CRIMINAL JURISDICTION

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

February 4, 2012

ATTORNEY-CLIENT PRIVILEGE

Filed under: Houston Criminal Lawyer — Tags: , , — johntfloyd @ 8:09 pm

Special Rule of Privilege in Criminal Cases Provides Greater Protection to the Criminally Accused

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Ernest “Randy” Comeaux is currently an inmate serving six life sentences, without the benefit of parole, at the David Wade Correctional Center in Homer, Louisiana. The facts of Comeaux crime were detailed by a Louisiana Court of Appeals in the matter of Smith v. Lafayette Parish Sheriff’s Department on April 24, 2004:

“From the mid-1960’s until the moid-1990’s, a number of rapes occurred in the southern portion of Lafayette Parish and adjoining parishes which could not be solved. In late 1995, the Lafayette Police Department (LPD) developed a theory that the rapes were connected and could have been committed by the same person. In 1997, DNA testing revealed that semen examples from six rape scenes matched. At that point, LPD began looking for a serial rapist.

“In September 1997, a task force was formed to attempt to solve these related rapes. The task included LPD, LPSD (Lafayette Parish Sheriff’s Department), Louisiana State Police, the FBI, and the University of Southwestern Louisiana, now University of Louisiana at Lafayette. Unsuccessful, the task force disbanded after approximately seven months. There were no new leads in the case until November 1998 when an anonymous caller suggested to LPD Captain James Craft that Randy Comeaux, a detective with the LPSD Juvenile Division, should be investigated for the rapes. DNA testing on the butt of a cigarette smoked by Mr. Comeaux revealed that his DNA matched semen samples from six rape scenes. After being arrested, Mr. Comeaux confessed to committing a number of rapes, including five rapes in Lafayette Parish.”

Comeaux was indicted and quickly pled guilty to six aggravated rape charges. The former detective was sentenced to six consecutive life sentences without the benefit of parole.

For purposes of this article, we will assume that prior to his arrest, Comeaux confided in two persons about his rapes: an attorney from whom he sought legal advice about the rapes and a Catholic priest to whom he confessed. These were the only two people who knew Comeaux was the Lafayette serial rapist. One of them apparently violated Comeaux’s confidentially by anonymously calling Captain Craft and telling him that Comeaux should be investigated for the rapes.  We will assume the anonymous call came from the lawyer, who was afraid that the rapes would continue until Comeaux was arrested.

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August 26, 2011

PUNISHMENT-TEXAS STYLE

Filed under: Houston Criminal Lawyer — Tags: , , , , — johntfloyd @ 10:15 am

Life Sentences for DWI, Shoplifting for Habitual Offenders

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Two years ago the Houston Chronicle carried report about a Montgomery County jury imposing a life sentence on a criminal defendant who shoplifted five compact discs from a Wal-Mart in Conroe. The defendant, Brian K. Balentine, was understandably stunned by the sentence. We just posted a piece about how a defendant’s criminal history, and even uncharged prior bad conduct, can come back to haunt him during the punishment phase of a trial.

That’s what happened to Balentine. The jury learned about his extensive criminal background and decided he would always pose a threat to society, so they sent him away for life. The evidence the jury considered was a 1984 murder in Freestone County of a man trying to protect his wife from Balentine and his brother, Terry, who wanted to rape the wife during a robbery attempt. Although the brothers were given three life sentences for this crime, Brian Balentine was released on parole in 2006. Besides the murder, the Montgomery County jury heard evidence about prior thefts as well as the fact that he had been linked to at least three additional thefts while on parole.

“They (the jurors) agreed with us that he needed to go away for the rest of his life,” Montgomery County District Attorney Brett Peabody told the Chronicle.

