CRIMINAL JURISDICTION

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

February 24, 2010

A TIP OF THE HAT FOR A JOB WELL DONE

Filed under: Homicide Crimes Lawyer — Tags: , , , , — johntfloyd @ 1:18 pm

Court Recommends New Trial for Man Sentenced to Life in Prison for Capital Murder After Finding State’s Expert Testimony Incompetent

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

We have blogged rather extensively about the “convict at any costs” agenda which has ruled the Harris County District Attorney’s Office for the past three decades. “Convict at any costs” means the frequent use of fabricated forensic evidence, knowingly allowing perjured testimony into a criminal trial, withholding exculpatory evidence from defendants (particularly those known to be innocent), and injecting race in its death penalty decision-making.

These experiences with the Harris County District Attorney’s Office do not give rise to much hope that a District Attorney could be an example of courage. But that is precisely what we found in the recent actions of former Montgomery County District Attorney Michael McDougal, who lost his bid for re-election to Brett Ligon. Nearly 12 years ago McDougal’s office prosecuted Neil Hampton Robbins for capital murder in connection with the death of Robbins’ former girlfriend’s 17-month-old daughter, Tristen Rivet. Robbins was convicted and sentenced to life imprisonment for the toddler’s death.

Robbins’ conviction was based in large part of the testimony then Harris County Medical Examiner, Dr. Patricia Moore. We have also blogged in the past about Dr. Moore’s history of providing false or discredited testimony in child death cases. http://www.johntfloyd.com/comments/september09/17.htm On January 22, 2010, the proverbial chickens came home to roost in the Neil Robbins case. Montgomery County District Court Judge K. Michael Mayes ruled that Dr. Moore had given inept testimony during Robbins’ May 1998 murder trial. Judge Mayes’ concluded the former medical examiner was too incompetent “to offer objective and pathologically sound opinions on the cause and manner of [the] death [of Tristen Rivet].”

In May of 2007 Dr. Moore tried to clean up the testimony she had given in the Robbins case by reviewing her findings that Tristen Rivet’s death was a homicide. Based on unidentified information she said she had not reviewed in her original examination of Rivet’s body (after which she found the toddler’s death was a homicide caused by a compressed skull), Dr. Moore changed her “cause of death” finding from homicide to “undetermined.”

(more…)

October 24, 2009

DOMESTIC VIOLENCE – A SENSITIVE SUBJECT TO APPROACH

Filed under: Houston Criminal Lawyer — Tags: , , , , , — johntfloyd @ 1:50 pm

October is Domestic Violence Awareness Month: Friends and Family Need to Get Involved to Stop the Cycle of Abuse, Save a Life

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

This past August Christiana “Tina” Guerra Lewis became another statistic; a victim of a social epidemic far more deadly than the HINI virus. The night before her death, according to the Houston Chronicle, Lewis asked her mother to go with her the next day to get a restraining order against R.P., a man with a lengthy criminal record with at least two dozen arrests including an assault on a family member and injuring a child.

Lewis did not live to see the next day.  She became one of the every three women murdered each day in this country by their spouses or intimate partners, according to a recent Chronicle op-ed article by Rebecca L. White, president and CEO of the Houston Area Women’s Center, and James L. Postl, former CEO of Pennzoil Quaker State. Police charged that R.P. stabbed Lewis numerous times in the neck in her trailer residence in Channelview.

R.P. has a long history of domestic violence. He was committed to the Texas Department of Criminal Justice on at least four occasions, the last commitment being for an assault on a family member. He came from a family environment of domestic violence. In 2000 his mother was convicted of killing her live-in boyfriend by dropping a 40-lb cinder block on his head.

