CRIMINAL JURISDICTION

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

December 28, 2011

WRONGFUL CONVICTION AND PROSECUTORIAL MISCONDUCT

Filed under: Houston Criminal Lawyer — Tags: , , , — johntfloyd @ 3:18 am

Filing Grievances, Request for Courts of Inquiry in Wrongful Conviction and Exoneration Cases

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

On December 12, 2011, writing for Mother Jones, Beth Schwartzapfel and Hannah Levintova published a piece titled “How Many Innocent People Are In Prison?”—a piece based in part on research conducted by University of Michigan Law Professor Samuel Gross. Gross’s research, with the assistance of the New York-based Innocence Project and the Center on Wrongful Convictions, determined there have been as many as 850 exonerations in this country since the late 1980s. The Innocence Project lists 282 exonerations since 1989 based on DNA evidence alone. Extrapolating from these two figures, Schwartzapfel and Levintova conservatively estimate that 1 percent of the total prison population in the United States have been wrongfully convicted. Put it raw numbers, this means that approximately 20,000 inmates in the nation’s prison system were wrongfully convicted.

“We don’t even have a denominator,” University of Virginia law professor Brandon Garrett told the Mother Jones writers. “But the wrongful convictions we do know about suggest that there’s a big problem.”

Writing in a 2008 paper titled “Frequency and Predictors of False Conviction,” Gross reached the same conclusion as Garrett: “One difficulty in making generalizations about false convictions is that the ones we know about, exonerations, are clearly a small and unrepresentative sample of all false convictions.” Gross added that death penalty cases are the only ones in which false convictions can be accurately measured because they have trial transcripts. Gross’ 2008 paper reported that in the modern era the rate of exoneration is 2.3 percent in capital cases—and using this percentage, the Mother Jones writers reasonably extrapolated that there could have been as many as 87,000 wrongfully convicted people in the nation’s general prison population between 1989 and 2003.

Utilizing data compiled by Mother Jones, the Texas Tribune found, not surprisingly, that Texas leads the nation with 48 DNA exonerations and is third behind Illinois (95) and New York (83) with 78 total exonerations since 1989. In an article titled “No Country For Innocent Men,” which will appear in the Jan./Feb.2012 edition of Mother Jones, Beth Schwartzapfel found that 56 of these exonerations, including five death penalty cases, occurred under the reign of current Governor and presidential candidate Rick Perry, who still maintains that the criminal justice system is working. These figures are scary in light of the fact that 238 executions have taken place under Perry’s governorship—including Cameron Todd Willingham who, according to reputable fire forensic experts, was probably innocent of the arson murders of his three children in December 1991.

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August 28, 2011

SUPREME COURT TO TACKLE WITNESS IDENTIFICATION ISSUE

Filed under: Houston Criminal Lawyer — Tags: , , — johntfloyd @ 10:21 am

Admissibility of Unreliable Identification Evidence

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

According to the New York-based Innocence Project, 75 percent of the nation’s 273 DNA exonerations involved eyewitness misidentification—and according to Harris County state senator Rodney Ellis, a longtime advocate of eyewitness identification reform, 86 percent of Texas’ 45 DNA exonerations (the most in the nation) involved eyewitness misidentification. Eyewitness misidentification, and its link to wrongful convictions, has been explored several times by us on this site (here, here and here).

To say that the nation’s criminal justice system has a festering constitutional problem with eyewitness misidentification is putting the issue mildly. More than four decades ago the U.S. Supreme Court in a pair of cases, Wade v. United States and Gilbert v. California, announced the groundbreaking rule that post-indictment lineups are a “critical stage” of the criminal proceedings at which a defendant enjoys the right to counsel. The following year the Supreme Court in Simmons v. United Stateslineup evidence is inadmissible if it was unduly influenced by an improper pre-trial photo array and that the test for determining whether such a photo array was “impermissibly suggestive,” trial court would be guided by the “totality of the circumstances” surrounding the lineup. Four years later the Supreme Court, in Neil v. Biggers, once again entered the lineup fray by establishing five non-exclusive factors which  should be “weighed against the corrupting effect of any suggestive identification procedure in assessing [the] reliability [of a police lineup] under the totality of the circumstances.” Those factors are:

  • The opportunity of the witness to view the criminal at the time of the crime;
  • The witness’ degree of attention;
  • The accuracy of the witness’ prior description of the criminal;
  • The level of certainty demonstrated by the witness at the confrontation; and
  • The length of time between the crime and the confrontation.

