CRIMINAL JURISDICTION

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

May 23, 2011

ACTUAL INNOCENCE-PUTTING A CAMEL THROUGH EYE OF A NEEDLE

Filed under: Houston Criminal Lawyer — Tags: , , , , — johntfloyd @ 9:44 am

Habeas Claims of Actual Innocence Require “Herculean” Burden by Clear and Convincing Evidence

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

It was March 22, 1987. Near midnight. The Dallas Police Department received a report that a man was lying face down in the street. The man was Jeffery Young who was transported to an area hospital, unconscious and bleeding. Before regaining consciousness, Young died and a subsequent autopsy revealed he had died from what the Texas Court of Criminal Appeals said was “severe skull fractures that were the result of multiple blows to the head.” The Dallas police then received another report about a BMW parked in an alley near where Young had been found mortally injured. The police quickly determined the BMW belong to Young.

Two days after Young’s murder a witness name Gladys Oliver went to the police to report what she had seen in the alley the night Young’s BMW was located. She informed the police that there were other witnesses besides her who also saw what transpired in the alley that night. She told investigators she belatedly decided to come forward with her information after learning they had arrested a man named Van Mitchell Spencer for stealing Young’s vehicle. She said the police had the wrong man in custody because she saw Benjamine John Spencer, not Van Mitchell Spencer, getting out of Young’s vehicle in the alley. Another witness, Charles Stewart, whose name was supplied by Oliver, told the police Benjamine Spencer got out of the passenger side of the vehicle, jumped Oliver’s fence, and went through her back yard. He said that when the car door of the vehicle opened a light came on and, besides Spencer, he saw a second man named Nathan Robert Mitchell in the vehicle as he was getting out on the driver’s side. A third witness named Donald Merritt told the police he saw a white man lying in the street, bleeding from the head and struggling to breathe. Merritt also saw the BMW in the alley with an individual named Nathan Robert Mitchell standing next to it. Finally, a fourth witness named Jimmie Cotton told the police that he was cooking dinner in his kitchen when he saw the BMW drive into the alley and Spencer exit the vehicle on the passenger side shortly afterwards.

Based on the information provided by these four witnesses, the Dallas police arrested Spencer and Mitchell for the murder/robbery of Young. All the witnesses testified at Spencer’s trial. Their testimony revealed that the alley in which the BMW pulled into ran behind Oliver’s residence. All the witnesses testified they could see everything in the alley because a nearby street light was on as well as a neighbor’s back porch light. Stewart added that in addition to these lights the light inside the vehicle came on when its doors were open, allowing him a clear view of occupants. Oliver also added that she did not provide the police with this information the day after Young’s murder when the police did a door-to-door canvassing because she feared for her life.

The conditions under which these eyewitness identifications were made are important in this case because, as the New York-based Innocence Project has reported, 75 percent of the 269 DNA exonerations in this country since 1989 involved eyewitness misidentifications. Dallas prosecutors bolstered these eyewitness identifications with testimony from a “jailhouse snitch” named Danny Edwards who was one of Spencer’s cellmates in the county jail. Edwards informed the police that Spencer had told him that he struck Young several times in the head with a pistol before placing him in the backseat of the BMW at which time he struck him several more times as Mitchell drove the vehicle. Edwards testified at Spencer’s trial that Spencer then kicked Young out of the vehicle. Spencer, according to Edwards, killed Young for the BMW which he planned to take to a “chop shop.”

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May 21, 2011

FOURTH AMENDMENT CURTAILED ONCE AGAIN

Filed under: Houston Criminal Lawyer — Tags: , , , , — johntfloyd @ 1:15 pm

Kentucky V. King: Warrantless Entry into Residence Reasonable When Exigent Circumstances Exist That Were Not Created By Police

By: Houston Criminal Lawyer John Floyd and Billy Sinclair

The Fourth Amendment to the United States Constitution has historically protected Americans from unreasonable searches and seizures by law enforcement officials. The Fourth Amendment applies to the states through the Due Process Clause of the Fourteenth Amendment. The Fourth Amendment has two long recognized clauses: First, the prohibition against unreasonable searches and seizures; and, second, the requirement that probable cause be established before a search warrant is issued. There are “exigent circumstances” to these two constitutional requirements which allows law enforcement officials to conduct warrantless searches when 1) there is possible imminent destruction of evidence; 2) a real threat to the safety of the general public or law enforcement officials exist; 3) the police are in “hot pursuit” of a suspect; or 4) there is a likelihood that a suspect will flee before law enforcement can obtain a warrant.

