Texas Penal Code § 12.31. The Legislature amended the Texas Government Code § 504.145 to allow for parole eligibility for juveniles tried as adults after a period of 40 years.

This legislation is significant because the U.S. Supreme Court in two consolidated Florida cases, Terrance Jamar Graham and Joseph Sullivan, both of whom received life sentences without the benefit of parole, has decided this term to decide the issue of whether life without parole for juveniles tried as adults is unconstitutional as being cruel and unusual punishment under the Eighth Amendment. At age 16, Graham was convicted of being an accomplice to an armed burglary and attempted armed robbery—the only criminal offenses he had ever committed in his life—and sentenced to life without parole. At age 13, Joe Sullivan was convicted of a rape committed following a house burglary and sentenced to life without parole with there being serious doubts about whether Sullivan was the actual rapist.

As of July 2009, the Washington, D.C.-based The Sentencing Project (Nellis, Ashley and King, Ryan S. No Exit: The Expanding Use of Life Sentences in America) reported that there are 140,610 individuals serving a life sentence in the nation’s prison system (one in every 11 prisoners). Of those lifers, 6,807 of them are juveniles tried as adults with 1,755 (or 25.8%) of them being juvenile life sentences without parole (JLWOP). (more…)

September 17, 2009

DISTRICT ATTORNEYS OFFICE DOES NOT CARE IF CYNTHIA CASH IS ACTUALLY INNOCENT

Filed under: Houston Criminal Lawyer — Tags: , , , , — johntfloyd @ 11:02 am

The Philosophy of Convict at any Cost Continues in Harris County

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Dr. Patricia Moore is the former associate medical examiner in Harris County. The Houston Chronicle (Sept. 14, 2009) reported that the doctor has been “repeatedly disciplined for failing to follow procedures and for favoring the prosecution in 1998 and 1999” in child death cases.

During Dr. Moore’s tenure with the Harris County Medical Examiner’s Office, she conducted a number of autopsies in children’s deaths whose results have been challenged as not being medically accurate. One of those autopsies involved the 1998 death of a 4-month-old baby, who died in the care of a babysitter named Cynthia Cash, and led the Harris County District Attorney’s Office to file criminal charges against Cash.

Ken Cash, the babysitter’s husband, recently told the Chronicle that “they [District Attorney’s office] railroaded her in that autopsy report. She is innocent.”

Ken Cash’s claim of innocence for his wife recently gained significant support after it was recently discovered that the Harris County Medical Examiner’s office in February 2008 revised the autopsy that served as the genesis of the criminal charge filed against Cynthia Cash and the subsequent prison sentence she received.

According to the Chronicle, the new autopsy report changed the cause of death from “homicide” to “undetermined” and also added that it found no evidence of trauma.  This assertion was given credence by Dr. Richard M. Hirshberg, a neurologist expert who reviewed the 2008 revised autopsy report. Hirshberg, who testified at Cash’s trial as a defense expert witness that he had found none of what the Chronicle called “classic signs of  shaken baby syndrome,” told the newspaper for its September 14 article: “It’s my firm belief now as it was during the Feb. 5, 1999, trial that [Cynthia Cash] is innocent.” (more…)

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