CRIMINAL JURISDICTION

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

February 24, 2011

POLICE MISCONDUCT-A GROWING EPIDEMIC?

Filed under: Houston Criminal Lawyer — Tags: , , , , , , — johntfloyd @ 11:19 am

Houston Police Department, Harris County Law Enforcement Gaining National Reputation for Police Abuse and Misconduct

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

We have blogged in the past about the travesty of police misconduct, especially the kind where brutality is inflicted upon criminal suspects for no reason. The Houston Police Department (HPD) has now been shown in a couple recent disclosures of videos stomping, kicking, and beating defenseless, even handcuffed, suspects and these lawless acts of brutality have roiled this community with outrage, anger, and frustration (here and here).

We have also blogged about the legal difficulties involved in bringing about accountability in “police custody deaths.” This was evidenced most recently in the case of 20-year-old Danroy “D.J.” Henry, a popular Pace University football player, who was killed last October by police outside a bar in Thornwood, New York. The police had been called to the bar after a reported disturbance. Henry, who had been in the bar, left and was sitting inside his parked vehicle when the police arrived and started banging on his window. Thinking the officers were instructing him to move his vehicle, Henry backed his vehicle up striking an officer in the process. The officers responded by pumping a volley of bullets into the vehicle killing Henry.

A Westchester County grand jury recently declined to indict the officers in connection with Henry’s killing. The Boston Herald reported that District Attorney Janet DiFiore said the grand jury found “no reasonable cause for an indictment.” D.J.’s father, Henry, was quoted by the newspaper as saying in response to the grand jury decision: “We’re not surprised at all. This is what we were predicting would happen. The procedures they used to investigate this were akin to you or I being victimized by someone and them saying I’m going to have my brother and sister investigate this, and my mother and father will make a decision. The process is fraught with institutionalized biases that we’ve been trying to point out from the beginning.”

The National Police Misconduct Statistics and Reporting Project (NPMSRP) in its semi-annual report in 2010 listed 2,541 cases of police misconduct in this country—and the largest category of misconduct between January through June was “physical force” used against citizens. NPMSRP reported that these cases led to 124 deaths, and resulted in governments across the country paying out $148.5 million in judgments and settlements in police misconduct cases.

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October 30, 2010

THE COST OF MURDER-THE PRICE OF INNOCENCE

Filed under: Homicide Crimes Lawyer — Tags: , , , , , — johntfloyd @ 3:02 am

Anthony Graves Exonerated: Blatant Prosecutorial Misconduct of D.A. Charles Sebesta Sent Innocent Man to Death Row for 18 Years

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

A recent Iowa State University study, conducted by sociology professor Matt DeLisi, found that the total cost to society for a single murder in the United States is $17.25 million. Professor DeLisi led a team of five Iowa State graduate students in a study of 654 convicted and incarcerated murderers. This enormous price tag is measured in terms of costs to the victims, the criminal justice system, loss of productivity to both the victim and offender, and estimated costs to society to prevent future violence.

DeLisi’s study, titled Murder by the Numbers: Monetary Costs Imposed By A Sample of Offenders, was published in the February 2010 edition of the Journal of Forensic Psychiatry and Psychology. This latest study by Professor DeLisi, and his student colleagues, draws heavily from a 2003 study based on the 654 convicted and incarcerated murder offenders housed in eight states: Texas, Ohio, New Jersey, Florida, Arkansas, Georgia, North Carolina, and Oklahoma. Using these 654 offenders, DeLisi’ latest study concluded that each murder they committed cost $17,252,656 with the most violent offender individually racking “costs greater than $150 million.” The study added:

“That each murder costs more than $17.25 million does not convey the true costs imposed by homicide offenders in the current sample. Since the mean homicide conviction was more than one, the average murderer in these analyses actually imposed costs approaching $24 million. For the offender who murdered nine victims, the total murder-specified costs were $155,457,083!”

But what about the price tag associated with wrongfully convicting an innocent man for multiple murders. The banner headline of the Houston Chronicle(10-28-10) informed its readers thatAnthony Graves, who had been incarcerated 18 years (most of which was spent on death row) for six murders committed in 1992 in Burleson County, was released from jail after District Attorney Bill Parham filed a motion to dismiss all charges against the condemned inmate. The Graves case has a tortured history: Graves’ youngest brother, Author Curry, told the police, and eventually the jury that convicted and condemned Graves to death, that Graves had been at home sleeping on the night of the massacre of Bobbie Davis, her 16-year-old daughter, and four grandchildren, ages 4 to 9.