The U.S. Supreme Court, in Kentucky v. King (May 16, 2011), recently expanded what has been called the “police-created exigency” doctrine in warrantless “kick down the door” searches of a residence. While the warrantless search of a home without a warrant has been traditionally viewed as presumptively unreasonable, law enforcement officials have been allowed to bypass this constitutional impediment when the “exigencies of the situation” make it reasonable to conduct a warrantless search of a suspect’s home. Over the years a number of state and federal courts formulated a rule that the police may not rely upon “exigent circumstances” to justify warrantless searches when the “exigency” was created or manufactured by the police. The Fifth Circuit Court of Appeals, in United States v. Gould (en banc), put it this way: “[A]lthough exigent circumstances may justify a warrantless probable cause entry into a home, they will not do so if the exigent circumstances were manufactured by the agents.”

The Kentucky Supreme Court, in King v. Kentucky (Feb. 11, 2010), followed the lead of the Fifth Circuit, and other federal circuits, when it reversed the drug conviction of Hollis King. The Lexington police conducted a “controlled buy” of crack cocaine outside of an apartment complex. The drug dealer/target of their investigation engaged in a sell of the drug which was witnessed by an undercover agent. Once the transaction was over and while the drug dealer was moving quickly toward the breezeway of the apartment, the undercover agent instructed uniformed officers to “hurry up and get there” before the dealer entered the apartment complex. Just as the uniformed officers arrived at the breezeway, they heard an apartment door shut and “detected a very strong odor of burnt marijuana.” The uniformed officers were looking at two apartments—one on the right, the other on the left. They were not sure which one the drug dealer had entered. Because they smelled the burnt marijuana in the apartment on the left, they believed that was the one the suspect had entered.

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May 14, 2011

SPECIAL CONDITION X-DESIGNATED AS A SEX OFFENDER

Filed under: Sexual Assault Crime Attorney — Tags: , , , — johntfloyd @ 7:16 pm

Texas Must Afford Due Process before Imposing Sex Offender Conditions on Parolees

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

The Center for Missing and Exploited Children has reported that there are, on average, 234 registered sex offenders per 100,000 residents in the United States—a total of nearly 730,000such offenders, with more than 61,000 residing in the State of Texas, making this State second only to California’s approximately 123,000 registered sex offenders. An inherent tragedy behind these figures is that it is too easy for state officials to wrongfully classify a parolee as a sex offender while it is so hard to undo such a classification.

Take the case of J Evans who found himself wrongfully designated for sex offender conditions while on parole in Texas. The facts of the Evans case are disturbing, if not outright chilling, given the extreme stigma and hardship that comes with sex offender registration. Those facts are: In October 2001 he pled guilty to two counts of reckless injury to a child involving his two baby girls. The prosecutor in the case quite adamantly stated that at no time “did [he] ever view the case as a sex crime, nor did [he] see anything in the case to indicate any sexual or conduct which concerned me.” Even the trial judge who accepted Evans’ guilty plea said: “Based on the trial court’s personal recollection of the facts adduced at applicant’s trial, there was no evidence of sexual abuse of Applicant’s victims.”

Evans was given a 10-year prison term on each count of reckless injury to a child. He was released on parole in October 2006 to Lubbock where he lived with an uncle. His parole release carried the condition that he could not see his children until he took “anger-management and parenting classes.” Evans became a model parolee, so successful in fact that after only 17 months all of his parole conditions were removed. He was then allowed to see his children. Evansmade plans to become a nutritionist and, in fact, enrolled in such a class at the El Paso Community College where he had requested that his parole plan be transferred.

