CRIMINAL JURISDICTION

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

March 9, 2010

TEXAS DEATH PENALTY PROCEDURE UNCONSTITUTIONAL?

Filed under: Death Penalty Crimes Lawyer — Tags: , , , , — johntfloyd @ 12:37 am

Judge Acknowledges Innocent People Have Likely been Executed

Harris County Criminal District Court Judge Kevin Fine on Thursday, March 4, 2010, created a tsunami of controversy in the Texas legal community when he reportedly made a comment that he was declaring the state’s death penalty unconstitutional. The comment was made during a hearing on a motion filed by defense attorneys in the case of John Edward Green Jr. who is facing a capital murder charge. What Judge Fine actually did was to declare Article 37.071 of the Texas Code of Criminal Procedure unconstitutional which is the statute that outlines the procedures for imposing the death sentence in this state.

“Are you willing to have your brother, your father, your mother be the sacrificial lamb, to be the innocent person executed so that we can have a death penalty, so that we can execute those who are deserving of the death penalty?” Judge Fine mused from the bench. “I don’t think society’s mindset is that way now.”

The reaction to Judge Fine’s comment/ruling was immediate and volatile. Harris County District Attorney Pat Lykos issued a statement respectfully disagreeing with the ruling: “We respectfully, but vigorously, disagree with the trial judge’s ruling, as it has no basis in law or fact. Words are inadequate to describe the Office’s disappointment and dismay with the ruling; sadly it will delay justice for the victims and their families. We will pursue all [appeal] remedies.”

But Texas Gov. Rick Perry and Attorney General Greg Abbott were not so understanding in their reactions to Judge Fine’s ruling. Abbott called the decision “an act of unabashed judicial activism.”

(more…)

October 5, 2009

TEXAS GOV RICK PERRY IMPEDES INQUIRY ABOUT WHETHER TEXAS EXECUTED AN INNOCENT MAN

Filed under: Death Penalty Crimes Lawyer — Tags: , , , , — johntfloyd @ 11:46 am

Governor’s abrupt Dismissal of Chairman, Two Members of Texas Forensic Science Commission on Eve of Hearing Smacks of Political Cover-up

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

It is one thing for a governor to have possibly presided over the execution of an innocent man but quite another for that governor to effectively shut down an official investigation into whether the forensic evidence used convict the man was reliable.

That’s precisely what Texas Gov. Rick Perry did on September 30, 2009 when he abruptly replaced three members of the Texas Forensic Science Commission two days before the commission was scheduled to hear testimony from a renowned forensic expert who has cast serious doubts on the forensic evidence that sent Cameron Todd Willingham to his death on February 17, 2004 under Perry’s watch.

The governor has denied any ulterior personal or political motives for the firing of commission chairman Sam Bassett, an Austin attorney, and two other commission members. Bassett was instrumental earlier this year in securing the services the highly touted Maryland fire scientist and expert named Craig Beyler. The commission charged Beyler with the very specific task of determining whether the forensic evidence used to convict Willingham was reliable and satisfied nationally recognized scientific standards for the use of such evidence in arson cases. Beyler was not charged with the task of making a determination of whether or not Willingham was actually innocent.

“He [Beyler] appears to be one of the pre-eminent people in the fire and arson investigation field,” Bassett was quoted as saying in a January 27, 2009 Chicago Tribune article. (more…)

March 15, 2009

CAPITAL PUNISHMENT:

Filed under: Death Penalty Crimes Lawyer — Tags: , , , — johntfloyd @ 1:45 pm

AN INDICTMENT BY A DEATH ROW SURVIVOR

By: Billy Sinclair

I am pleased to announce, through the website of the John T. Floyd Law Firm, that my wife, Jodie, and I have recently released our second book, Capital Punishment: An Indictment by a Death Row Survivor. Released by the prestigious publishing house Arcade Publishing (New York), Capital Punishment is a collection of fourteen essays that examines the entire spectrum of the subject of the death penalty: its methods of executions, its Southern regional phenomenon, its racism, its tortuous botched executions, and its impact on our society.

