CRIMINAL JURISDICTION

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

April 24, 2010

THE SUPREME COURT MAKES A DIFFICULT CHOICE

Filed under: Federal Crimes Lawyer — Tags: , , , , , — johntfloyd @ 5:48 pm

Free Speech:  Federal Law Criminalizing Depictions of Animal Cruelty Declared Unconstitutional

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

There are times when the U.S. Constitution protects human activity that is repugnant and seemingly socially irredeemable. The U.S. Supreme Court recently handed down a ruling in the case of Robert J. Stevens who was convicted under a federal statute titled 18 U.S.C. Sec. 48 which prohibits the “depiction of animal cruelty.” This statute was enacted by Congress to, as the Supreme Court said, “criminalize the commercial creation, sale, or possession of certain depiction of animal cruelty.”

Robert Stevens operated a business called “Dogs of Velvet and Steel” in Pittsville, Virginia. Through an associated website, he sold videos depicting pit bulls fighting each other or attacking other animals. Two of the videos, “Japan Pit Fights” and “Pick-A-Winna: A Pit Bull Documentary,” depicted pit bull fighting in Japan (a legal activity in that country) and pit bull fights in this country from the 1960s and ‘70s. A third video sold by Stevens was titled “Catch Dogs and Country Living.” This particular video was particularly gruesome, depicting pit bulls hunting wild boar and a dog attacking a domestic farm pig.

On the basis of these three videos, Steven was indicted by a federal grand jury for violating Sec. 48. A jury convicted him on three counts and he was sentenced to three concurrent 37-month prison terms followed by three concurrent 3-year terms of supervised release. In a pretrial motion Stevens sought to have the Sec. 48 indictment against him dismissed on the basis of a “free speech” challenge under the First Amendment. The trial court denied the motion, pointing out that the depiction of animal cruelty, like child pornography and obscenity, did not enjoy First Amendment protection.

An en banc Third Circuit Court of Appeals decision, however, found Sec. 48 “facially unconstitutional” and reversed Stevens’ convictions. The appeals court essentially said that Sec. 48 was an attempt to regulate speech, adding that the court was not prepared create a “new category of unprotected speech” for cruelty to animals. The constitutional underpinnings of the Third Circuit’s rationale was that Sec. 48 did not serve any “compelling government interest” because the statute was not tailored to prevent animal cruelty, or, at the very least, was not the least restrictive means of accomplishing that objective.

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April 21, 2010

THE POLITICS OF SUPREME COURT NOMINATIONS

Filed under: Federal Defense Attorney — Tags: , , , , , — johntfloyd @ 7:51 am

Obama Must Expose Judicial Activism of Right Wing and Nominate Justice with Abundance of Empathy for the Rights of the Individual and Protection of the Social Good

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

The recent retirement of Associate Justice John Paul Stevens has created the second opportunity for President Barak Obama to appoint a justice to the U.S. Supreme Court. The appointment of Supreme Court justices have always been roiled in political posturing by both Democrats and Republicans in Congress. In point of fact, Republicans have already laid out the gauntlet, warning the president that they are prepared fight the nomination of a “judicial activist.”

Conservative Republicans, of course, will be buoyed by the support of media jocks like Rush Limbaugh and Glenn Beck. In a recent Newsweek article (April 13, 2010), Andrew Romano described Beck’s perpetual “paranoid” ranting about President Obama’s political agenda: “Last week Beck focused on two [Obama] conspiracy theories in particular. The first one was about how Obama can’t be ‘anything but a Marist,’ given that he’s spent his entire life surrounded by Marxists—his mother, his father, his grandparents, his neighbor (Frank Marshall), his pastor, his new spiritual adviser (Jim Wallis). The second was about how the ongoing boycotts of Beck’s show by various Democratic groups—labor unions, progressive evangelicals, Color of Change—are actually evidence of an unprecedented campaign by the ‘president and [his] administration to destroy the livelihood of a private citizen with whom they disagree.’”

The political hot-button term “judicial activism” has more often been used by republicans to demonize “liberal” judges who are often accused of inserting their social philosophy into their judicial decision-making. University of Chicago law professor and editor of the Supreme Court Law Review Geoffrey R. Stone in a recent The New York Times Op-Ed piece spoke of this phenomenon: “Liberals [Supreme Court] judges … have tended to exercise the power of judicial review to invalidate laws that disadvantage racial and religious minorities, political dissenters, people accused of crimes and others who are unlikely to have their interests fully and fairly considered by the majority.”  In other words, individual rights and protections the Bill of Rights was intended to address.

Professor Stone listed several of these historical liberal Supreme Court decisions: ending racial segregation, 1/ establishing the “one person, one vote” principle, 2/ prohibiting the censorship of the Pentagon Papers, and extending the right of due process of law to Guantanamo Bay detainees. 3/ Political conservatives point to these kinds of decisions by liberal Supreme Court justices as overriding legislative mandates because of their “empathy” for certain social views. As Professor Stone pointed out, President Obama was criticized by conservatives shortly before he appointed Justice Sonia Sotomayor to the court because he simply observed that a “sense of empathy” could contribute to judges fulfilling their responsibilities.

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December 5, 2008

INEFFECTIVE ASSISTANCE OF COUNSEL IN CAPITAL CASES

Filed under: Death Penalty Crimes Lawyer — Tags: , , , — johntfloyd @ 5:02 am

Failure to Properly Prepare for Trial, Basis for Federal Habeas Relief

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

In 2001 the two female justices on the U.S. Supreme Court spoke out about the quality of legal representation afforded to criminal defendants facing the death penalty in this nation.

