CRIMINAL JURISDICTION

Multiple Counts, Lesser-Included Offenses and Double Jeopardy

By Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

One of the quiet abuses in the nation’s criminal justice system is prosecutors overcharging criminal defendants. In their zeal to prosecute and convict, prosecutors file multiple counts against a defendant in a single indictment involving the same criminal conduct knowing – or least possessing the duty to know – that two convictions based on the same conduct will almost always be reversed on appeal.  Criminal defense lawyers argue that many prosecutors charge multiple counts against a defendant in an attempt to prejudice a defendant, insinuating that the defendant must have done something to justify the multiple counts.  There were two recent examples of this prosecutorial abuse – one involving a Texas case and the other involving a federal case in California.

Jared Daniel Littrell was charged in a multi-count indictment in Potter County, Texas, with felony murder and aggravated robbery. The charges stemmed from a criminal scheme by Littrell and a prostitute to rob a former client of the prostitute. Littrell and the prostitute entered the client’s hotel room where a struggle ensued during which the client was shot and killed. See: Littrell v. State, 2008 Tex. Crim. App. LEXIS 1306 (Tex. Crim. App. Oct. 15, 2008).

The trial judge charged the jury with an instruction that it could convict the Littrell on both counts. The jury did just that, and assessed Littrell’s punishment at 30 years on the felony murder and 25 years on the aggravated robbery conviction. Littrell appealed his convictions contending that the Fifth Amendment’s prohibition against double jeopardy had been violated by his punishment for offenses based on the same conduct. The Amarillo Court of Appeals disagreed, holding that because the murder and aggravated robbery each contained an element the other does not, double jeopardy did not attach. See: Littrell v. State, 2007 Tex.App. 5988 (Tex.App.-Amarillo July 25, 2007). The Court said:

”To prove aggravated robbery as alleged in the indictment, the State had to prove, among other things, the commission of theft coupled with aggravating circumstances; such was not required to prove . . . murder . . . . To prove murder, the State had to establish that an act of appellant caused [the complainant]’s death; that element is missing in . . . aggravated assault [sic] . . . . So, the test espoused in Cervantes [v. State, 815 S.W.2d 569, 571-75 (Tex.Crim.App. 1991)] was met and no problems with double jeopardy arose.” Id. LEXIS at 6. (more…)

Fifth Circuit Orders Acquittal in 1964 Mississippi Murder Case, Cold Case Initiative Fails, Statute of Limitation Prevails

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

Several years ago the Federal Bureau of Investigation created a Cold Case Initiative designed to bring to justice persons who committed horrific racially motivated crimes during the 1950s and 1960s civil rights era. One of those cases involved James Ford Seale, a former Mississippi deputy sheriff, who was convicted in June 2007 of kidnapping and conspiracy to commit kidnapping in the disappearances of Charles Eddie Moore and Henry Hezekiah Dee.

The two 19 year old African American men were hitchhiking in rural Franklin County, Mississippi in 1964 when Seale and fellow Klansmen allegedly picked them up, drove them into the Homochito National Forest in Franklin County, brutally interrogated and beat them, bound them with duct tape, tied a car engine block and railroad rail to their bodies, and while they were still alive and presumably pleading for their lives, threw them into the Old Mississippi River. The bodies of the two men were accidentally found two months later during a search for three missing civil rights workers in another infamous civil rights murder case that would become known as the “Mississippi Burning” case.

Seal and another man named Charles Edwards were arrested for the murders of Moore and Dee in 1964 but were immediately released on bond and were never tried. After the FBI turned the case over to local authorities, a justice of the peace dismissed the charges saying witnesses refused to testify against Seale and Edwards.

Law enforcement interest in the case was revived when Charles Moore’s brother, Thomas, discovered that Seale was still alive during a visit to Franklin County in 2007 as part of a documentary being produced by the Canadian Broadcasting Corporation about the civil rights slayings. Thomas Moore gave the U.S. Attorney for the Southern District of Mississippi the FBI files on the case which he had obtained from a Mississippi reporter. That prompted Assistant U.S. Attorney Dunn Lampton to assist in the creation of a task force that re-opened the four decade old murder cases. The FBI-led task force generated enough evidence to produce an indictment against Seale. The FBI hailed the indictment as a prime example of its efforts to close cold cases from the civil rights era. (more…)