CRIMINAL JURISDICTION

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

December 28, 2011

WRONGFUL CONVICTION AND PROSECUTORIAL MISCONDUCT

Filed under: Houston Criminal Lawyer — Tags: , , , — johntfloyd @ 3:18 am

Filing Grievances, Request for Courts of Inquiry in Wrongful Conviction and Exoneration Cases

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

On December 12, 2011, writing for Mother Jones, Beth Schwartzapfel and Hannah Levintova published a piece titled “How Many Innocent People Are In Prison?”—a piece based in part on research conducted by University of Michigan Law Professor Samuel Gross. Gross’s research, with the assistance of the New York-based Innocence Project and the Center on Wrongful Convictions, determined there have been as many as 850 exonerations in this country since the late 1980s. The Innocence Project lists 282 exonerations since 1989 based on DNA evidence alone. Extrapolating from these two figures, Schwartzapfel and Levintova conservatively estimate that 1 percent of the total prison population in the United States have been wrongfully convicted. Put it raw numbers, this means that approximately 20,000 inmates in the nation’s prison system were wrongfully convicted.

“We don’t even have a denominator,” University of Virginia law professor Brandon Garrett told the Mother Jones writers. “But the wrongful convictions we do know about suggest that there’s a big problem.”

Writing in a 2008 paper titled “Frequency and Predictors of False Conviction,” Gross reached the same conclusion as Garrett: “One difficulty in making generalizations about false convictions is that the ones we know about, exonerations, are clearly a small and unrepresentative sample of all false convictions.” Gross added that death penalty cases are the only ones in which false convictions can be accurately measured because they have trial transcripts. Gross’ 2008 paper reported that in the modern era the rate of exoneration is 2.3 percent in capital cases—and using this percentage, the Mother Jones writers reasonably extrapolated that there could have been as many as 87,000 wrongfully convicted people in the nation’s general prison population between 1989 and 2003.

Utilizing data compiled by Mother Jones, the Texas Tribune found, not surprisingly, that Texas leads the nation with 48 DNA exonerations and is third behind Illinois (95) and New York (83) with 78 total exonerations since 1989. In an article titled “No Country For Innocent Men,” which will appear in the Jan./Feb.2012 edition of Mother Jones, Beth Schwartzapfel found that 56 of these exonerations, including five death penalty cases, occurred under the reign of current Governor and presidential candidate Rick Perry, who still maintains that the criminal justice system is working. These figures are scary in light of the fact that 238 executions have taken place under Perry’s governorship—including Cameron Todd Willingham who, according to reputable fire forensic experts, was probably innocent of the arson murders of his three children in December 1991.

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November 12, 2011

SMITH V. CAIN: A LOOK AT PROSECUTOR’S DUTY TO DISCLOSE

Filed under: Houston Criminal Lawyer — Tags: , , , — johntfloyd @ 3:48 pm

ABA Files Amicus Demanding Disclosure of Exculpatory Evidence Regardless of Materiality, Broader than Brady

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

The Orleans Parish and Williamson County district attorney offices have something in common: both have a disturbing history of withholding exculpatory information that resulted in innocent men being sent to prison (or death row) for long periods of time (here, here and here). The U.S. Supreme Court, in the case of Smith v. Cain, is being asked by Juan Smith’s attorneys and the American Bar Association (“ABA”) to address a prosecutor’s pretrial ethical obligations to disclose exculpatory evidence. A “summary” of the ABA’s argument is outlined in its amicus curiae brief:

“The [Smith v. Cain] case involves numerous serious allegations of non-disclosure that, post-trial, a court must evaluate under this Court’s Brady jurisprudence. However, a prosecutor’s pre-trial ethical disclosure obligations, as governed by the attorney disciplinary rules of the state or jurisdiction in which the prosecutor practices, are separate from and broader than the constitutional standards. Specifically, the ABA Model Rule 3.8(d) [Model Rules of Professional Conduct] mandates disclosure of exculpatory and mitigating evidence without regard to materiality. This Rule’s widespread acceptance is reflected in the fact that 49 states, including Louisiana, as well as the District of Columbia, United States Virgin Islands, and Guam have adopted ethics rules that include a provision identical or substantially similar to it. Similarly, various provisions of the ABA Criminal Justice Standards promote broad disclosure of all exculpatory evidence, without regard to the materiality standard that is required for post-trial analysis under Brady. Accordingly, this Court should again recognize that a prosecutor’s pre-trial ethical disclosure obligations are distinct from the constitutional standards that control a court’s post-trial determination.”

