CRIMINAL JURISDICTION

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

October 1, 2009

SEX OFFENDER REGISTRATION LAWS BEG REFORM

Filed under: Sexual Assault Crime Attorney — Tags: , , , , , , — johntfloyd @ 1:28 am

Some in Law Enforcement, Legislatures, Find Federal Sex Offender Registration Laws Too Broad, Onerous

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

In April 2009 CNN reported that there are 38 states in these United States which require juveniles convicted of sex offenses to “register” as sex offenders. The Houston Chronicle (September 21, 2009) featured a front page article by Renee C. Lee (“A Long Wait to Get Past Crime”) which reported that there are approximately 3,600 registered juvenile sex offenders in the State of Texas, according to the Texas Department of Public Safety. The newspaper noted that eleven of these juveniles were ten years of age when they were registered.

The increased number of juveniles being compelled to register as “sex offenders” when convicted of any sex-related offense is a direct result of the 2006 Adam Walsh Child Protect and Safety Act. Title I of the Walsh Act is called the Sex Offender Registration and Notification Act (“SORNA”) which expanded the National Sex Offender Registry and established sanctions up to a maximum of twenty years for sex offenders who do not comply with the law’s registration requirements. SORNA applies to all 50 states, the District of Columbia, the five principal U.S. territories (Guam, American Samoa, the Northern Mariana Islands, the Virgin Islands, and Puerto Rico), and the federal Indian tribes whose jurisdictions are defined by the statute.

But with its frequency of application to juveniles, SORNA has triggered a growing debate among child protection advocates who favor registration of all sex offenders regardless of age and some who say the registration law creates more harm than good when it comes to juvenile sex offenders. A growing number of law enforcement officials have weighed in on the debate saying the by placing so many relatively minor sex offenders—such as most juveniles—in the sex offender registry limits their ability to track far more dangerous sex predators. And some state legislatures such as California, already faced with dire fiscal restraints on their budgets, have begun to seriously question the costs involved in tracking non-dangerous, especially juvenile. sex offenders through sex offender registries.

In a March 1, 2008 article (The Walsh Act And Its “SORNA” Implications), we reported about the growing dissatisfaction in Texas among “an unlikely coalition of law-and-order conservatives: victims’ rights advocates, prosecutors, and ‘tough-on-crime’ legislators. These critics now believe that SORNA is too costly, unnecessarily strict, and has the potential of harming the very victims it was designed to protect.” (more…)

August 25, 2009

ASKING HARD QUESTIONS TO ARRIVE AT THE APPROPRIATE PUNISHMENT

Filed under: Sexual Assault Crime Attorney — Tags: , , , , — johntfloyd @ 2:27 pm

Judges Should Question Victims, Witnesses, About Offense Before Imposing Punishment

By: Houston Criminal Defense Lawyer John Floyd and Billy Sinclair

Under Texas law, a criminal defendant has the option of allowing either the jury that convicted him or the judge presiding over the trial to assess punishment.

In 2008, Emiliano Escobar, convicted by a jury of the sexual assault of an 18-year-old college student, elected to have 177th Criminal District Court Judge Kevin Fine decide the punishment he should receive. To arrive at a punishment that fit the crime, Judge Fine obviously believed he had a duty to closely question the victim about the nature and circumstances of the alleged sexual assault. At one point during the Judge’s examination of the victim, he commented that “sending a man to prison in the name of law and order is the greatest injustice this society can do.”

We agree. 75 percent of the nearly 250 DNA exonerations in this country over the last two decades involved mistaken eyewitness identification. In Texas, the mistaken eyewitness identification percentage is 82 percent in exoneration cases. Two recent Houston cases, Ricardo Rachell and George Rodriquez, come to mind. Both were wrongfully convicted based on false and/or mistaken eyewitness identification. 1/ Various reputable studies, including a 1996 study by the U.S. Justice Department, report that anywhere from 25 to 40 percent of all rape allegations made in this country are false. 2/

But Houston Chronicle columnist Lisa Falkenberg did not agree with Judge Fine’s questioning of the victim—not just with the manner of the Judge’s examination but more with the fact that he even conducted the examination. 3/ After reading the trial transcript of the Judge’s examination, Ms. Falkenberg conducted a telephone interview with the victim who also believed the Judge had “crossed the line” as she told the newspaper columnist.