Capital Punishment is not an academic study. The death penalty is told through the human drama it inevitably creates: the persons put to death, those put them to death, and those who tried to stop it. When Jodie and I decided to write my prison memoir, A Life in the Balance: The Billy Wayne Sinclair Story (Arcade Publishing, New York 2000), we did so with one overriding objective—to tell as honestly and realistically as possible the story of one man’s struggle to survive inside one of the nation’s most brutal and violent prisons, the Louisiana State Penitentiary. We would like to believe that we were true to that literary objective. The media critics thought we were as the following book reviews suggest:

Associated Press – “A hopeful tale of an unbreakable human spirit.”

New York Times Book Review – “A numbing tale of crime, punishment, and redemption.

Boston Globe – “Well researched, persuasive, and morbidly compelling … Sinclair’s firsthand account of life in prison offers an authentic, sometimes grisly narrative.”

New Orleans Times-Picayune – “What Sinclair’s book does most eloquently is to tell us how little we know about justice.’

Loyola New Orleans Magazine – “Louisiana’s corrupt prison system, sex, violence, and a mismatched love story unfold in the nonstop, gut-wrenching pages of … a seamless narrative.”

Publishers’ Weekly – “A powerful tale, and readers will be shaken by the sorrow, greed, and corruption they encounter in it.”

But we approached the writing of Capital Punishment with a completely different literary objective. We had an obvious biased objective from the outset. We tell the reader as much in the “Preface” of the book. We both strenuously oppose the death penalty, and as individuals and authors, we have often spoken out against it and published written opposition to it. But first and foremost we are journalists. Jodie earned a master degree in journalism from the prestigious Columbia University School of Journalism and was an award-winning television journalist for many years who witnessed the execution of Gary Lockhart in Huntsville in 1997. I was the recipient of the highly acclaimed George Polk and Sidney Hillman journalism awards writing about death penalty as co-editor of the THE ANGOLITE, the newsmagazine of the Louisiana State Penitentiary. (more…)

March 13, 2009

BOOK RELEASE

Filed under: Death Penalty Crimes Lawyer — Tags: , , — johntfloyd @ 5:05 pm

CAPITAL PUNISHMENT:
AN INDICTMENT BY A DEATH ROW SURVIVOR

By: Houston Criminal Defense Lawyer John Floyd

I am happy to announce the release of another book by my good friends Billy and Jodie Sinclair entitled Capital Punishment: An Indictment by a Death Row Survivor, released by Arcade Publishing (New York). The book is a compelling collection of essays commenting on the death penalty from many different perspectives about this controversial and, in my opinion, most despicable, inhumane and arcane of punishments that continues to thrive in this so called modern world.

I have always been an opponent of the death penalty. I first seriously considered the issue in 1987 when I was in college and was required to do a research paper on the subject. Our assignment was to look at the death penalty objectively from both sides. It was the type of project typical of a freshmen government class intended to force the student to examine both sides of a controversial issue in order to appreciate its pro and con policy arguments. I was shocked when I came across a pro-death penalty article which attempted to do a cost/benefit analysis on the issue. The author supported the death penalty even after factoring in the variable that perhaps 30 innocent people had been executed. This study concluded that the cost of 30 innocent souls being executed was outweighed by the benefits derived from the death penalty, namely deterrence and justice/revenge for the crime victim’s friends and families.

I guess until that point in my life, I had never seriously considered the possibility that innocent people might be found guilty and sentenced to death. I had certainly never considered the horrid possibility that such innocents would have been executed.

That was enough for me. In my naïve state as a college freshman, I had single handedly concluded that the death penalty was immoral simply because an innocent person might be executed. Simple and straight forward, huh?

