John T. Floyd's Comments on Criminal Issues

PROSECUTORIAL MISCONDUCT GOES UNPUNISHED IN TEXAS

Sat, 12 May 2012 01:19:20 GMT

Preserving Error in Cases of “Contumacious” Prosecutorial Misconduct

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Let us say at the outset that many prosecutors are fine, decent people who honorably fulfill their charged task of seeking the truth and justice—to convict the guilty and free the innocent. They believe in a fair testing of their case in our adversarial criminal trial process. We respect prosecutorial zeal, even though we’re always on the other side.

THE SHIFTING LANDSCAPE OF THE CONFRONTATION CLAUSE

Wed, 02 May 2012 21:16:47 GMT

Courts of Appeal Continue Struggle with Crawford and Progeny

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Reinaldo Berrios, Troy Moore, Angel Rodriquez, and Felix Cruz were charged, and ultimately convicted, of a series of violent felonies in Puerto Rico and the Virgin Islands in 2004, including the murder of an off-duty police officer during an attempted robbery. They were sentenced to consecutive life sentences and dozens of years in both federal court and Virgin Island courts. The sentencing message in these cases was evident: the felons would spend the rest of their lives in prison.

MORE IMMUNITY FOR ROGUE PROSECUTORS

Wed, 25 Apr 2012 21:16:55 GMT

Testifying Witness and Prosecutor Absolutely Immune from Civil Rights Claims stemming from False Testimony before Grand Jury

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Just when you think you’ve heard the worst about rogue prosecutors (here and here), some nastier, seedier episode comes along to remind you back into the reality that some prosecutors are so rogue that it defies adequate definition—even in the South where “justice” has always had a definition different from the rest of the country. Take the case of Charles Rehberg, for example. Between September 2003 and March 2004, Mr. Rehberg, a certified public accountant, became embroiled in a dispute with Phoebe Putney Memorial Hospital in Albany, Georgia.

SCOTUS: MORE INEFFECTIVE ASSISTANCE LITIGATION

Thu, 19 Apr 2012 20:28:05 GMT

Ineffective-Assistance-Of-Trial-Counsel Claims Not Barred From Federal Habeas if Ineffective Counsel at Initial State Habeas Proceeding

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

The U.S. Supreme Court handed down its third major decision this term dealing with ineffective assistance of counsel, Martinez v. Ryan. (The other two decisions can be found here and here.) Martinez deals with counsel who failed to take specific steps to protect a state prisoner’s right to present an ineffective assistance counsel claim in state post-conviction proceedings—a professional dereliction that procedurally barred the state prisoner from having the claim heard in federal court.

GIDEON’S GREAT GRANDCHILDREN

Wed, 11 Apr 2012 21:42:34 GMT

Supreme Court Solidifies Right to Effective Assistance of Counsel during Plea Bargaining

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

There are two primary movers in our criminal justice system: criminal prosecution and criminal defense. We have posted many pieces on this blog dealing with prosecutorial misconduct. We have called it a blight on our criminal justice system. While we have touched upon specific instances where a criminal defense attorney either did or failed to do something that resulted in a finding effective assistance by the courts, we have not approached the subject as the “dirty little secret” on our side of the adversarial criminal justice process. We will now.

TRAYVON MARTIN: ANOTHER VICTIM OF WILLIE HORTON POLITICS

Sun, 08 Apr 2012 16:01:31 GMT

Tragedy Stirs debate on Stand Your Ground Laws and Racial Stereotypes

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

In February, 2012, we posted a piece about Texas’ version of the “stand your ground” law which was passed by the Legislature in 2007. Our piece examined a November 2011 decision by the Texas Court of Criminal Appeals, Morales v. State—the court’s first real opportunity to interpret the “stand your ground” self-defense which was inspired by the Florida “stand your ground” law and which has been the focus of bitter controversy surrounding the February 26, 2012 shooting death of Trayvon Martin by George Zimmerman.

THE SCARY WORLD IN WHICH WE LIVE

Fri, 06 Apr 2012 16:46:39 GMT

Warrants for Government Eavesdropping, Targeted Killings and Torture

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

We live in a scary world! No doubt about that. We have street crime, gang crimes, hate crimes and terrorist violence, military violence, insurgent violence, police violence, and, less we forget, domestic violence. Clearly, there is more than enough crime and violence to go around in the world—violence that protects government-sponsored famine, political oppression, military suppression, and government spying.