Ms. Falkenberg and the victim were particularly disturbed that Judge Fine not only challenged the victim’s version of the events but questioned her detailed description of the actual sexual assault itself. According to Ms. Falkenberg, the victim was “shocked” that Judge Fine found it “odd” the alleged rape actually occurred with the victim on top of Escobar during the sexual intercourse. (more…)

August 12, 2009

SIXTH INNOCENT HARRIS COUNTY MAN FREED

Filed under: Sexual Assault Crime Attorney — Tags: , , , , , — johntfloyd @ 12:36 pm

Hall of Shame: Texas Leads Nation in DNA Exonerations

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

That the Houston City Police Department’s Crime Lab was a lawless, rogue unit serving the “convict at any costs” philosophy of the Harris County District Attorney’s Office during the Johnny Holmes and Charles “Chuck” Rosenthal administrations, between 1980 and 2005, is no longer a subject of serious debate. Dozens, possibly hundreds, of innocent people—mostly poor minorities charged with homicides or sex crimes—were railroaded off to Texas prisons based on fabricated (or at best faulty) forensic evidence supplied by the Crime Lab and/or due to mistaken identification secured to corrupt pretrial photo lineup procedures.

On June 13, 2007, former U.S. Justice Department Inspector Michael Bromwich issued a 400-page report that concluded the crime lab’s DNA and serology departments had made hundreds of “serious and pervasive” mistakes in homicide and sexual assault cases. Bromwich two-year investigation examined more than 3500 cases processed by the crime lab over the previous quarter century. 135 of those were DNA cases handled by the crime lab between 1992 and 2002, Bromwich’s investigators found “major issues” in 43 of those cases, and, even more disturbing, found “major issues” in 4 of the 18 death penalty cases it examined.

Before Bromwich initiated his investigation, and following a 2002 “audit” of the crime lab ordered by city officials, two Harris County criminal defendants were ordered released by local courts after it was determined that the crime lab’s false forensic evidence had resulted in their wrongful rape convictions. George Rodriquez was released in 2004 after serving 17 years in the Texas prison system for kidnapping and rape. A Harris County federal jury awarded him $5 million this past June based on the city’s “deliberate indifference” to the recurring problems at the crime lab. In 2003 Josiah Sutton was released after serving 4 ½ years for a rape conviction after DNA tests discredited forensic tests performed by the crime lab. The following year Gov. Rick Perry granted a “full pardon” to Sutton.

Since the June 2007 release of the Bromwich report, four additional Harris County criminal defendants have been ordered released by local courts after it was determined they had been wrongfully convicted of sex offenses. The first was Ronald Gene Taylor who was released in October 2007 after serving 14 years for a rape conviction. DNA evidence—semen on the rape victim’s bed sheet which had not been tested by the crime lab—revealed that the semen belonged to another man who had a history of violent sexual assaults. (more…)

July 21, 2009

MENTALLY RETARDED TEEN GETS 100 YEARS

Filed under: Sexual Assault Crime Attorney — Tags: , , , , , , — johntfloyd @ 3:29 am

Mentally Disabled Youth with IQ Of 47, Allowed to Plead Guilty to Sexual Assault of a Child, Judge Orders Sentences to be Served Consecutively

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

The jury said it did not like the sentencing options made available to it. The judge said he was not pleased that he had to sentence an 18-year-old Paris, Texas teenager to 100 years in prison. The district attorney said he “sympathized” with teenager’s situation but it had to be remembered that he “committed a violent sexual crime against a little boy.”

What exactly did Aaron Hart do? A neighbor said she discovered the mentally retarded teenager, who has an IQ of 47, fondling her stepson last November. Hart was arrested and charged with five counts of aggravated sexual assault of a child and indecency with a child.

Hart’s attorney allowed the mentally disabled youth to plead guilty at the punishment phase of his trial but elected to have the jury assess punishment at the penalty phase. After hearing all the evidence, jurors were not convinced that prison was the best option for Hart. They sent notes to the judge requesting guidance on possible alternatives to imprisonment. Jurors told the media following the trial that the judge’s responses did not provide them with any “clear answers.” They assumed the judge would impose concurrent sentences on the five convictions.