As I continued my college education, my opposition to the death penalty only solidified, but the reasons for that opposition remained basically the same. From my vantage point it was intrinsically immoral to exact the most serious, final and irrevocable punishment, if the system could not guarantee that innocent people would not be executed. (more…)

February 26, 2009

BAD DAY AT BLACK ROCK FOR JUDGES IN SOUTH TEXAS

Filed under: Federal Defense Attorney — Tags: , , , , , , , , — johntfloyd @ 3:06 am

Judges Reap What They Sowed

By Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair

There may be no Hero to the rescue in this dark drama hanging over the state and federal judiciaries in South Texas. The clouds in the horizon are as ominous as those that preceded Hurricane Ike last September. A sitting federal judge, the Honorable Samuel Kent who formerly oversaw maritime law cases for the past seventeen years in Galveston, was facing trial in a Houston federal district court on federal sex crime charges. The local media was reporting that attorneys who regularly practiced before Judge Kent were following the case with utter amazement and, we suspect, a near morbid fascination.

According to media reports, Judge Kent dominated proceedings before him with a harsh gavel and was known for what the Houston Chronicle called “biting written opinions.” Life indeed has a peculiar knack for turning things topsy-turvy. So it was with Judge Kent who found himself facing trial on five sexual abuse charges involving two former employees and one charge of lying to a Fifth Circuit Court of Appeals judicial commission assigned to investigate the sexual abuse allegations.

Represented by the preeminent Houston criminal defense attorney Dick DeGuerin, Judge Kent had been vociferous in his protestations of innocence during pre-trial court proceedings. Through a number of pre-trial pleadings, DeGuerin indicated a series of seemingly conflicting defenses: 1) the employees consented, 2) the judge suffers from erectile dysfunction, and 3) the judge is so consumed by such a powerful ego that he may not have been able to discern if the employees actually consented to alleged sexual advances he made towards them.

A recent Chronicle article about the Kent case quoted Arthur Hellman, a University of Pittsburgh expert on federal judicial discipline: “This is unprecedented,” Hellman said, pointing out that a few other federal judges have faced criminal trials involving “money and corruption” issues but none for sex offenses. (more…)

February 4, 2009

IS LARRY RAY SWEARINGEN GUILTY OF CAPITAL MURDER?

Filed under: Death Penalty Crimes Lawyer — Tags: , , , , , , — johntfloyd @ 3:18 am

Actual Innocence Not Recognized Ground for Relief in Federal Habeas Corpus Jurisprudence

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

Is Larry Ray Swearingen guilty of capital murder? The State of Texas, through Montgomery County Assistant District Attorney Marc Brumberger, believes that he is. The parents of Melissa Trotter, Charles and Sandra Trotter, believe that he is. The Texas Court of Criminal Appeals believes that he is.

But Swearingen’s attorney, James Rytting, the New York-based Innocence Project, and a host of forensic pathologists, including Glenn Larkin, strenuously believe that he is not. As Larkin recently told Texas Monthly Magazine: “no rational and intellectually honest person can look at the evidence and conclude Larry Swearingen is guilty of this horrible crime.” While the Houston Chronicle, in a January 23, 2009 editorial, did not go as far as Larkin, the respected editorial board of the newspaper said: “He may not be a saint, but Swearingen does not deserve to die for someone else’s crime.”

The United States Court of Appeals for the Fifth Circuit is not concerned one way or the other about Swearingen’s guilt or innocence. The appeals court has long held that the execution of an inmate who has demonstrated “actual innocence” does not offend federal due process of law. The appeals court, however, recently stayed Swearingen’s pending execution and ordered a hearing to determine (1) if state prosecutors engaged in prosecutorial misconduct and (2) if he was adequately represented at trial by defense counsel. See: In Re: Larry Ray Swearingen, No. 09-20024, Jan. 26, 2009 [Online citation unavailable].

We cannot conclude whether Swearingen is innocent or guilty. Our intent is to lay out the legal and factual background of his case so our readers can draw their own conclusions based upon the evidence we’ve gleaned from the public record and court decisions.

