CRIMINAL JURISDICTION

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

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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May 31, 2011

REQUESTS FOR DNA TESTING PRESENT ENORMOUS CHALLENGES

Filed under: Death Penalty Crimes Lawyer — Tags: , , , — johntfloyd @ 2:23 pm

Right to Appointed Counsel Not Absolute: Courts Only Required to Appoint Counsel if Reasonable Grounds Exist for DNA Testing

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Ruben Gutierrez was convicted of capital murder and sentenced to death for the September 5, 1998 robbery/murder of 85-year-old Escolastica Harrison in Brownsville. The elderly woman owned a mobile home park and the trailer in which she lived doubled as an office. Gutierrez was a friend of Harrison’s nephew. He and the nephew, with other neighbors, frequently gathered behind the Harrison trailer to drink and socialize. Through this relationship Gutierrez got to know a lot about how Harrison conducted her business affairs; specifically, that she did not trust banks and kept all of her money in her trailer/office. Gutierrez was one of the few people who knew Harrison kept large sums of money in the trailer.

According to court records, the 21-year-old Gutierrez concocted a plan to “rip-off” Harrison. He recruited two accomplices, Rene and Pedro Garcia, to help him carry out the robbery scheme. On September 5 Gutierrez and Rene Garcia entered the Harrison trailer. When they left with some $600,000.00 Harrison lay dead or dying in a pool of blood, having been stabbed numerous times with two screwdrivers as well as having been severely beaten. Who did what inside the trailer is subject to some dispute. What is virtually certain is that Pedro Garcia remained in a getaway vehicle nearby.

The ensuing police investigation developed information from Harrison’s nephew and four other witnesses that Gutierrez had been seen in the trailer park on the day Harrison was murdered. Three days after the Harrison murder the police went to Gutierrez’s home only to learn he was not there, but they were assured by his mother that she would bring him to the police station. The following day Gutierrez went to the police station and provided investigators with an alibi for the day of Harrison’s murder. He told police he and a friend drove around in the friend’s Corvette all that day, but after interviewing the friend, the police found the alibi did not stand up.

Over the next four days the police arrested Rene and Pedro Garcia who gave statements implicating Gutierrez in the Harrison murder. The police arrested Gutierrez who gave them a second statement. This time he told the police that although he planned the Harrison “rip off,” it was the Garcias who entered the Harrison trailer while he waited in the park. He said that when the Garcias came to pick him up, Rene Garcia had a screwdriver with a lot of blood on it and stated he had killed Harrison. The Garcias, according to Gutierrez, had taken a blue suitcase and a tackle box filled with Harrison’s money. Saying he was repulsed by the murder, Gutierrez told the police he told the Garcias he did not want any of the money and led the police on an unfruitful search for the blue suitcase where he said the Garcias had thrown it.

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December 11, 2010

THE TEXAS DEATH PENALTY SYSTEM BROKEN

Nationally Recognized Experts, Retired U.S. Supreme Court Justice Cite Risk of Innocents Being Put to Death, State of Texas Replies “No Comment”

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

That question could reasonably be asked of any state that maintains the death penalty. Every system of punishment is cracked in one way or another. The fact that 138 condemned inmates in 26 death penalty states have been exonerated since 1973, and the fact that there have been261 DNA exonerations in this country since 1989, and the fact that our law books are filled with reversals of criminal convictions and death sentences offers compelling evidence that our entire criminal justice system, and, in particular, our death penalty systems is if not broken, certainly flawed. Earlier this year Harris County Criminal District Court Judge Kevin Fine stirred considerable legal and political controversy when he declared from the bench that Texas’ death penalty procedures were unconstitutional. The backlash was so intense, from the state’s attorney general to its governor, that Judge Fine clarified his ruling the next day by saying he had not actually declared the death penalty process unconstitutional and ordered attorneys in the case to submit additional legal arguments detailing how the process was so flawed that it violated the “cruel and unusual punishment” provisions of the Eighth Amendment.

