CRIMINAL JURISDICTION

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

January 5, 2012

“JUNK SCIENCE” ONCE AGAIN PUTS TEXAS IN NATIONAL FOREFRONT

Filed under: Houston Criminal Lawyer — Tags: , , , — johntfloyd @ 5:31 pm

Defense Lawyers Need to Challenge Questionable Expert Testimony and Conclusions

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

In October 2010 we posted piece titled “Dog Witnesses Kicked Out of the Courtroom” concerning a capital murder case in San Jacinto County. The accused, all members of the same family—Richard Lynn Winfrey Sr. and his son, Richard Jr., and daughter, Megan—were arrested in 2006 for the brutal murder of Murray Wayne Burr, a longtime custodial worker at the high school attended by the Winfrey siblings. Local law enforcement officials considered Winfrey and his two children as “persons of interests” shortly after Burr was murdered in his home, even though DNA evidence found at scene excluded the Winfreys. The proverbial “break in the case” came in 2006 when Richard Sr., who was housed in the Montgomery County jail, told another inmate David Campbell that “some kind of gun and some kind of knife collection” had been taken from Burr’s home, as well as other details about the murder, including the victim’s body being dragged from one room to another. Campbell repeated this information to the authorities.

This new information spurred San Jacinto County investigators into action. Not deterred by the fact that the DNA evidence excluded the Winfreys, the police turned to what they believed was infallible science—the nose of specially trained dogs. They called in a renowned law enforcement bloodhound “expert” named Keith Pickett to conduct what is called a “dog scent lineup.” The lineup was conducted in 2007 at which time Pickett used three of his hounds: Quincy, James Bond, and Clue. Investigators provided Pickett with a scent sample from clothing worn by the victim on the night he was murdered and scent samples from six white males, including Richard Sr. All three dogs were “pre-scented” with the scent from the victim’s clothing. The dogs were then paraded past six paint cans containing the scent samples of the six white males. All three dogs “alerted” on the paint can containing Richard Sr.’s scent sample and later “alerted” on Richard Jr. and Megan’s scent sample as well. All three were tried and convicted of murder.

In 2009 the Texas Court of Criminal Appeals, in Winfrey v. State, threw out Richard Sr.’s conviction, saying the dog “scent” identification was insufficient evidence upon which to base a criminal conviction. The Texas Tribune reported on December 4, 2011 that Richard Jr.’s conviction has also been thrown out. Both men have been released from prison. And the Court of Criminal Appeals will soon decide Megan’s fate, most likely with the same result reached in other two Winfrey cases. She is now into her third year of a life sentence.

On December 15, 2011 the Texas Tribune also reported that the Court of Criminal Appeals had remanded two death penalty cases (Steven Butler and John Matamoros) back to the trial courts for review of the evidence used to determine they were “intellectually competent” to stand trial.

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December 17, 2011

THE IMPACT OF PINHOLSTER ON NEWLY-DISCOVERED EVIDENCE AND BRADY VIOLATIONS

Filed under: Federal Crimes Lawyer, Houston Criminal Lawyer — Tags: , , , , — johntfloyd @ 3:21 pm

Federal Habeas Claims of “New Evidence” of Undisclosed Exculpatory Evidence Should be Remanded to State Courts

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

In January 1982, Scott Lynn Pinholster, a California native, was an Aryan Brotherhood-type who, along with two like-minded cohorts, went to the home of a local drug dealer named Michael Kumar. The drug dealer was not at home when the Neo-Nazi trio arrived so they began to ransack the residence in search of drugs and money. At this inopportune time, two of Kumar’s friends, Thomas Johnson and Robert Beckett, arrived at the drug dealer’s home where they confronted the burglars. That confrontation led to Pinholster and his cohorts brutally beating and repeatedly stabbing Johnson and Beckett until they were dead.

The total net of the robbery was $23 and approximately a quarter ounce of marijuana. As the trio drove away from the scene, Pinholster reportedly said: “We got ‘em, man, we got ‘em good.”

Two weeks later one of Pinholster’s cohorts, Art Corona, surrendered to the police and named Pinholster as the mastermind of the Kumar residence robbery/double murder. Pinholster was arrested after which he threatened to have Corona killed if he did keep his mouth shut. The threat did little, if anything, to intimidate Corona who became the State’s key witness against Pinholster at his February 1984 trial. Two attorneys, Harry Brainard and Wilbur Dettmar, were appointed to represent Pinholster, but he rebuffed their representation and elected to represent himself—even though the prosecution had noticed him that it would seek the death penalty.