In 1963, the Supreme Court, in Brady v. Maryland, held that a prosecutor under the Fifth and Fourteenth Amendments has a duty to disclose favorable evidence to defendants upon request, if the evidence is material to guilt or punishment. Two decades later, in United States v. Bagley, the Supreme Court redefined Brady by holding that a prosecutor’s duty to disclose material favorable evidence exists regardless of whether the defendant makes a specific request. The Bagley court defined “material favorable evidence” as any evidence that probably would have changed the outcome of the trial. In 1999, the Court, in Strickler v. Greene, held that a Brady violation occurs: (1) evidence is favorable when it is exculpatory or impeaching; (2) the evidence was either willfully or inadvertently withheld by the prosecution; and (3) the withholding of the evidence was prejudicial to the defendant.

Juan Smith was convicted of five counts of first degree murder and sentenced to life without parole in the Louisiana prison system. The convictions stem from a home invasion by a group of men in New Orleans in 1995 that left five people dead. Smith was the only person arrested and convicted for the crimes. The only evidence against him was an identification made by one of the surviving victims. His conviction and sentence were upheld on appeal by the Louisiana Supreme Court. Following the denial of direct appeal, Smith’s Supreme Court brief explains what happened next:

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October 21, 2011

“PROSECUTOR OF THE YEAR” FEELS THE HEAT

Filed under: Houston Criminal Lawyer — Tags: , , , — johntfloyd @ 3:24 pm

Williamson County Justice System under Scrutiny by State Bar of Texas

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Since our last post about the tragic case of Michael Morton, the “prosecutor of the year” in that case, now District Judge Ken Anderson, and his cohort, Mike Davis, who actually prosecuted Morton for the 1986 murder of his wife, face investigations by the State Bar of Texas and Morton’s attorneys, according to the Austin Statesman. The State Bar investigation is, as the newspaper accurately reported, a “rare step” by the Bar, as is the public acknowledgement that it has undertaken a disciplinary investigation against two of its members. Morton was freed from the state’s prison system on October 4, 2011 after serving 25 years for a murder he did not commit and on October 11, 2011 the Texas Court of Criminal Appeals formally exonerated the man after DNA testing of a critical piece of evidence not only cleared Morton of the murder of his wife but identified the real killer as well.

Anderson and Davis, along with key law enforcement personnel, withheld critical evidence at Morton’s 1987 trial which almost certainly led to his wrongful conviction. For example, the prosecutors withheld the transcript of an interview with Morton’s mother-in-law who questioned the couple’s 3-year-old son shortly after his mother, Christine, was beaten to death with a “billy club.” The boy told his grandmother that he saw his mother beaten to death and that his father was not at home at the time of the murder. Other significant evidence withheld was a document disclosing that Christine’s credit card, which was in her purse and taken by her killer, was used in a San Antonio store, and another document showing that a check made out to Christine was cashed nine days after her death and the signature on it appeared to be a forgery.

While the prosecutors and law enforcement withheld this critical evidence and focused their sole attention on convicting Morton for murdering his wife, the real killer, who has only been identified as “John Doe” pending further investigation, was roaming the streets of Austin where he killed yet another woman in 1987—the same year Williamson County officials were wrongfully convicting Morton for the brutal murder of his wife.

Maureen Ray, who works in the office of the chief disciplinary counsel for the State Bar told the Statesman: “We decided, because of the high-profile nature of the thing, that we were going to tell the public that we were looking into it.”

Anderson is none too happy about either the State Bar’s investigation or the investigation by Morton’s attorneys into his handling of the murder case. Through his attorney Mark Dietz, the “prosecutor of the year” filed a motion contending that District Judge Sid Harle did not have “jurisdiction” to issue a subpoena in connection with the investigation being sought by Morton’s attorneys into “professional misconduct” accusations leveled against both Anderson and Davis.

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October 17, 2011

“PROSECUTOR OF THE YEAR!”

Filed under: Houston Criminal Lawyer — Tags: , , — johntfloyd @ 11:29 pm

Williamson County District Attorneys Gain Distinction for Hiding Evidence, Wrongful Conviction and Hard Fought Cover-Up

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Ken Anderson was a prosecutor in Williamson County, Texas, in 1986. In fact, he became Williamson County’s longest tenured district attorney with 16 ½ years as the county’s chief prosecutor and 5 ½ years as an assistant district attorney. Anderson knew his prosecuting business—so much so that his political pal, Gov. Rick Perry, appointed him to a District Judge position in January 2002. Why not, the State Bar of  Texas Criminal Justice Section named Anderson “Prosecutor of the Year” in 1995 and five years later the Texas Crime Victim’s Clearinghouse tagged him the “Outstanding Prosecutor Upholding Victims’ Rights.” Along the way, he became a “Board Certified Criminal Law Specialist” and was elected as President of the Texas District and County Attorneys Association. And as if this was not enough for one man to achieve, Anderson lectured at over 300 schools where he told the leaders of tomorrow about the value of honest public service.

