CRIMINAL JURISDICTION

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

May 8, 2010

THE PITFALLS OF EXPERT TESTIMONY IN CHILD SEXUAL ABUSE CASES

Filed under: Child Abuse Crimes Lawyer — Tags: , , , , — johntfloyd @ 2:58 am

Child Sexual Assault Expert Lies about Conclusions of Study

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

We have written previously about the prolific use of “child sexual abuse experts” in child sexual assault cases. In particular, we have criticized the testimony such experts from the Harris County Children’s Assessment Center (“CAC”). While seldom providing any specific source, these experts testify that the professional “literature” and “studies” reveal child sexual abuse victims rarely ever make “false” allegations about such abuse. The experts confidently inform juries that the rate of false allegations in child sexual abuse cases is about “three percent.” While our Texas Court of Criminal Appeals has held that such generalized testimony does not constitute impermissible “bolstering” of a child sexual abuse victim’s testimony, criminal defense attorneys who have faced this kind of “expert” testimony in emotionally-charged child sexual assault cases understand clearly that such testimony does lend tremendous bolstering-like credibility to the child’s testimony.

As Judge Alex Kozinski of the Ninth Circuit Court of Appeals said in a dissenting child sexual assault opinion nine years ago, “the testimony of a victim—particularly a very young one—is a highly tenuous ground on which to rest a conviction. A jury might develop a reasonable doubt from the total absence of corroborating [expert] evidence. If the jury nonetheless convicts, we are bound by that determination.” 1/

Judge Kozinski was dissenting in the case of Emanuel Sistrunk who was convicted in an Oregon state court in 1985 for the forcible rape of an 11-year-old girl. He was given a 30-year sentence with fifteen of those years being a statutory minimum. The child victim in the Sistrunk case, as in most child sexual abuse cases, knew her attacker because, according to her,  he had sexually abused her once before. The child provided a rather detailed account of the events leading up to and subsequent to the attack.

State prosecutors called an “expert” witness named Dr. Jan Bays who, as a three-judge Ninth Circuit panel concluded, “testified falsely.” 2/ The appeals court added that Dr. Bays testified about “a scientific study [which] proved that ‘it is very, very rare that a child lies about sex abuse’ and that the chance of such a lie is only with teenagers, ‘never with the younger children.’ She testified the study established that ‘if the child comes forward with the story, themselves [sic], then it is the truth. If the child is younger than a teenager, then it is the truth.’” 3/

(more…)

March 22, 2010

CHILD PORN RESTITUTION RUN AMUK

Filed under: Child Abuse Crimes Lawyer — Tags: , , , , , — johntfloyd @ 12:13 pm

Federal Judges Split on Issue of Restitution in Possession of Child Pornography Cases

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Her name is “Amy.” She is twenty years of age. When she was a child, 8 or 9 (according to media reports), Amy was sexually abused by her uncle. The uncle took photos of the abuse and posted the images on the Internet. Amy’s images became some of “the most widely circulated child pornography images online,” according to Associated Press writer Amy Forliti in a recent report.

Then “Amy” met New York attorney James Marsh who either saw in the former victim of child sexual abuse what he believed to be an injustice in need of correction or an opportunity to expand his practice into the potentially lucrative area of child porn restitution. Marsh has used a federal restitution statute, 18 U.S.C. § 2259, to file approximately 250 requests for restitution on behalf of Amy in child pornography possession cases across the country. § 2259 was enacted in 1994 to provide restitution for offenses involving the sexual exploitation and abuse of children. The statute imposes a duty upon a federal sentencing court to order any defendant convicted of a child abuse-related offense to pay restitution to the victim of that offense. The statute is particularly exacting because the sentencing judge cannot refuse to order restitution based on the defendant’s deprived economic circumstances or because the victim has received compensation for his/her injuries from some other source, such as a civil judgment. 1/ § 2259 authorizes restitution for the following reasons:

  • “Medical services relating to physical, psychiatric, or psychological care” for the victim;
  • “Physical and occupational therapy or rehabilitation” for the victim;
  • “Attorney fees, as well as other costs incurred” by the victim; and
  • “Any other losses suffered by the victim as a proximate result of the offense.”