While the Lewis family told the Chronicle that Lewis was probably unaware of R.P’s extensive criminal record and history of domestic violence, she was aware of his propensity for violence. The Chronicle reported that four days before R.P killed her, he broke into Lewis’ residence, beat her up, raped her, and stole money from her. He warned her not to call the police, threatening to kill her family if she did. She didn’t. She even refused to go to the hospital for treatment, telling a sister: “For what? They’re not going to do anything.” (more…)

July 14, 2009

THE DIFFICULTIES FACED IN INSANITY CASES

Filed under: Homicide Crimes Lawyer — Tags: , , , , , — johntfloyd @ 3:46 am

Lawyer Ineffective for Failure to Investigate, Request Medical Records Indicating Possible Insanity; (Be careful what you ask for…)

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Spencer Ojeifo Imoudu was not a normal individual. In August 2005 the Bexar County resident stole a vehicle parked outside a pawn shop. The vehicle belonged to the owner of the pawn shop. He, and another witness, saw Imoudu get in the vehicle and drive off. The two men raced to the witness’s truck and sped away after Imoudu. During the high speed chase, Imoudu turned into oncoming traffic, crashing head on into an oncoming vehicle. The driver of the other vehicle was killed. Imoudu was arrested and charged with felony murder and manslaughter. He eventually pled guilty to the two charges in exchange for a 17-year sentence with an affirmative finding of a deadly weapon. 1/

Appellant was initially represented by a court-appointed attorney. This changed after Imoudu’s father visited him in the county jail where the father found his son not acting normally. The father spoke to a jail social worker who informed him that she had noticed his son’s mental health deteriorating. The social worker had attempted to contact Imoudu’s court-appointed attorney, but the attorney had not returned any of her calls. The social worker suggested that the father retain another attorney to represent his son. 2/

The father accepted the social worker’s suggestion. In March 2006 Imoudu’s father retained a new attorney and the court-appointed attorney was dismissed. The retained attorney visited Imoudu in jail and found him staring “into space” and striking “an odd pose with his fingers on his chin” and mumbling incoherently. The attorney’s co-counsel also met with Imoudu and left feeling there was “something wrong” with him. 3/

Quite naturally the new attorney filed for a competency examination after these two separate attorney/client meetings. The trial court appointed a psychiatrist to evaluate Imoudu and followed up by conducting a competency hearing. The court-appointed expert testified at the hearing that he believed Imoudu was competent to stand trial. Imoudu, who was taking anti-psychotic medication at the time, also testified at the hearing. After hearing his client testify, Imoudu’s attorney conceded that his client was competent to stand trial. A month later Imoudu at his attorney’s suggestion accepted a plea deal offered by the state and pled guilty in exchange for the 17-year sentence. 4/ (more…)

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…)

June 30, 2009

THE DNA FALLOUT CONTINUES

Filed under: Sexual Assault Crime Attorney — Tags: , , , , , , — johntfloyd @ 6:04 pm

District Attorney’s Office of the Third Judicial District v. Osborne; U.S. Supreme Court Blocks Ability for Wrongfully Convicted to Prove Innocence

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

George Rodriquez spent 17 years in the Texas prison system for a crime he did not commit. He was 26 years of age in 1987 when he was wrongfully convicted by a Harris County jury for the rape of a 14-year-old girl. The jury based its decision on a critical piece of forensic evidence; a pubic hair found in the victim’s underwear. A serologist with the Houston City Police Department’s Crime Lab determined that the pubic hair did not belong to another suspect in the rape case, Isidro Yanez. The serologist testified at Rodriquez’s trial, saying that while his forensic testing ruled out Yanez, it did not rule out Rodriquez.

Seventeen years later DNA testing established that the pubic hair in fact belonged to Yanez and not to Rodriquez. Rodriquez was released from prison in 2004. The Harris County District Attorney’s office refused to declare Rodriquez “actually innocent” of the crime. That official refusal to acknowledge his innocence precluded him from receiving a pardon and being awarded state compensation for his wrongful confinement. He filed a federal civil rights suit against the City of Houston and a federal court jury on June 25, 2009 awarded him $5 million dollars in damages for the 17-year wrongful imprisonment.

