CRIMINAL JURISDICTION

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

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…)

March 25, 2009

FLDS REVISITED: ONE YEAR LATER

Filed under: Child Abuse Crimes Lawyer — Tags: , , , , , — johntfloyd @ 11:56 pm

Aftermath of the Texas CPS Raid

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

In the fall of 2003 members of the Fundamentalist Church of Jesus Christ of Latter Day Saints (“FLDS”) arrived in Eldorado, Texas. They purchased a 1700-acre ranch four miles outside of town. They called it the “Yearn for Zion Ranch” (“YFZ”). More members arrived. They constructed a mammoth temple and created their own community. They lived in peace.

While rumors circulated about in nearby Eldorado that the FLDS was a “polygamist cult” with older men taking multiple teenage girls as wives, there was no evidence of any criminal wrongdoing at the ranch. That is, until March 29, 2008 when a deranged African-American woman pretended to be a 16-year-old former FLDS resident twice impregnated by an older man and called a local domestic violence hotline saying she had been sexually and physically abused at the YFZ ranch. Women at the crisis center took this egregious false report to law enforcement, including the Texas Rangers, and the fires of one of the largest and most costly religious witch-hunts in Texas history were lit. There was no controlling the massive law enforcement and child protective services stampede that ensued.

Five days after the Rosita Swinton false report to the domestic violence hotline, the Texas Rangers and local law enforcement agencies, supported by Texas Child Protective Services (“CPS”), launched a massive, military-style raid on the YFZ compound. They threatened and generally terrorized the approximately 700 people living at the ranch, including more than 400 children. They conducted searches of all the buildings on the compound, including the temple. They seized documents and arrested people—all without any reasonable probable cause.

But worst of all, CPS seized and removed 439 FLDS children from the lawful custody of their parents. CPS had no legitimate cause, and certainly no legal authority, to sever the cherished child-parent relationship. While a local judge, apparently influenced by local politics and a mindset similar to CPS workers, held that the removal of the children was legal, she was quickly reversed by a state appeals court that pointed out just how flagrantly she had violated Texas family law. (more…)

March 22, 2009

THE RACHELL REPORT

Filed under: Sexual Assault Crime Attorney — Tags: , , , , , — johntfloyd @ 1:09 pm

Harris County District Attorney’s Office Discloses “Cascading, System-Wide Breakdown” Led to Wrongful Conviction and 6 Years Imprisonment of Innocent Man

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

On December 14, 2008, we posted a blog titled The Conflicting Faces of Crime. One of those faces involved the wrongful conviction of Ricardo Rachell in 2003 for the aggravated sexual assault of an eight year old boy. Rachell was released from custody in December 2008 after he was exonerated by DNA evidence. The Harris County District Attorney’s Office and the Houston Police Department undertook a joint investigation to determine what went wrong in the Rachell case. On March 12, 2009, the two law enforcement agencies released the “Rachell Report” (“report”) which concluded that Rachell’s wrongful conviction was the result of a “cascading, system-wide breakdown.”

The “breakdown” in the Rachell case actually began outside the system. The report states that on Sunday, October 20, 2002, the eight year old boy “was observed running down Griggs Road, waving his hands in the air and crying.” An elderly man went to the child’s aid by taking him to Wyatt’s Cafeteria. Two women then took the boy home. The child did not convey to any of these people that he had been sexually assaulted. “He just stated that a man had a knife and was trying to kill him,” the report said. He did not provide a description of the attacker to these witnesses either.

Once home, patrol officers from the police department were summoned. The boy told these officers that a man had tried to kill him. The report does not indicate if the boy told these patrol officers the man had either tried or had actually sexually assaulted him. The report only stated that:

“The details he gave officers that night was that he was offered ten dollars to pick up trash and the man took him on the man’s bicycle. The location where he was abducted was the 3700 block of Southlawn. Those first officers did speak with the Complainant’s six year old friend who was with him just before the suspect took Complainant on his bike. The six year old also conveyed that the Complainant was offered ten dollars to pick up trash and was on a bicycle. The only description of the suspect in the offense report is that he was an unknown black male, age 30.” (more…)

February 14, 2009

OBJECTIONS, BOLSTERING, AND APPELLATE REVIEW

Filed under: Child Abuse Crimes Lawyer — Tags: , , , , , , — johntfloyd @ 6:33 pm

Objections to Bolstering Testimony Should Communicate Evidentiary Basis

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

The Texas Rules of Evidence, Article 103, requires that a timely objection be based on a specific ground in order to preserve for appellate review an alleged trial error concerning the admissibility of evidence.