John Bradley succeeded Anderson as Williamson County district attorney in 2001 after he was appointed to that position by none other than Gov. Perry. It was only natural that Bradley would get the political plum. He had been Anderson’s assistant since 1989. In 1993 Bradley decided to give the Texas Legislature a hand in re-writing the state’s Penal Code, and in 1996 he was appointed to former Gov. George W. Bush’s Committee to Rewrite the Code of Criminal Procedure. And, like Anderson, Bradley also likes to talk, speaking “regularly at continuing legal education seminars” in Texas and across the country. He also contributes frequently to “legal magazines and newspapers.”

And while Bradley’s professional resume does not stack up to Anderson’s, the current Williamson County district attorney gained national attention in September 2009 when Gov. Perry fired the chairman (and two other members) of the Forensic Science Commission which was about to investigate the Cameron Todd Willingham execution (here and here) and appointed Bradley as the commission’s chairman. The ensuing political firestorm notwithstanding, Bradley canceled a scheduled hearing in the Willingham case and made it clear that the commission under his direction would not investigate whether the condemned inmate was wrongly executed.

Besides being good talkers and an asset to their prosecutorial profession, what do Anderson and Bradley have in common? Most notably, one sent an innocent man to prison for 25 years and the other did everything he could to cover up this travesty. You would think that these two prosecutors, with all their credentials as top-notch, sate of the art prosecutors, would know that a district attorney’s primary duty is to prosecute the guilty and protect the innocent. Not these two birds of a feather. “Convict at any cost” was, and remains, their professional and political mantra.

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February 11, 2011

THE PURPOSE OF REASONABLE DOUBT IN CRIMINAL TRIALS

Filed under: Drug Defense Attorney — Tags: , , , , , — johntfloyd @ 1:09 pm

Prosecutorial, Police Misconduct Lead to Wrongful Conviction Unsupported by Evidence

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

In a recent post we discussed both the history and role of reasonable doubt in criminal trials. We noted and criticized the fact that Texas judges in criminal trials do not, per Texas Court of Criminal Appeals mandate, have to give jurors any instruction as to what constitutes “reasonable doubt.” This, we believe, is one of several reasons why Texas leads the nation in the wrongful conviction of innocent people.

The Fifth Circuit Court of Appeals recently reversed a drug conviction of a Texas resident and had an opportunity in the process to explain why reasonable doubt is so critical in ensuring the constitutional right to a fair and impartial trial. The case involved Maria Aide Delgado who was convicted in federal court of one count of possession of marijuana with intent to distribute and one count of conspiracy to commit the same offense. The Delgado case also illustrates a subject matter we have discussed in other posts: prosecutorial misconduct (here and here).

In September 2006 federal customs officers received a tip from undercover informant that Delgado had marijuana in a tractor trailer truck parked at her rural residence in Weslaco, Texas. Delgado, the sole owner and operator of T.J. Trucking, gave the officers “consent” to search after which they discovered 230 kilograms of marijuana in the sleeper cab of the locked semi-trailer truck which was parked inside her fence. Delgado told the officers she didn’t know anything about the marijuana or how it got in the truck; that her company hired drivers to operate the semi-trailer to haul Mexican produce from Laredo to destinations throughout the United States. She also informed the officers that she did not drive or accompany the truck on its long hauls, and that the bulk of her business was conducted by telephone from her residence. The officers seized her cell phone, computer, bank records, and personal papers—none of which disclosed any evidence of illegal drug activity.

Bartolome Vasquez was a legal Mexican resident who worked as a produce broker and shipper in Laredo. He also moonlighted as a paid government informant. He knew Delgado, having done business with her arranging produce shipments the four years prior to 2006. He told his U.S. Customs handlers that he spoke with Delgado at least four times a month either in person or over the telephone. He told the handlers he considered her a “legitimate trucking business operator” until September 2006 when she offered him $10,000 to haul a load of marijuana mixed with produce to North Carolina. Vasquez said he turned down the offer and immediately reported it to his Customs handlers. Since they had previously paid him $1300 for drug smuggling related information, he naturally expected a reward for the Delgado information—and, as a matter of fact, he did receive $7,500 for that information.