In decades following the pronouncement of the Biggers factors, state and federal courts have carved out differing application of those factors. Some federal courts of appeal have held that due process is violated in all identifications made under suggestive circumstances while other courts, especially state courts, have held that due process is violated only if the suggestive circumstances were orchestrated by the police. The U.S. Supreme Court recently accepted a case from New Hampshire, Perry v. New Hampshire, to resolve this conflict among the courts. The facts and circumstances surrounding the identification procedures used in the Perry case were sufficiently outlined by his counsel in his brief before the New Hampshire Supreme Court who summarily denied Perry’s appeal without oral arguments relying solely on the Biggers factors. Perry sought, and secured, certiorari review before the U.S. Supreme Court on the question listed below:

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June 12, 2011

UNTESTED RAPE KIT CASES AN ONGOING PROBLEM

Filed under: Sexual Assault Crime Attorney — Tags: , , , — johntfloyd @ 11:15 am

Delay in Testing Delays Justice for Victims and Wrongly Accused

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

In a June 4, 2011 article titled “Justice Delayed in Rape Cases,” Houston Chronicle staff writer Anita Hassan reported that five years ago the Houston Police Department crime lab had more than 4,000 “rape kits” sitting untested in its “property room freezer.” Some of these cases date back to the 1990s, according to Hassan, and more of them are still sitting idle in neglect waiting to be tested. The crime lab has only tested “200 cases” over the last five years, citing “a lack of manpower” in getting the job done.

State Sen. John Whitmire, D-Houston, did not mince words with the newspaper, saying: “I’m outraged on behalf of the sexual assault victims who have had a sexual assault committed and an invasive procedure, that being the rape kit, and then learn that no one has used it in an investigation.”

HPD crime lab director Irma Rios has a long history of trying to explain away the ineptitude and incompetence of the lab (here, here, here, and here). She told the Chronicle that the snail’s pace of rape-kit testing is a “capacity issue. We need enough people to test what’s incoming on a daily basis and now we have to look at the case of old kits.”

Anytime a public official starts talking about the “lack of manpower” excuse, it’s generally a cover for incompetence. Mayor Annise Parker has either terminated or furloughed thousands of city workers and city government is finding out that it can do just as much or more with fewer workers. Official pleas of lack of resources or manpower as an excuse too often means there are too many workers who do not know how to utilize existing resources. Think about this:

The Chronicle reported that last October the HPD crime lab began using a “$1.1 million grant from the National Institute of Justice” to deal with the untested rape kit dilemma. HPD hired 10 additional staff members who had to be trained to test the evidence, Rios explained to the newspaper. “Our goal was to train them by the first quarter of this year, and we’ve already hired and trained them all,” the crime lab director said. “So we’re within our goal.”

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June 5, 2011

SUPREME COURT BLESSES LAW ENFORCEMENT MISCONDUCT

Filed under: Federal Crimes Lawyer — Tags: , , , — johntfloyd @ 11:55 am

Lack of Criminal and Civil Accountability Points to Need for Criminal Justice Reform Commissions

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

This session of the U.S. Supreme Court should be noted for its zealous protection of official misconduct by prosecutors and law enforcement officials. In two decisions, Connick v. Thompsonand Ashcroft v. Al-Kidd, the nation’s highest court extended a constitutional license to prosecutors and police to violate the law. We have detailed the background facts of both these cases in previous posts (here and here). In the Thompson case, the Court ruled that several New Orleans assistant district attorneys, who were responsible for railroading an innocent man to Louisiana’s death row for 14 years, and the City of New Orleans were not liable for damages under the federal civil rights statute, 42 U.S.C. Sec. 1983. In the al-Kidd case, former U.S. Attorney John Ashcroft was insulated from civil damages under the same statute for permittingal-Kidd and other terrorists suspects to be held indefinitely, without any meaningful evidence of either personal wrongdoing or knowledge about wrongdoing, under the federal material witness statute, 18 U.S.C. Sec. 3144, in the wake of the 9/11 terrorist attacks.