Technology allows Government to Cheat Constitutional Protections

Wed, 28 Mar 2012 19:06:52 GMT

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

The U.S. Supreme Court’s recent decision in U.S. v. Jones, finding that the attachment of a GPS device to a suspect’s car is a search triggering Constitutional protections,has caused some interesting discussion regarding technology and law enforcement and doubts about what the Founding Fathers intended when drafting our Country’s greatest document. What is not in doubt is that technology will surely continue to press the capability and intent behind the Constitution of the United States.

TECHNOLOGY INVADES PERSONAL PRIVACY

Mon, 26 Mar 2012 20:46:03 GMT

U.S. v. Jones: Government’s Attachment of GPS to Personal Vehicle Constitutes a Search under 4th Amendment

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

In a split but unanimous decision, the U.S. Supreme this past January 23rd in United States v. Jones staved off yet another disconcerting attempt by our Government to invade and ultimately destroy personal privacy. It is a concern we have discussed in the past (here). That’s why we are so pleased that the Supreme Court—at least on this issue—unanimously, although for different reasons, came down strong with a ruling that privacy trumps technology.

THE HISTORICAL JOURNEY OF THE SPOUSAL PRIVILEGE

Fri, 23 Mar 2012 13:11:42 GMT

Two Privileges Protecting the Husband-Wife Relationship: Confidential Communications and Refusal to Testify in Criminal Proceedings

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

As we pointed out in a 2008 post, there are two marital/spousal privileges in Texas: the confidential communication privilege as defined by Rule 504(a) and the privilege not to testify in a criminal trial as defined by Rule 504(b) of the Texas Rules of Evidence.

A MODEL ACT TO IMPROVE THE PRACTICE OF CRIMINAL PROSECUTIONS

Thu, 15 Mar 2012 21:36:05 GMT

Preventing Wrongful Convictions by Legislating Prosecutorial Accountability

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Angela Davis, professor at American University’s Washington College of Law and former head of the D.C. public defender’s office, was quoted in the Washington Post last October as saying: Prosecutors “are the most powerful officials in our criminal justice system. They decide whether a person’s going to be charged, what to charge them with, whether there’s going to be a plea bargain and what the plea bargain will be. As they make those decisions, they exercise almost boundless discretion.”

SUPREME COURT DECISIONS THAT ENCOURAGE WRONGDOING IN THE CRIMINAL JUSTICE SYSTEM

Thu, 08 Mar 2012 14:03:51 GMT

Perry v. New Hampshire: Courts not Required to Determine Reliability of Eye Witness Identifications Unless Improper Police Conduct

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

In back-to-back days in January, the 10th and 11th, the U.S. Supreme Court—once referred to in hallowed terms “as the Court of Last Resort”—handed down two decisions, supported by both liberal and conservative justices, that will encourage prosecutorial and law enforcement misconduct in our criminal justice system. Smith v. Caindealt with a Brady violation while Perry v. New Hampshire dealt with suggestive identification procedures. We have dealt with the issues surrounding Smith v. Cain in prior posts (here, here, and here). No sense to rehash them here. We now turn our attention to Perry v. New Hampshire.

ATTORNEY WORK PRODUCT VERSUS GRAND JURY SUBPOENA

Mon, 05 Mar 2012 22:01:08 GMT

Protecting Attorney Client Relationship, Privileged Information from Government Subpoena

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

The attorney work-product and the attorney-client privilege are often confused with each other. Although related, insofar as they both concern the attorney client relationship, they are distinct privileges protecting different types of information for completely different rationales. The attorney client privilege protects all information disclosed to a lawyer for purposes of receiving legal advice, allowing unfettered communication between lawyer and client. The “work product” privilege protects the fruits of a lawyer’s efforts and prevents unnecessary intrusion into the lawyer’s thought processes, allowing the lawyer to freely investigate and assemble information.

