CRIMINAL JURISDICTION

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

June 17, 2011

MILITARIZED POLICE NO KNOCK SEARCHES KILL INNOCENT PEOPLE

Filed under: Drug Defense Attorney — Tags: , , , , — johntfloyd @ 6:55 pm

Recent U.S. Supreme Court Decisions Expanding “No Knock” Powers of the Police and Insulating Law Enforcement Abuses Allow a Growing Police State

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

We are no fans of “no knock” searches by the police, especially those launched by militarized SWAT units. We made this clear after a recent U.S. Supreme Court decision expanding police powers to conduct such searches (here). We don’t like them because they kill innocent people indiscriminately. We have permitted our law enforcement agencies to become so militarized that “no knock” searches increased from 3,000 in 1981 to 50,000 in 2005, according to Eastern University of Kentucky criminologist Paul Kraska, and have resulted in the deaths of 40 innocent people during that time, according to the Washington-based Cato Institute. Peter Guither, with Drug War Rant, places the number of innocents killed in “no knock” searches at 42.

One of those innocent people gunned down by the police was 44-year-old substitute Sunday school teacher Cheryl Noel who kept a registered gun in her bedroom. Nine years earlier her 16-year-old stepdaughter had been killed in a shooting which led Noel to purchase a weapon for self-protection. On June 2, 2011 the Fourth Circuit Court of Appeals, in Noel v. Arston, rejected claims by her estate that they were entitled to civil damages under 42 U.S.C. Sec. 1983.

The Noel tragedy began in October 2004 when a Baltimore County police officer noticed a white dusty power inside a bag in Matthew Noel’s vehicle during a routine traffic stop. The 18-year-old Noel lived at home with his parents Cheryl and Charles. He admitted to the traffic stop officer that he had a “Percocet abuse problem.” The traffic stop officer passed this information on to the Baltimore County narcotics department. Sgt. Robert Gibbons initiated a surveillance of the Noel residence, examining the trash thrown away by its occupants each day. Why law enforcement officials decided to conduct such an intensive investigation based on nothing more than white dust powder in a vehicle driven by an 18-year old who admitted to having a drug abuse problem has never been made clear in the public record.

What is clear is that Gibbons found marijuana and other drug paraphernalia in the trash which was sufficient for him to apply for and secure a search warrant of the Noel residence on January 19, 2005—some three months after the traffic stop discovery of the white dust powder. Gibbons then discussed the search with Baltimore County SWAT supervisors who decided that a “no knock” entry was appropriate.

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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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July 6, 2010

A DEFENSE ATTORNEY’S NARROW MARGIN FOR ERROR

Filed under: Houston Criminal Lawyer — Tags: , , , , , — johntfloyd @ 5:21 pm

Ineffective Assistance of Counsel: Criminal Defense Lawyer’s Questions about Defendant’s Post Arrest Silence Opens Door to Cross Examination
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Criminal defendants have a Sixth Amendment right to effective assistance of counsel in criminal prosecutions against them. The United States Supreme in 1984 handed down Strickland v. Washington which set forth the constitutional standard a criminal defendant must satisfy in order to establish that he/she was not effectively represented by their attorney. First, the defendant must prove that the defense attorney’s performance “fell below an objective standard of reasonableness,” and, second, the defendant must prove that counsel’s deficient performance so prejudiced his/her defense that the guilty verdict is unreliable and fundamentally unfair.

Every defense attorney walking into a criminal trial does so with the explicit understanding that his/her actions throughout the trial will be the subject to second-guessing should the result prove unfavorable to the defendant. That’s why the Supreme Court underscored the Strickland decision with the caveat to all state and federal courts reviewing ineffective assistance claims that a defense attorney’s tactical and strategical choices are presumed effective and insulated from second-guessing and hindsight. The Court specifically stated that “[n]o particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant.”

Still, a defense attorney must recognize that he/she has a narrow margin for error. That’s what happened with the defense attorney who represented Wendell Keith White in a 1998 murder trial. In April of that year White went to Koach’s Club where a pool tournament was underway. One of the tournament’s contestants was Tracey Johnson who was at the club with a large group of friends, including Latasha Vasquez. At some point during tournament play Johnson stepped away from a pool table leaving her custom cue stick behind. Upon her return, Johnson found White using the cue stick without her permission and hitting it against the table. Enraged, she began cursing White before the bartender told her calm down and not to cause any trouble. White apologized to Johnson and bought her and her entourage drinks.

The club closed at 2:00 a.m. Shortly before closing time a sequence of events took place which were hotly contested by the parties involved. Johnson said White came up behind her and rubbed up against her as he grabbed her breasts. That groping incident triggered a second cursing outburst with Johnson calling White “just about every name in the book.” Although there was no physical contact between the two parties, one of Johnson’s friends had to restrain her by pulling her away from White. Johnson went outside in the parking lot where she was joined by a large gathering of friends.

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October 24, 2009

DOMESTIC VIOLENCE – A SENSITIVE SUBJECT TO APPROACH

Filed under: Houston Criminal Lawyer — Tags: , , , , , — johntfloyd @ 1:50 pm

October is Domestic Violence Awareness Month: Friends and Family Need to Get Involved to Stop the Cycle of Abuse, Save a Life

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

This past August Christiana “Tina” Guerra Lewis became another statistic; a victim of a social epidemic far more deadly than the HINI virus. The night before her death, according to the Houston Chronicle, Lewis asked her mother to go with her the next day to get a restraining order against R.P., a man with a lengthy criminal record with at least two dozen arrests including an assault on a family member and injuring a child.

Lewis did not live to see the next day.  She became one of the every three women murdered each day in this country by their spouses or intimate partners, according to a recent Chronicle op-ed article by Rebecca L. White, president and CEO of the Houston Area Women’s Center, and James L. Postl, former CEO of Pennzoil Quaker State. Police charged that R.P. stabbed Lewis numerous times in the neck in her trailer residence in Channelview.

R.P. has a long history of domestic violence. He was committed to the Texas Department of Criminal Justice on at least four occasions, the last commitment being for an assault on a family member. He came from a family environment of domestic violence. In 2000 his mother was convicted of killing her live-in boyfriend by dropping a 40-lb cinder block on his head.

While the Lewis family told the Chronicle that Lewis was probably unaware of R.P’s extensive criminal record and history of domestic violence, she was aware of his propensity for violence. The Chronicle reported that four days before R.P killed her, he broke into Lewis’ residence, beat her up, raped her, and stole money from her. He warned her not to call the police, threatening to kill her family if she did. She didn’t. She even refused to go to the hospital for treatment, telling a sister: “For what? They’re not going to do anything.” (more…)

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