CRIMINAL JURISDICTION

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

January 14, 2009

SAME CLIENT: ANOTHER TRIAL, ANOTHER ACQUITTAL

Filed under: Sexual Assault Crime Attorney — Tags: , , , , — johntfloyd @ 7:24 pm

Client Falsely Accused of Child Sexual Abuse Wins Second Acquittal Against Determined Public Integrity Unit Prosecutor

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

In early 2008 the Harris County District Attorney’s Office launched an investigation into alleged sexual abuse of inmates housed at a county detention facility. It is unclear exactly what prompted the inquiry, but a reasonable assumption can be made that the decision was influenced by the massive media and legislative attention given to evidence uncovered in 2007 by the Texas Rangers about widespread sexual abuse of inmates by staff in the state’s juvenile detention facilities.

Whatever the reason, a former Harris County detention facility officer was indicted between April and July of last year on multiple counts of sexual abuse of three female inmates during the time they were housed at the detention center in 2000. The former corrections officer, who had since become a deputy constable, retained the John T. Floyd Law Firm to represent him on the charges.

Two of the inmates were between 10 and 11 years of age and one was 13 or 14 years of age at the time of the alleged abuse [one instance of alleged sexual intercourse and numerous instances of inappropriate touching]. The teenage victim had already given birth to one of her six illegitimate children and was pregnant with the second at the time of the alleged abuse. All three victims had long histories of lying (even by their own admissions), drug use, stealing, and serious psychological disorders. The sexual abuse allegations by one of the former inmates against our client were thoroughly investigated in 2000 by detention center staff, the Houston Police Department and the District Attorney’s Office. The three law enforcement agencies determined the allegations were not credible, and, in fact, the alleged victim ultimately recanted the allegation, admitting that she had lied against our client in this particular instance and other instances just to “get him in trouble.”

Nonetheless, the District Attorney’s Office in 2008 determined that this thoroughly investigated and recanted sexual abuse allegation, as well as the other similar allegations of sexual abuse leveled against our client in 2000, warranted criminal prosecution. Our client bravely stood trial in September 2008 on the most serious sexual abuse allegation [aggravated sexual assault of a child]. The victim, who is now an adult with a substantial criminal history, testified about the alleged sexual assault. The assistant district attorney prosecuting the case made a serious tactical blunder: she relied almost exclusively on the victim’s testimony which, in Texas, is sufficient alone to sustain a criminal conviction in sexual assault cases involving minors. (more…)

December 17, 2008

A DISTRICT ATTORNEY’S OFFICE IN NEED OF REFORM

Filed under: Houston Criminal Lawyer — Tags: , , , , — johntfloyd @ 6:05 pm

Ethical Lapses, Forensic Impropriety and Extreme Carelessness; Another Day at the Harris County Criminal Justice Center

By Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair

In October 2002 two young boys were playing together in downtown Houston when they were approached by a stranger who offered them money in exchange for removing some trash. One of the boys, who was eight years of age at the time, was lured into a nearby vacant house and sexually molested by the stranger.

Based on information supplied by the boy’s mother, Houston police officer Lisa Clemmons arrested a neighborhood resident named Ricardo Rachell for the sexual assault. The two boys identified Rachell as the attacker. That identification at the outset should have raised a red flag. Rachell has a terrible facial disfigurement caused by a shotgun blast years earlier. The molested boy did not mention any facial disfigurement to his mother when he initially told her about the sexual assault on the day it happened.

And the boy knew Rachell from seeing him around the neighborhood. The facial disfigurement caused Rachell to drool and he usually had a towel wrapped around his neck to wipe away the drool. While the young victim thought Rachell was “scary,” he did not identify the disfigured man as his attacker until the day after the sexual assault and only after his mother had talked to him about Rachell.

Officer Clemmons apparently did not perceive the significance of the boy’s failure to finger Rachell on the day of the attack. But she did collect biological evidence—clothing and medical swabs—from both the victim and Rachell. However, Rachell’s DNA was not processed so that it could be compared to biological evidence collected from the victim. Had Rachell’s DNA been properly processed and tested, he would not have been wrongfully convicted and sentenced to 40 years in prison in 2003.