The Rodriquez case has not been the only Texas DNA case is the news lately. Two men convicted in the infamous 1991 Austin “yogurt shop” murder case were recently released on bond from jail. The convictions of the two men, Michael Scott and Robert Springsteen, were reversed several months ago on appeal after DNA tests on the state’s evidence indicated the presence of an unknown suspect. Attorneys for the two men say the presence of DNA evidence of the unknown suspect exonerates their clients. Prosecutors do not agree. They believe the new evidence only indicates that yet another person was involved in the crime; therefore, prosecutors plan to continue their prosecution of Springsteen and Scott for the murders of the four teenage girls killed during the robbery of the Austin yogurt shop.

These two Texas cases illustrate the potentially devastating impact of a recent U.S. Supreme Court decision in an Alaska case that held state prisoners do not enjoy a constitutional right to post-conviction access to the State’s evidence for DNA testing. 1/ (more…)

May 15, 2009

A DREW PETERSON DEFENSE

Filed under: Federal Crimes Lawyer — Tags: , , — johntfloyd @ 11:53 am

Legislators and State Prosecutors Attempting to Deny Confrontation Clause Guarantees, Presumption of Innocence

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

Former Illinois police sergeant Drew Peterson has been married four times. Wife three, Kathleen Savio, died under mysterious circumstances in February 2004 just weeks before her divorce settlement with Peterson was to become final. Her dead body was found lying face down in an empty bathtub. Her hair was soaked in blood from a head wound. A Coroner’s Jury ruled her death an accident.

But Savio’s family members from the beginning believed that Peterson was responsible for her death. It had been an abusive, violent marriage from the beginning. Who was responsible for the spousal abuse in the marriage is still a subject of considerable debate. Kathleen tried to have a domestic violence complaint filed against Peterson but he was never charged. Kathleen, however, was charged twice in 2002 with battery and domestic battery, although she was acquitted each time. Kathleen reportedly told her family members that if something happened to her, Peterson would be responsible.

But despite the unusual circumstances surrounding Kathleen’s death, there was never any serious law enforcement effort to charge Peterson with any kind of crime associated with her death. Then in 2007 Peterson’s fourth wife, Stacy, disappeared under peculiar circumstances. Stacy’s disappearance immediately drew virtual non-stop cable news channel coverage. Nancy Grace could barely contain herself. She rode that news pony to death until the Caley Anthony case broke in 2008 giving her another media pony to ride into the ground.

Stacy Peterson’s disappearance also gave the Savio family an opportunity to resurrect her death from the grave. They pressed for an exhumation and a new autopsy. There were so many sound bites and news spins that the 24-hour cable news cycle could barely keep abreast of the dizzying pace of the coverage. There were times when the Peterson case forced a historical presidential campaign to take a backseat to “breaking news” about some “new detail” discovered in the case. Chris Matthews was not the only cable chatterer who felt a “tingle” running up his leg. (more…)

February 11, 2009

ANDRE THOMAS: INSANE IN TEXAS

Filed under: Death Penalty Crimes Lawyer — Tags: , , , , , , — johntfloyd @ 5:38 am

Executing the Insane: Past Witch Hunt; Current Shame

By Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Just after noon on December 9, 2008 a corrections officer assigned to Texas’ death row was making a normal security round in Building 10 when he observed what appeared to be blood on the face of condemned inmate Andre Thomas. The inmate told the officer he had pulled out his last good eye and eaten it. Prison doctors quickly determined the condemned inmate needed additional medical treatment. Security staff transported him to the East Texas Medical Center in Tyler. After Thomas received medical treatment, the Texas Department of Public Safety and Corrections transferred him to the Jester 4 Psychiatric Unit in Richmond where he remains as of this writing.

