CRIMINAL JURISDICTION

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

June 27, 2011

Police Interrogations of Children

Filed under: Federal Crimes Lawyer — Tags: , , , — johntfloyd @ 4:42 pm

Age is Proper Factor in Miranda Custody Analysis

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

One thing you can depend upon, any time the U.S. Supreme is presented with an issue that involves extending or protecting the interests of a criminal “suspect,” Justices Scalia, Thomas and Alito will be opposed to it. And at first impression, most people will say, “heck, there’s nothing wrong with that—criminals shouldn’t have rights or interests.” But what if that criminal suspect was their 13-year-old son? Would they be so inclined to accept that the police could question and secure a confession from him without their being present? Didn’t think so!

Well, that’s precisely the question the Supreme Court addressed recently in J.D.B. v. North Carolina. In September 2005 two homes were broken into in Chapel Hill, North Carolina, and some jewelry and a digital camera were taken during the break-ins. Because J.D.B. was seen behind a residence in the neighborhood where the home break-ins occurred, the local police deemed that sufficient probable cause to stop and question the 13-year-old about the crimes. The cops were so convinced that they were on the right scent they spoke to J.D.B’s grandmother, the kid’s legal guardian, and his aunt that same day. J.D.B. was in the seventh grade at the time and attending “special education classes,” according to the North Carolina Supreme Court.

A few days later someone “informed” the police that a digital camera matching the description of one stolen during the house break-ins had been found at Chapel Hill’s South Middle School and that J.D.B. had been seen with a digital camera at the school—and the camera was ultimately shown to be one of the items taken from the two house break-ins. Joseph DiCostanzo, an investigator with the Chapel Hill Police Department who had been assigned to investigate the two break-ins, went to the school to “question” (or “interrogate”) J.D.B. about the crimes. It marked the second time within a week that the local police questioned the juvenile suspect.

Once he got to South Middle School, DiCostanzo told the assistant principal, an administrative intern, and a uniformed police officer “on detail” at the school that he wanted to question J.D.B. about the break-ins. The juvenile detective had school officials verify J.D.B.’s date of birth, his address, and parental contact information in his school records. Neither DiCostanzo nor school administrators contacted J.D.B.’s grandmother to inform her about the detective’s impending interrogation.

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March 4, 2011

THE SUPREME COURT BACK PEDALS ON THE SIXTH AMENDMENT

Filed under: Federal Crimes Lawyer — Tags: , , , , , — johntfloyd @ 7:03 pm

Constitutional Right to Confront Witnesses Watered Down: Statements Describing Shooter Not Testimonial, Admissible Without Confrontation and Cross Examination

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

What a strange Supreme Court we have! You know it’s strange when Justice Sonia Sotomayer authors a lead opinion, joined by Roberts, Kennedy, Breyer and Alito, which curtails longstanding constitutional jurisprudence regarding the Sixth Amendment’s Confrontation Clause over the dissent of Justice Antonin Scalia.  However, this was exactly the case in the Court’s recent opinion in Michigan v. Bryant, in which the Court held that statements made to police identifying and describing a “shooter” were not testimonial and thus were admissible in trial, even though the witness was dead and could not testify.

But we should not have been taken aback. We have become accustomed to seeing the Court in recent years redefining and restricting historical precedents to the point that they have little or no constitutional value, i.e., the Miranda decision (here, here and here).

This time it’s the Sixth Amendment’s Confrontation Clause which guarantees a criminal defendantthe right to confront and cross-examine adverse witnesses against him. The Supreme Court thirty years ago in Maryland v. Craig made it clear that the historical foundation of the Sixth Amendment is rooted in the constitutional premise that “face-to-face confrontation enhances the accuracy of fact-finding reducing the risk that a witness will wrongfully implicate an innocent person.” Just two years before its Craig decision the Court had observed in Coy v. Iowa that “it is always more difficult to tell a lie about a person ‘to his face’ than ‘behind his back.’”

Then the Supreme Court in 2004 in a landmark decision in Crawford v. Washington held that a major underpinning of the Sixth Amendment is to prevent the admission of hearsay evidence because a criminal defendant cannot cross-examine what is called “out-of-court” testimony. TheCrawford court clarified the difference between “testimonial” and “nontestimonial” hearsay evidence. Crawford specifically held that the use of testimonial hearsay violates a criminal defendant’s confrontation rights unless the individual making the hearsay statements is unavailable at trial and the defendant had a prior opportunity to cross-examine him/her. Nontestimonial hearsay, on the other hand, did not violate the Confrontation Clause and its admission would be determined by local rules of evidence. The Crawford court rejected the use of recorded statements given to the police by a wife incriminating her husband in a stabbing incident who refused to testify against her husband by invoking the marital privilege.

