CRIMINAL JURISDICTION

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

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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September 13, 2010

RECOMMENDATIONS FROM THE TIMOTHY COLE ADVISORY PANEL ON WRONGFUL CONVICTIONS

Filed under: Houston Criminal Lawyer — Tags: , , , , — johntfloyd @ 5:09 pm

Current Eyewitness Identification Procedure Reinforce False Memories and Lead to Wrongful Convictions

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

There have been 258 DNA exonerations in this country over the last two decades, according to the New York-based Innocence Project. In approximately 75 percent of those cases, eye misidentification played a significant role. It is an issue we have thus far blogged about four times this year (here, here, here, and here) and four times last year (here, here, here, and here)—the latter two 2009 posts dealing with the wrongful conviction of Timothy Cole.

The wrongful conviction of Cole is a tragic affair no matter how it is viewed. It has had much the same impact on the Texas criminal justice system as the 1999 wrongful conviction of Clarence Elkins, Sr., had on the Ohio criminal justice system. The same year Elkins was wrongfully convicted Cole died in a Texas prison from asthma complications. Fourteen years earlier he had been a 26-year-old student at Texas Tech University. The university and the entire Lubbock community were under siege from a serial rapist who had sexually assaulted five women between December 1984 and April 1985. The fifth woman attacked was 20-year-old Tech student Michele Mallin.

In an effort to apprehend the serial rapist, the local police assigned an undercover female officer to hang around the university campus. One evening the officer walked into a popular pizzeria frequented by students. Timothy Cole happened to be in the pizzeria. After having a coke, the officer got up and walked out of the restaurant. Cole followed. He walked directly to his car, but before driving off, he pulled up alongside the undercover officer who was strolling down the street. Cole struck up a conversation with officer and they traded names, although the officer refused to give him her telephone number. Cole drove off.

Since Cole was the only man who approached the officer that night, she turned his name into investigators working the serial rapist case. They ran Cole’s name and discovered he had reported being robbed at a local pool hall several weeks earlier. When the police went to investigate the robbery report, they noticed he had a weapon that appeared to have been fired. This led to a search of Cole—a search that revealed he had a small amount of marijuana in his possession. He was arrested on misdemeanor drug and weapon charges. One of the arresting officers in this case was the same “undercover” officer who turned his name into the serial rapist investigators.

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August 17, 2010

ARSON MURDER-TOO MANY MISTAKES DEMANDS SCRUTINY

Filed under: Homicide Crimes Lawyer — Tags: , , , , , — johntfloyd @ 12:36 pm

Flawed Forensics in Arson Cases: One Executed, One on Death Row, Four in Prison

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

The question hangs like ugly morning moss from a large swamp oak tree: Did the State of Texas execute an innocent man when it put Cameron Todd Willingham to death on February 17, 2004? Just last month the Texas Forensic Science Commission ruled that Willingham’s August 1992 murder conviction was based on flawed forensic evidence. The Willingham case—and the way it has been handled by state officials and in particular Tex. Gov. Rick Perry and especially by Willingham’s former defense attorney—has proven to be a national and international embarrassment to the state’s criminal justice system.

And just as the Texas Forensic Science Commission is trying to undo some of the damage caused by the wrongful conviction and execution of Willingham, we learn that the State of Pennsylvania now finds itself in the peculiar position of having to deal with a death penalty case that mirrors the Willingham case. Like Willingham, Daniel Dougherty was an excessive drinker who abused his wife but loved his children—and like Willingham, Dougherty was forced to watch his two children (Danny 4 and Johnny 3) die in a fire that destroyed his home in 1985, according to a recent CNN report.

Today the 50-year-old Dougherty sits in a prison in Waynesburg, Pennsylvania—a prison that state officials told CNN’s Stephanie Chen houses “the worst of the worst”—awaiting execution. Although Willingham was arrested and indicted a little over a month after the December 1991 residential fire that took the lives of his three children, Dougherty was not arrested until 14 years after the fire that killed his two children and only after his estranged wife told the authorities he had “confessed” to her that he deliberately set the fatal fire.

Like Willingham, Daniel Dougherty has also maintained his innocence from the day of his arrest. His attorney claims that Dougherty, like Willingham, was convicted on the same kind of “flawed arson science” that sent the Texas inmate to the state’s death chamber. “We have an innocent man on death row who has been languishing there, and there is absolutely no evidence that a crime occurred,” Dougherty’s attorney, David Fryman, told CNN. “We’ve been trying our best to right that wrong.”

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May 18, 2010

TWO MORE DNA EXONERATIONS

Filed under: Houston Criminal Lawyer — Tags: , , , , , , — johntfloyd @ 3:41 pm

Criminal Defense Lawyers Must Never Give up, Never Lose Faith That Justice Will Ultimately Prevail

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

There have been at least 254 DNA exonerations in this country, according to the Innocence Project of New York. Each new DNA exoneration cast a dark shadow over the nation’s criminal justice system, particularly its judicial system. These exonerations are not only a barometer for measuring the imperfections of our system of justice but the failings of its adversarial nature either through law enforcement misconduct or “tunnel vision,” prosecutorial zeal or ineffective defense representation. It is a shame each of us involved the justice system must endure, a constant reminder that we can all do better; that we must do better.

