CRIMINAL JURISDICTION

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

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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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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May 23, 2011

ACTUAL INNOCENCE-PUTTING A CAMEL THROUGH EYE OF A NEEDLE

Filed under: Houston Criminal Lawyer — Tags: , , , , — johntfloyd @ 9:44 am

Habeas Claims of Actual Innocence Require “Herculean” Burden by Clear and Convincing Evidence

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

It was March 22, 1987. Near midnight. The Dallas Police Department received a report that a man was lying face down in the street. The man was Jeffery Young who was transported to an area hospital, unconscious and bleeding. Before regaining consciousness, Young died and a subsequent autopsy revealed he had died from what the Texas Court of Criminal Appeals said was “severe skull fractures that were the result of multiple blows to the head.” The Dallas police then received another report about a BMW parked in an alley near where Young had been found mortally injured. The police quickly determined the BMW belong to Young.

Two days after Young’s murder a witness name Gladys Oliver went to the police to report what she had seen in the alley the night Young’s BMW was located. She informed the police that there were other witnesses besides her who also saw what transpired in the alley that night. She told investigators she belatedly decided to come forward with her information after learning they had arrested a man named Van Mitchell Spencer for stealing Young’s vehicle. She said the police had the wrong man in custody because she saw Benjamine John Spencer, not Van Mitchell Spencer, getting out of Young’s vehicle in the alley. Another witness, Charles Stewart, whose name was supplied by Oliver, told the police Benjamine Spencer got out of the passenger side of the vehicle, jumped Oliver’s fence, and went through her back yard. He said that when the car door of the vehicle opened a light came on and, besides Spencer, he saw a second man named Nathan Robert Mitchell in the vehicle as he was getting out on the driver’s side. A third witness named Donald Merritt told the police he saw a white man lying in the street, bleeding from the head and struggling to breathe. Merritt also saw the BMW in the alley with an individual named Nathan Robert Mitchell standing next to it. Finally, a fourth witness named Jimmie Cotton told the police that he was cooking dinner in his kitchen when he saw the BMW drive into the alley and Spencer exit the vehicle on the passenger side shortly afterwards.

Based on the information provided by these four witnesses, the Dallas police arrested Spencer and Mitchell for the murder/robbery of Young. All the witnesses testified at Spencer’s trial. Their testimony revealed that the alley in which the BMW pulled into ran behind Oliver’s residence. All the witnesses testified they could see everything in the alley because a nearby street light was on as well as a neighbor’s back porch light. Stewart added that in addition to these lights the light inside the vehicle came on when its doors were open, allowing him a clear view of occupants. Oliver also added that she did not provide the police with this information the day after Young’s murder when the police did a door-to-door canvassing because she feared for her life.

The conditions under which these eyewitness identifications were made are important in this case because, as the New York-based Innocence Project has reported, 75 percent of the 269 DNA exonerations in this country since 1989 involved eyewitness misidentifications. Dallas prosecutors bolstered these eyewitness identifications with testimony from a “jailhouse snitch” named Danny Edwards who was one of Spencer’s cellmates in the county jail. Edwards informed the police that Spencer had told him that he struck Young several times in the head with a pistol before placing him in the backseat of the BMW at which time he struck him several more times as Mitchell drove the vehicle. Edwards testified at Spencer’s trial that Spencer then kicked Young out of the vehicle. Spencer, according to Edwards, killed Young for the BMW which he planned to take to a “chop shop.”

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December 11, 2010

THE TEXAS DEATH PENALTY SYSTEM BROKEN

Filed under: Death Penalty Crimes Lawyer, Homicide Crimes Lawyer — Tags: , , , , , , — johntfloyd @ 1:59 pm

Nationally Recognized Experts, Retired U.S. Supreme Court Justice Cite Risk of Innocents Being Put to Death, State of Texas Replies “No Comment”

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

That question could reasonably be asked of any state that maintains the death penalty. Every system of punishment is cracked in one way or another. The fact that 138 condemned inmates in 26 death penalty states have been exonerated since 1973, and the fact that there have been261 DNA exonerations in this country since 1989, and the fact that our law books are filled with reversals of criminal convictions and death sentences offers compelling evidence that our entire criminal justice system, and, in particular, our death penalty systems is if not broken, certainly flawed. Earlier this year Harris County Criminal District Court Judge Kevin Fine stirred considerable legal and political controversy when he declared from the bench that Texas’ death penalty procedures were unconstitutional. The backlash was so intense, from the state’s attorney general to its governor, that Judge Fine clarified his ruling the next day by saying he had not actually declared the death penalty process unconstitutional and ordered attorneys in the case to submit additional legal arguments detailing how the process was so flawed that it violated the “cruel and unusual punishment” provisions of the Eighth Amendment.

