CRIMINAL JURISDICTION

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

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,

(more…)

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.

(more…)

December 1, 2010

REFORM CAN SOMETIMES BE BAD MEDICINE

Filed under: Houston Criminal Lawyer — Tags: , , , , — johntfloyd @ 4:16 am

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Like all cold and flu medicine, “reform” at the governmental level sometimes gags those resistant to changing practices and policies away from the bad toward the good. Harris County District Attorney Pat Lykos was elected on the theme that she would introduce “reform” to the district attorney’s office and put an end to the often illegal and unethical practices of the “convict at any cost” which hallmarked the former administrations of Charles “Chuck” Rosenthal and his predecessor Johnny Holmes. The trial of a criminal case is controlled by three entities: the judge, the prosecutor, and the defense counsel. To be effective and responsible, each entity must do their job in an honest, decent, and fair way. That was seldom the case under Rosenthal and Holmes.

Most often when there is a breakdown in the adversarial process of a criminal trial it is caused by “rogue” prosecutors engaging in underhanded or unethical conduct. We don’t respect or tolerate these kinds of prosecutors. We have made that abundantly clear with recent posts (here andhere). The “duty of the prosecutor” is not only to convict but to seek justice as well. The latter responsibility is where too many prosecutors lose their way in our adversarial system of justice. Just as the police too often develop “tunnel vision” (an unreasonable focus on one suspect at the exclusion of all others) in criminal investigations, prosecutors develop their own tunnel vision focused on individual success and professional acclaim fueled by the “convict at any costs” mindset.

The Houston Chronicle ran a story (Nov. 17, 2010) titled “The Two Sides of DA Pat Lykos” written by Brian Rogers.  Citing friends and foes, the newspaper attempted to present two conflicting portraits of the reform-minded district attorney: one as “a seasoned administrator who rides herd over innovative projects that garner respect from other officials” and the other as “a woman who continues to watch talented lawyers walk out the door, her staff demoralized because, they say, she cares more about public perception than prosecutors.”

Let us first say that we do not care as much for “anonymous sources” as journalists do. We have seen too many innocent people subjected to illegal and baseless searches and seizures triggered by “anonymous sources” which later lead police to “confidential informants.” If a person is willing to speak to a journalist about his/her gripes or complaints in the work place, they should have the courage to be identified. It has been our experience that people who hide behind anonymity are too often “loose with the facts” and are generally motived by some personal agenda to get even with the people they are complaining about.

(more…)

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.

(more…)

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…)

Powered by WordPress © 2010 John T. Floyd III Crimnal Defense Attorney : Webmaster Kevin Grey Lee