The Thompson case turned on the issue of what liability local governments face when their actions violate the rights of individuals. To secure monetary damages, the individual must establish that an “action pursuant to an official municipal policy” caused the injury incurred. There seems to be no doubt that several Orleans Parish assistant district attorneys conspired to sendThompson to death row and have him put to death, even though they knew he was innocent. The al-Kidd case turned on the issue of whether Attorney General Ashcraft was entitled to qualified immunity for his decision in the wake of the 9/11 terrorist attacks to allow federal prosecutors to use the material witness statute to confine and isolate individuals suspected of having ties to terrorists organizations. Both decisions reversed U.S. district court and federal appellate court rulings which permitted both wronged individuals to recover monetary damages against the government officials involved in the injuries done to them.

Our previous posts in these two cases outlined the immunity from civil damages enjoyed by public officials who violate the law. It is a subject matter that has drawn considerable interests from our blog (here and here). We truly believe that prosecutors, and other law enforcement officials, should enjoy immunity from frivolous lawsuits designed to vex, harass, and impede the overriding interests of our criminal justice system; namely, to arrest, prosecute, and confine those individuals who pose very real threats to society.

But the constitutional immunity protections extended by the Supreme Court in the Thompsonand al-Kidd cases are dangerous and weaken the underpinnings of our criminal justice system. It is one thing to permit prosecutors and law officials to do their jobs but quite another when prosecutors frame an innocent man, send him to death row, and conspire to have him executed; or when the police plant evidence, solicit perjured testimony, and manufacture incriminating evidence to send an innocent person to prison.

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February 11, 2011

THE PURPOSE OF REASONABLE DOUBT IN CRIMINAL TRIALS

Filed under: Drug Defense Attorney — Tags: , , , , , — johntfloyd @ 1:09 pm

Prosecutorial, Police Misconduct Lead to Wrongful Conviction Unsupported by Evidence

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

In a recent post we discussed both the history and role of reasonable doubt in criminal trials. We noted and criticized the fact that Texas judges in criminal trials do not, per Texas Court of Criminal Appeals mandate, have to give jurors any instruction as to what constitutes “reasonable doubt.” This, we believe, is one of several reasons why Texas leads the nation in the wrongful conviction of innocent people.

The Fifth Circuit Court of Appeals recently reversed a drug conviction of a Texas resident and had an opportunity in the process to explain why reasonable doubt is so critical in ensuring the constitutional right to a fair and impartial trial. The case involved Maria Aide Delgado who was convicted in federal court of one count of possession of marijuana with intent to distribute and one count of conspiracy to commit the same offense. The Delgado case also illustrates a subject matter we have discussed in other posts: prosecutorial misconduct (here and here).

In September 2006 federal customs officers received a tip from undercover informant that Delgado had marijuana in a tractor trailer truck parked at her rural residence in Weslaco, Texas. Delgado, the sole owner and operator of T.J. Trucking, gave the officers “consent” to search after which they discovered 230 kilograms of marijuana in the sleeper cab of the locked semi-trailer truck which was parked inside her fence. Delgado told the officers she didn’t know anything about the marijuana or how it got in the truck; that her company hired drivers to operate the semi-trailer to haul Mexican produce from Laredo to destinations throughout the United States. She also informed the officers that she did not drive or accompany the truck on its long hauls, and that the bulk of her business was conducted by telephone from her residence. The officers seized her cell phone, computer, bank records, and personal papers—none of which disclosed any evidence of illegal drug activity.