Then in 2004 Congress enacted the Crime Victims Rights Act, 18 U.S.C. § 3771, which requires that the victim of any crime be given timely notice of any court proceeding involving the perpetrator of the crime and the right to be heard at that proceeding. 2/

These two related statutes have generally been used to impose restitution orders against the defendant charged with committing specific offense(s) against a victim—for example, Amy’s uncle who sexually abused her and posted images of that abuse on the Internet. Attorney Marsh, however, has used these statutes to seek, and secure, restitution orders against defendants charged in possession of child pornography cases in which Amy’s images were discovered in their possession. Marsh is plowing his way through this new area of restitution law which has produced serious conflict in the judicial arena.

(more…)

January 20, 2010

CHILD PORNOGRAPHY: JUDICIAL CHAOS LEADS TO HORRIFIC SENTENCING DISPARITIES

Filed under: Child Abuse Crimes Lawyer — Tags: , , , , — johntfloyd @ 1:28 pm

Court Describes Federal Sentencing Disparities as “A Picture of Injustice”

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

In 1984 the United States Congress enacted the Sentencing Reform Act (“SRA”), and as part of the Act, Congress created the United States Sentencing Commission (“Commission”) to “establish sentencing policies and practices for the Federal criminal justice system.” 1/ The Commission was charged with the responsibility of creating U.S. Sentencing Guidelines (“Guidelines”) that would assist Federal judges in the sentencing process to fulfill Congress’ five purposes for imposing criminal sentences. 2/

Title 18, United States Code, Section 3553(a)(2) lists the five congressionally-mandated purposes for sentencing:

  • To reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
  • To afford adequate deterrence to criminal conduct;
  • To protect the public from further crimes of the defendant; and
  • To provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.

While the Guidelines and the § 3553(a) factors were intended to eliminate the gross disparities in federal sentencing practices before the SRA, they have failed miserably in many significant respects, particularly in child pornography cases. Since the enactment of the SRA, Congress has repeatedly created new offenses, increased penalties, and issued directives to the Commission concerning child pornography offenses. 3/ The following is a list of many of the laws enacted by Congress over the last three decades regarding child pornography-related offenses:

  • Protection of Children Against Exploitation Act of 1978;
  • Child Protection Act of 1984;
  • Child Sexual Abuse and Pornography Act of 1986;
  • Child Abuse Victims’ Rights Act of 1986;
  • Child Protection Restoration and Penalties Enhancement Act of 1990;
  • Sex Crimes Against Children Prevention Act of 1995;
  • Protection of Children from Sexual Predators Act of 1998;
  • Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003;
  • PROTECT Our Children Act of 2008;
  • Providing Resources, Officers, and Technology to Eradicate Cyber Threats to Our Children Act of 2008;
  • Keep the Internet Devoid of Sexual Predators Act of 2008; and
  • Effective Child Pornography Prosecution Act of 2008.

(more…)

December 19, 2009

THE REAL DANGER OF EXTRANEOUS OFFENSE EVIDENCE

Filed under: Sexual Assault Crime Attorney — Tags: , , , , , — johntfloyd @ 9:09 am

Man Convicted on 2 Counts Indecency with a Child Found Actually Innocent After Nearly Two Decades in Prison: Extraneous Evidence False, Expert Testimony Wrong.

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

We have written on numerous occasions about the dangers of “extraneous offense evidence” when allowed into evidence in a criminal trial. What is extraneous offense evidence?

Extraneous evidence is evidence of another crime, wrong or bad act that is not relevant to proving the specific allegation made in the charging instrument, information or indictment.  For example, a prior unrelated DWI conviction would be an extraneous crime in an arson case.  It would generally be inadmissible in the guilt/innocence stage of a criminal case because it is irrelevant to the arson charge and has no bearing on any fact that is of consequence in that case.

Evidence of other crimes, wrongs or acts that are extraneous to the underlying charge are specifically inadmissible to prove the character of a person to show that person acted in conformity therewith.  There are exceptions however when it can be shown that the evidence is relevant to prove motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. Texas Rules of Evidence 404(b).

If a court finds this evidence is admissible for one of the listed exceptions, and after proper defense objection, the judge must conduct a balancing test under which the court weighs the probative value (its relevance to some issue such as motive, intent, opportunity, plan etc.) against the risk of unfair prejudice, confusion of the issues or misleading the jury caused by the evidence.  Texas Rules of Evidence 403. (more…)

November 7, 2009

THE RIGHT TO AN IMPARTIAL TRIAL STRUCK WITH CRITICAL BLOW

Filed under: Child Abuse Crimes Lawyer — Tags: , , , — johntfloyd @ 4:17 pm

Failure to Strike Prosecutor, Victim of Sex Crime, from Jury not Ineffective Assistance of Counsel

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

The Sixth Amendment to the United States Constitution guarantees every criminal defendant a right to an impartial trial. 1/ Selecting a jury of twelve men and women to hear a criminal case is perhaps the most critical stage in the trial process where a defense attorney must provide effective representation. He has a pool of prospective jurors representing a cross-section of the community from which to select the people who will hear the facts and fairly consider the case. This jury pool is a minefield of human experiences that range from concealed bias and prejudice to open fairness and impartiality. The task of the defense attorney is to navigate through the minefield without exploding a mine that will injure his client’s opportunity for an impartial trial.