University of Houston Law Center Professor Sandra Guerra Thompson was quoted at the time in the Houston Chronicle at the time as saying: “You never know [if such a ruling will withstand appellate review), but I don’t see it happening at this time. Technically, they’re [the appellate courts] are bound by precedent. There are laws on the books that have ruled on this type of question.” But Professor Thompson added that Judge Fine may have simply wanted to trigger a dialogue in the court system about the death penalty. “If they [judges] feel strongly enough, sometimes they’ll grant a motion like this to buck the system, just to stir the waters.”

Judge Fine’s ruling came in the case of John Edward Green who was indicted for capital murder in an “ambush robbery” in southwest Houston in June 2008 which left Huong Thien Nguyen dead and her sister critically wounded. The alleged evidence against Green is a palm print, an eyewitness identification, and a jailhouse informant—all of which are flawed according to Green’s attorneys, Richard Burr, John “Casey” Keirnan, and Robert Loper. The attorneys have argued in extensive pretrial motions and briefs that their client is innocent, and because the Texas death penalty process is so broken in that it creates a high risk of innocent people being put to death, their client cannot receive a fair trial.

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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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May 25, 2010

SUPREME COURT ADDRESSES LIFE WITHOUT PAROLE FOR JUVENILES

Filed under: federal Appeals Attorney — Tags: , , , , — johntfloyd @ 3:07 am

Are Life Sentences Appropriate for Juvenile Offenders?

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

The United States Supreme Court finally addressed for the first time a long debated issue: whether juveniles can be sentenced to life without parole (“LWOP”), a sentence normally reserved for the very worst offenders. In its decision finding that LWOP for juvenile offenders was unconstitutional, the Court pointed out that only six states in this country do not have LWOP for juveniles. Fortunately, the State of Texas is one of those states. The Legislature last year eliminated the penalty provision from its sentencing practices.

But thirty-seven other states and the District of Columbia permit juveniles to be sentenced to LWOP for non-homicide offenses under specific circumstances. Seven other states allow LWOP for juveniles but only for homicide crimes. Federal law permits juveniles as young as 13 to be sentenced to LWOP while a child as young as 5 years of age can be sentenced to LWOP in Florida, according to the Supreme Court.

The court’s recent decision addressed only those juveniles sentenced to LWOP for non-homicide offenses—a penalty available in only twelve states as pointed out by the court. Therefore life sentences, with possibility of parole are still permissible.

The court was independently able to identify a total of 129 juveniles serving LWOP in those twelve states with 77 of them being in the State of Florida.

The case before the court originated from Florida. It involved the LWOP imposed on Terrance Jamar Graham. The court outlined Graham’s troubled personal and criminal history. You can be the judge of whether you think a LWOP was the appropriate sentence. More to the point, you can decide whether you think the State of Florida—or any of the other eleven states that have LWOP for juveniles committing non-homicide offenses—can keep juvenile offenders like Terrance Graham locked up for the rest of their lives because the Supreme Court held that life imprisonment per se is not “cruel and unusual punishment.” The court pointedly noted that an offender sentenced to life imprisonment as a juvenile has a right to parole eligibility but not to parole release itself, thus the potential for “natural life” incarceration. You be the judge.

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March 31, 2010

MIRANDA TAKES MORE HITS FROM SUPREME COURT

Filed under: Houston Criminal Lawyer — Tags: , , , , , — johntfloyd @ 11:46 pm

Florida v. Powell and Maryland v. Shatzer:  Why Criminal Suspects Should Never Talk to the Police Without an Attorney

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

In December 2008 police officer Timothy Abernethy was chasing a suspect through a Houston apartment complex when the suspect, M. J. Landor, reportedly fired several shots at the officer. According to official reports, one of the bullets knock the 11-year police veteran to the ground at which time Landor approached him and shot him in the head. A massive police manhunt was undertaken to apprehend Landor, a parole violator, who was captured several hours later. Landor reportedly gave the police a detailed confession to the crime during several hours of police questioning.

