CRIMINAL JURISDICTION

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

December 28, 2011

WRONGFUL CONVICTION AND PROSECUTORIAL MISCONDUCT

Filed under: Houston Criminal Lawyer — Tags: , , , — johntfloyd @ 3:18 am

Filing Grievances, Request for Courts of Inquiry in Wrongful Conviction and Exoneration Cases

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

On December 12, 2011, writing for Mother Jones, Beth Schwartzapfel and Hannah Levintova published a piece titled “How Many Innocent People Are In Prison?”—a piece based in part on research conducted by University of Michigan Law Professor Samuel Gross. Gross’s research, with the assistance of the New York-based Innocence Project and the Center on Wrongful Convictions, determined there have been as many as 850 exonerations in this country since the late 1980s. The Innocence Project lists 282 exonerations since 1989 based on DNA evidence alone. Extrapolating from these two figures, Schwartzapfel and Levintova conservatively estimate that 1 percent of the total prison population in the United States have been wrongfully convicted. Put it raw numbers, this means that approximately 20,000 inmates in the nation’s prison system were wrongfully convicted.

“We don’t even have a denominator,” University of Virginia law professor Brandon Garrett told the Mother Jones writers. “But the wrongful convictions we do know about suggest that there’s a big problem.”

Writing in a 2008 paper titled “Frequency and Predictors of False Conviction,” Gross reached the same conclusion as Garrett: “One difficulty in making generalizations about false convictions is that the ones we know about, exonerations, are clearly a small and unrepresentative sample of all false convictions.” Gross added that death penalty cases are the only ones in which false convictions can be accurately measured because they have trial transcripts. Gross’ 2008 paper reported that in the modern era the rate of exoneration is 2.3 percent in capital cases—and using this percentage, the Mother Jones writers reasonably extrapolated that there could have been as many as 87,000 wrongfully convicted people in the nation’s general prison population between 1989 and 2003.

Utilizing data compiled by Mother Jones, the Texas Tribune found, not surprisingly, that Texas leads the nation with 48 DNA exonerations and is third behind Illinois (95) and New York (83) with 78 total exonerations since 1989. In an article titled “No Country For Innocent Men,” which will appear in the Jan./Feb.2012 edition of Mother Jones, Beth Schwartzapfel found that 56 of these exonerations, including five death penalty cases, occurred under the reign of current Governor and presidential candidate Rick Perry, who still maintains that the criminal justice system is working. These figures are scary in light of the fact that 238 executions have taken place under Perry’s governorship—including Cameron Todd Willingham who, according to reputable fire forensic experts, was probably innocent of the arson murders of his three children in December 1991.

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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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December 4, 2011

THE ETHICAL IMPLICATIONS OF A BRADY VIOLATION

Filed under: Houston Criminal Lawyer — Tags: , , — johntfloyd @ 5:35 pm

Disciplinary Action against Rogue Prosecutors Who Intentionally Engage in Wrongful Conduct, Brady Violations Rare

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Among lawyers practicing criminal law, “Brady violation” is probably second only to a “Miranda warning” as the most recognizable legal term in this country’s jurisprudence; and, significantly, both of these U.S. Supreme Court decisions are designed to curb prosecutorial and law enforcement misconduct. It’s an unfortunate commentary on our criminal justice system when these two important must be instructed by the highest court in the nation to obey the law and uphold our most cherished constitutional tenets: right to a fair trial and right to counsel.

As far back as 1908, when the American Bar Association adopted its Canons of Professional Ethics (“Canons”), prosecutors have been instructed that “[t]he primary duty of a lawyer engaged in public prosecution is not to convict, but see that justice is done. The suppression of facts or secreting of witnesses capable of establishing the innocence of the accused is highly reprehensible.”

It is telling that more than a century ago the ABA felt the need to instruct prosecutors to do the obvious: obey the law. It is evident that the overseer of professional conduct of our Country’s legal system had witnessed enough misconduct by prosecutors before 1908 to feel the need to establish Canon 5 as “guidance” for prosecutors.