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October 30, 2010

THE COST OF MURDER-THE PRICE OF INNOCENCE

Filed under: Homicide Crimes Lawyer — Tags: , , , , , — johntfloyd @ 3:02 am

Anthony Graves Exonerated: Blatant Prosecutorial Misconduct of D.A. Charles Sebesta Sent Innocent Man to Death Row for 18 Years

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

A recent Iowa State University study, conducted by sociology professor Matt DeLisi, found that the total cost to society for a single murder in the United States is $17.25 million. Professor DeLisi led a team of five Iowa State graduate students in a study of 654 convicted and incarcerated murderers. This enormous price tag is measured in terms of costs to the victims, the criminal justice system, loss of productivity to both the victim and offender, and estimated costs to society to prevent future violence.

DeLisi’s study, titled Murder by the Numbers: Monetary Costs Imposed By A Sample of Offenders, was published in the February 2010 edition of the Journal of Forensic Psychiatry and Psychology. This latest study by Professor DeLisi, and his student colleagues, draws heavily from a 2003 study based on the 654 convicted and incarcerated murder offenders housed in eight states: Texas, Ohio, New Jersey, Florida, Arkansas, Georgia, North Carolina, and Oklahoma. Using these 654 offenders, DeLisi’ latest study concluded that each murder they committed cost $17,252,656 with the most violent offender individually racking “costs greater than $150 million.” The study added:

“That each murder costs more than $17.25 million does not convey the true costs imposed by homicide offenders in the current sample. Since the mean homicide conviction was more than one, the average murderer in these analyses actually imposed costs approaching $24 million. For the offender who murdered nine victims, the total murder-specified costs were $155,457,083!”

But what about the price tag associated with wrongfully convicting an innocent man for multiple murders. The banner headline of the Houston Chronicle(10-28-10) informed its readers thatAnthony Graves, who had been incarcerated 18 years (most of which was spent on death row) for six murders committed in 1992 in Burleson County, was released from jail after District Attorney Bill Parham filed a motion to dismiss all charges against the condemned inmate. The Graves case has a tortured history: Graves’ youngest brother, Author Curry, told the police, and eventually the jury that convicted and condemned Graves to death, that Graves had been at home sleeping on the night of the massacre of Bobbie Davis, her 16-year-old daughter, and four grandchildren, ages 4 to 9.

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September 28, 2010

ACTUAL INNOCENCE IN POST-CONVICTION PROCEEDINGS

Filed under: Houston Criminal Lawyer — Tags: , , , , , — johntfloyd @ 3:30 am

Timothy Cole Advisory Panel on Wrongful Convictions Recommends Expanded Post-Conviction DNA Testing, Habeas Corpus Based on Changing Science

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

U.S. District Court Judge William T. Moore, Jr., who presides in the Southern District of Georgia, recently observed in the death penalty case of Troy Davis (here and here) that only one state of the 35 states that have the death penalty does not have any post-conviction avenue for inmates to either secure or offer evidence of innocence. That lone state is Oklahoma. Altogether, 47 states and the District of Columbia have enacted statutes which provide varying degrees of access to remedies to establish innocence in a post-conviction setting. Massachusetts, Alaska, and Oklahoma are the only three hold-out states which have elected not to enact reform legislation in the critical area of establishing “actual innocence” despite the ever-increasing number of DNA exonerations.

Chapter 64 of the Texas Code of Criminal Procedure provides inmates claiming actual innocence with an avenue to procure DNA testing. Article 64.01 permits an inmate to motion for DNA testing of evidence containing biological material. The motion must be accompanied by an affidavit outlining the facts supporting the motion. The motion can secure DNA testing only of evidence that was in possession of the state during the trial of the offense for which he was convicted, provided the following conditions are met: 1) the evidence was not subjected to DNA testing because such testing was not available; 2) DNA testing was available but was not technologically capable of producing probative results; or 3) DNA technology has improved with newer testing techniques which provide more accurate results.

Recently the Timothy Cole Advisory Panel on Wrongful Convictions (“Panel”) pointed out that Texas inmates who make claims of being wrongfully convicted not related to DNA evidence—such as improper ballistics analysis, faulty arson forensic evidence, or staged dog scent evidence—must petition the courts through a writ of habeas corpus pursuant Art. 1107 of the Code of Criminal Procedure in non-capital cases and Art. 11.071 in death penalty cases.