In January 2008 Harris County Criminal District Court Judge Susan Brown issued a belated order that Rachell’s DNA be tested. In October the results of that testing disclosed unequivocally that Rachell was not the “stranger” who attack the boy. The wrongfully convicted man was released from custody on December 12, 2008 after six long years of protesting his innocence to anyone who would listen. (more…)

December 12, 2008

PROBATION ELIGIBILITY: NEW LIMITATIONS

Filed under: Houston Criminal Lawyer — Tags: , , , , , — johntfloyd @ 4:13 am

Texas Juries Can No Longer Recommend Community Supervision When Victim is Child Under 15, Elderly or Disabled

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

Community supervision, or probation as most people know it, has been defined by federal courts as an “imprisonment substitute” because the criminal sentence is not served in a penal institution. See: United States v. Elkins, 176 F.3d 1016, 1020 (7th Cir. 1999).

In the State of Texas community supervision is a privilege, not a right. See: Flores v. State, 904 S.W.2d 129, 130 (Tex. Crim. App. 1995), cert. denied, 516 U.S. 1050 (1996). It is a punishment alternative that must either be agreed to between the state and defendant, ordered by a judge or recommended by a jury.

The Flores court specifically stated that “there is no fundamental right to receive probation [community supervision]; it is within the discretion of the trial court to determine whether an individual is entitled to probation.” Id.

In Texas, community supervision can be granted either by the trial judge or assessed by the jury. See: Tex. Code Crim. Proc. art. 42.12(3)(a); (4)(d).

While there is no fundamental right to community supervision, § 42.12(3)(a) requires that the judge impose community supervision “in the best interest of justice, the public, and the defendant” – all three of which are legitimate government purposes. Flores, 904 S.W.2d at 131.

Similarly, in federal court a district judge may depart from the U.S. Sentencing Guidelines’ prison recommendation and impose probation but only after he/she has considered all the sentencing factors listed in 18 U.S.C. § 3353. See: United States v. Toohey, 448 F.3d 542, 546-47 (2d Cir. 2006).

The discretion of the trial judge in Texas to grant, and the jury’s authority to assess, community supervision are likewise limited by statute. For example, Subsection 3g(a) of § 42.12(3) prohibits the trial judge from granting community supervision: (more…)

October 30, 2008

DNA EXONERATIONS QUESTION EYEWITNESS TESTIMONY

Filed under: Houston Criminal Lawyer, Sexual Assault Crime Attorney — Tags: , , , , — johntfloyd @ 4:44 am

Flawed, Suggestive Photo Lineups Resulting in Eyewitness Misidentification and Wrongly Convicted

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

The Dallas Morning News (October 2008) ran two articles written by Steve McGonigle and Jennifer Emily that linked 19 DNA exonerations to faulty eyewitness testimony. These two investigative reporters opened their series with the tragic story of Wiley Fountain who spent 15 years in the Texas prison system wrongfully convicted of rape:

“Wiley Fountain was the obvious choice among the six Polaroids police assembled for the rape victim to review.

“He was the only man wearing a dark baseball cap and light-colored warm-up suit, similar to what the attacker had on. He fit the rapist’s description ‘to a T,’ a Dallas police officer later testified. The victim was sure. Prosecutors believed her. So did the jury. But all of them were wrong.

“In September 2002, after Mr. Fountain had spent 15 years in prison, DNA testing proved his innocence. Today, he is free but homeless, scrounging for aluminum cans on the rugged streets of South Dallas.

“The story of his wrongful conviction and that of 18 others is lifting the curtain on criminal justice in Dallas County, which has led the nation in DNA exonerations since 2001. In every instance but one, a Dallas Morning News investigation found, police and prosecutors built their cases on eyewitness accounts, even though they knew such testimony can be fatally flawed.” (more…)

October 18, 2008

THE PITFALLS OF DELAYED OUTCRY TESTIMONY

Filed under: Child Abuse Crimes Lawyer, Sexual Assault Crime Attorney — Tags: , , , — johntfloyd @ 4:05 pm

Hearsay Statements of Child Abuse Victims and Delayed Outcry

By Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair

“Hearsay” is a statement, other than one made by the declarant while testifying at a trial or hearing, offered into evidence to prove the truth of some matter being asserted. See: Tex. R. of Evid. 801. In English, hearsay is testimony about what somebody heard from somebody else. Hearsay testimony is generally inadmissible in a criminal trial. See: Tex. R. of Evid. 802. However, Article 38.072 of the Texas Code of Criminal Procedure provides an exception to the hearsay rule by allowing hearsay testimony in the prosecution of an offense committed against children twelve years of age and younger.