JUDGE IN MICHAEL MORTON CASE FACES “COURT OF INQUIRY”

Mon, 27 Feb 2012 22:46:20 GMT

Investigation of Intentional Prosecutorial Misconduct by Williamson County DA’s Office

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

In the 1980s Michael Morton was wrongfully, and unjustly, convicted of the murder of his wife (here and here). To say that prosecutorial misconduct was the primary reason for Morton’s conviction would be the proverbial understatement. This past October Williamson County District Judge Sid Harle ordered Morton released from the Texas prison system where he had been confined the previous 24 years. Morton’s release was triggered by DNA evidence that exonerated him for his wife’s murder. Williamson County District Attorney John Bradley, who has never been a champion of seeing innocent men freed, fought tooth ‘n nail to keep the DNA evidence in Morton’s case from being tested, despite the that the district attorney’s files contained compelling evidence beyond the DNA evidence that Morton was innocent. It has been widely speculated that Bradley not only “slow played” the DNA evidence tests but withheld the other evidence supporting Morton’s claim of innocence to protect his longstanding legal associate and friend Williamson County District Judge Ken Anderson, who was the lead prosecutor in the Morton case and the primary target of prosecutorial misconduct charges—charges so serious that the Texas State Bar has announced it has undertaken an disciplinary investigation into Anderson’s conduct in the Morton case.

SELF-DEFENSE: NO DUTY TO RETREAT

Sat, 18 Feb 2012 20:55:13 GMT

Core of Defense of Third Person Is What the Actor Reasonably Believes Concerning the Situation of the Third Person

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

It was a hectic, confusing scene in Dallas on December 2, 2007. A fight broke out between two gangs: Kirby Block and Manett Boys. It was never clearly established what, or who, precipitated the fight. What was established is that Enil Lopez and Juan Carlos Morales, the brother of Joes Manuel Morales, participated in the brawl. Some witnesses said Lopez was unarmed while others said he was armed with either a metal pipe or a tire iron. One witness said Juan assisted others in pulling baseball bats out of a vehicle after which he and others assaulted Lopez with the bats. Other witnesses, however, said Lopez had a tire iron and was beating Juan, who was lying helplessly on the ground, when Jose Manuel Morales shot and killed Lopez.

A SIGNIFICANT “OUTCRY WITNESS” CASE?

Wed, 15 Feb 2012 18:42:17 GMT

Sanchez v. State: 38.072 Outcry Hearing not Adequate Opportunity to Cross Examine for Sixth Amendment Purposes

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

The Law

Who is an “outcry witness?”

An outcry witness is the first adult to whom a child (14 years of age, or younger), or disabled person, tells about being a victim of a statutory designated offense, mostly sexual offenses, as set forth in Article 38.072, Texas Code of Criminal Procedure. This statute permits a witness to testify about a victim’s out-of-court description of the offense as an “exception” to the hearsay rule.

THE CLERGY PRIVILEGE

Sat, 11 Feb 2012 01:37:47 GMT

Clergy Privilege Protects Communications Made In Confidence, Waived if Called as Character Witness

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

In a previous post, we outlined the case of Ernest “Randy” Comeaux, an inmate serving six life sentences for a series of rapes from the mid-1980s to the mid-1990s in Lafayette Parish, Louisiana. The background of the case can be found here. In November of 1998 Lafayette Police Department Captain James Craft received an anonymous telephone call that linked Comeaux to the rapes. Prior to his arrest, Comeaux reportedly spoke in confidence to an attorney and a priest—the only other persons who knew about the rapes, except Comeaux. We have already dealt at length with the attorney-client privilege implications in a case such as Comeaux’s. We now turn our attention to the clergy privilege implications.

Special Rule of Privilege in Criminal Cases Provides Greater Protection to the Criminally Accused

Sun, 05 Feb 2012 00:58:22 GMT

Special Rule of Privilege in Criminal Cases Provides Greater Protection to the Criminally Accused

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Ernest “Randy” Comeaux is currently an inmate serving six life sentences, without the benefit of parole, at the David Wade Correctional Center in Homer, Louisiana. The facts of Comeaux crime were detailed by a Louisiana Court of Appeals in the matter of Smith v. Lafayette Parish Sheriff’s Department on April 24, 2004:

CONFIDENTIAL AND PRIVATE

Sun, 29 Jan 2012 19:11:58 GMT

Evidentiary Privileges in the American Legal System

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Writing in the Pittsburgh Law Review, University of California Law Professor Edward J. Inwinkelried discussed in detail the history and legal parameters of evidentiary privileges. He opened his treatise with this observation: “From society’s perspective, the rules governing privileged communications, such as those between a client and his or her attorney are arguably the most important doctrines in evidence law.”