LEGAL BACKGROUND

Larry Ray Swearingen, an electrician who lived in Willis, Texas, was arrested on December 11, 1998 by Montgomery County law enforcement authorities on outstanding charges unrelated to the murder of Melissa Trotter. (more…)

September 10, 2008

THE AFFAIR OF A JUDGE, DA, AND A KILLER

Filed under: Death Penalty Crimes Lawyer, Homicide Crimes Lawyer — Tags: , , , , — johntfloyd @ 6:26 pm

By:  Houston Criminal Defense Attorney John T. Floyd and Mr. Billy Sinclair

Would you want a Judge presiding over a criminal case against you sleeping with the District Attorney prosecuting that case?

Didn’t think so. Most people wouldn’t. You expect a Judge to be neutral, free of the slightest appearance of impropriety. You expect a District Attorney to be zealous, honest, and even-handed in the prosecution of criminal cases. Those general expectations – what the State Bar calls the rules of ethical conduct – are compromised when a District Attorney prosecutes a case before a Judge with whom the District Attorney is having a sexual liaison.

That controversial issue has become a highly-publicized feature in the capital murder case of Charles Dean Hood. Attorneys working to save Hood from lethal injection charged, and ultimately proved, that 19 years ago when the condemned inmate was tried and convicted in a Collin County District Court, former District Attorney Tom O’Connell, who prosecuted Hood, was reportedly having a romantic affair the former trial judge, Verla Sue Holland, who presided over the trial.

Hood was scheduled for execution on September 10, 2008, but the day before the execution was to be carried out, the Texas Court of Criminal Appeals issued a reprieve in the case. The appeals court, on which Holland had previously served as a judge, ducked the sexual liaison issue involving Holland and O’Connell and instead issued the reprieve on what the court said were “developments in the law regarding (jury) nullification instructions.”

The appeals court had previously rejected this same jury instruction issue in Hood’s case but said it was now “prudent to reconsider the decision we [previously] issued.” (more…)

August 9, 2008

TWO EXECUTIONS WITH INTERNATIONAL IMPLICATIONS

Filed under: Death Penalty Crimes Lawyer, Homicide Crimes Lawyer — Tags: , , , — admin @ 1:15 pm

By Houston Criminal Defense Attorney John T. Floyd and Mr. Billy Sinclair

The State of Texas executed two foreign nationals during the week of August 5 and 7, 2008. Both men, Jose Ernesto Medellin and Heliberto Chi, were found guilty of committing brutal murders. There was little doubt about their guilt. Had they not been foreign nationals, their executions would have passed under the Texas execution radar basically unnoticed. This is a sad fact in this great state where executions have become all too common.

But they were foreign nationals and their executions had, and will continue to have, international legal and political implications. The controversy associated with these executions centers on this country’s refusal to honor – if not the intent, the spirit – of its international treaty obligations. The treaty obligation in Medellin’s case involved Vienna Convention which provides that when a person is arrested in a foreign country, the arresting officials have an obligation to inform that person of his/her right to consult with, and seek assistance from, the “consular” of their country. Medellin, a Mexican national, was not advised of his “consular rights” when arrested in Harris County in 1994.

Chi’s case, a Honduran national, involved a different treaty – a 1927 U.S. Bilateral Treaty of Friendship, Commerce and Consular Rights with Honduras. Unlike the Vienna Convention, the Honduran Bilateral Treaty was “self-executing” – meaning the treaty did not require legislation by the United States Congress to have full force and effect. Last March, the U.S. Supreme Court ruled in the Medellin case that the Vienna Convention was not self-executing and, therefore, did not have automatic effect on federal law in this country because Congress had never passed legislation to give rights guaranteed under the treaty full legal force.

The Vienna Convention became a bone of international contention in 2004 when the International Court of Justice, located in the Hague, issued a decision that said the United States had violated the “consular rights” of 51 Mexican nationals convicted of capital crimes in this country and, therefore, they were entitled to a review of their convictions and death sentences. Although his case was not one of the 51 Mexican nationals involved in the ICJ decision, Medellin’s case became the one that ultimately worked its way to the U.S. Supreme Court and led to the precedent ruling that the Vienna Convention was not “self executing.” (more…)

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