And this is where thing really began to go awry. Evans’ new parole officer in El Paso served him with a “Notice and Opportunity to Respond to Pre-Imposition of Sex Offender Special Conditions” in April 2006. The parole officer’s actions were based on the following material found in Evans’file: “The file material indicates the offender had been caring for two-month old twin daughters. The children were taken to the hospital with broken legs, skull fracture, and bruising on the buttocks. Bright red spots were also found in the vaginas of both victims. The offender claimed he may have wiped them too hard causing the bleeding. He also stated that when changing diapers he would insert his finger in their vaginas in order to be sure there were no feces in their vaginas. He also said he would [pinch] their butts to play with them and this is how the bruising occurred.”

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May 11, 2011

NINTH CIRCUIT EXPANDS BORDER SEARCH INLAND

Filed under: Child Abuse Crimes Lawyer — Tags: , , , , — johntfloyd @ 2:13 am

Extended Border Search Doctrine: Suspicionless Searches of Computers and Cameras Need not be Conducted at Time and Place of Entry

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

It was a case of “first impression” for the Ninth Circuit Court of Appeals—the case of United States v. Howard Cotterman, a repeat sex offender who was arrested at a “border stop” in Lukeville, Arizona in April of 2007. Cotterman, and his wife Maureen, tried to reenter the United States from Mexico at Lukeville. Both had valid U.S. passports. As part of border reentry protocol, an inspector ran a check of the passports through Border and Custom Protection. This routine check produced a Treasury Enforcement Communication System alert on Howard Cotterman’s name—an alert which had been placed in the system by U.S. Immigration and Customs enforcement. The alert stemmed from Cotterman’s 1992 convictions in Long Beach, California for illegal sexual misconduct with a child and child sexual molestation. The ICE alert instructed border inspectors to be on the “lookout” for child pornography.

The ICE alert, as reasoned by the Ninth Circuit, was sufficient probable cause under 19 U.S.C. §§ 1433 and 1582 to direct the Cottermans to a “secondary inspection area” for a more “thorough search” of their vehicle and belongings. The Lukeville border inspection officer then called Long Beach ICE authorities who had placed the “alert” and was instructed to “search anything” that could contain child pornography. A subsequent search of the Cotterman’s vehicle revealed two laptop computers and three digital cameras. Border inspector Antonio Alvarado was given the task of inspecting the laptops while other agents searched the vehicle. Alvarado’s preliminary search did not reveal any child pornography, but his suspicions were aroused because many of Cotterman’s files were “password protected.”

These suspicions were conveyed to Craig Brisbine, an ICE supervisor in Sells, Arizona, who, along with Agent Mina Riley, went to the Lukeville “port of entry” station. During their trip to Lukeville, the two agents made a decision to detain Cotterman’s laptops for “forensic examination.” Shortly after their arrival, agents Brisbine and Riley gave the Cottermans their “Miranda rights” warnings, after which the couple were interviewed separately. Neither provided any incriminating evidence, although Cotterman did offer to help the agents with his computer—an offer rejected by the agents. Agent Riley said she rejected Cotterman’s offer because she was not trained in computers and feared (1) Cotterman could delete files without her knowing it, (2) the laptops could be “booby trapped,” and (3) there might be files she could not see even with full access to the laptops.

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May 7, 2011

DWI BLOOD DRAWS TAKE A HIT

Filed under: Houston Criminal Lawyer — Tags: , , , — johntfloyd @ 10:43 am

Refusal to Perform DWI Police Tests Not Enough to Substantiate Probable Cause for Blood Draw

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

“No refusal weekends” have become a permanent fixture in the aggressive anti-DWI campaign waged by law enforcements agencies across the State of Texas and the nation. In these programs a judge is on standby to sign a warrant authorizing law enforcement authorities to take a “blood sample” when a suspected DWI driver refuses to take the standard breathalyzer test—and in Texas, if the suspect refuses to voluntary consent to a blood draw, law enforcement authorities can forcefully extract the blood sample.

This past January the Second District Court of Appeals, in Farhat v. State, reversed a DWI conviction involving the use of “blood evidence seized with a warrant.” The significance of the Farhat decision lies in the fact that the prerequisite “affidavit” used to secure the blood draw warrant did not have a sufficient factual basis. Corporal Patrick Finley of the Highland Village Police Department, located in Denton County, decided to stop Farhat after the officer observed him driving ten miles per hour below the posted 40 miles per hour limit, his vehicle weaving from side to side, and his signaling a right-hand turn before turning left into a fast-food restaurant.