A criminal past never truly goes away. Last August (2010) ABC News carried a report about 54-year-old Randy Stovall who was involved in a drunk driving accident in Round Rock, Texas. A judge sentenced Stovall to life imprisonment for the non-fatal accident because he was a “habitual drunken driver” with eight prior DWI convictions. John Bradley, the former district attorney of Williamson County and the former controversial chairman of the Texas Forensic Science Commission, who was recently booted from the commission by the state legislature, was quoted by ABC News as saying about Stovall: “This is someone who very deliberately has refused to make changes and continued to get drunk and get in a car and before he kills someone we decided to put him away … He basically walked through the penal system for the past twenty years without any regard for safety or society. In every single one of his cases he had an opportunity to change.”

These two cases illustrate, through the comments of DAs Bradley and Patterson, that district attorneys in Texas will seek, and often secure, life sentences based more on a defendant’s prior criminal history, both charged and uncharged, than the current offense for which he was convicted.  This is a reality that defense attorneys must explain seriously with repeat and habitual criminal offenders before risking it all at trial.

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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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August 4, 2011

TEXAS RAPE-SHIELD-RIGHT TO PRIVACY VS THE SIXTH AMENDMENTS CONFRONTATION CLAUSE

Filed under: Sexual Assault Crime Attorney — Tags: , , , — johntfloyd @ 6:17 pm

TRE 412 Permits Use of Past Sexual Behavior in Limited Circumstances

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Every state in these United States have what is known as “rape shield statutes”—laws that limit a criminal defendant’s ability to cross examine sexual assault victims about their past sexual behavior. Texas’ rape shield statute lies in Rule 412 of the Texas Rules of Evidence and explicitly applies only in sexual assault cases.  The, however, Rule is qualified to permit the use of “past sexual behavior” in certain situations: when it is necessary to rebut or explain scientific or medical evidence offered by the State, Subsection(b)(2)(A): when it is offered by the defendant upon the issue of whether the victim consented to the sexual behavior which is the basis for the charged offense, Subsection (b)(2)(B); and when it is relevant to show “motive or bias” on the part of the victim, Subsection (b)(2)(C).

Rule 412(c) sets forth the procedures for determining whether evidence of prior sexual behavior should be allowed:

“If the defendant proposes to introduce any documentary evidence or to ask any question, either by direct examination or cross-examination of any witness, concerning specific instances of the alleged victim’s past sexual behavior, the defendant must inform the court out of the hearing of the jury prior to introducing any such evidence or asking any such question. After this notice, the court shall conduct an in camera hearing, recorded by the court reporter, to determine whether the proposed evidence is admissible under paragraph (b) of this rule. The court shall determine what evidence is admissible and shall accordingly limit the questioning. The defendant shall not go outside these limits or refer to any evidence ruled inadmissible in camera without prior approval of the court without the presence of the jury.”

In 2007 the Texas Court of Criminal Appeals (“CCA”), in the case of James Thomas LaPointe, addressed both the procedures of Rule 412(c) and its underlying requirements. LaPointe was convicted of several offenses against his estranged wife, including three counts of aggravated sexual assault. At his trial, his defense attorney sought on cross-examination to question the victim about her past sexual behavior. This behavior included the contention that the victim had engaged in sex with multiple partners at various times. The trial judge refused to allow this line of questioning, opting to conduct an in camera hearing at which only the judge and victim would be present. While the judge denied defense counsel’s request to be present and address questions to the victim, the judge said he would ask the victim any questions defense counsel wanted to present to the victim.

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June 12, 2011

UNTESTED RAPE KIT CASES AN ONGOING PROBLEM

Filed under: Sexual Assault Crime Attorney — Tags: , , , — johntfloyd @ 11:15 am

Delay in Testing Delays Justice for Victims and Wrongly Accused

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

In a June 4, 2011 article titled “Justice Delayed in Rape Cases,” Houston Chronicle staff writer Anita Hassan reported that five years ago the Houston Police Department crime lab had more than 4,000 “rape kits” sitting untested in its “property room freezer.” Some of these cases date back to the 1990s, according to Hassan, and more of them are still sitting idle in neglect waiting to be tested. The crime lab has only tested “200 cases” over the last five years, citing “a lack of manpower” in getting the job done.

