CRIMINAL JURISDICTION

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

Would you want a Judge presiding over a criminal case against you sleeping with the District Attorney prosecuting that case?

Didn’t think so. Most people wouldn’t. You expect a Judge to be neutral, free of the slightest appearance of impropriety. You expect a District Attorney to be zealous, honest, and even-handed in the prosecution of criminal cases. Those general expectations – what the State Bar calls the rules of ethical conduct – are compromised when a District Attorney prosecutes a case before a Judge with whom the District Attorney is having a sexual liaison.

That controversial issue has become a highly-publicized feature in the capital murder case of Charles Dean Hood. Attorneys working to save Hood from lethal injection charged, and ultimately proved, that 19 years ago when the condemned inmate was tried and convicted in a Collin County District Court, former District Attorney Tom O’Connell, who prosecuted Hood, was reportedly having a romantic affair the former trial judge, Verla Sue Holland, who presided over the trial.

Hood was scheduled for execution on September 10, 2008, but the day before the execution was to be carried out, the Texas Court of Criminal Appeals issued a reprieve in the case. The appeals court, on which Holland had previously served as a judge, ducked the sexual liaison issue involving Holland and O’Connell and instead issued the reprieve on what the court said were “developments in the law regarding (jury) nullification instructions.”

The appeals court had previously rejected this same jury instruction issue in Hood’s case but said it was now “prudent to reconsider the decision we [previously] issued.” (more…)

Two Cases of Child Murder; Only One Faces Death Penalty

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

The District Attorney’s Office in Galveston, Texas, has in recent months confronted death penalty decisions in two high profile cases involving parents brutally murdering their children. Both cases allegedly involved parents killing their children in a calculated, premeditated manner. In April 2008 the District Attorney elected not to seek the death penalty in one case but in August 2008 decided to seek the death penalty in the other. Why?

Let it be stated very firmly at the outset of this piece that we do not support the death penalty in any case under any circumstances. We are a criminal defense law firm dedicated to the preservation of life and liberty– not death. But the disparity in the decision-making by the Galveston County District Attorney’s Office in these two capital child murder cases begs scrutiny.

The first case involves Riley Ann Sawyers, a beautiful two-year-old child who became known to the nation as “Baby Grace.” The child’s biological mother, Kimberly Trenor, and her stepfather, Royce Zeigler II, were reportedly upset with the child’s manners. By the mother’s account, Riley Ann either did not know when or how to say “please” and “no sir.” So the parents decided to discipline the child. This allegedly led to a, enraged and brutal beating that killed the child. In October 2007, a fisherman found a plastic storage box floating in Galveston bay containing Riley Ann’s body, which had been wrapped in trash bags.

The second case involves Alijah Mullis whose diaper-clad three-month old body was discovered in January 2008 in an isolated area on the eastern end of Galveston Island by a couple cruising for wildlife. The child’s father, Travis Mullis, allegedly dumped the body there after repeatedly stomping on the child’s head, snuffing out its precious life. The child’s mother, Karen Kohberger, said Mullis indicated to her shortly before the child’s death that he was having flashbacks from being sexually abused as a child. (more…)

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

The State of Texas executed two foreign nationals during the week of August 5 and 7, 2008. Both men, Jose Ernesto Medellin and Heliberto Chi, were found guilty of committing brutal murders. There was little doubt about their guilt. Had they not been foreign nationals, their executions would have passed under the Texas execution radar basically unnoticed. This is a sad fact in this great state where executions have become all too common.

But they were foreign nationals and their executions had, and will continue to have, international legal and political implications. The controversy associated with these executions centers on this country’s refusal to honor - if not the intent, the spirit – of its international treaty obligations. The treaty obligation in Medellin’s case involved Vienna Convention which provides that when a person is arrested in a foreign country, the arresting officials have an obligation to inform that person of his/her right to consult with, and seek assistance from, the “consular” of their country. Medellin, a Mexican national, was not advised of his “consular rights” when arrested in Harris County in 1994.

Chi’s case, a Honduran national, involved a different treaty – a 1927 U.S. Bilateral Treaty of Friendship, Commerce and Consular Rights with Honduras. Unlike the Vienna Convention, the Honduran Bilateral Treaty was “self-executing” – meaning the treaty did not require legislation by the United States Congress to have full force and effect. Last March, the U.S. Supreme Court ruled in the Medellin case that the Vienna Convention was not self-executing and, therefore, did not have automatic effect on federal law in this country because Congress had never passed legislation to give rights guaranteed under the treaty full legal force.

