CRIMINAL JURISDICTION

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

April 5, 2009

DISTRICT ATTORNEY PAT LYKOS CONTINUES NEW ERA OF PROSECUTORIAL REFORM IN HARRIS COUNTY

Successful Batson Challenge Reveals Racial Discrimination in Harris County Jury Selection

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

Assistant District Attorneys Mark Donnelly and Rifian Newaz are considered seasoned, professional prosecutors by their colleagues in the Harris County District Attorney’s Office. Many Harris County defense attorneys also hold the prosecutors in high professional esteem. In fact, we recently paid tribute to ADA Donnelly for his recent professional efforts to undo the tragic wrong done to Ricardo Rachell who was wrongfully convicted and who spent six years in prison for the aggravated sexual assault of a child.

But this level of professional respect did not spare the two prosecutors from the reform rod of newly-elected District Attorney Pat Lykos. Determined to remove the District Attorney’s Office from the ugly specter of corruption, mismanagement, and racism that characterized the prosecutor’s office under her predecessor, Charles “Chuck” Rosenthal, DA Lykos took the recent extraordinary action of publicly chastising and reprimanding Donnelly and Newaz for their handling of jury selection in the case of Ricky Whitfield, a black defendant charged with murder.

The two prosecutors used seven of their 10 jury strikes to remove seven blacks from the jury pool. The end result was an all-white jury. This jury result did not set well—and rightly so—with Whitfield’s attorneys, Jacquelyn Carpenter and Eric Davis. They promptly filed a Batson motion under the Supreme Court decision in Batson v. Kentucky that imposed a three-step evaluation test on a trial judge to be utilized in determining whether a prosecutor’s use of jury strikes constitutes intentional racial discrimination.

According to the Houston Chronicle (March 27, 2009), Donnelly and Newaz responded to the Batson motion by telling District Judge Jeannine Barr that the black prospective jurors were eliminated because they were “indecisive about whether the criminal justice system should punish or rehabilitate [and] they didn’t want indecision in the jury room,” reported the Chronicle. (more…)

October 9, 2008

THE ACQUITTAL

THE ACQUITTAL

John Floyd Secures Not Guilty After Jury Trial, Aggravated Sexual Assault of a Child younger than 14, 263rd District Court, Harris County, Case No. 1156699

A former Precinct 4 deputy accused of aggravated sexual assault of a child was found “not guilty” after three days of trial and six hours of jury deliberation. The State argued the defendant, in 2000, sexually assaulted an 11-year-old girl when he was a detention officer at the Harris County Juvenile Detention Center where the girl was detained.

After announcing their verdict, the jurors stated that they simply did not find the complaining witness’ testimony credible and accurate enough to convict the defendant for such a serious crime. The defense - led by John Floyd with the able assistance of co-counsel Chris Carlson and paralegal Billy Sinclair – presented the defense that the complaining witness’ sexual assault allegation was fabricated. This defense was supported by inconsistencies with other witness testimony and discrepancies in the prosecution’s evidence.

The prosecution supported its case with the 7-year delayed outcry testimony of the complaining witness and the testimony of a twice-convicted and currently jailed felon.

Bound by their oath to follow the law on the issue of “reasonable doubt,” jurors stated they simply could not attach any meaningful credibility to the prosecution’s case. In fact, one juror was so frustrated by the prosecution’s inept handling of the case that the juror posted a comment on the Houston Chronicle website that the prosecutor should have been jailed.

The not guilty verdict in this case follows a year of success for the John T. Floyd Law Firm in defending individuals falsely accused of sex offenses. Earlier this year, Mr. Floyd secured another not guilty, an acquittal by directed verdict, after a jury trial on charges of sexual assault in the 176th District Court of Harris County. Mr. Floyd also obtained a no-bill from a Harris County grand jury for an individual charged with sexual assault of a child in case number 111785 before the 184th District Court of Harris County, Texas. This was also a delayed outcry case. In August, Mr. Floyd obtained dismissals on two cases alleging indecency with a child, in cases 46527 and 46528, days before jury trial in the 400th District Court of Ft. Bend County, Texas. (more…)

October 6, 2008

A DISTRICT ATTORNEY’S PROFESSIONAL INDISCRETION

Prosecutor Hands Jury Sour Grapes After Not Guilty Verdict

By Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair

The John T. Floyd Law Firm faced a recent difficult three-day trial in a Harris County courtroom. The District Attorney’s office had charged a defendant with aggravated sexual assault of a child. It was a classic delayed “outcry” case. The case was assigned to one of the very best prosecutors in sexual assault cases. She signaled early in the motion practice stage of the case that she would be a determined adversary willing to go to extraordinary lengths to secure a conviction against our client.

Faced with the natural bias against criminal defendants charged with such sexual offenses, the John T. Floyd Law Firm met the prosecutor’s frontal assault in the pre-trial process with fierce counter attacks. While our investigators located key witnesses and produced valuable documents and our paralegal pursued relentless legal research, the trial attorneys pursued discovery and formulated an aggressive “take no prisoners” fabrication defense. At trial, the defense attorneys focused on the primary objective: convince the jury that the prosecution’s case, from top to bottom, was not credible without opening the door to any damaging rebuttal evidence on the fabrication defense.

The jury got the case on a Wednesday morning at 10:30 a.m. By 11:30 a.m., and after the jury had requested to review a piece of evidence, it was evident that the prosecution had not secured its normal “quick” guilty verdict. The jury had questions. Questions meant doubt. Doubt meant the prosecution had not immediately closed the deal on guilt beyond a reasonable doubt. Twice more by 2:30 p.m. the jury asked to review portions of certain testimony. The prosecution team grew nervous. They fidgeted and engaged in “pass the time” conversations in the courtroom. Uncertain, hollow laughter emanated from their group discussions. Unconsciously, they got up and moved about the courtroom which had long emptied of the hustle and bustle of the routine guilty pleas entered earlier in the day. The “expert” child sexual assault prosecutor betrayed her obvious concern with defensive body language and constant need to get up and move about.

Then at 4:30 came the two rings of the bell signaling that the jury had reached a unanimous verdict. The defense team quickly assembled and moved back to the defense table with their client. They were cautiously optimistic. The trail signs indicated at a minimum a “hung jury” decision but now there was a real possibility of a “not guilty” verdict. They dared not speak the latter hope. Never tempt the hand of fate. Let fate chart its own course. Hope leads to raised expectations, and raised expectations can so easily crash against the sea wall like a violent incoming wave. (more…)

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