Pinholster testified in his own behalf during guilt phase of his trial. He admitted burglarizing Kuman’s residence and stealing some marijuana. He denied killing anyone, boasting to the jury that he was a “professional robber,” not a murderer, and insisting that during the hundreds of robberies he had committed during the previous six years he was always armed with a gun, not a knife. He also pointed the finger at Corona as the real killer of Johnson and Beckett.

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August 23, 2011

IMMUNITY DENIED FOR ROGUE PROSECUTOR

Filed under: Sexual Assault Crime Attorney — Tags: , , , , — johntfloyd @ 4:52 pm

Reasonable Prosecutors Should Know Constitution is Implicated When Person is Deprived of Liberty by State Sponsored Seizure and Detention

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

We have posted up several posts this year about prosecutorial misconduct and the tendency by the courts to tolerate, if not bless, this increasing phenomenon which is a disgrace to our criminal justice system. Well, we’re pleased to report that last month the U.S. Court of Appeals, Third Circuit, in Schneyder v. Smith, held a rogue prosecutor accountable for her misconduct.

The facts of the Schneyder case, which originated in Pennsylvania, are succinct, as outlined by the Pennsylvania Supreme Court in Commonwealth v. Overby. Michael Overby was indicted for rape, robbery, and murder of Lillian Gaines in September 1990. In January 1992 Nicole Schneyder was brought to a Philadelphia police station where she was subsequently questioned by, and gave a statement to, homicide division detectives. She informed the detectives that the day before the Gaines’ murder Overby told her he was going to rob someone. She also told the detectives that about one week after the murder Dwayne Elliott, a co-defendant of Overby, told her that he, and Issac Young, accompanied Overby to do the robbery and that Overby got upset because Gaines she gave him “a hard way to go,” so he killed her.

Based on this information, Overby was charged with first degree murder. At a preliminary, which was attended by Overby and his two co-defendants, Schneyder recanted the statement she had given to homicide detectives, saying she had told them what they wanted to hear so she could get out of the police station. Despite this recantation, prosecutors went forward with the case against all three defendants who were tried together. Schneyder was declared unavailable as a witness when she did not appear at the start of trial. Her testimony from the preliminary hearing was read to the jury.

The jury found Overby guilty of robbery and conspiracy but could not reach a verdict on the murder charge. The jury could not reach a verdict on any of the charges against Elliott. At a second trial a similar procedure was used to get Schneyder’s testimony before the jury. Overby was found guilty of first degree murder while Elliott was acquitted on the murder charge but found guilty on the robbery charge. At Overby’s punishment phase of the trial, the prosecution incorporated the statements reportedly made to Schneyder by Overby and Elliott to show the murder occurred during a robbery. The jury found no mitigating evidence and sentenced Overby to death.

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July 16, 2011

OUR TAKE ON THE CASEY ANTHONY VERDICT

Filed under: Houston Criminal Lawyer — Tags: , , — johntfloyd @ 4:13 pm

Lack of Evidence and Reasonable Doubts Lead to Acquittal

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Now that Casey Anthony has been acquitted on the most serious charges resulting from the death of her young daughter, Caylee, and is scheduled for release next week, virtually every media pundit, along with their side-kick “expert” attorneys has had their say about the case.  And now, after one of the jurors chose to flee the state of Florida in fear of retaliation, we also feel compelled to add a few comments—both about the verdict and the conduct of those expert attorneys leading up to and subsequent to the verdict.

It has been said that “A ‘not guilty’ verdict is the final disposition of a case from which, under normal circumstances, there is no review. Thus in this sense, it is the juries of this nation which finally define the laws. This places the power of the jury, in this respect, above that of the supreme court of the nation.”  In this light, we must all remember Casey Anthony has been acquitted by a jury of her peers, who heard all the evidence in a court of law, and is not guilty, no matter what the pundits continue to scream.

On July 15, 2008 Casey Anthony told her mother, Cindy, that her two-year-old daughter Caylee had been missing for 31 days. Cindy called 911. The following day Casey Anthony was arrested for child neglect. Law enforcement and private searches were launched in an effort to find Caylee. On October 14, 2008, with Caylee still missing, Casey Anthony was indicted for capital murder, aggravated child abuse, aggravated manslaughter, and four counts of lying to law enforcement officials. On December 11, 2008, the partial remains of Caylee were discovered a half mile from the Anthony residence. Six months after her arrest, April 13, 2009, Orange County prosecutors in Orlando announced they would seek the death penalty.