University of Houston Law Center Professor Sandra Guerra Thompson was quoted at the time in the Houston Chronicle at the time as saying: “You never know [if such a ruling will withstand appellate review), but I don’t see it happening at this time. Technically, they’re [the appellate courts] are bound by precedent. There are laws on the books that have ruled on this type of question.” But Professor Thompson added that Judge Fine may have simply wanted to trigger a dialogue in the court system about the death penalty. “If they [judges] feel strongly enough, sometimes they’ll grant a motion like this to buck the system, just to stir the waters.”

Judge Fine’s ruling came in the case of John Edward Green who was indicted for capital murder in an “ambush robbery” in southwest Houston in June 2008 which left Huong Thien Nguyen dead and her sister critically wounded. The alleged evidence against Green is a palm print, an eyewitness identification, and a jailhouse informant—all of which are flawed according to Green’s attorneys, Richard Burr, John “Casey” Keirnan, and Robert Loper. The attorneys have argued in extensive pretrial motions and briefs that their client is innocent, and because the Texas death penalty process is so broken in that it creates a high risk of innocent people being put to death, their client cannot receive a fair trial.

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September 28, 2010

ACTUAL INNOCENCE IN POST-CONVICTION PROCEEDINGS

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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August 3, 2010

HOUSTON-HARRIS COUNTY NEEDS AN EMERGENCY DNA LAB

Independent DNA Lab Necessary to Successfully Prosecute Dangerous Criminals and Prevent Wrongful Convictions

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Last month we posted a blog about the ever increasing need for an independent crime lab in Harris County. The Houston Chronicle reported recently about Harris County District Attorney Pat Lykos’ call for an “emergency DNA lab.” The newspaper reported that the Houston Police Department’s (HPD) DNA lab, which has been plagued with mismanagement and scandals over the past several years, has 4,076 rape kits dating back to 1996 which have not been DNA tested and another 969 criminal cases scheduled for DNA testing.

The DNA lab problem is acute, and despite the millions county taxpayers have paid to correct the HPD’s crime lab deficiencies, the clouds of despair still loom on the horizon. DA Lykos told the Chronicle that the DNA backlog grows by 75 cases each month. She urged city-county officials to honor its commitment to an “emergency” DNA lab which would not only deal with the backlog of cases but process the ones coming in each month as well. She said vacant labs at the Texas Medical Center could be retrofitted into a “temporary lab” at a cost of $1.3 million until a regional crime lab could be constructed.

But this leads to yet another problem—the more serious one, the “political problem.” The Chronicle reported that Houston Mayor Annise Parker and the HPD are “cautious about a forensic partnership.” Parker pointed out that  Lykos’ proposed project was not included in HPD’s $666 million dollar budget approved earlier this year. While the mayor said she is committed to removing as many “forensic applications” as possible from the control of the HPD, a goal that we laud as extremely significant and encouraging, she added this cautionary note: “This is not a good economy to be launching new initiatives that cost more money. On the other hand, we really can’t put a price on justice, and these kinds of cleanup operations have proved to be extremely expensive to the city of Houston.”

As the city former comptroller, the mayor is budget conscious as she should be, but DA Lykos’ determination to move the wheels of justice forward is clearly putting political pressure on Parker’s cautious approach. Pointing out that earlier this year she secured a commitment from the Harris County Commissioners Court to develop a plan to establish a “temporary DNA lab” by mid-September, the District Attorney told the Chronicle: “I cannot overstate the vital importance and necessity of the court to authorize the budget office to proceed immediately [with funding for the temporary lab]. The scientific tools exist to identify, apprehend and successfully prosecute dangerous criminals and prevent wrongful convictions. And we don’t have them.”