§ 38.072 is known as the “child outcry statute.” The statute applies only to statements made (1) by the child against whom the offense was allegedly committed and (2) to the first person to whom the child makes a statement about the offense providing that person is eighteen years of age or older. See: Sims v. State, 12 S.W.3d 499, 500 (Tex.App.-Dallas 1999, pet. ref’d).

The appeals court in Brown v. State, 189 S.W.3d 382 (Tex.App.-Texarkana 2006) addressed the “outcry” issue at some length. The case involved a 10-year-old child victim who was sexually assaulted by a friend of her father. The child reported the sexual abuse to her father. The victim was subsequently interviewed, at the behest of investigating officers, by a counselor with the Child Advocacy Center. The victim told the counselor that the first two people she told about the sexual assaults were her father and the girlfriend of the defendant. She also said that she later told her brother, aunt, and uncle. Id., at 384. At trial she prosecution called the counselor as an “outcry” witness to testify and introduced a videotape of the counselor interview with the child victim during the counselor testimony. Id., at 385.

On appeal defendant argued that by allowing the counselor to testify and permitting the introduction of the videotape, the trial court had violated the “outcry” provisions of § 37.072. The appeals court agreed. It pointed out that the victim had made outcries to her father and the defendant’s girlfriend before speaking to the counselor. The State argued that the counselor was the proper outcry witness because the victim gave her a more detailed statement about the sexual abuse than she had the other two persons. The court rejected that argument, saying: (more…)

October 16, 2008

FABRICATION:

Filed under: Child Abuse Crimes Lawyer, Sexual Assault Crime Attorney — Tags: , , , — johntfloyd @ 3:11 am

The Only Defense In Sexual Assault Cases Not Subject To Rebuttal Evidence, Keeping Extraneous Crimes, Wrongs, and Acts Out

By Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair

Writing in her book “The Cross-Examination of a Young Child in a Sexual Assault Case: Voice for the Defense” (Oct. 1999), Annabelle Hall said that jurors following a sexual assault trial involving a child raise the following questions:

  • Why would a child lie about sexual abuse?
  • How can a child know so much about sex if she has not been abused?
  • Would a child lie about sexual abuse?
  • Why would a child make the story up?

These questions clearly demonstrate why a defense attorney in a sexual assault case faces such a difficult task establishing a “fabrication” defense. A “fabrication” defense in a sexual assault case is premised on the theory that the victim has “made up” or deliberately lied about the sexual assault. As difficult as it may be to logically wrap the mind around this concept, reliable studies (including the U.S. Justice Department) have revealed that anywhere between 25 to 60 percent of all sexual assault allegations are false. Put simply, somewhere between one-quarter to one-half of the rape allegations leveled in this country are fabricated for one reason or another. Many involve child victims.

Why would a child lie about such a thing?

In Cross-Examination of Child Witnesses, presented at the 19th Annual Rusty Duncan Advanced Criminal Law Short Course in San Antonio, Texas (June 15-17, 2006), Houston criminal defense attorney Stanley G. Schneider and Dallas doctor Mark Blotcky partially answered this question:

“False allegations of sexual abuse are usually simply incorrect. They are initiated by parents or a third party, e.g., this occurs due to the hyper-vigilence [sic] of parents of young children after their parents have been sensitized by sensational news media coverage of sexual abuse scandals. Pediatricians and child mental health professionals by law also make reports to Child Protective Services of any ‘suspected’ child abuse without having to confirm its veracity. They may be acting perfunctorily and simply reporting abuse based upon a small amount of information provided by the mother, the child, or exhibited by the child’s physical or behavioral symptoms. I know clinicians who feel compelled to report even when they believe it’s highly improbable that abuse has occurred. They are practicing defensive medicine. The report itself may then become overly weighted “evidence,” as though there had been some real investigatory work done or an expert professional opinion rendered about the abuse, though the report is simply conforming to the law to report any suspected child abuse. Remember, very disturbed children, previously sexually abused children, bipolar children and others may exhibit eroticized behavior without being sexually abused. It is then easy to understand why a ‘third party’ makes a report.” (more…)

October 9, 2008

THE ACQUITTAL

Filed under: Child Abuse Crimes Lawyer, Sexual Assault Crime Attorney — Tags: , , , , — johntfloyd @ 5:23 pm

THE ACQUITTAL

John Floyd Secures Not Guilty After Jury Trial, Aggravated Sexual Assault of a Child younger than 14, 263rd District Court, Harris County, Case No. 1156699

A former Precinct 4 deputy accused of aggravated sexual assault of a child was found “not guilty” after three days of trial and six hours of jury deliberation. The State argued the defendant, in 2000, sexually assaulted an 11-year-old girl when he was a detention officer at the Harris County Juvenile Detention Center where the girl was detained.