Bartolome Vasquez was a legal Mexican resident who worked as a produce broker and shipper in Laredo. He also moonlighted as a paid government informant. He knew Delgado, having done business with her arranging produce shipments the four years prior to 2006. He told his U.S. Customs handlers that he spoke with Delgado at least four times a month either in person or over the telephone. He told the handlers he considered her a “legitimate trucking business operator” until September 2006 when she offered him $10,000 to haul a load of marijuana mixed with produce to North Carolina. Vasquez said he turned down the offer and immediately reported it to his Customs handlers. Since they had previously paid him $1300 for drug smuggling related information, he naturally expected a reward for the Delgado information—and, as a matter of fact, he did receive $7,500 for that information.

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January 30, 2011

WHAT IS REASONABLE DOUBT?

Filed under: Houston Criminal Lawyer — Tags: , , , , — johntfloyd @ 2:41 pm

Another Tool for Preventing Wrongful Convictions:  Texas Needs a Statutory Definition of Reasonable Doubt

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Four decades ago in the case of In re Winship the United States Supreme Court firmly established that, as a matter of due process, a person charged with a criminal offense, including a juvenile as in Winship, can be found guilty only after the prosecution has proven every element of the crime “beyond a reasonable doubt.” The Supreme Court dated the term “beyond a reasonable doubt” in American jurisprudence to 1798, some eleven years after our Constitution was adopted. Thus, beyond a reasonable doubt has been the degree of persuasion necessary in criminal cases since the early founding of our nation. It has become the very bedrock of our criminal jurisprudence. As Mr. Justice Frankfurter put it in 1952 in Leland v. Oregon: “ … it is the duty of the Government to establish  … guilt beyond a reasonable doubt. This notion – basic in our law and rightly one of the boasts of a free society – is a requirement and a safeguard of due process of law in the historical, procedural content of ‘due process.’”

The Supreme Court in Winship had one basic objective: it wanted to establish then, and for all ages to come, that the standard or proof “guilt beyond a reasonable doubt” as the essence of criminal jurisprudence in our nation. This was evidenced by the court’s unmistakable and quite compelling language in that decision:

“The requirement of proof beyond a reasonable doubt has this vital role in our criminal procedure for cogent reasons. The accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction. Accordingly, a society that values the good name and freedom of every individual should not condemn a man for commission of a crime when there is reasonable doubt about his guilt. As we [have] said … ‘there is always in litigation a margin for error, representing error in factfinding, which both parties must take into account. Where one party has at stake an interest of transcending value – as a criminal defendant his liberty – this margin of error is reduced as to him by the process of placing on the other party the burden of … persuading the factfinder at the conclusion of the trial of his guilt beyond a reasonable doubt. Due process commands that no man shall lose his liberty unless the Government has borne the burden of … convincing the factfinder of his guilt.’ To this end, the reasonable-doubt standard is indispensable, for it ‘impresses on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue’ …

“Moreover, use of the reasonable-doubt standard is indispensable to command the respect and confidence of the community in applications of the criminal law. It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty.

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September 28, 2010

ACTUAL INNOCENCE IN POST-CONVICTION PROCEEDINGS

Filed under: Houston Criminal Lawyer — Tags: , , , , , — johntfloyd @ 3:30 am

Timothy Cole Advisory Panel on Wrongful Convictions Recommends Expanded Post-Conviction DNA Testing, Habeas Corpus Based on Changing Science

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

U.S. District Court Judge William T. Moore, Jr., who presides in the Southern District of Georgia, recently observed in the death penalty case of Troy Davis (here and here) that only one state of the 35 states that have the death penalty does not have any post-conviction avenue for inmates to either secure or offer evidence of innocence. That lone state is Oklahoma. Altogether, 47 states and the District of Columbia have enacted statutes which provide varying degrees of access to remedies to establish innocence in a post-conviction setting. Massachusetts, Alaska, and Oklahoma are the only three hold-out states which have elected not to enact reform legislation in the critical area of establishing “actual innocence” despite the ever-increasing number of DNA exonerations.