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August 1, 2010

MISTAKEN IDENTIFICATIONS SENT TWO INNOCENT MEN TO PRISON

Suggestive Police Procedures and Mistaken Identification Resulted in Two More Wrongful Convictions and Incarcerations, One for 27 Years

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Our criminal justice system is flawed. Its imperfections can be found in the 255 DNA exonerations of innocent offenders and the 138 people released from death row since 1973 in this country. But, paradoxically, its perfection lies in its willingness and ability to correct the imperfections brought about by human mistake. According to the New York-based Innocence Project, mistaken identification is the “greatest cause for wrongful convictions,” playing a role in 75 percent of the nation’s DNA exonerations. Twice this year we have posted pieces dealing with the dangers, and, yes, tragedies caused by, the mistaken pointed finger (here and here).

Two recent Harris County cases involving wrongful convictions of innocent men brought about because of mistaken identification illustrate not only the tragedy but just how easy it for an innocent man to be sent to prison, especially with emotionally charged crimes such as sexual assault. The first case brought to the public’s attention by the Houston Chronicle (here, here, here, and here) was Allen Wayne Porter who was convicted of rape and robbery in 1991. The case from the outset had some strange twists and turns.

In June 1990, three armed masked men invaded a Houston apartment where they terrorized and robbed its four occupants, and also raped its two female occupants. The apartment reportedly was the residence of a known drug dealer and the armed intruders were looking for $30,000 in cash. The leader of the trio was Porter’s nephew, a man named Jimmy Hatton. Another man, though never charged with the crime, named Perry Harrison would later admit to being one of the other two men who accompanied Hatton. The robbers were driven to the drug dealer’s apartment by Hatton’s former wife, Stephanie Wallace-Venters.

Hatton was arrested shortly after the home invasion. He was put on trial in December 1990. He was convicted and sentenced to life imprisonment. Porter attended the trial and was seen by one of the rape victims who immediately identified him as one of her attackers. Porter was arrested, put to trial in 1991, and, like his nephew, was convicted and sentenced to life in prison.

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July 29, 2010

CAMERON TODD WILLINGHAM: IMPROPER OR WRONGFUL CONVICTION?

Texas Forensic Science Commission Concludes Flawed Science Used In Trial That Led To Conviction and Execution

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

It was December 1991 in Corsicana, Texas. Cameron Todd Willingham was alone in his residence with his three small children—Amber 2, and one-year-old twins, Karmon and Kameron. A fire broke out in the residence. Willingham managed to escape the fire. The three children did not, dying a horrible death trapped in the flames that quickly engulfed the residence. Willingham was immediately targeted as a suspect for arson murder. He was indicted on January 8, 1992. After turning down an opportunity to plead guilty for a life sentence, he was tried, convicted, and sentenced to death in August 1992. He was executed on February 17, 2004, angrily telling all those present that he was an innocent man. The political and media fallout from Willingham’s execution began before his remains were laid to rest. The case’s controversial history can be found on Billy Sinclair’s blog here, here, here, here, here, here, here, and here. But essentially Willingham was convicted and executed because state officials involved in the case—and with a lot of help from the condemned inmate himself—successfully portrayed him as a “monster” throughout the trial and execution process. The basis for this portrait was:

  • According to neighbors who witnessed the fire at the Willingham residence, he “crouched down” in his front yard and refused to make any effort to rescue his children from the fire despite repeated pleas by neighbors for him to do so. These statements, of course, influenced arson investigators at the scene of the fire to conclude Willingham must have had something to do with the fire.
  • When the fire blew out the windows of the house, Willingham reported hollered out concern about his car which was parked close to the residence. Witnesses said he jumped up, ran toward it, and moved it away from the house so it would not be damaged by the fire.
  • Willingham did not express any grief over the loss of his children at the fire scene or at the hospital after the fire.
  • Willingham reportedly expressed upset to firefighters at the scene that his dart board had been lost in the fire.
  • The morning after the fire, which was Christmas Eve, Willingham and his wife went to their burnt out house and were seen by neighbors laughing as they pored through the debris with loud music blaring from their nearby vehicle.
  • A neighbor testified that Willingham had once beaten his pregnant wife in an effort to induce an abortion, but his wife testified at the trial and disputed the neighbor’s claim by saying Willingham had never beaten her, much less when she was pregnant.
  • Another witness said he once saw Willingham slap his wife, but Willingham’s wife denied the incident ever happened.
  • Willingham reportedly bragged to a friend that he once brutally killed a dog.
  • Willingham reportedly told a “jailhouse snitch” that he killed his children to cover up evidence of abuse. Willingham’s wife, however, testified that her husband never abused the children.
  • Dr. James Grigson, a prosecution “expert,” testified at Willingham’s trial, telling the jury that Willingham was a violent sociopath who did not have a conscience and had no regard for other people’s property or for other human beings (even though there was nothing in Willingham’s criminal history to support this violent assessment).
  • In April 1986 Willingham was arrested for carrying a concealed weapon and public intoxication. He was sentenced to four days in the county jail, and ordered to pay a fine and court costs.
  • In May 1986 Willingham was arrested for second degree burglary. He was placed on probation and assigned to a Non-Violent Intermediate Offender Act.
  • In May 1986 Willingham was again arrested: this time for entering a building with unlawful intent and contributing to the delinquency of a minor (supplying paint to a 12-year-old to sniff). He was sentenced to 15 days in the county jail, ordered to pay restitution, and placed on probation for six months.
  • In November 1986 Willingham was arrested for contributing to the delinquency of a minor (supplying paint to a 12-year-old and an 11-year-old to sniff). He was sentenced to 60 days in the county jail.
  • In April 1987 Willingham was arrested for grand larceny. He was sentenced to 60 days in the county jail and placed on two years probation.
  • In November 1988 Willingham was arrested for driving under the influence of drugs (sniffing paint). He was sentenced to one year probation on the condition that he would check into an in-patient rehabilitation program for paint abuse.
  • In February 1989 Willingham was arrested for shoplifting. His probations for the previous 1987 grand larceny and 1988 DUI convictions were revoked and he was placed in a special boot camp program, given a 2-year sentence with all but 74 days suspended on the conditions that 1) he complete a substance abuse program, 2) attend AA once a week, and 3) undergo urinalysis every week and a half.

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May 18, 2010

TWO MORE DNA EXONERATIONS

Criminal Defense Lawyers Must Never Give up, Never Lose Faith That Justice Will Ultimately Prevail

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

There have been at least 254 DNA exonerations in this country, according to the Innocence Project of New York. Each new DNA exoneration cast a dark shadow over the nation’s criminal justice system, particularly its judicial system. These exonerations are not only a barometer for measuring the imperfections of our system of justice but the failings of its adversarial nature either through law enforcement misconduct or “tunnel vision,” prosecutorial zeal or ineffective defense representation. It is a shame each of us involved the justice system must endure, a constant reminder that we can all do better; that we must do better.

The latest two DNA exonerations—one in New York, the other in Ohio—really underscore that point. In November 1988, Viola Manville, a 74-year-old grandmother, was bludgeoned to death in Monroe County, New York. The elderly woman was attacked as she walked near her home in Hilton, a Rochester suburb.

In July 1991 Frank Sterling, a truck driver, was questioned about the Manville murder. After an all-night interrogation session (which had been preceded by a 36-hour work shift), Sterling confessed to the brutal murder. He later recanted the confession, claiming he slipped into a “hypnotic state” and simply recounted details about the crime given to him by the police. He was convicted and sentenced to 25 years to life in the New York prison system.

In 1994 Mark Christie was imprisoned for the strangulation death of a four year old neighbor, Kali Ann Poulton. It would prove to be a significant development in the Sterling case.

Sterling’s attorney, Donald Thompson, had worked since the mid-1990s to establish his client’s innocence. In 2004 he managed to enlist the support of the Innocence Project to help him. The project obtained DNA evidence from Manville’s clothes, and while it was not a definitive match, the match was sufficient to identify Mark Christie as the potential murderer. After two interview sessions with John G. Reid & Associates, a private investigation firm that specializes in interrogation techniques and hired by the Innocence Project, Christie confessed, providing details only the killer would know.

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