Andre Thomas is no doubt still insane today. He was also insane on March 27, 2004 when he slaughtered three people. In fact, he was insane long before March 27, 2004. Everyone in Grayson County seemed to know it. Leyha Marie Hughes’ father especially knew it, He repeatedly told the local police after his daughter’s murder that “Andre Thomas was crazy, unstable, everyone knew him and his entire family was crazy.” Even Thomas himself seem to know he was crazy. As the Grits-for-Breakfast blog reported on January 21, 2009, Thomas twice unsuccessfully sought psychiatric help from a Grayson County hospital before March 27, 2004—the day he killed Leyha Marie Hughes. In fact, the very day before he killed the little 13-month-old Leyha, a social worker named Sherrie St. Cyr and physician named William Bowen spoke to Thomas in the emergency room at the Texoma Medical Center. Both thought he was psychotic and should be admitted to a psychiatric facility. But, tragically, he was not.

Finally, on March 27, 2004, it happened. What Leyha’s father knew would happen at some time. Something snapped inside the disordered head of Andre Thomas. He walked to the home of his ex-wife, Laura Boren Thomas. Armed with a knife, he arrived at the residence at 7:22 a.m. He kicked in the front door. He found Laura, their four-year-old-son Andre, and baby Leyha home alone. What happened next was a “Texas Chainsaw Massacre” revisited. Andre repeatedly stabbed Laura, Andre, and Leyha before brutally mutilating them by removing their hearts from their lifeless bodies. Each victim was left with large, gaping wounds in their chest.

Thomas placed the three bloody hearts in his pockets and calmly walked out of the house. He must have felt pretty good. He had just finished “God’s work.” He believed the three people he had just slaughtered were “evil” and possessed by demons. God had recently told him that Laura had been acting like a “jezebel” and that little Andre was the “anti-Christ.” (more…)

February 4, 2009

IS LARRY RAY SWEARINGEN GUILTY OF CAPITAL MURDER?

Filed under: Death Penalty Crimes Lawyer — Tags: , , , , , , — johntfloyd @ 3:18 am

Actual Innocence Not Recognized Ground for Relief in Federal Habeas Corpus Jurisprudence

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

Is Larry Ray Swearingen guilty of capital murder? The State of Texas, through Montgomery County Assistant District Attorney Marc Brumberger, believes that he is. The parents of Melissa Trotter, Charles and Sandra Trotter, believe that he is. The Texas Court of Criminal Appeals believes that he is.

But Swearingen’s attorney, James Rytting, the New York-based Innocence Project, and a host of forensic pathologists, including Glenn Larkin, strenuously believe that he is not. As Larkin recently told Texas Monthly Magazine: “no rational and intellectually honest person can look at the evidence and conclude Larry Swearingen is guilty of this horrible crime.” While the Houston Chronicle, in a January 23, 2009 editorial, did not go as far as Larkin, the respected editorial board of the newspaper said: “He may not be a saint, but Swearingen does not deserve to die for someone else’s crime.”

The United States Court of Appeals for the Fifth Circuit is not concerned one way or the other about Swearingen’s guilt or innocence. The appeals court has long held that the execution of an inmate who has demonstrated “actual innocence” does not offend federal due process of law. The appeals court, however, recently stayed Swearingen’s pending execution and ordered a hearing to determine (1) if state prosecutors engaged in prosecutorial misconduct and (2) if he was adequately represented at trial by defense counsel. See: In Re: Larry Ray Swearingen, No. 09-20024, Jan. 26, 2009 [Online citation unavailable].

We cannot conclude whether Swearingen is innocent or guilty. Our intent is to lay out the legal and factual background of his case so our readers can draw their own conclusions based upon the evidence we’ve gleaned from the public record and court decisions.

LEGAL BACKGROUND

Larry Ray Swearingen, an electrician who lived in Willis, Texas, was arrested on December 11, 1998 by Montgomery County law enforcement authorities on outstanding charges unrelated to the murder of Melissa Trotter. (more…)

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