An en banc Texas Court of Criminal Appeals seventeen years ago held that “… all a party has to do to avoid the forfeiture of a complaint on appeal is to let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it. Of course, when it seems from context that a party failed effectively to communicate his desire, then reviewing courts should not hesitate to hold that appellate complaints arising from the event have been lost. But otherwise, they should reach the merits of those complaints without requiring that the parties read some special script to make their wishes known.” See: Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim. App. 1992).

The Court of Criminal Appeals recently reaffirmed the Lankston principle that objections to the admissibility of evidence must be both timely and specific to preserve an issue for appellate review. See: Rivas v. State, 2009 Tex. Crim. App. LEXIS 98 (Jan. 28, 2009). The Rivas court rejuvenated the language of Lankston to set the stage for its ultimate ruling, saying:

“Our system of justice is characteristically adversarial. One consequence is that many substantive and procedural features, especially most evidentiary rules, are really optional with the parties. Although we may speak of evidence as inadmissible, it is more precise, if not more correct, to say that the rules make such evidence objectionable. Indeed, this is just another way of calling attention to the fact that no issue concerning the admissibility of evidence ever arises unless one of the parties objects to it.

”It follows that the trial judge’s role in the admission and exclusion of evidence is generally not called into play unless a dispute develops between the parties concerning the proper application of an evidentiary rule. And because, absent any such dispute, our system generally expects him not to interfere with the presentation of evidence, it likewise does not fault him for refusing to interfere when a party fails to make the basis for his objection known. Beyond this, there are no technical considerations or form of words to be used. Straightforward communication in plain English will always suffice.” Id., at LEXIS 1-2. (more…)

January 25, 2009

CSAAS IN TEXAS CRIMINAL TRIALS

Filed under: Sexual Assault Crime Attorney — Tags: , , , , , , — johntfloyd @ 2:07 pm

Rule 702 Expert Testimony v. Bolstering, Child Sexual Abuse Accommodation Syndrome

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

In 1983, Roland Summit in a published paper coined the phrase “Child Sexual Abuse Accommodation Syndrome” (CSAAS). See: 7 Child Abuse and Neglect 177 (1983).Summit’s syndrome set forth five specific characteristics children may exhibit following sexual abuse. Summit intended that CSAAS be utilized by law enforcement and child protective services investigators, as well as clinicians, to explain the coping behavior of children sexually abused by adults. He did not intend for CSAAS to be used, as it has been in some states, as a diagnostic tool to tell juries in criminal trials that sexual abuse has in fact occurred. The five CSAAS characteristics are listed below:

Secrecy – The child is told by adult that the sexual abuse must be kept secret. Secrecy is generally accomplished through threats such as “daddy will go to jail;” “momma will not believe you and will get angry;” or “I’ll kill you and the rest of the family.” Secrecy can also be achieved through positive reinforcement such as “this is our special secret”; or “you must not tell anyone because they won’t understand.”

Helplessness – Sexual abuse instills fear and powerlessness in a child. They feel helpless to stop the abuse. The abuse usually comes from a power figure (a father, uncle, or priest) that make the child feel too vulnerable to stop it.

Accommodation – The demand for secrecy by the abuser and the child’s sense of helplessness can make the child feel trapped in a hopeless situation. She/he, therefore, may create a need to accommodate the abuse which can lead to psychological torment that the victim is somehow the “bad person” who created the abuse.