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October 9, 2010

PROSECUTORIAL MISCONDUCT-THE SCOURGE OF THE CRIMINAL JUSTICE SYSTEM

Filed under: Federal Defense Attorney — Tags: , , , , , , — johntfloyd @ 7:56 am

Thompson v. Connick; Jury Awards 14 Million Dollars to Man Who Served 18 Years in Prison for Crime he Did Not Commit After Prosecutors Hid Favorable Evidence

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Last year the U.S. Supreme Court in Van de Kamp v. Goldstein effectively reinforced a longstanding constitutional rule of law that prosecutors who engaged in unethical and criminal misconduct to secure criminal convictions are immunized from civil liability. They are protected by the doctrine of absolute immunity which insulates public officials from civil liability when performing their official duties, even if their conduct is unethical and criminal so long as the conduct is carried out within the scope of the official’s duties.

The Supreme Court will again this Term entertain a case, Connick v. Thompson, concerning prosecutorial misconduct and civil liability attached to that misconduct. This time under a different rule of law. The sole question before the court in Thompson is whether the failure of a District Attorney to train his assistant prosecutors about the requirements of Brady v. Maryland is sufficient to trigger the rigorous culpability and causation standards associated in municipality liability cases. The Thompson case involves prosecutors deliberately withholding exculpatory evidence which led to the capital murder conviction of John Thompson and causing him to spend 18 years in prison, most on death row. There is no dispute about this fact. The Orleans Parish District Attorney’s Office concedes as much. A jury subsequently awarded Thompson $14 million dollars in damages, one million dollars for each year he was wrongfully held in solitary confinement on death row.  The District Attorney’s Office has appealed this award all the way up to the U. S. Supreme Court.

Thompson’s horrific saga in the criminal justice system began in December 1984 when prominent New Orleans businessman Raymond T. Liuzza, Jr. was killed outside his home. The Orleans Parish District Attorney’s office, then headed by Harry Connick, Sr., was under considerable pressure to see the crime solved and its perpetrator(s) prosecuted. In the heat of the Liuzza investigation, Jay LaGarde and his two siblings faced an attempted armed robbery/carjacking outside the city’s Superdome. Shortly after the LaGarde attempted robbery (January 1985) Thompson and a co-defendant named Kevin Freeman were arrested for the Liuzza murder.

The Thompson/Freeman arrest set in motion a sequence of events that would lead to gross prosecutorial misconduct by Connick’s office. LaGarde’s father saw Thompson and Freeman’s photographs in the local newspaper and figured they were probably the individuals who had tried to rob his children. He contacted Connick’s office about his suspicions which led to Thompson and Freeman being charged with armed robbery.

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October 6, 2010

DOG WITNESSES KICKED OUT OF THE COURTROOM?

Filed under: Houston Criminal Lawyer — Tags: , , , , , — johntfloyd @ 5:22 am

Winfrey v. State: Evidence of Dog Scent Line-Up Identification, Standing Alone, Legally Insufficient to Support Conviction

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair.

The San Deigo Police Foundation reports that police dogs work 8 ½ years before being retired and it costs $8500 to replace a retired canine. Dogs serve a legitimate purpose in crime prevention: their sense of smell is nearly 50 times stronger than humans and they can search an area 10 times quicker than a human. Dogs have a long history in law enforcement.  For example, bloodhounds were used as early as the 18th century in Europe to track criminals. Germany and Belgium became the first European countries to formalize training of dogs in police work, mostly guard duty. German sheperds served Third Reich well in World War II and returning American soldiers brought this information home with them from the front lines. Following the lead of London and other large European police departments, major American city police departments also began to establish K-9 units in the 1970s, consisting mostly of German sheperds, in their crime-fighting duties.