State Sen. John Whitmire, D-Houston, did not mince words with the newspaper, saying: “I’m outraged on behalf of the sexual assault victims who have had a sexual assault committed and an invasive procedure, that being the rape kit, and then learn that no one has used it in an investigation.”

HPD crime lab director Irma Rios has a long history of trying to explain away the ineptitude and incompetence of the lab (here, here, here, and here). She told the Chronicle that the snail’s pace of rape-kit testing is a “capacity issue. We need enough people to test what’s incoming on a daily basis and now we have to look at the case of old kits.”

Anytime a public official starts talking about the “lack of manpower” excuse, it’s generally a cover for incompetence. Mayor Annise Parker has either terminated or furloughed thousands of city workers and city government is finding out that it can do just as much or more with fewer workers. Official pleas of lack of resources or manpower as an excuse too often means there are too many workers who do not know how to utilize existing resources. Think about this:

The Chronicle reported that last October the HPD crime lab began using a “$1.1 million grant from the National Institute of Justice” to deal with the untested rape kit dilemma. HPD hired 10 additional staff members who had to be trained to test the evidence, Rios explained to the newspaper. “Our goal was to train them by the first quarter of this year, and we’ve already hired and trained them all,” the crime lab director said. “So we’re within our goal.”

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March 30, 2011

HARRIS COUNTY DISTRICT ATTORNEY USES LINGUISTICS TO TRANSFORM OLD CASES INTO COLD CASES

Filed under: Federal Defense Attorney — Tags: , , , , , , — johntfloyd @ 3:00 am

Decades old cases are prosecuted without any new evidence and with critical fact witnesses missing or dead, increasing likelihood of wrongful convictions

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Roy McCaleb was murdered in Harris County on September 22, 1985. The Houston Chronicle reported that McCaleb’s wife, Carolyn Sue Krizan-Wilson, told the police that a gloved man entered their Galena Park home, raped her, and then shot her husband as he lay sleeping. She said the intruder was the same man who had raped her ten days earlier and he had somehow tracked her down in order to do it again. According to the newspaper, Krizan-Wilson did not report the earlier sexual assault to the police although her son at the time was in the Houston Police Department’s Training Academy. Krizan-Wilson, however, did make an “outcry” to a fellow employee shortly after the first rape occurred. She would later say she was too “embarrassed” to report the first rape.

Law enforcement interest settled on Krizan-Wilson early in the McCaleb murder investigation for several reasons: first, there was no sign of forcible entry into the McCaleb’s east Houston residence; second, she didn’t stay at the hospital long enough to undergo a rape examination; third, she was the primary beneficiary of McCaleb’s estate and insurance policy; fourth, she refused to take a polygraph examination; and, fifth, she was married to another man at the time she married McCaleb and had left him taking a $4,000 tax refund check with her.

Realizing that she had become the police’s only suspect in her husband’s murder, Krizan-Wilson hired local attorney Clarence Thompson to represent her. Thompson hired a private investigator named Rafael Gonzales to investigate the case. The attorney also hired a forensic examiner named Floyd McDonald to process the vehicle in which the first rape of Krizan-Wilson occurred. The vehicle has never been examined or processed by the police department.

Detective Robert Parish was one of the homicide investigators who worked the McCaleb case. He simply could not develop sufficient evidence to arrest Krizan-Wilson. He and other investigators met with an assistant district attorney in the Harris County District Attorney’s office. They unanimously agreed “they just didn’t have enough evidence to go forward with a winnable case.” That was a significant decision in 1985. Johnny Holmes was the county’s district attorney at the time. He, and his entire staff, including his successor Charles “Chuck” Rosenthal, were as pro-prosecution as they come, especially in murder cases. In fact, as legend has it, the Holmes crowd once successfully prosecuted a ham sandwich for theft of the cheese.