But that is not what the judge did. He sentenced Hart to 5-year terms on two counts and 30-year terms on three counts. The judge ordered the sentences to be served consecutively for a total of 100 years. Lamar Count Judge Eric Clifford’s offered the lame excuse that he didn’t believe he had any other sentencing options because “in the state of Texas, there isn’t a whole lot you can do with people like him.” (more…)

July 17, 2009

CHILD ADVOCATES OR HIRED GUNS?

Filed under: Child Abuse Crimes Lawyer — Tags: , , , , , — johntfloyd @ 1:34 am

Criminal Defense Attorneys Must Be Prepared To Aggressively Challenge Child Assessment Center, Child Abuse Experts

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

The “Mission” statement of the Houston Children Assessment Center “is to provide a professional, compassionate, and coordinated approach to the treatment of sexually abused children and their families and to serve as an advocate for all children in our community.” In its 2008 Annual Report, Yolanda Green, President of the Board of Directors of CAC, added that CAC “is an agency where children whose lives have been torn apart are given hope and the opportunity to begin the road to recovery.”

The CAC, which was founded in 1991, has morphed into more than a child advocacy and protection center. It has become a quasi-official arm of law enforcement and supplies professional witnesses for the Harris County District Attorney’s Office in child sexual assault cases. Virtually every criminal defense attorney in Harris County who has tried a child sexual abuse case faced a CAC “expert” brought into court to testify for the prosecution about these cases. The agency has a history of misrepresenting the facts in these cases to Harris County juries, sometimes at the behest of the District Attorney’s Office.

For example, in April 2004 former Harris County District Attorney Chuck Rosenthal was forced to admit that “faulty physical exams” performed by a former nurse at CAC had put in jeopardy some 170 child sexual abuse cases and had possibly resulted in the wrongful conviction of some people.

Children suspected of being the victims of sexual abuse are given physical examinations, counseling and other services at CAC. The District Attorney’s office then uses the center’s “experts”, such as the former nurse who conducted the faulty physical exams in 2004, to testify about the impact on the abused children. Despite the 2004 fiasco, the District Attorney’s office continues to utilize CAC “experts” in child sexual abuse cases, knowing full well the center’s propensity to distort data in this sensitive field. (more…)

July 6, 2009

SHOULD EVIDENCE OF PRIOR FALSE ABUSE ALLEGATIONS BE ADMISSIBLE IN SEXUAL ASSAULT CASES?

Filed under: Sexual Assault Crime Attorney — Tags: , , , , , — johntfloyd @ 1:06 pm

Inadmissible Evidence under 608(b) of the Texas Rules of Evidence May be Admissible under 613(b), Rule 412 or Confrontation Clause

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

A Harris County federal jury recently awarded $5 million to George Rodriquez for the 17 years he spent in the Texas prison system after being wrongfully convicted of the rape of a 14-year-old girl. And a Harris County district court judge last December ordered Ricardo Rachell released after he spent six years in the Texas prison system after being wrongfully convicted of sexually molesting an eight-year-old boy.

These two cases are just a series of wrongful convictions in sex offense cases that have been uncovered in Harris County and throughout the State of Texas. It is easier to wrongfully convict a person of a sex offense than any other crime. There are few crimes that carry such a heinous social stigma. Just the mention of a child sex crime often creates a presumption of guilt (Just look to Michael Jackson). It is one of the few crimes that require only the word of the alleged victim to establish the guilt of the person accused. These are generally “she said/he said” kinds of facts scenarios. Just last year, this Firm successfully defended, at two separate trials, a corrections officer who had been charged with child sex crimes based solely on the word of the female inmates. Although our client was acquitted of the false rape accusations, he and his family were put through an ordeal of financial sacrifice, shame and embarrassment, and the loss of his career in law enforcement.

Beyond intentionally submitted false forensic evidence and mistaken identification, why is it so easy to wrongfully convict defendants charged in sex offense cases? The primary reason is that the evidentiary rules of evidence are stacked against the defendant in favor of protecting the alleged victim from further emotional “trauma” associated with sexual assault. For example, in Texas, a defendant does not have a per se right to impeach a sexual assault victim about prior false sexual assault allegations made by the victim.