Chapter 64 of the Texas Code of Criminal Procedure provides inmates claiming actual innocence with an avenue to procure DNA testing. Article 64.01 permits an inmate to motion for DNA testing of evidence containing biological material. The motion must be accompanied by an affidavit outlining the facts supporting the motion. The motion can secure DNA testing only of evidence that was in possession of the state during the trial of the offense for which he was convicted, provided the following conditions are met: 1) the evidence was not subjected to DNA testing because such testing was not available; 2) DNA testing was available but was not technologically capable of producing probative results; or 3) DNA technology has improved with newer testing techniques which provide more accurate results.

Recently the Timothy Cole Advisory Panel on Wrongful Convictions (“Panel”) pointed out that Texas inmates who make claims of being wrongfully convicted not related to DNA evidence—such as improper ballistics analysis, faulty arson forensic evidence, or staged dog scent evidence—must petition the courts through a writ of habeas corpus pursuant Art. 1107 of the Code of Criminal Procedure in non-capital cases and Art. 11.071 in death penalty cases.

The burden facing a defendant in a habeas proceeding trying to establish “actual innocence” has been historically high because the U.S. Supreme Court has never definitively recognized what is called a “freestanding” actual innocence claim in habeas proceedings. Just last year the Court in case of District Attorney’s Office of the Third Judicial District v. Osborne held that the “actual innocence claim” issue was an “open question.” Yet just two months later the Court ordered a hearing in the case of Georgia death row inmate Troy Davis on the issue of “actual innocence,” saying it would violate the Eighth Amendment prohibition against cruel and unusual punishment to execute an innocent man as Davis has claimed to be. Against this conflicting constitutional backdrop, Judge Moore conducted an extensive evidentiary hearing and in August issued a comprehensive ruling that Davis had failed to establish his “actual innocence” test by “clear and convincing evidence”—the standard of evidence the federal judge said should be applied in such claims.

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September 13, 2010

RECOMMENDATIONS FROM THE TIMOTHY COLE ADVISORY PANEL ON WRONGFUL CONVICTIONS

Filed under: Houston Criminal Lawyer — Tags: , , , , — johntfloyd @ 5:09 pm

Current Eyewitness Identification Procedure Reinforce False Memories and Lead to Wrongful Convictions

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

There have been 258 DNA exonerations in this country over the last two decades, according to the New York-based Innocence Project. In approximately 75 percent of those cases, eye misidentification played a significant role. It is an issue we have thus far blogged about four times this year (here, here, here, and here) and four times last year (here, here, here, and here)—the latter two 2009 posts dealing with the wrongful conviction of Timothy Cole.

The wrongful conviction of Cole is a tragic affair no matter how it is viewed. It has had much the same impact on the Texas criminal justice system as the 1999 wrongful conviction of Clarence Elkins, Sr., had on the Ohio criminal justice system. The same year Elkins was wrongfully convicted Cole died in a Texas prison from asthma complications. Fourteen years earlier he had been a 26-year-old student at Texas Tech University. The university and the entire Lubbock community were under siege from a serial rapist who had sexually assaulted five women between December 1984 and April 1985. The fifth woman attacked was 20-year-old Tech student Michele Mallin.

In an effort to apprehend the serial rapist, the local police assigned an undercover female officer to hang around the university campus. One evening the officer walked into a popular pizzeria frequented by students. Timothy Cole happened to be in the pizzeria. After having a coke, the officer got up and walked out of the restaurant. Cole followed. He walked directly to his car, but before driving off, he pulled up alongside the undercover officer who was strolling down the street. Cole struck up a conversation with officer and they traded names, although the officer refused to give him her telephone number. Cole drove off.

Since Cole was the only man who approached the officer that night, she turned his name into investigators working the serial rapist case. They ran Cole’s name and discovered he had reported being robbed at a local pool hall several weeks earlier. When the police went to investigate the robbery report, they noticed he had a weapon that appeared to have been fired. This led to a search of Cole—a search that revealed he had a small amount of marijuana in his possession. He was arrested on misdemeanor drug and weapon charges. One of the arresting officers in this case was the same “undercover” officer who turned his name into the serial rapist investigators.

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