CRIMINAL JURISDICTION

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

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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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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February 11, 2011

THE PURPOSE OF REASONABLE DOUBT IN CRIMINAL TRIALS

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

Prosecutorial, Police Misconduct Lead to Wrongful Conviction Unsupported by Evidence

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

In a recent post we discussed both the history and role of reasonable doubt in criminal trials. We noted and criticized the fact that Texas judges in criminal trials do not, per Texas Court of Criminal Appeals mandate, have to give jurors any instruction as to what constitutes “reasonable doubt.” This, we believe, is one of several reasons why Texas leads the nation in the wrongful conviction of innocent people.

The Fifth Circuit Court of Appeals recently reversed a drug conviction of a Texas resident and had an opportunity in the process to explain why reasonable doubt is so critical in ensuring the constitutional right to a fair and impartial trial. The case involved Maria Aide Delgado who was convicted in federal court of one count of possession of marijuana with intent to distribute and one count of conspiracy to commit the same offense. The Delgado case also illustrates a subject matter we have discussed in other posts: prosecutorial misconduct (here and here).

In September 2006 federal customs officers received a tip from undercover informant that Delgado had marijuana in a tractor trailer truck parked at her rural residence in Weslaco, Texas. Delgado, the sole owner and operator of T.J. Trucking, gave the officers “consent” to search after which they discovered 230 kilograms of marijuana in the sleeper cab of the locked semi-trailer truck which was parked inside her fence. Delgado told the officers she didn’t know anything about the marijuana or how it got in the truck; that her company hired drivers to operate the semi-trailer to haul Mexican produce from Laredo to destinations throughout the United States. She also informed the officers that she did not drive or accompany the truck on its long hauls, and that the bulk of her business was conducted by telephone from her residence. The officers seized her cell phone, computer, bank records, and personal papers—none of which disclosed any evidence of illegal drug activity.

Bartolome Vasquez was a legal Mexican resident who worked as a produce broker and shipper in Laredo. He also moonlighted as a paid government informant. He knew Delgado, having done business with her arranging produce shipments the four years prior to 2006. He told his U.S. Customs handlers that he spoke with Delgado at least four times a month either in person or over the telephone. He told the handlers he considered her a “legitimate trucking business operator” until September 2006 when she offered him $10,000 to haul a load of marijuana mixed with produce to North Carolina. Vasquez said he turned down the offer and immediately reported it to his Customs handlers. Since they had previously paid him $1300 for drug smuggling related information, he naturally expected a reward for the Delgado information—and, as a matter of fact, he did receive $7,500 for that information.

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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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November 13, 2009

NO ACCOUNTABILITY FOR PROSECUTORS GONE ROGUE

Filed under: Houston Criminal Lawyer — Tags: , , , , , — johntfloyd @ 3:59 am

Absolute Immunity from Civil Liability, Accountability for Prosecutors

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

The primary ethical and legal duty of a criminal prosecutor is to serve the interests of justice—not their personal interests of winning at any costs as is too often the case with a many prosecutors. This was made clear in October 2008 in the federal prosecution of then-Senator Ted Stevens (R-Alaska) for high-profile corruption charges. The federal prosecutors in the case were determined to bring down one of the most powerful lawmakers in this country—at any costs. D.C. District Court Judge Emmet Sullivan lambasted those prosecutors at the time saying that in his 25 years on the bench he had “never seen mishandling and misconduct like what I have seen” in Sen. Stevens’ case. The federal judge was so incensed at the prosecutorial misconduct that he appointed an outside attorney named Henry Schuelke to investigate the Stevens prosecutors for possible “criminal contempt.” The matter was essentially resolved when current U.S. Attorney Eric Holder requested, and secured, a reversal of Sen. Stevens’ conviction from Judge Sullivan earlier this year.

But the legal and political fallout from the Stevens case lingers in the federal judiciary.  Last month in a meeting with members of the federal Judiciary’s Criminal Rules Advisory Committee Assistant U.S. Attorney Larry Breuer informed the committee that while the Justice Department had implemented “new measures” to ensure that federal prosecutors fulfill their responsibility to disclose any potentially exculpatory information to the defense, the Department would stand firm against expanding the Brady disclosure requirements under Rule 16 of the Federal Rules of Criminal Procedure.  Why?  Do they seek justice or hide it?

Writing in www.mainjustice.com, Joe Palazzolo said that Breuer presentation was a rebuttal to an earlier request by Judge Sullivan urging the committee to consider amending Rule 16 requiring federal prosecutors to “turn over all exculpatory information to defense lawyers in criminal cases.” Sullivan informed the committee that “such a rule would eliminate the need for the court to enter discovery orders that simply restate the law in this area, reduce discovery disputes, and help ensure the integrity and fairness of criminal proceedings.”

Former Harris County District Attorneys Johnny Holmes and Charles “Chuck” Rosenthal left a deplorable legacy of prosecutorial misconduct involving cases where prosecutors not only withheld clearly exculpatory information but fabricated evidence, including the knowing use of perjured testimony, to secure criminal conviction—even in death penalty cases. The administration of these two former district attorneys, which spanned nearly 30 years, was proud of their “win-at-any-costs” philosophy that ultimately morphed into unofficial policy. And things really have not improved much under current “reform” District Attorney Pat Lykos who took office earlier this year. One of her prosecutors was recently discovered hiding potentially exculpatory information in a sexual assault case. The alleged victim had initially identified her attacker as being “black” but he actually turned out to be white. This information was apparently deliberately withheld from the defense attorneys involved in the case. (more…)

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