Delayed Disclosure – More commonly known in the Texas legal system as “delayed outcry,” the child may not disclose the sexual abuse for years because of fear of personal harm, or because of the perceived harm it could cause her/his family, or because of fear that no one will believe her/him. This may cause the child to act out in rage or anger because she/he feels that no one in authority has protected her/him. This can delay the disclosure of abuse for years until there is a period of personal crises in the child’s life or crises within the family unit.

Retraction – Disclosure inevitably creates turmoil. The child may be subjected to disbelief by the outside world, including law enforcement. Shame and humiliation become inevitable psychological byproducts of the disclosure. “The world knows,” the child thinks. And when the “world” does not truly support the child’s disclosure, she/her may retract the sexual abuse allegation. (more…)

October 16, 2008

FABRICATION:

Filed under: Child Abuse Crimes Lawyer, Sexual Assault Crime Attorney — Tags: , , , — johntfloyd @ 3:11 am

The Only Defense In Sexual Assault Cases Not Subject To Rebuttal Evidence, Keeping Extraneous Crimes, Wrongs, and Acts Out

By Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair

Writing in her book “The Cross-Examination of a Young Child in a Sexual Assault Case: Voice for the Defense” (Oct. 1999), Annabelle Hall said that jurors following a sexual assault trial involving a child raise the following questions:

  • Why would a child lie about sexual abuse?
  • How can a child know so much about sex if she has not been abused?
  • Would a child lie about sexual abuse?
  • Why would a child make the story up?

These questions clearly demonstrate why a defense attorney in a sexual assault case faces such a difficult task establishing a “fabrication” defense. A “fabrication” defense in a sexual assault case is premised on the theory that the victim has “made up” or deliberately lied about the sexual assault. As difficult as it may be to logically wrap the mind around this concept, reliable studies (including the U.S. Justice Department) have revealed that anywhere between 25 to 60 percent of all sexual assault allegations are false. Put simply, somewhere between one-quarter to one-half of the rape allegations leveled in this country are fabricated for one reason or another. Many involve child victims.

Why would a child lie about such a thing?

In Cross-Examination of Child Witnesses, presented at the 19th Annual Rusty Duncan Advanced Criminal Law Short Course in San Antonio, Texas (June 15-17, 2006), Houston criminal defense attorney Stanley G. Schneider and Dallas doctor Mark Blotcky partially answered this question:

“False allegations of sexual abuse are usually simply incorrect. They are initiated by parents or a third party, e.g., this occurs due to the hyper-vigilence [sic] of parents of young children after their parents have been sensitized by sensational news media coverage of sexual abuse scandals. Pediatricians and child mental health professionals by law also make reports to Child Protective Services of any ‘suspected’ child abuse without having to confirm its veracity. They may be acting perfunctorily and simply reporting abuse based upon a small amount of information provided by the mother, the child, or exhibited by the child’s physical or behavioral symptoms. I know clinicians who feel compelled to report even when they believe it’s highly improbable that abuse has occurred. They are practicing defensive medicine. The report itself may then become overly weighted “evidence,” as though there had been some real investigatory work done or an expert professional opinion rendered about the abuse, though the report is simply conforming to the law to report any suspected child abuse. Remember, very disturbed children, previously sexually abused children, bipolar children and others may exhibit eroticized behavior without being sexually abused. It is then easy to understand why a ‘third party’ makes a report.” (more…)

October 9, 2008

THE ACQUITTAL

Filed under: Child Abuse Crimes Lawyer, Sexual Assault Crime Attorney — Tags: , , , , — johntfloyd @ 5:23 pm

THE ACQUITTAL

John Floyd Secures Not Guilty After Jury Trial, Aggravated Sexual Assault of a Child younger than 14, 263rd District Court, Harris County, Case No. 1156699

A former Precinct 4 deputy accused of aggravated sexual assault of a child was found “not guilty” after three days of trial and six hours of jury deliberation. The State argued the defendant, in 2000, sexually assaulted an 11-year-old girl when he was a detention officer at the Harris County Juvenile Detention Center where the girl was detained.