The constitutional guarantee of an impartial trial, in all actuality, begins with voir dire—a French term meaning “to speak the truth.” Voir dire is a pre-jury selection phase of the trial during which the prosecution and defense are afforded an opportunity, under the strict supervision of the trial judge, to question prospective jurors to determine if they are qualified and suitable to serve on a jury. These questions are often initially influenced by the questionnaires prospective jurors are required to fill out before the voir dire gets underway.

Texas criminal procedure grants ten peremptory challenges—the right of either party to exclude a potential juror for any reason or no reason at all so long as the challenge is not use to discriminate on the basis of race, gender, or ethnicity—to both the prosecution and the defense in non-capital felony cases and capital cases in which the State does not seek the death penalty. If two or more defendants are jointly tried, each defendant and the prosecution are entitled to six peremptory challenges. 2/

A defense attorney must utilize these peremptory challenges in a judicious manner. They are generally exercised when the attorney detects, either through direct responses from the prospective juror to specific questions or from mere instinct honed by years of trial practice, that a prospective juror is biased in a very specific sense or harbors prejudices in a general sense against particular defendants. And a defense attorney in Texas does not have a lot of time to make these calls. Most judges impose very restrictive time frames for completing the voir dire examination—ranging from twenty minutes to an hour. It is critical, therefore, that an attorney be thoroughly prepared before he/she enters the jury selection arena. (more…)

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 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…)

August 12, 2009

SIXTH INNOCENT HARRIS COUNTY MAN FREED

Filed under: Sexual Assault Crime Attorney — Tags: , , , , , — johntfloyd @ 12:36 pm

Hall of Shame: Texas Leads Nation in DNA Exonerations

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

That the Houston City Police Department’s Crime Lab was a lawless, rogue unit serving the “convict at any costs” philosophy of the Harris County District Attorney’s Office during the Johnny Holmes and Charles “Chuck” Rosenthal administrations, between 1980 and 2005, is no longer a subject of serious debate. Dozens, possibly hundreds, of innocent people—mostly poor minorities charged with homicides or sex crimes—were railroaded off to Texas prisons based on fabricated (or at best faulty) forensic evidence supplied by the Crime Lab and/or due to mistaken identification secured to corrupt pretrial photo lineup procedures.

On June 13, 2007, former U.S. Justice Department Inspector Michael Bromwich issued a 400-page report that concluded the crime lab’s DNA and serology departments had made hundreds of “serious and pervasive” mistakes in homicide and sexual assault cases. Bromwich two-year investigation examined more than 3500 cases processed by the crime lab over the previous quarter century. 135 of those were DNA cases handled by the crime lab between 1992 and 2002, Bromwich’s investigators found “major issues” in 43 of those cases, and, even more disturbing, found “major issues” in 4 of the 18 death penalty cases it examined.

Before Bromwich initiated his investigation, and following a 2002 “audit” of the crime lab ordered by city officials, two Harris County criminal defendants were ordered released by local courts after it was determined that the crime lab’s false forensic evidence had resulted in their wrongful rape convictions. George Rodriquez was released in 2004 after serving 17 years in the Texas prison system for kidnapping and rape. A Harris County federal jury awarded him $5 million this past June based on the city’s “deliberate indifference” to the recurring problems at the crime lab. In 2003 Josiah Sutton was released after serving 4 ½ years for a rape conviction after DNA tests discredited forensic tests performed by the crime lab. The following year Gov. Rick Perry granted a “full pardon” to Sutton.

Since the June 2007 release of the Bromwich report, four additional Harris County criminal defendants have been ordered released by local courts after it was determined they had been wrongfully convicted of sex offenses. The first was Ronald Gene Taylor who was released in October 2007 after serving 14 years for a rape conviction. DNA evidence—semen on the rape victim’s bed sheet which had not been tested by the crime lab—revealed that the semen belonged to another man who had a history of violent sexual assaults. (more…)

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