Twenty-seven years after the Canons were adopted the U.S. Supreme Court, in Mooney v. Holohan, was forced to inform prosecutors that the “knowing use” of perjured testimony to convict a criminal defendant violated “due process” of law. The Attorney General for the State of California had argued before the Court that the acts or omissions by a prosecutor could never rise to the level of a due process violation. The Court said that such a position would violate “the fundamental conceptions of justice which lie at the base of our civil and political institutions.” Not stopping there, the Court added that the requirement of due process,

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November 8, 2011

MORE SHENANIGANS IN WILLIAMSON COUNTY DA’S OFFICE

Filed under: Houston Criminal Lawyer — Tags: , , — johntfloyd @ 6:20 pm

DA Announces Policy of Hiding Brady, Potentially Exculpatory Evidence

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

We have become convinced that the only way the Williamson County District Attorney’s office will operate in a lawful and ethical manner is for the State Bar to assign an ombudsman to oversee its day-to-day handling of criminal prosecutions. The behavior of this office in the Michael Morton case has already triggered four investigations, including one by the State Bar (here and here). Grits For Breakfast recently carried yet another report, which was first reported by Wilco Watchdog, concerning allegations of prosecutorial misconduct. This time the misconduct charges involve Assistant District Attorney Tommy Coleman who withheld exculpatory evidence in a 2010 theft case.

Travis County attorney Amber Vasquez Bode was representing the theft case client. She told YNN that evidence was emailed to District Attorney John Bradley’s office three days before the end of her client’s trial. “They only give us the evidence that they hand us, we’re not given the file and copied it” Bode said. “In fact, we’re not allowed any copies of anything.”

When Bode learned about the withheld evidence, she questioned ADA Coleman about it, to which he replied: “It’s too late now, your guy already pled.” Bode’s said her client probably would have been acquitted had the evidence been timely disclosed.

When asked about the decision by ADA Coleman to withhold the emailed evidence, DA Bradley, according to YNN, said his assistant was following office “policy” not to disclose the evidence. A “policy decision” to withhold potentially exculpatory evidence! It is difficult for us to wrap our minds around a “policy” to send innocent people to prison rather than disclose evidence that could exonerate them.

“You can’t stack the deck, and you can’t hold back evidence, and those are fundamental principles that have to be adhered to,” attorney Vasquez said about the “policy.”

In a motion for a new trial, Vasquez said she became aware of the withheld evidence during discussions with jurors by her and Coleman after the conviction. Two jurors said they wished they had seen the evidence because “it would have most likely been exonerating.”

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October 21, 2011

“PROSECUTOR OF THE YEAR” FEELS THE HEAT

Filed under: Houston Criminal Lawyer — Tags: , , , — johntfloyd @ 3:24 pm

Williamson County Justice System under Scrutiny by State Bar of Texas

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Since our last post about the tragic case of Michael Morton, the “prosecutor of the year” in that case, now District Judge Ken Anderson, and his cohort, Mike Davis, who actually prosecuted Morton for the 1986 murder of his wife, face investigations by the State Bar of Texas and Morton’s attorneys, according to the Austin Statesman. The State Bar investigation is, as the newspaper accurately reported, a “rare step” by the Bar, as is the public acknowledgement that it has undertaken a disciplinary investigation against two of its members. Morton was freed from the state’s prison system on October 4, 2011 after serving 25 years for a murder he did not commit and on October 11, 2011 the Texas Court of Criminal Appeals formally exonerated the man after DNA testing of a critical piece of evidence not only cleared Morton of the murder of his wife but identified the real killer as well.

Anderson and Davis, along with key law enforcement personnel, withheld critical evidence at Morton’s 1987 trial which almost certainly led to his wrongful conviction. For example, the prosecutors withheld the transcript of an interview with Morton’s mother-in-law who questioned the couple’s 3-year-old son shortly after his mother, Christine, was beaten to death with a “billy club.” The boy told his grandmother that he saw his mother beaten to death and that his father was not at home at the time of the murder. Other significant evidence withheld was a document disclosing that Christine’s credit card, which was in her purse and taken by her killer, was used in a San Antonio store, and another document showing that a check made out to Christine was cashed nine days after her death and the signature on it appeared to be a forgery.

While the prosecutors and law enforcement withheld this critical evidence and focused their sole attention on convicting Morton for murdering his wife, the real killer, who has only been identified as “John Doe” pending further investigation, was roaming the streets of Austin where he killed yet another woman in 1987—the same year Williamson County officials were wrongfully convicting Morton for the brutal murder of his wife.

Maureen Ray, who works in the office of the chief disciplinary counsel for the State Bar told the Statesman: “We decided, because of the high-profile nature of the thing, that we were going to tell the public that we were looking into it.”

Anderson is none too happy about either the State Bar’s investigation or the investigation by Morton’s attorneys into his handling of the murder case. Through his attorney Mark Dietz, the “prosecutor of the year” filed a motion contending that District Judge Sid Harle did not have “jurisdiction” to issue a subpoena in connection with the investigation being sought by Morton’s attorneys into “professional misconduct” accusations leveled against both Anderson and Davis.

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October 17, 2011

“PROSECUTOR OF THE YEAR!”