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July 6, 2010

A DEFENSE ATTORNEY’S NARROW MARGIN FOR ERROR

Filed under: Houston Criminal Lawyer — Tags: , , , , , — johntfloyd @ 5:21 pm

Ineffective Assistance of Counsel: Criminal Defense Lawyer’s Questions about Defendant’s Post Arrest Silence Opens Door to Cross Examination
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Criminal defendants have a Sixth Amendment right to effective assistance of counsel in criminal prosecutions against them. The United States Supreme in 1984 handed down Strickland v. Washington which set forth the constitutional standard a criminal defendant must satisfy in order to establish that he/she was not effectively represented by their attorney. First, the defendant must prove that the defense attorney’s performance “fell below an objective standard of reasonableness,” and, second, the defendant must prove that counsel’s deficient performance so prejudiced his/her defense that the guilty verdict is unreliable and fundamentally unfair.

Every defense attorney walking into a criminal trial does so with the explicit understanding that his/her actions throughout the trial will be the subject to second-guessing should the result prove unfavorable to the defendant. That’s why the Supreme Court underscored the Strickland decision with the caveat to all state and federal courts reviewing ineffective assistance claims that a defense attorney’s tactical and strategical choices are presumed effective and insulated from second-guessing and hindsight. The Court specifically stated that “[n]o particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant.”

Still, a defense attorney must recognize that he/she has a narrow margin for error. That’s what happened with the defense attorney who represented Wendell Keith White in a 1998 murder trial. In April of that year White went to Koach’s Club where a pool tournament was underway. One of the tournament’s contestants was Tracey Johnson who was at the club with a large group of friends, including Latasha Vasquez. At some point during tournament play Johnson stepped away from a pool table leaving her custom cue stick behind. Upon her return, Johnson found White using the cue stick without her permission and hitting it against the table. Enraged, she began cursing White before the bartender told her calm down and not to cause any trouble. White apologized to Johnson and bought her and her entourage drinks.

The club closed at 2:00 a.m. Shortly before closing time a sequence of events took place which were hotly contested by the parties involved. Johnson said White came up behind her and rubbed up against her as he grabbed her breasts. That groping incident triggered a second cursing outburst with Johnson calling White “just about every name in the book.” Although there was no physical contact between the two parties, one of Johnson’s friends had to restrain her by pulling her away from White. Johnson went outside in the parking lot where she was joined by a large gathering of friends.

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June 1, 2010

THE CONTINUED ASSAULT ON MIRANDA

Filed under: Anti-Terrorism Lawyer — Tags: , , , , , — johntfloyd @ 4:52 pm

Abandoning Miranda in Terrorism Cases Contrary to Constitution and Beginning of Slippery Slope towards Neo-Con Police State

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

The United States Supreme Court in 1966 handed down Miranda v. Arizonawhich mandated to every law enforcement agency in this country that they advise all criminal suspects their right to silence; that anything they say can and may be used against them in a court of law; and that they have a right to an attorney. Findlaw columnist and former White House counsel John Dean has written two (here and here) recent columns in response to comments made by U.S. Attorney General Eric Holder on May 9, 2010 on several Sunday morning news/talk shows that the “Miranda warnings” given to terror suspects should perhaps be modified. Dean warned the Obama administration that, if the Holder comments represented possible “new policy,” it is navigating down a constitutional “slippery slope” by “messing with Miranda rights to fight terrorism.”

Dean pointed out that simple Google research will reveal study after study which has shown that Miranda has never impeded legitimate law enforcement efforts to solve crimes and that there is “no evidence” it has been a serious problem in producing results through the many terrorism investigations the government has conducted over the last two decades. Since the Christmas Day airline bombing attempt by Farouck Abdulmuttalab, the Miranda warnings have become the rallying linchpin for conservatives in this country who want any person, American citizen or not, who is arrested for any terrorist act or suspected terrorist act against this country, to be treated as an “unprivileged enemy belligerent” under the Military Commissions Act of 2009 so that “harsh interrogation techniques” can be employed to extract whatever information the suspect may know about other possible terror attacks against the country. As Dean pointed out: “… the only people complaining about Mirandizing terrorists are Republicans.”

The modifications proposed by Attorney General Holder deal with the “public safety exception” to Miranda. This exception was carved out by the Supreme Court in 1984 in the case of New York v. Quarles. In that case Benjamin Quarles was convicted of possessing a gun. The conviction stemmed from a series of events in which a woman stopped two New York policemen and told them she had been raped. She said her attacker had fled into a nearby supermarket carrying a gun.  One of the officers entered the store and saw Quarles, He ordered him to stop, placed his hands over his head, frisked him, and found only an empty shoulder holster. When the officer asked he suspect where the gun was, he nodded toward some empty cartons and said “over there.” The officer retrieved the gun and formally placed the suspect under arrest. The lower courts threw out Quarles statement about the gun and the gun itself because the officer had not given him the Miranda warnings. The U.S. Supreme Court reversed the lower courts, finding that there are situations where “public safety” trump the “prophylactic rules” of Miranda.