The burden facing a defendant in a habeas proceeding trying to establish “actual innocence” has been historically high because the U.S. Supreme Court has never definitively recognized what is called a “freestanding” actual innocence claim in habeas proceedings. Just last year the Court in case of District Attorney’s Office of the Third Judicial District v. Osborne held that the “actual innocence claim” issue was an “open question.” Yet just two months later the Court ordered a hearing in the case of Georgia death row inmate Troy Davis on the issue of “actual innocence,” saying it would violate the Eighth Amendment prohibition against cruel and unusual punishment to execute an innocent man as Davis has claimed to be. Against this conflicting constitutional backdrop, Judge Moore conducted an extensive evidentiary hearing and in August issued a comprehensive ruling that Davis had failed to establish his “actual innocence” test by “clear and convincing evidence”—the standard of evidence the federal judge said should be applied in such claims.

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September 25, 2010

TEXAS DISCOVERY PROCEDURES

Filed under: Houston Criminal Lawyer — Tags: , , , — johntfloyd @ 6:12 am

Discovery, Brady Rules in Need of Reformation to Prevent Wrongful Convictions

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Last month the Timothy Cole Advisory Panel (“Panel”), which was created by the Texas Legislature in its 2009 session to develop recommendations for the Texas Task Force on Indigent Defense to help prevent wrongful convictions, issued its “report” calling for changes in the state’s eyewitness identification procedures, custodial interrogations, discovery procedures, post-conviction proceedings, and various innocence projects that receive state funding.

In two previous posts (here and here), we have warmly embraced the Panel’s recommendations concerning eyewitness identifications and custodial interrogations. With this post we also embrace the Panel’s recommendation that “the State of Texas should adopt a statewide discovery policy that is mandatory, automatic, and reciprocal, and requires either electronic access to or photocopies of materials subject to discovery” but there are aspects of the Panel’s report concerning “discovery procedures” that need to be clarified.

On page 24 the Panel states that Brady v. Maryland, a 1963 U.S. Supreme Court decision which held that federal due process requires the prosecution to disclose favorable evidence upon request by a criminal defendant that is material to either guilt or punishment, “is an inefficient tool to prevent wrongful conviction because Brady motions are not raised until after a defendant has been convicted of a crime and new evidence that was in the possession of the prosecution comes to light.”

That statement, as written, is neither factually nor legally correct.

Brady requests must be made pre-trial in the State of Texas through a proper motion requesting exculpatory material both in general form and with as much specificity as possible.  Brady material and other discovery can be requested the following motions: 1) boilerplate motion for discovery; 2) motion for discovery and preservation of specific evidence; 3) motion requesting prosecution to file a list of physical evidence; 4) motion for duplicate photographs; 5) motion for discovery and preservation of specific canine evidence relating to canine drug search; 6) specific motion for exculpatory and mitigating evidence (Brady material); 7) motion for discovery of crime stoppers information; 8) motion for discovery of victim impact evidence; 9) request for notice of state’s intention to introduce punishment evidence pursuant to Art. 37.07 (Code of Criminal Procedure); 10) motion in limine (extraneous offenses); 11) request for notice of state’s intention to offer extraneous offenses pursuant to Rule 404(b)[Rule of Evidence]; 12) motion for pretrial hearing on admissibility of extraneous offenses; 13) written objections to admissibility of extraneous offenses and requesting for findings of fact and conclusions of law; 14) request for notice of extraneous offenses in child abuse case; 15) request for notice of state’s intention to use evidence of extraneous offenses or acts pursuant to Art. 38.37 C.C.P.; 16) request for notice of state’s intention to use evidence of impeachment pursuant to Texas Rules of Evidence 609; 17) request for notice of state’s intention to use certified copies of official documents or business records; 18) comprehensive request for notice of state’s intention to introduce evidence under rules of evidence and code of criminal procedure; 19) notice of intent to introduce evidence of extraneous offense; 20) punishment evidence or prior conviction information, motion for discovery of punishment evidence; 21) motion to list state’s witnesses [all persons contacted]; 22) motion for discovery of criminal records of all state’s witnesses; 23) motion to produce witness statements; 24) motion to require police to maintain personal notes; 25) motion to require police to maintain and produce recorded communications; 26) application to take deposition of witness and notice thereof; 27) application to take deposition of witness by written interrogatories and notice thereof; 28) motion for discovery of grand jury testimony; 29) motion for discovery of defendant’s previous trial; 30) motion for transcript of co-defendant’s trial, motion to reveal agreements entered into between the state and witnesses; 31) motion requesting disclosure of expert witnesses; 32) designation of expert witness; 33) motion for voir dire of expert witness and for pretrial ruling on admissibility of expert testimony; 34) motion for approval of expert witness funds, motion for independent forensic testing; 35) motion for defendant’s access to physical evidence; 36) motion for forensic identity testing; 37) motion for approval of funds for court-appointed investigator; 38) motion for approval of mitigation specialist funds; 39) motion for approval of forensic psychologist funds; and 40) motion for additional investigative funds.

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