The latest two DNA exonerations—one in New York, the other in Ohio—really underscore that point. In November 1988, Viola Manville, a 74-year-old grandmother, was bludgeoned to death in Monroe County, New York. The elderly woman was attacked as she walked near her home in Hilton, a Rochester suburb.

In July 1991 Frank Sterling, a truck driver, was questioned about the Manville murder. After an all-night interrogation session (which had been preceded by a 36-hour work shift), Sterling confessed to the brutal murder. He later recanted the confession, claiming he slipped into a “hypnotic state” and simply recounted details about the crime given to him by the police. He was convicted and sentenced to 25 years to life in the New York prison system.

In 1994 Mark Christie was imprisoned for the strangulation death of a four year old neighbor, Kali Ann Poulton. It would prove to be a significant development in the Sterling case.

Sterling’s attorney, Donald Thompson, had worked since the mid-1990s to establish his client’s innocence. In 2004 he managed to enlist the support of the Innocence Project to help him. The project obtained DNA evidence from Manville’s clothes, and while it was not a definitive match, the match was sufficient to identify Mark Christie as the potential murderer. After two interview sessions with John G. Reid & Associates, a private investigation firm that specializes in interrogation techniques and hired by the Innocence Project, Christie confessed, providing details only the killer would know.

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April 29, 2010

THE DANGERS OF CRIMINAL IDENTIFICATIONS

Filed under: Houston Criminal Lawyer — Tags: , , , , — johntfloyd @ 1:14 am

Legislatively Mandated Innocence Commission to Review Claims of Wrongful Convictions and Bring Accountability for Wrongful Convictions Needed

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

There have been 252 DNA exonerations in this country through April 2010. Seventy-five percent of those were the result of mistaken identification. KHOU television in Houston reported recently 85% of Texas’ DNA exonerations—the most in the nation—involved mistaken identification.

Two-thirds of all the DNA exonerations involving mistaken identifications were against black men. The KHOU report highlighted that Texas leads the nation in wrongful convictions. Television reporter Brad Woodard cited the Harris County case of Anthony Robinson. Twenty-three years ago a young, articulate, and pretty woman whom prosecutors described as a “dream witness” identified Robinson as the black man who raped her at the University of Houston. He was sentenced to 27 years in prison, and served nine years and 11 months before his innocence was established.

“Being placed into a very violent, primitive, evil situation where every morning you wake up and ask yourself, ‘Is this the day I’m going to die?’ or ‘Is this the day I’m going to have to kill someone so I can make it back to my cell, so I can sleep?’” Robinson told Woodard.

Since his exoneration, Robinson has worked closely with Sen. Rodney Ellis, D-Houston, to increase compensation from the state for those wrongly convicted.

“We ought to do everything we can to make sure another human doesn’t have to go through what Anthony Robinson went through,” Ellis told Woodard. “It’s not just that individual – it’s their family. It’s their children.”

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January 5, 2010

A CALL FOR ACTION – A NEED FOR REAL CHANGE

Filed under: Houston Criminal Lawyer — Tags: , , , , , , , , , — johntfloyd @ 12:11 pm

To Regain Public Confidence Houston Police and Crime Labs Must Adhere to the Highest Standards of Competence, Independence and Integrity

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Houston’s Mayor Annise Parker announced recently that she will replace the city’s outgoing police chief, Harold Hurtt, with someone from within the command rank of the Houston Police Department (HPD). We do not view this as a compelling promise of change. The HPD under Hurtt’s leadership was rocked by one “evidence gathering” scandal after another. It would be foolish to assume all these scandals were attributable to Hurtt’s management style alone. The scandals actually revealed a systemic problem within the HPD from its top command echelon down to the rank and file patrol officers. Thus, tapping someone within this problematic agency does not invite encouragement that integrity and professionalism in the department will improve immediately after Hurtt’s welcomed departure.

The latest HPD scandal, examiners not properly analyzing fingerprint evidence or failing to examine the evidence at all, will cost taxpayers nearly $3 million to fix. This will require a team of outside consultants, who are already running the fingerprint unit’s day-to-day operations, to re-examine some 5,000 of what the Houston Chronicle called “violent crime cases as well as sift through a backlog of thousands more violent and property crime cases that have been waiting to be reviewed.”

As a result of this fingerprint scandal, one part-time employee was forced to resign under pressure and three others were placed on administrative leave. To make matters worse, the HPD recently submitted a report to the City Council informing its members that it will probably cost taxpayers an additional $2 million to hire new examiners to run the department’s fingerprint unit.

To be fair, the HPD is not the only law enforcement agency to experience a “fingerprint analysis” problem. The Houston Chronicle recently reported that the Los Angeles Police Department earlier this year acknowledged its fingerprint unit was a “sloppy operation” in which files were “left lying around, prints sometimes lost and at least two people had been wrongly identified as criminal suspects because of botched fingerprint analysis.” It was a similar story in 2007 involving Florida’s Seminole County Sheriff’s Department, prompting the sheriff to discipline numerous employees after it was discovered that, as the Chronicle reported, “analysts [were] cutting corners and pegging fingerprints to the wrong suspects.”

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