The Vienna Convention became a bone of international contention in 2004 when the International Court of Justice, located in the Hague, issued a decision that said the United States had violated the “consular rights” of 51 Mexican nationals convicted of capital crimes in this country and, therefore, they were entitled to a review of their convictions and death sentences. Although his case was not one of the 51 Mexican nationals involved in the ICJ decision, Medellin’s case became the one that ultimately worked its way to the U.S. Supreme Court and led to the precedent ruling that the Vienna Convention was not “self executing.” (more…)

By: Houston Criminal Attorney John Floyd and Mr. Billy Sinclair

The International Court of Justice recently issued an order staying the execution of five Mexican nationals held on Texas’ death row in response to a petition filed by the Mexican government. The Mexican government is seeking a review of these particular cases to determine whether the State’s denial of the condemned inmates access to the Mexican Consulate after their arrest adversely impacted their defenses.

One of the Mexican nationals is condemned killer Jose Medellin who has an August 5, 2008 scheduled execution date. Gov. Rick Perry immediately issued a statement through a spokesman that the rapist-murderer’s execution would not be halted.

The Houston Chronicle reported that the Mexican government had sought the stays of execution for the Mexican nationals because “the paramount interest in human life is at stake.” The Mexican government reasoned that if the executions are carried out without the denial of access to the Mexican Consulate issue being fully developed, “Mexico would forever be deprived of the opportunity to vindicate its rights and those of the nationals concerned.”

Gov. Perry was not persuaded. Did they think he would be?” The world court has no standing in Texas and Texas is not bound by a ruling or edict from a foreign court,” the Governor said through spokesman Robert Black said. “It is easy to get caught up in discussions of international law and justice and treaties. It’s very important to remember that these individuals are on death row for killing our citizens.” (more…)

Swift Justice?  Houston Criminal Defense Attorney John Floyd Opines on the FLDS Debacle

This column has examined the FLDS case extensively since the military-style raid on the Yearning for Zion Ranch in Eldorado, Texas on April 3, 2008. There are two things that stand out about this tragic case: First, the raid was totally unnecessary and most certainly unlawful; and, second, the financial cost to the state of Texas is a staggering $7 million and the emotional cost to the FLDS parents and children is immeasurable.

Texas residents were from the very beginning outraged at the sight of grieving mothers having their children – a total of 468, two-thirds of whom were 5 years of age or younger – snatched from their bosom. Equally outrageous was the fact that the state’s Child Protective Services on April 17 and 18 waltz into a court of law amidst national media attention and presented its “evidence” to justify the decision to remove these children from their parents and place them in foster care. It was a pathetic spectacle. A state district court endorsed the spectacle by approving CPS’s actions.

But on May 22, 2008 the Third Circuit Court of Appeals in Austin overturned the decision by San Angelo County District Judge Barbara Walters who had ruled that CPS had presented adequate evidence that the FLDS children were in “immediate danger” of physical and sexual abuse at the YFZ ranch which warranted their removal from the custody of their parents and their placement in foster care. The Texas Supreme Court upheld the appeals court decision on May 29, 2008.

And what was this “evidence” of “immediate danger”? Nothing except that CPS believed the children were in such danger of abuse because of a “pervasive belief system” by FLDS church members that girls can, and should, get married at the age of puberty. CPS did not present an iota of evidence that FLDS members at the YFZ ranch practiced this religious tenet. CPS did not present an iota of evidence that any underage child had been forced into “spiritual marriage” as it had indicated through leaks to the media. CPS did offer evidence that five teenage girls had been impregnated – presumably at the YFZ ranch. It was conceded by CPS that these pregnancies had occurred when the girls were 15 or 16 years of age. Until 2005, it was lawful for a teenage girl with parental consent to marry at 14 and the current age for parent consent marriage is 16. The five marriages that produced these pregnancies, therefore, could have been legal under Texas law. CPS did not offer any evidence that the pregnancies occurred as a result of some unlawful “sexual assault” by an older FLDS members, as had been repeatedly suggested through media leaks. (more…)