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March 19, 2011

CONSENSUAL SEX WITH A MINOR-RAPE AND MASS HYSTERIA

Filed under: Sexual Assault Crime Attorney — Tags: , , , , , — johntfloyd @ 6:25 pm

Shocking Allegations Of Sexual Assault In Cleveland, Texas

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Allegations of mass rape have literally ripped apart the social fabric of Cleveland, Texas, a Liberty County community of 7000-plus people just 45 miles north of Houston. The town has never been known as a bastion of racial harmony, but the sexual assault of an 11-year-old Hispanic girl there last Thanksgiving by as many as two dozen suspects—most of whom African-American—has splintered the town’s racial coexistence, which according to some was already as tattered as the neglected American flag flying above so many double-wide trailers in small Texas towns like Cleveland.

The case has drawn the social ire of community activists like Houston’s Quannell X and politicians like U.S. Rep. Ted Poe. While Quannell X roundly condemned the sexual assault of the young girl, he directed pointed criticism at the child’s parents who, according to some reports, did not supervise the 11-year-old’s promiscuous life style which included pretenses at being older and desires to be a “porn star.” Cleveland resident Kisha Williams echoed Quannell X’s criticism, telling the Houston Chronicle: “Where were [the parents] when this girl was seen wandering at all hours of the night with no supervision and pretending to be much older.”

Addressing a group of supporters of the African-American suspects arrested in the case, Quannell X pointed out that while some of the suspects have admitted their guilt, others are probably innocent. The community activist then raised a penetrating question: “She lives in another community. You mean to tell me the only men that had sex with that girl were black men, locked up in that jail?”

Rep. Poe issued a statement calling for a “thorough investigation” and “swift justice” for the 11-year-old victim.  While we agree that a thorough investigation should be done, we are perplexed, as is Quannell X, that all those arrested come from the African-American community of this small town.  It begs the question: Are law enforcement focusing only on black suspects.

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September 13, 2010

RECOMMENDATIONS FROM THE TIMOTHY COLE ADVISORY PANEL ON WRONGFUL CONVICTIONS

Filed under: Houston Criminal Lawyer — Tags: , , , , — johntfloyd @ 5:09 pm

Current Eyewitness Identification Procedure Reinforce False Memories and Lead to Wrongful Convictions

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

There have been 258 DNA exonerations in this country over the last two decades, according to the New York-based Innocence Project. In approximately 75 percent of those cases, eye misidentification played a significant role. It is an issue we have thus far blogged about four times this year (here, here, here, and here) and four times last year (here, here, here, and here)—the latter two 2009 posts dealing with the wrongful conviction of Timothy Cole.

The wrongful conviction of Cole is a tragic affair no matter how it is viewed. It has had much the same impact on the Texas criminal justice system as the 1999 wrongful conviction of Clarence Elkins, Sr., had on the Ohio criminal justice system. The same year Elkins was wrongfully convicted Cole died in a Texas prison from asthma complications. Fourteen years earlier he had been a 26-year-old student at Texas Tech University. The university and the entire Lubbock community were under siege from a serial rapist who had sexually assaulted five women between December 1984 and April 1985. The fifth woman attacked was 20-year-old Tech student Michele Mallin.

In an effort to apprehend the serial rapist, the local police assigned an undercover female officer to hang around the university campus. One evening the officer walked into a popular pizzeria frequented by students. Timothy Cole happened to be in the pizzeria. After having a coke, the officer got up and walked out of the restaurant. Cole followed. He walked directly to his car, but before driving off, he pulled up alongside the undercover officer who was strolling down the street. Cole struck up a conversation with officer and they traded names, although the officer refused to give him her telephone number. Cole drove off.

Since Cole was the only man who approached the officer that night, she turned his name into investigators working the serial rapist case. They ran Cole’s name and discovered he had reported being robbed at a local pool hall several weeks earlier. When the police went to investigate the robbery report, they noticed he had a weapon that appeared to have been fired. This led to a search of Cole—a search that revealed he had a small amount of marijuana in his possession. He was arrested on misdemeanor drug and weapon charges. One of the arresting officers in this case was the same “undercover” officer who turned his name into the serial rapist investigators.

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