child sex crime « CRIMINAL JURISDICTION

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

June 11, 2009

THE HARRIS COUNTY CRIMINAL JUSTICE SYSTEM

Filed under: Sexual Assault Crime Attorney — Tags: child molester, child predator, child sex crime, Texas justice, wrongly accused — johntfloyd @ 3:07 am

Past Abuses, Hopes for Better Future

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Three recent stories in the Houston Chronicle exposed serious flaws in the Harris County criminal justice system. The first story concerned a 60-year prison term imposed on Andrew Wayne Hawthorne, a serial child molester. Hawthorne molested an eight year old boy in the fall of 2002. A crime for which a wrongly accused man, Ricardo Rachell, was convicted and sentenced to prison. Ricardo Rachell was convicted for this sexual assault and spent more than six years in the Texas prison system before readily available DNA evidence at the time of his arrest was finally tested and established his innocence.

We have written about this travesty of justice in previously but what disturbed us most about the recent Chronicle article (June 5, 2009; http://www.chron.com/disp/story.mpl/front/6457829.html ) were the photos of Rachell and Hawthorne. Rachell’s face at the time the photo was taken, and as it appeared at the time of his arrest and subsequent conviction, was horribly disfigured by a shotgun blast. There is no way these two men could have been mistaken for each other.

Unless, of course, the child victim was influenced into making the mistaken identification by someone bent on revenge and who was convinced that the disfigured Rachell, a neighborhood “freak,” was the man who molested the boy. The Houston Police Department accepted the child’s mistaken identification without any meaningful independent investigation to determine if the identification was correct. As a result, an innocent man spent six years in prison for something he didn’t do – and even with his innocence established through DNA testing, he will forever have the haunted memories of years in Texas prison labeled as a child sex offender.

The second Chronicle story (June 6, 2009) involved the release of a U.S. Justice Department report that found poor access to health care in life-threatening situations, unnecessary use of physical force, denial of mental health care, and inattention to suicide prevention violates the constitutional rights of inmates in the Harris County Jail. (more…)

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April 11, 2009

CHILD PORN: AN INCREASING PROBLEM IN ALL SEGMENTS OF SOCIETY

Filed under: Child Abuse Crimes Lawyer, Sexual Assault Crime Attorney — Tags: child pornography, child sex crime, child sexual abuse, sexual abuse, sexual assault — johntfloyd @ 12:00 pm

Federally Funded Task Forces Make Online Crimes Against Children Top Priority

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

There has been a recent rash of media reports about local residents getting arrested or sentenced for possession of child pornography. For example, on March 13, 2009, the Houston Chronicle carried a report about a Houston attorney being given a six and one-half year sentence by U.S. District Court Judge Sim Lake. Williamson possessed 84 child pornography images on his computer. After he completes his prison sentence, the suspended attorney will be under “supervised release” for the rest of his life, must register as a sex offender, and attend a sex offender treatment program.

The following day the Chronicle carried a story about a 24-year-old Somerset, Kentucky man being charged with promotion of child pornography, online solicitation of a minor and sexual performance of a child. He was indicted for persuading an 11-year-old Humble girl to send him nude photographs of herself while the two played video games online with their PlayStation 3 consoles last December.

“This is another venue these guys are getting to use now that hasn’t been seen before,” Sgt. Gary Spurger, a Harris County Precinct 4 deputy constable, told the Chronicle. “They’re on PlayStation or Xbox playing online games.”

A March 19, 2009 Chronicle article featured the arrest of a former member of Bikers Against Child Abuse, a child abuse prevention organization. He was also arrested for possession of child pornography. And that same day the Chronicle carried yet another story about the federal child pornography indictment of a convicted sex offender already serving time in a state prison for a 1996 possession of child pornography conviction. This man had been given a state probation but had it revoked after he failed to register as a sex offender. The current federal indictment charged Hale with possessing child pornography while he was on state probation. (more…)

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April 8, 2009

WHAT IS SEXTING?

Filed under: Child Abuse Crimes Lawyer — Tags: child pornography, child sex crime, kiddie porn, sexting — johntfloyd @ 1:46 pm

Sexting Among Children; Criminal Behavior or Brash Sign of the Times

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

First, and foremost, “sexting” among teenagers can be a crime. Second, it’s stupid, sophomoric behavior that can quickly ruin reputations, destroy employment opportunities, and cost a lot of money to deal with its legal consequences.