After announcing their verdict, the jurors stated that they simply did not find the complaining witness’ testimony credible and accurate enough to convict the defendant for such a serious crime. The defense – led by John Floyd with the able assistance of co-counsel Chris Carlson and paralegal Billy Sinclair – presented the defense that the complaining witness’ sexual assault allegation was fabricated. This defense was supported by inconsistencies with other witness testimony and discrepancies in the prosecution’s evidence.

The prosecution supported its case with the 7-year delayed outcry testimony of the complaining witness and the testimony of a twice-convicted and currently jailed felon.

Bound by their oath to follow the law on the issue of “reasonable doubt,” jurors stated they simply could not attach any meaningful credibility to the prosecution’s case. In fact, one juror was so frustrated by the prosecution’s inept handling of the case that the juror posted a comment on the Houston Chronicle website that the prosecutor should have been jailed.

The not guilty verdict in this case follows a year of success for the John T. Floyd Law Firm in defending individuals falsely accused of sex offenses. Earlier this year, Mr. Floyd secured another not guilty, an acquittal by directed verdict, after a jury trial on charges of sexual assault in the 176th District Court of Harris County. Mr. Floyd also obtained a no-bill from a Harris County grand jury for an individual charged with sexual assault of a child in case number 111785 before the 184th District Court of Harris County, Texas. This was also a delayed outcry case. In August, Mr. Floyd obtained dismissals on two cases alleging indecency with a child, in cases 46527 and 46528, days before jury trial in the 400th District Court of Ft. Bend County, Texas. (more…)

October 6, 2008

A DISTRICT ATTORNEY’S PROFESSIONAL INDISCRETION

Filed under: Child Abuse Crimes Lawyer, Sexual Assault Crime Attorney — Tags: , , , , — johntfloyd @ 5:27 pm

Prosecutor Hands Jury Sour Grapes After Not Guilty Verdict

By Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair

The John T. Floyd Law Firm faced a recent difficult three-day trial in a Harris County courtroom. The District Attorney’s office had charged a defendant with aggravated sexual assault of a child. It was a classic delayed “outcry” case. The case was assigned to one of the very best prosecutors in sexual assault cases. She signaled early in the motion practice stage of the case that she would be a determined adversary willing to go to extraordinary lengths to secure a conviction against our client.

Faced with the natural bias against criminal defendants charged with such sexual offenses, the John T. Floyd Law Firm met the prosecutor’s frontal assault in the pre-trial process with fierce counter attacks. While our investigators located key witnesses and produced valuable documents and our paralegal pursued relentless legal research, the trial attorneys pursued discovery and formulated an aggressive “take no prisoners” fabrication defense. At trial, the defense attorneys focused on the primary objective: convince the jury that the prosecution’s case, from top to bottom, was not credible without opening the door to any damaging rebuttal evidence on the fabrication defense.

The jury got the case on a Wednesday morning at 10:30 a.m. By 11:30 a.m., and after the jury had requested to review a piece of evidence, it was evident that the prosecution had not secured its normal “quick” guilty verdict. The jury had questions. Questions meant doubt. Doubt meant the prosecution had not immediately closed the deal on guilt beyond a reasonable doubt. Twice more by 2:30 p.m. the jury asked to review portions of certain testimony. The prosecution team grew nervous. They fidgeted and engaged in “pass the time” conversations in the courtroom. Uncertain, hollow laughter emanated from their group discussions. Unconsciously, they got up and moved about the courtroom which had long emptied of the hustle and bustle of the routine guilty pleas entered earlier in the day. The “expert” child sexual assault prosecutor betrayed her obvious concern with defensive body language and constant need to get up and move about.

Then at 4:30 came the two rings of the bell signaling that the jury had reached a unanimous verdict. The defense team quickly assembled and moved back to the defense table with their client. They were cautiously optimistic. The trail signs indicated at a minimum a “hung jury” decision but now there was a real possibility of a “not guilty” verdict. They dared not speak the latter hope. Never tempt the hand of fate. Let fate chart its own course. Hope leads to raised expectations, and raised expectations can so easily crash against the sea wall like a violent incoming wave. (more…)

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