The Anthony case probably would not have become a national media sensation had HLN’s controversial talk show host Nancy Grace not leaped on the story like a starving dog on a bone. Nancy Grace is Nancy Grace, and she is probably the only talk show host who can regularly make Glenn Beck look like an intellectual giant. The former prosecutor does what most former prosecutors do when given a media outlet after they leave the adversarial trial system: she tries to convince the jury of public opinion that anyone arrested and indicted for a highly-publicized or controversial crime is guilty. It’s a new form of lynching—not with a rope but with cable news outlets.

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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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May 23, 2011

ACTUAL INNOCENCE-PUTTING A CAMEL THROUGH EYE OF A NEEDLE

Filed under: Houston Criminal Lawyer — Tags: , , , , — johntfloyd @ 9:44 am

Habeas Claims of Actual Innocence Require “Herculean” Burden by Clear and Convincing Evidence

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

It was March 22, 1987. Near midnight. The Dallas Police Department received a report that a man was lying face down in the street. The man was Jeffery Young who was transported to an area hospital, unconscious and bleeding. Before regaining consciousness, Young died and a subsequent autopsy revealed he had died from what the Texas Court of Criminal Appeals said was “severe skull fractures that were the result of multiple blows to the head.” The Dallas police then received another report about a BMW parked in an alley near where Young had been found mortally injured. The police quickly determined the BMW belong to Young.

Two days after Young’s murder a witness name Gladys Oliver went to the police to report what she had seen in the alley the night Young’s BMW was located. She informed the police that there were other witnesses besides her who also saw what transpired in the alley that night. She told investigators she belatedly decided to come forward with her information after learning they had arrested a man named Van Mitchell Spencer for stealing Young’s vehicle. She said the police had the wrong man in custody because she saw Benjamine John Spencer, not Van Mitchell Spencer, getting out of Young’s vehicle in the alley. Another witness, Charles Stewart, whose name was supplied by Oliver, told the police Benjamine Spencer got out of the passenger side of the vehicle, jumped Oliver’s fence, and went through her back yard. He said that when the car door of the vehicle opened a light came on and, besides Spencer, he saw a second man named Nathan Robert Mitchell in the vehicle as he was getting out on the driver’s side. A third witness named Donald Merritt told the police he saw a white man lying in the street, bleeding from the head and struggling to breathe. Merritt also saw the BMW in the alley with an individual named Nathan Robert Mitchell standing next to it. Finally, a fourth witness named Jimmie Cotton told the police that he was cooking dinner in his kitchen when he saw the BMW drive into the alley and Spencer exit the vehicle on the passenger side shortly afterwards.

Based on the information provided by these four witnesses, the Dallas police arrested Spencer and Mitchell for the murder/robbery of Young. All the witnesses testified at Spencer’s trial. Their testimony revealed that the alley in which the BMW pulled into ran behind Oliver’s residence. All the witnesses testified they could see everything in the alley because a nearby street light was on as well as a neighbor’s back porch light. Stewart added that in addition to these lights the light inside the vehicle came on when its doors were open, allowing him a clear view of occupants. Oliver also added that she did not provide the police with this information the day after Young’s murder when the police did a door-to-door canvassing because she feared for her life.

The conditions under which these eyewitness identifications were made are important in this case because, as the New York-based Innocence Project has reported, 75 percent of the 269 DNA exonerations in this country since 1989 involved eyewitness misidentifications. Dallas prosecutors bolstered these eyewitness identifications with testimony from a “jailhouse snitch” named Danny Edwards who was one of Spencer’s cellmates in the county jail. Edwards informed the police that Spencer had told him that he struck Young several times in the head with a pistol before placing him in the backseat of the BMW at which time he struck him several more times as Mitchell drove the vehicle. Edwards testified at Spencer’s trial that Spencer then kicked Young out of the vehicle. Spencer, according to Edwards, killed Young for the BMW which he planned to take to a “chop shop.”