The Texas Court of Criminal Appeals (“CCA”) made this abundantly clear in 2000 in the case of Rudolfo Lopez. 1/ Lopez was convicted of sexually assaulting a 12-year-old boy (forcing the boy to perform oral sex on him over a period of several months) and sentenced to twelve years in prison. At his trial Lopez had sought to introduce evidence that two years earlier the boy had made a false allegation of physical abuse against his mother; namely, that his mother had thrown him against a washing machine. Lopez sought to use this false allegation the boy had made to the Department of Human Services, but the trial court refused to allow the evidence under Rule 608(b) of the Texas Rules of Evidence. Although a state appeals court would later rule that the evidence should have been admitted, the CCA reversed the appeals court ruling and upheld the trial court decision not to admit the false allegation evidence. 2/ (more…)

June 30, 2009

THE DNA FALLOUT CONTINUES

Filed under: Sexual Assault Crime Attorney — Tags: , , , , , , — johntfloyd @ 6:04 pm

District Attorney’s Office of the Third Judicial District v. Osborne; U.S. Supreme Court Blocks Ability for Wrongfully Convicted to Prove Innocence

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

George Rodriquez spent 17 years in the Texas prison system for a crime he did not commit. He was 26 years of age in 1987 when he was wrongfully convicted by a Harris County jury for the rape of a 14-year-old girl. The jury based its decision on a critical piece of forensic evidence; a pubic hair found in the victim’s underwear. A serologist with the Houston City Police Department’s Crime Lab determined that the pubic hair did not belong to another suspect in the rape case, Isidro Yanez. The serologist testified at Rodriquez’s trial, saying that while his forensic testing ruled out Yanez, it did not rule out Rodriquez.

Seventeen years later DNA testing established that the pubic hair in fact belonged to Yanez and not to Rodriquez. Rodriquez was released from prison in 2004. The Harris County District Attorney’s office refused to declare Rodriquez “actually innocent” of the crime. That official refusal to acknowledge his innocence precluded him from receiving a pardon and being awarded state compensation for his wrongful confinement. He filed a federal civil rights suit against the City of Houston and a federal court jury on June 25, 2009 awarded him $5 million dollars in damages for the 17-year wrongful imprisonment.

The Rodriquez case has not been the only Texas DNA case is the news lately. Two men convicted in the infamous 1991 Austin “yogurt shop” murder case were recently released on bond from jail. The convictions of the two men, Michael Scott and Robert Springsteen, were reversed several months ago on appeal after DNA tests on the state’s evidence indicated the presence of an unknown suspect. Attorneys for the two men say the presence of DNA evidence of the unknown suspect exonerates their clients. Prosecutors do not agree. They believe the new evidence only indicates that yet another person was involved in the crime; therefore, prosecutors plan to continue their prosecution of Springsteen and Scott for the murders of the four teenage girls killed during the robbery of the Austin yogurt shop.

These two Texas cases illustrate the potentially devastating impact of a recent U.S. Supreme Court decision in an Alaska case that held state prisoners do not enjoy a constitutional right to post-conviction access to the State’s evidence for DNA testing. 1/ (more…)

April 16, 2009

THE CONTINUING SAGA OF THE WRONGFULLY CONVICTED

Filed under: Sexual Assault Crime Attorney — Tags: , , , , , — johntfloyd @ 5:43 pm

Factors Contributing to Wrongful Convictions and Unjust Imprisonment

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

In a March 16, 2009 article (“Cold Shoulder from Lubbock Officials in Cole Case”), we wrote extensively about the tragic wrongful conviction of Timothy Cole. A military veteran and college student, this son of a school teacher and Bell Helicopter manager was convicted in 1986 for the December 1985 rape of a Texas Tech student in Lubbock, Texas. Despite vigorous protestations of innocence from Cole and his family, Cole was convicted and sentenced to 25 years in prison where he died fourteen years later.

In February, state district judge Charles Baird indicated from the bench that Cole had been wrongfully convicted after DNA evidence established his innocence and pointed the finger of guilt at another convicted rapist already housed in the Texas prison system for several other Lubbock rapes. On April 7, 2009, Judge Baird made his February finding official and formally ruled that Cole had been wrongfully convicted. That ruling made Timothy Cole the first person in Texas history to be exonerated posthumously by DNA evidence.

Cole’s family recently met with Texas Gov. Rick Perry to request a posthumous pardon. All indications are that the governor will honor the request.

“When we started this back on September 26, 1986, when Tim was convicted, we knew this would not be a sprint race,” Cory Session, Timothy’s brother, recently told AP writer Jeff Carlton. “It was going to be a marathon. Here we are a quarter of a century later.” (more…)

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