Landor’s capital murder trial got underway recently with the Harris County District Attorney’s Office seeking the death penalty. Laine Lindsey, Landor’s attorney, filed a motion to suppress the videotaped confession his client gave to the police. Evidence presented at the hearing, and reported in the Houston Chronicle, revealed that the police questioned Landor for approximately four hours before they actually began to videotape the suspect’s statement. Landor told the court he falsely confessed to shooting Abernethy because he was afraid the police were going to kill him. Assistant District Attorney Maria McAnulty dismissed Landor’s testimony as being untruthful, telling the court the videotape clearly shows the suspect was advised of right to remain silent.

Lindsey pressed the court to suppress the confession because the police, three of whom were in the interrogation room and a larger group standing outside the room, questioned Landor for more than four hours before turning on the recorder and videotaping just 20 minutes of the interrogation. During the 20-minute taped session, Landor said the shooting of Abernethy was a “freak accident;” that he fell while being chased by the officer and the gun went off at which time he kept shooting. McAnulty called several police officers who testified about what Landor reportedly told them when the interrogation session was not being taped; specifically, that Landor admitted he walked over and shot Abernethy in the head as he lay wounded on the ground.

Given the discrepancies between what Landor told the police during the 20-minute videotaped session and what he reportedly told the police during the four-hour non-taped session, Lindsey had every reason to press for the suppression of the all statements made by his client. Not unexpectedly, however, State District Judge Michael McSpadden denied the defense attorney’s suppression motion.

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February 26, 2010

PROBLEMS WITH POSITIVE IDENTIFICATIONS

Filed under: Houston Criminal Lawyer — Tags: , , , , , — johntfloyd @ 3:57 pm

Leading Cause of Wrongful Convictions: Mistaken Identification by Eyewitnesses

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

There have been 251 innocent people exonerated in this country by DNA evidence over the last two decades. The most disturbing aspect of this phenomenon of “convicting the innocent” is that more than 75 percent of those convictions involved mistaken identifications (according to the New York-based Innocence Project)—one or more witnesses pointing a finger of guilt at the wrong person. What is even more disturbing is that at least one-third of these mistaken identification cases involved two or more witnesses.

The lesson in these shocking figures is that what people see, or believe they saw, is not always reliable. This is especially true when the witness identification procedure is corrupted by rogue cops deliberately trying to frame innocent individuals. That’s what happened to Donald Wayne Good who, on June 18, 1983, was arrested, charged, convicted, and sentenced to life imprisonment in Irving, Texas for an aggravated rape, aggravated robbery, and burglary of a habitation for which he did not commit.

Beyond a doubt someone did break into the home of “Jane Doe,” bound her and her eight-year-old daughter, and forced Doe into a bedroom in the home where he raped the mother. The local Irving Police Department arrived after and processed the crime scene. The rape victim was taken to a local hospital where a “rape kit” examination was performed. After this examination was conducted, the victim met with investigators at which time she described her attacker as a white male in his mid-20s, six feet tall, weighing 190 pounds, clean shaven, with a dark tanned medium or large build, and blondish-brown hair. Based on this description, a police sketched artist prepared a “composite sketch” which was distributed throughout the Irving Police Department.

This is where Irving police detective Fred Curtis came into the picture. One of the detectives assigned to the Doe rape investigation, Curtis had been investigating a number of other “unsolved daytime burglaries” in the area. Curtis believed Good, who had been arrested three days (and subsequently released) before the Doe rape for bond forfeiture of a previous DWI arrest, was involved in the daytime burglaries. The detective called Good into his office to interview him about the string of burglaries. The interrogation didn’t go well for Curtis because Good refused to cooperate with the investigation. At this point in the interrogation the detective snatched up the composite sketch of the Doe rapist he had just received and told Good he looked “somewhat similar” to the rapist. And the detective then threatened Good by telling the suspect that he could “fix it” to make sure Good looked just like the Doe rapist if he didn’t cooperate. Good still refused to cooperate.

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