After announcing their verdict, the jurors stated that they simply did not find the complaining witness’ testimony credible and accurate enough to convict the defendant for such a serious crime. The defense - led by John Floyd with the able assistance of co-counsel Chris Carlson and paralegal Billy Sinclair – presented the defense that the complaining witness’ sexual assault allegation was fabricated. This defense was supported by inconsistencies with other witness testimony and discrepancies in the prosecution’s evidence.

The prosecution supported its case with the 7-year delayed outcry testimony of the complaining witness and the testimony of a twice-convicted and currently jailed felon.

Bound by their oath to follow the law on the issue of “reasonable doubt,” jurors stated they simply could not attach any meaningful credibility to the prosecution’s case. In fact, one juror was so frustrated by the prosecution’s inept handling of the case that the juror posted a comment on the Houston Chronicle website that the prosecutor should have been jailed.

The not guilty verdict in this case follows a year of success for the John T. Floyd Law Firm in defending individuals falsely accused of sex offenses. Earlier this year, Mr. Floyd secured another not guilty, an acquittal by directed verdict, after a jury trial on charges of sexual assault in the 176th District Court of Harris County. Mr. Floyd also obtained a no-bill from a Harris County grand jury for an individual charged with sexual assault of a child in case number 111785 before the 184th District Court of Harris County, Texas. This was also a delayed outcry case. In August, Mr. Floyd obtained dismissals on two cases alleging indecency with a child, in cases 46527 and 46528, days before jury trial in the 400th District Court of Ft. Bend County, Texas. (more…)

October 6, 2008

A DISTRICT ATTORNEY’S PROFESSIONAL INDISCRETION

Filed under: Child Abuse Crimes Lawyer, Sexual Assault Crime Attorney — Tags: , , , , — johntfloyd @ 5:27 pm

Prosecutor Hands Jury Sour Grapes After Not Guilty Verdict

By Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair

The John T. Floyd Law Firm faced a recent difficult three-day trial in a Harris County courtroom. The District Attorney’s office had charged a defendant with aggravated sexual assault of a child. It was a classic delayed “outcry” case. The case was assigned to one of the very best prosecutors in sexual assault cases. She signaled early in the motion practice stage of the case that she would be a determined adversary willing to go to extraordinary lengths to secure a conviction against our client.

Faced with the natural bias against criminal defendants charged with such sexual offenses, the John T. Floyd Law Firm met the prosecutor’s frontal assault in the pre-trial process with fierce counter attacks. While our investigators located key witnesses and produced valuable documents and our paralegal pursued relentless legal research, the trial attorneys pursued discovery and formulated an aggressive “take no prisoners” fabrication defense. At trial, the defense attorneys focused on the primary objective: convince the jury that the prosecution’s case, from top to bottom, was not credible without opening the door to any damaging rebuttal evidence on the fabrication defense.

The jury got the case on a Wednesday morning at 10:30 a.m. By 11:30 a.m., and after the jury had requested to review a piece of evidence, it was evident that the prosecution had not secured its normal “quick” guilty verdict. The jury had questions. Questions meant doubt. Doubt meant the prosecution had not immediately closed the deal on guilt beyond a reasonable doubt. Twice more by 2:30 p.m. the jury asked to review portions of certain testimony. The prosecution team grew nervous. They fidgeted and engaged in “pass the time” conversations in the courtroom. Uncertain, hollow laughter emanated from their group discussions. Unconsciously, they got up and moved about the courtroom which had long emptied of the hustle and bustle of the routine guilty pleas entered earlier in the day. The “expert” child sexual assault prosecutor betrayed her obvious concern with defensive body language and constant need to get up and move about.

Then at 4:30 came the two rings of the bell signaling that the jury had reached a unanimous verdict. The defense team quickly assembled and moved back to the defense table with their client. They were cautiously optimistic. The trail signs indicated at a minimum a “hung jury” decision but now there was a real possibility of a “not guilty” verdict. They dared not speak the latter hope. Never tempt the hand of fate. Let fate chart its own course. Hope leads to raised expectations, and raised expectations can so easily crash against the sea wall like a violent incoming wave. (more…)

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