When Finley approached Farhat’s vehicle, the officer noticed two pill bottles in the center console. Finley asked for, and Farhat refused to, “perform any sobriety tests.” Finley placed Farhat under arrest and prepared a “sworn affidavit” for a blood-draw search warrant which was issued by a magistrate based on the affidavit. Finley’s affidavit reads as follows:

“On 01-11-2008 at approximately 0050 hours, I, Cpl. Finley #516 was driving eastbound in the 1900 block of Justin Road and visually observed a vehicle turning from Sellmeyer onto Justine road. I turned around at the light and started westbound when I could see the vehicle driving very slow approximately 30 miles an hour in a 40 miles per hour zone. I pulled my vehicle behind the vehicle a silver BMW with dealer plates. The vehicle was weaving from sided [sic] to side and continued for about a half a mile in the left lane. As the vehicle approached the KFC parking lot the vehicle turned on the right turn signal and crossed over the left lane into the parking lot. I activated my overhead lights and conducted a traffic stop in the parking lot at 2180 Justin road KFC. I noticed two pill bottles in the center console and asked where the driver later identified as Farhat …, the defendant [sic]. I asked the defendant to step out of the vehicle to check to see if he was ok to drive. The defendant refused to do any road side test and was placed in double locked properly spaced handcuffs.”

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May 5, 2011

OSAMA BIN LADEN IS DEAD

Filed under: Anti-Terrorism Lawyer — Tags: , , , , — johntfloyd @ 11:59 am

The Cost of the War on Terror: Orwellian Inspired Torture, Extrajudicial Rendition, Racial/Religious Profiling, Warrantless Wiretaps, Investigations without Reasonable Cause…

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Osama bin Laden is dead. Many peoples in the world, especially in the United States, are celebrating the death of the world’s most notorious terrorist. The nature and circumstances of his demise were fitting in light of the life of hate, vengeance, and violence he led. The old adage, “live by the sword, die by the sword,” is appropriate in this case.

While we feel that bin Laden got this “just deserts,” we cannot in good conscience celebrate his death as a “crowning achievement” for our justice system. On September 11, 2001, bin Laden did more than bring down New York’s famed Twin Towers and cause the death of nearly 3,000 innocent people. The four terrorist attacks he masterminded and orchestrated that day set our nation on a course of action, called the “war on terror,” which has done, perhaps, irreparable damage to our criminal justice system and our historical concepts of justice.

In pursuit of the “war on terror,” officially declared by former President George W. Bush, and our efforts to track down and kill bin Laden, our intelligence and military assets kidnapped innocent people off the streets in foreign countries; took them to secret “black site” prisons operated by the CIA where they were tortured beyond human comprehension; established a special “detainee” prison on foreign soil called Guantanamo Bay where “suspected terrorists” are held for years without any meaningful rights or privileges and without any finding of guilt; and resurrected the ancient and infamous method of torture called “water boarding” to extract information from these “suspected terrorists.”

No less than the President and the Attorney General of these United States instructed law enforcement agencies, especially the FBI, CIA and other intelligence gathering agencies like the National Security Agency, to target innocent and unsuspecting American citizens and subject them to racial/religious profiling, telephone wiretaps, surveillance of their emails, political activities, and data mining through their financial records. This Orwellian-type scrutiny was even more heightened against the American-Muslim community who instantly and continuously became “suspected terrorists” for no other reason than their religion and country of origin.

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April 30, 2011

Aggravated Assault NOT Lesser Included of Aggravated Sexual Assault

Filed under: Houston Criminal Lawyer — Tags: , , , , — johntfloyd @ 10:53 am

Defense Lawyers Sound Objection to Lesser Included Offense Causes Appellate Mental Madness

By: Houston Criminal Lawyer John Floyd and Billy Sinclair

The law is rarely ever clearly defined. It is continuously subject to interpretation.
The law is such a fluid creature that finding its true meaning is sometimes very difficult and can strain the bounds of intellectual honesty. This was illustrated on October 20, 2010 by the Texas Court of Criminal Appeals in the case of Oscar Rene Benavidez.