“Sexting” is a term, according to Urban Dictionary, created by the media which refers to the sending or posting of sexually suggestive text and images in cyberspace. The National Campaign to Prevent Teen and Unplanned Pregnancy and CosmoGirl.com recently released the results from the first study ever conducted concerning the relationship between sex and cyberspace.

The study, Sex and Tech: Results From a Survey of Teens and Young Adults, produced some disturbing findings. For example, it found that a “significant number of teens (age 13 thru 19) have electronically sent, or posted online, nude or semi-nude pictures or video of themselves.” One in five of the 653 teens surveyed engaged in this risky behavior with 22% of the surveyed girls having engaged in sexting and 18% of the boys having done so.

This group of teens are even more heavily involved in sending sexually suggestive messages. 39% sent or posted sexually suggestive messages: 37% of the girls and 40% of the boys. 48% of the teens said they had received such messages. (more…)

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March 22, 2009

THE RACHELL REPORT

Filed under: Sexual Assault Crime Attorney — Tags: child abuse, child sex crime, child sexual abuse, DNA, sexual assault, Wrongful Conviction — 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…)

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February 14, 2009

OBJECTIONS, BOLSTERING, AND APPELLATE REVIEW

Filed under: Child Abuse Crimes Lawyer — Tags: appellate review, bolstering, child abuse, child sex crime, impermissible, Objections, sexual abuse — 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…)

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February 7, 2009

OBSCENE EMAILS AND CARTOONS NOT PROTECTED BY FIRST AMENDMENT

Filed under: Child Abuse Crimes Lawyer — Tags: anime, child pornography, child sex crime, obscene cartoons, sexual deviance, Sexually Explicit Conduct — johntfloyd @ 3:25 pm

Obscene Drawings, Cartoons, Sculpture, Paintings that Depict Minors Engaged in Sexually Explicit Conduct Not Protected Free Speech

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

On March 30, 2004, Dwight Whorley visited a public resource room maintained by the Virginia Employment Commission in Richmond. The room is equipped with Commission computers, printers and copiers which may be used by job seekers. A woman in the room noticed that Whorley was receiving what appeared to her as child pornography on a Commission computer. She promptly alerted Commission staff about suspicions. An officer manager and two supervisors went to the resource room where they found Whorley standing in front of a printer with some papers in his hand. One of the supervisors requested that Whorley show him the documents. Whorley complied. The documents depicted Japanese anime-style cartoons of children engaged in explicit sexual conduct with adults.

The office manager made a determination that Whorley had inappropriately used the Commission’s computer, restricted him from further use of the computer, and escorted him from the premises. The manager then returned to the computer Whorley had been using and found his Yahoo e-mail account was still open. Commission employees discovered several more copies of the sexually explicit anime-style cartoons by the computer. After printing off several of Whorley’s e-mails and removing the computer from service, the Commission office manager notified his supervisor and state police about the incident.

A subsequent law enforcement investigation determined that Whorley was already on a federal probation for a 1999 conviction for downloading child pornography on a Virginia Commonwealth University computer at the time of the Commission incident. The local U.S. Attorney’s Office presented to a grand jury the cartoons copied by Whorley at the Commission room, the data in the computer he used in the room, and information received from Yahoo about his e-mail account. Based on this evidence, the grand jury returned a 75-count indictment against Whorley alleging:

Counts 1-20 charged that on March 30, 2004 Whorley knowingly received obscene cartoons in interstate and foreign commerce in violation of 18 U.S.C. § 1462. These counts were based on 20 cartoons depicting prepubescent children engaged in sexually explicit acts (including masturbation, intercourse, and oral sex) with adults, some of which were coerced. (more…)

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January 25, 2009

CSAAS IN TEXAS CRIMINAL TRIALS

Filed under: Sexual Assault Crime Attorney — Tags: Accommodation Syndrome, child abuse, child sex crime, child sexual abuse, CSAAS, sexual abuse, sexual assault — 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…)

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October 16, 2008

FABRICATION:

Filed under: Child Abuse Crimes Lawyer, Sexual Assault Crime Attorney — Tags: child abuse, child sex crime, child sexual abuse, sexual assault — 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…)

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