“After 20 years on (the) high court,” Justice Sandra Day O’Connor said, “I have to acknowledge that serious questions are being raised about whether the death penalty is being fairly administered in this country. Perhaps it’s time to look at minimum standards for appointed counsel in death cases and adequate compensation for appointed counsel when they are used.”

In April of that year Justice Ruth Bader Ginsburg was more direct in an Associated Press account: “People who are well represented at trial do not get the death penalty … I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-executions stay applications in which the defendant was well represented at trial.”

Before the 2001 public criticisms offered by Justices O’Connor and Ginsburg, three major newspapers had conducted investigations that offered compelling evidence about the deplorable legal representation provided in capital cases. The Chicago Tribune reported on November 15, 1999
that 12% of those condemned to death from 1976 to 1999 were represented by “an attorney who had been, or was later, disbarred or suspended—disciplinary sanctions reserved for conduct so incompetent, unethical or even criminal that the state believes an attorney’s license should be taken away.” The newspaper said that an additional 9.5% had “received a new trial or sentencing because their attorney’s competence rendered the verdict or sentence unfair, court records show.” (Ken Armstrong and Steve Mills, “Inept Defenses Cloud Verdict”). (more…)

October 25, 2008

THE JUDICIAL WARS INVOKED BY CRACK SENTENCING

Filed under: Drug Defense Attorney, federal Appeals Attorney — Tags: , , , , — johntfloyd @ 5:24 am

Supreme Court: Federal Judges Have Discretion at Sentencing

By Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair

Under the Sentencing Reform Act of 1984, a federal district court judge must consider each of the factors prescribed in 18 U.S.C. § 3553(a) when imposing an appropriate criminal sentence. The § 3553 factors are:

  • “Nature and circumstances of the offense” and defendant’s “history and characteristics.” Id., at (a)(1). Under U.S. Supreme Court jurisprudence the sentencing judge is limited to those facts (1) “reflected in the jury verdict,” (2) admitted by the defendant, (3) contained in defendant’s guilty plea, or (4) reflect prior convictions. See: Blakely v. Washington, 542 U.S. 296, 303 (2004) [facts affecting sentence must be found by a jury].
  • The general purpose of the Sentencing Reform Act. Id., at (a)(2). The purposes of this Act are to have a sentence “(A) reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (d) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner …”
  • The types of sentences available. Id., at (a)(3).
  • The policy statements of the U.S. Sentencing Commission. Id., at (a)(5).
  • The need to avoid sentencing disparities between defendants convicted of similar conduct. Id., at (a)(6).
  • The need to provide restitution to victims. Id., at (a)(7).
  • The applicable sentence range recommended by the U.S. Sentencing Guidelines. Id., at (a)(4).

Three years ago the United States Supreme Court held that the Guidelines are advisory and federal district courts were not required to impose the precise sentence recommended by the Guidelines. See: United States v. Booker, 549 U.S. 220, 245-46 (2005). Two years later the Supreme Court overruled the longstanding legal premise that district courts had to apply a provision of the Guidelines that made one gram of crack cocaine the equivalent of 100 grams of powder cocaine for sentencing purposes. See: Kimbrough v. United States, 128 S.Ct. 558, 575 (2007).

In the wake of Booker, the Honorable Linda R. Reade of the United States District Court for the Northern District of Iowa on November 21, 2005 sentenced James Eric Moore to a term of 188 months in confinement and six years of supervised release following a conviction for possession with intent to distribute crack cocaine. Moore had asked Judge Reade to impose a below-Guidelines sentence in light of the recent Booker decision. The judge replied: (more…)

July 8, 2008

JUSTICE ANTONIN SCALIAS DISSENT FROM THE DARK SIDE

Filed under: Anti-Terrorism Lawyer — Tags: , , , , — admin @ 11:55 am

Houston Criminal Attorney John Floyd Discusses Scalias Blistering Dissent Accusing Justices of Aiding Terrorist

The Supreme Court on June 12, 2008 issued a decision that marked the first time in the nation’s history that the constitutional right to the writ of habeas corpus was conferred on enemy aliens detained abroad by American military forces engaged in an ongoing war. See: Boumediene v. Bush, 553 U.S. ____ (2008) [Slip Opinion No. 06-1195 & 06-1196].

This column dealt rather extensively with the legal ramifications and constitutional underpinnings on this decision (June 24, 2008). The Boumediene decision has drawn a great deal of legal scrutiny and political criticism since its release. One of the decision’s harshest critics, however, was Justice Scalia whose 25-page dissent begs attention.

Pointing out that the Boumediene decision had no basis in constitutional law, Justice Scalia accused the court’s majority of issuing an opinion that will make the nation’s “war on terror” harder and “will almost certainly cause more Americans to be killed.” It is probably the first time that a dissenting U.S. Supreme Court justice has ever accused other justices of doing work that will aid and abet terrorism. Justice Scalia certainly has a right to his point of view, and he prefaced that point of view with the following compelling information:

“America is at war with radical Islamists. The enemy began by killing Americans and American allies abroad: 241 at the Marine barracks in Lebanon, 19 at the Khobar Towers in Dhahran, 224 at our embassies in Dar es Salaam and Nairobi and 17 on the USS Cole in Yemen….On September 11, 2001, the enemy brought the battle to American soil, killing 2,749 at the Twin Towers in New York City, 184 at the Pentagon in Washington, D.C., and 40 in Pennsylvania. It has threatened further attacks against our homeland; one need only walk about buttressed and barricaded Washington, or board a plane anywhere in the country, to know the threat is a serious one. Our Armed Forces are now in the field against the enemy, in Afghanistan and Iraq…” (more…)

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