Filed under: Houston Criminal Lawyer — Tags: , , — johntfloyd @ 11:29 pm

Williamson County District Attorneys Gain Distinction for Hiding Evidence, Wrongful Conviction and Hard Fought Cover-Up

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Ken Anderson was a prosecutor in Williamson County, Texas, in 1986. In fact, he became Williamson County’s longest tenured district attorney with 16 ½ years as the county’s chief prosecutor and 5 ½ years as an assistant district attorney. Anderson knew his prosecuting business—so much so that his political pal, Gov. Rick Perry, appointed him to a District Judge position in January 2002. Why not, the State Bar of  Texas Criminal Justice Section named Anderson “Prosecutor of the Year” in 1995 and five years later the Texas Crime Victim’s Clearinghouse tagged him the “Outstanding Prosecutor Upholding Victims’ Rights.” Along the way, he became a “Board Certified Criminal Law Specialist” and was elected as President of the Texas District and County Attorneys Association. And as if this was not enough for one man to achieve, Anderson lectured at over 300 schools where he told the leaders of tomorrow about the value of honest public service.

John Bradley succeeded Anderson as Williamson County district attorney in 2001 after he was appointed to that position by none other than Gov. Perry. It was only natural that Bradley would get the political plum. He had been Anderson’s assistant since 1989. In 1993 Bradley decided to give the Texas Legislature a hand in re-writing the state’s Penal Code, and in 1996 he was appointed to former Gov. George W. Bush’s Committee to Rewrite the Code of Criminal Procedure. And, like Anderson, Bradley also likes to talk, speaking “regularly at continuing legal education seminars” in Texas and across the country. He also contributes frequently to “legal magazines and newspapers.”

And while Bradley’s professional resume does not stack up to Anderson’s, the current Williamson County district attorney gained national attention in September 2009 when Gov. Perry fired the chairman (and two other members) of the Forensic Science Commission which was about to investigate the Cameron Todd Willingham execution (here and here) and appointed Bradley as the commission’s chairman. The ensuing political firestorm notwithstanding, Bradley canceled a scheduled hearing in the Willingham case and made it clear that the commission under his direction would not investigate whether the condemned inmate was wrongly executed.

Besides being good talkers and an asset to their prosecutorial profession, what do Anderson and Bradley have in common? Most notably, one sent an innocent man to prison for 25 years and the other did everything he could to cover up this travesty. You would think that these two prosecutors, with all their credentials as top-notch, sate of the art prosecutors, would know that a district attorney’s primary duty is to prosecute the guilty and protect the innocent. Not these two birds of a feather. “Convict at any cost” was, and remains, their professional and political mantra.

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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 22, 2011

PROSECUTORIAL MISCONDUCT IN CASEY ANTHONY CASE

Filed under: Death Penalty Crimes Lawyer — Tags: , , — johntfloyd @ 9:41 pm

Prosecutors Fail to Disclose Favorable Evidence that Contradicted Expert’s Testimony

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

We have repeatedly made clear our disdain for prosecutorial misconduct (here). And here we go again. More dirty, underhanded prosecutorial tactics. Just two days after our July 16 post concerning the Casey Anthony “not guilty” verdict, The New York Times carried a report about these tactics being employed by Orlando prosecutors bent on convicting Anthony for capital murder of her two-year old daughter. In our July 16 post we made the following observation about manner of how little Caylee was murdered that prosecutors presented to the jury:

“The problem is that theories are nothing more than opinions until they are supported by facts. The Casey Anthony jurors had the remarkable courage to face an inevitable hostile public reaction by refusing to accept the prosecutors’ theory [of how Caylee was killed] without a single piece of direct factual evidence to back it up. For example, prosecutors wanted the jurors to accept that because they offered evidence that Anthony had conducted Internet searches for chloroform, she must have used it in the commission of the murder. Yet prosecutors did not produce any chloroform, any evidence that Anthony purchased chloroform and, worse yet, that Caylee was even killed with chloroform.”

The Times report, titled “Software Designer Reports Error in Anthony Trial” and written by Lizette Alvarez, now informs us that the prosecutors’ claim that Anthony conducted 84 Internet searches for information about chloroform was false, or misleading at best. A software designer named John Bradley told the Times the prosecution’s case about the chloroform was based on “inaccurate data.” The Times described the “error” this way:

“According to Mr. Bradley, chief software developer of CacheBack, used by the police to verify the computer searches, the term ‘chloroform’ was searched once through Google. The Google search then led to a Web site, sci-spot.com that was visited only one time. Mr. Bradley added. The web site offered information on the use of chloroform in the 1880s.

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