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April 1, 2011

ROGUE PROSECUTORS GET LICENSE TO LIE AND CHEAT

Filed under: Federal Crimes Lawyer — Tags: , , , , , , — johntfloyd @ 2:59 pm

Connick v. Thompson: U.S. Supreme Court Allows Prosecutors to Hide Evidence Favorable to the Accused without Consequence

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

John Thompson spent over 18 years in a Louisiana prison, 14 isolated on death role, after a prosecution described as fundamentally unfair by prosecutorial design.
In Thompson’s struggle for justice, prosecutors intentionally withheld favorable evidence, which indicated he was innocent, prior to trial, during trial and throughout the years he spent in prison.  The Supreme Court has now held this was not a civil rights violation.

Our criminal justice system, including its court proceedings, should be an adversarial process in which the “search for truth” entails vigorous, but ethical, advocacy, with the “evidence” put to every possible challenge. But, the truth is sometimes like that proverbial needle in the haystack: it’s hard to find.

Both sides in a criminal case, the prosecution and the defense, start at the same point: the haystack. The judge sits on a bench nearby to make sure that the rule of law is followed and that neither side has an illegal or constitutionally prohibited advantage. But sometimes, the judges are cut from a pro-prosecution cloth; these judges tend to forget they are put in place to ensure that the process is fair and that the law is followed, regardless of the outcome of the case.  Whether intentionally or not, these judges tend to allow the prosecution to lie and cheat, often telling frustrated defense lawyers to “take it up on appeal.”

We don’t know why some prosecutors lie and cheat, especially considering, in a majority of the cases, they have a factual and procedural advantage throughout the process. We suspect it’s rooted in a desire to “make the bad guy pay” while simultaneously building a career resume with “wins.” We all saw the kids at the playground who lied and cheated to get the upper-hand; they had to win, to be first, and to stand out as the best, no matter the means.

Unfortunately, some of these rogue prosecutors come by cheating quite naturally and are good at it; they find rules, ethics, and codes of professional behavior binding—a restriction of their self-anointed role of “convicting at any costs.” We have encountered plenty in the past and are quite confident we will encounter even more in the future.  The reason we can be so sure about this is because our U.S. Supreme Court recently gave “rogue prosecutors” a license to lie and cheat with impunity.

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March 30, 2011

HARRIS COUNTY DISTRICT ATTORNEY USES LINGUISTICS TO TRANSFORM OLD CASES INTO COLD CASES

Filed under: Federal Defense Attorney — Tags: , , , , , , — johntfloyd @ 3:00 am

Decades old cases are prosecuted without any new evidence and with critical fact witnesses missing or dead, increasing likelihood of wrongful convictions

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Roy McCaleb was murdered in Harris County on September 22, 1985. The Houston Chronicle reported that McCaleb’s wife, Carolyn Sue Krizan-Wilson, told the police that a gloved man entered their Galena Park home, raped her, and then shot her husband as he lay sleeping. She said the intruder was the same man who had raped her ten days earlier and he had somehow tracked her down in order to do it again. According to the newspaper, Krizan-Wilson did not report the earlier sexual assault to the police although her son at the time was in the Houston Police Department’s Training Academy. Krizan-Wilson, however, did make an “outcry” to a fellow employee shortly after the first rape occurred. She would later say she was too “embarrassed” to report the first rape.

Law enforcement interest settled on Krizan-Wilson early in the McCaleb murder investigation for several reasons: first, there was no sign of forcible entry into the McCaleb’s east Houston residence; second, she didn’t stay at the hospital long enough to undergo a rape examination; third, she was the primary beneficiary of McCaleb’s estate and insurance policy; fourth, she refused to take a polygraph examination; and, fifth, she was married to another man at the time she married McCaleb and had left him taking a $4,000 tax refund check with her.

Realizing that she had become the police’s only suspect in her husband’s murder, Krizan-Wilson hired local attorney Clarence Thompson to represent her. Thompson hired a private investigator named Rafael Gonzales to investigate the case. The attorney also hired a forensic examiner named Floyd McDonald to process the vehicle in which the first rape of Krizan-Wilson occurred. The vehicle has never been examined or processed by the police department.

Detective Robert Parish was one of the homicide investigators who worked the McCaleb case. He simply could not develop sufficient evidence to arrest Krizan-Wilson. He and other investigators met with an assistant district attorney in the Harris County District Attorney’s office. They unanimously agreed “they just didn’t have enough evidence to go forward with a winnable case.” That was a significant decision in 1985. Johnny Holmes was the county’s district attorney at the time. He, and his entire staff, including his successor Charles “Chuck” Rosenthal, were as pro-prosecution as they come, especially in murder cases. In fact, as legend has it, the Holmes crowd once successfully prosecuted a ham sandwich for theft of the cheese.

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