The “public safety exception”—sometimes called the “rescue” or “emergency” rule—has been used many times since. Coleen Rowley recently posted the following example on Huffington Post:

“One spring morning in the mid 1990s, a man whose last name was Liberatore rang a doorbell pretending to be a delivery man. Threatening a weapon, he gained entrance to the home somewhere in the Quad Cities, Illinois, tying up a teen-aged babysitter along with the young boy the babysitter was watching. Then he left, kidnapping the family’s 11 month old baby. Eventually the young boy was able to free himself and call for help. The hysterical parents rushed home and quickly notified the police and FBI.

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March 31, 2010

MIRANDA TAKES MORE HITS FROM SUPREME COURT

Filed under: Houston Criminal Lawyer — Tags: , , , , , — johntfloyd @ 11:46 pm

Florida v. Powell and Maryland v. Shatzer:  Why Criminal Suspects Should Never Talk to the Police Without an Attorney

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

In December 2008 police officer Timothy Abernethy was chasing a suspect through a Houston apartment complex when the suspect, M. J. Landor, reportedly fired several shots at the officer. According to official reports, one of the bullets knock the 11-year police veteran to the ground at which time Landor approached him and shot him in the head. A massive police manhunt was undertaken to apprehend Landor, a parole violator, who was captured several hours later. Landor reportedly gave the police a detailed confession to the crime during several hours of police questioning.

Landor’s capital murder trial got underway recently with the Harris County District Attorney’s Office seeking the death penalty. Laine Lindsey, Landor’s attorney, filed a motion to suppress the videotaped confession his client gave to the police. Evidence presented at the hearing, and reported in the Houston Chronicle, revealed that the police questioned Landor for approximately four hours before they actually began to videotape the suspect’s statement. Landor told the court he falsely confessed to shooting Abernethy because he was afraid the police were going to kill him. Assistant District Attorney Maria McAnulty dismissed Landor’s testimony as being untruthful, telling the court the videotape clearly shows the suspect was advised of right to remain silent.

Lindsey pressed the court to suppress the confession because the police, three of whom were in the interrogation room and a larger group standing outside the room, questioned Landor for more than four hours before turning on the recorder and videotaping just 20 minutes of the interrogation. During the 20-minute taped session, Landor said the shooting of Abernethy was a “freak accident;” that he fell while being chased by the officer and the gun went off at which time he kept shooting. McAnulty called several police officers who testified about what Landor reportedly told them when the interrogation session was not being taped; specifically, that Landor admitted he walked over and shot Abernethy in the head as he lay wounded on the ground.

Given the discrepancies between what Landor told the police during the 20-minute videotaped session and what he reportedly told the police during the four-hour non-taped session, Lindsey had every reason to press for the suppression of the all statements made by his client. Not unexpectedly, however, State District Judge Michael McSpadden denied the defense attorney’s suppression motion.

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July 8, 2009

SUPREME COURT CHANGES CONFESSION LANDSCAPE

Filed under: Houston Criminal Lawyer — Tags: , , , , , — johntfloyd @ 5:15 pm

Montejo v. Louisiana; Suspects in Criminal Investigations Must Invoke Right to Counsel and Remain Silent, Even if Represented by Counsel

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

Former U.S. Supreme Court Justice Robert H. Jackson often warned his judicial colleagues that the court was “forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added.”

In May, 2009, The Supreme Court removed a story from the constitutional rules protecting criminal suspects against police-coerced confessions. A criminal defense attorney’s most dreaded hurdle is incriminating statements obtained from his/her client outside the presence of legal counsel. The Supreme Court’s latest excursion into this constitutional arena has resulted in a definitive ruling that will make it easier for prosecutors and law enforcement authorities to secure such statements from criminal defendants, even those who are known to be represented by counsel.

St. Tammany and Tangipahoa Parishes are located in the southeastern corner of the state of Louisiana. It is an ultra-conservative part of the state—a region that sent former Ku Klux Klan leader David Duke to the Louisiana Legislature and voted overwhelmingly for the former Klan leader in his narrowly failed bid to become a U.S. Senator in the 1990s. The death penalty is a natural byproduct of this region’s conservative political mindset.

Lewis Ferrari owned nine dry-cleaning businesses in St. Tammany Parish and one in Tangipahoa Parish. So it was inevitable that his brutal murder in 2002 would demand the death penalty. (more…)

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