But there’s a major difference between the use of dogs by police on the street to track or search and prosecutors using them as witnesses in a courtroom, “testifying” through their surrogate handlers. Some Texas prosecutors are strong supporters in what has become known as “dog scent evidence.” One of the most notorious dog scent evidence “experts” is a Fort Bend County Sheriff’s deputy named Keith Pikett who has used his array of dogs to identify criminal suspects in “dog scent” lineups and later testified in courts about the “positive” identifications made by his dogs.

The Texas Court of Criminal Appeals in a recent decision, Winfrey v. State, effectively kicked Pikett’s hounds out of the courtroom.

There is no doubt that Murray Wayne Burr died a horrible death in 2004. He was stabbed 28 times and received multiple blunt force blows so strong that they broke his jaw and right eye socket. The police found Burr’s body in the bedroom although the evidence indicated he had been attacked in the living room. They found no forced entry into his San Jacinto County home. The only thing missing from Burr’s home was a Bible.

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August 31, 2010

WRONGFUL CONVICTIONS-TRAGIC RUSH TO JUDGMENTS

Filed under: Houston Criminal Lawyer — Tags: , , , , , , — johntfloyd @ 2:55 am

Tunnel Vision By Investigators and Prosecutors Convicts, Imprisons the Innocent

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Last year we blogged about the tragic wrongful convictions of three innocent Texas inmates, Ricardo Rachel, Timothy Cole (here and here), and Ernest Sonnier. This year has proven just as tragic. We have thus far blogged about the wrongful convictions of four more innocent Texas inmates: Donald Wayne Good, Anthony Robinson, Allen Wayne Porter, and Michael Anthony Green. The wrongful conviction emblem seems to have been deeply etched on the face of Texas justice. But convicting innocent people is not a phenomenon unique to this state.

Fourteen years ago three authors, C. Ronal Huff, Arye Rattner and Edward Sargarin, published a book titled Convicted But Innocent: Wrongful Conviction and Public Policy (Sage Publications. Inc. 1996). The book was based on ten years of measured, conservative research which outlined not only the frequency and causes for wrongful convictions of innocent people but the tragic consequences that inevitably flow from them. The authors interviewed 188 judges, prosecutors, public defenders, sheriffs, and police chiefs in the state of Ohio to draw the conclusion that as many as 10,000 innocent people are wrongfully convicted each year in this country. The authors found, and the New York-based Innocent Project has long since confirmed, that mistaken identification is the leading factor for most wrongful convictions.

This was the overriding factor in the seven wrongful convictions of the innocent Texas inmates mentioned above. But underlying the mistaken identification syndrome is an even more troubling phenomenon discussed by Huff/Rattner/Sargarin. “If we had to isolate single ‘system dynamic’ that pervades a large number of these cases, we would probably describe it as police and prosecutorial overzealousness: the anxiety to solve a case; the ease with which having such anxiety is willing to believe, on the slightest evidence of the negligible nature, that the culprits in hand; the willingness to use improper, unethical and illegal means to obtain a conviction, when one believes that the person at the bar is guilty.”

We tackled this subject earlier this year. The practice is called “tunnel vision”—law enforcement and prosecutors locking in on one theory or one suspect at the exclusion of all others. It was law enforcement “tunnel vision” that led to the mistaken identification of Michael Green and caused him to serve 27 wrongful years in prison—more than any other wrongfully convicted inmate in Texas. And it was both law enforcement and prosecutorial “tunnel vision” that led to the wrongful conviction of Clarence Elkins, Sr. who spent seven years in the Ohio prison system for a murder and rapes he did not commit. Elkins was arrested for the June 6, 1998 murder/rape of his mother-in-law, Judith Johnson, and for assaulting and raping Johnson’s six-year-old granddaughter, Brooke Sutton (Elkins’ niece). The arrest came after the granddaughter went to a neighbor shortly after the crime was committed and said, “Uncle Clarence killed grandma.” But the child later that same day expressed doubt about her identification, telling a friend of her grandmother that “I think it sounded like [Uncle Clarence].” Homicide detectives were aware of the doubts expressed by their chief witness.

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August 1, 2010

MISTAKEN IDENTIFICATIONS SENT TWO INNOCENT MEN TO PRISON

Filed under: Houston Criminal Lawyer — Tags: , , , , , — johntfloyd @ 5:01 pm

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?

Filed under: Federal Defense Attorney — Tags: , , , , , , — johntfloyd @ 1:09 pm

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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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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