Benavidez was indicted for the offense of aggravated sexual assault. At the end the guilt/innocence phase of the Benavidez’s trial, the State submitted a proposed jury charge to the court which would allow the jury to convict Benavidez of a lesser included offense of aggravated assault, should it decide to acquit him on the sexual assault charge. That is where the convoluted legal dispute in the Benavidez case began: State prosecutors believed that aggravated assault was indeed a lesser included offense to the aggravated sexual assault charge which had been charged in the indictment. Benavidez’s defense counsel, however, strongly objected to the proposed charge, being of the firm opinion that aggravated assault could not be a lesser included offense of aggravated sexual assault.

The defense was correct.  A defendant is entitled to notice, by indictment, of the charges the government will seek to prove at trial, so that the defendant can adequately prepare a defense.  The indictment does not serve this notice function if it allows the government to argue additional or inconsistent charges at trial.

The lesser included offense doctrine typically allows a jury to convict a defendant of an offense that is less serious than the offense charged in the indictment.  In very simple terms, it can be said that the greater offense cannot be committed without also committing the lesser.

However, in order for a lesser included offense to be properly included in the jury charge, the facts must establish proof of the same or less than the facts required to prove the offense charged.  This typically means the lesser included offense is missing one of the elements required to prove the primary offense charged in the indictment.  Therefore, there is no inconsistency between the offenses.

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April 22, 2011

HOW FAR DOES THE RIGHT TO PRIVACY GO IN A MARITAL HOME?

Filed under: Houston Criminal Lawyer — Tags: , , , , — johntfloyd @ 4:12 pm

Wiretaps and Secret Video Taping by Spouses in the Home Can Lead to Criminal and Civil Exposure

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Marriage may well begin in bliss but during divorce often ends in mutually destructive acrimony between the spouses.  Sometimes the acrimony in a failed marriage prompts one of the spouses to do something that violates the law resulting in criminal liability. That’s what happened to J. Duffy in 1996. We came upon Duffy’s case when a local attorney representing a husband charged with aggravated assault on his wife consulted with us regarding the legality of a situation where a husband, who suspected his wife of adultery, wiretapped the home telephone to gather incriminating evidence and recorded statements made by the wife bragging about accusing her husband of the assault.  Was the wiretapping of the home phone legal?  Having represented a client charged with a felony in a similar fact pattern we knew the answer was NO, but did some quick research and found Duffy’s case illustrative of the point.

J Duffy learned the hard way that the resounding answer to that question.  Not knowing the right answer to the question about wiretapping in a marriage cost Duffy a two-year probated sentence and a fine of $1,000 for violating the provisions of Texas Penal Code Sec. 16.02. Duffy’s nightmare began in March 1996 when his wife, Darlene, filed a petition for divorce after 26 years of marriage. Duffy and Darlene agreed to live in the “family residence” near Wylie, Texas while the divorce petition was pending. Darlene lived in the downstairs master bedroom while Duffy took an upstairs bedroom. Both spouses had equal access to the rest of the residence, including the study.

Not long after this living arrangement went into effect, Darlene began to suspect Duffy was listening to her messages left on an answering machine to a telephone located in the kitchen. She removed the machine from the telephone and obtained “voice mail capabilities.” Darlene would later testify that Duffy asked her for the access code to the voice mail but she refused to give it to him. Still, according to Darlene, Duffy “seemed to … know every move [she was] going to make before [she] made it,” so she expressed concern to her divorce attorney and the children. Darlene’s suspicions that Duffy was somehow eavesdropping on her private telephone conversations really clicked into high gear after he learned about her new employment, something she had gone “to great lengths to keep private from him.” Darlene’s suspicions were underscored by the fact that Duffy was vice president with a telecommunications company, thus she surmised he had the means and knowledge to place a “bug” on the home telephones. Her suspicions were confirmed one evening when she began a search for the “bug” and found a “black wire” behind a cabinet in the study which did not match the telephone wires. She followed the black wire into the cabinet where she located a “black box” containing a microcassette tape with an “illuminated” red light on its outside. Although not a communications expert, Darlene believed she had found a “recording device,” and sure enough when she played back “the tape,” she discovered conversations on it between her and other persons, including her daughter and attorney.

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