John T. Floyd Law Firm
Houston Criminal Lawyer
"Serious Criminal Defense Throughout Texas"
Experienced Criminal Defense Lawyer
Trials, Sentencings and Appeals
Federal And State Criminal Defense
Phone # (713) 224-0101
Toll Free 1-866-374-1327
E-mail jfloyd@JohnTFloyd.com
Top Lawyers for the People - 2008 HTexas
Comments on Criminal Issues
July 8, 2008
JUSTICE ANTONIN SCALIA’S DISSENT FROM THE DARK SIDE
Houston Criminal Attorney John Floyd Discusses Scalia’s 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]. more...
July 5, 2008
FALSE RAPE ALLEGATIONS
Houston Criminal Defense Attorney John Floyd Discusses False Child Sexual Assault Allegations and Defending the Wrongly Accused
In April 2008, after coming home late from a party, a Wunsche High School student told her father that she had been sexually assaulted at the party by a fellow student. The following day 54-year-old Ruben Cuellar-Romo went with his daughter to her school, and when the daughter pointed out a student as her attacker, Cuellar-Roma stabbed the male student in the chest, stomach and hand. Police quickly determined that the assaulted student, Joshua Chapa, had not been at the party and, therefore, could not have assaulted the girl. Cuellar-Roma was arrested and charged with aggravated assault and remains in the Harris County Jail under a $30,000 bond. more...
July 1, 2008
JOE HORN FREE OF CRIMINAL LIABILITY
Houston Criminal Attorney John Floyd Discusses the Tragedy of the John Horn Case and the Implications of Grand Jury No Bill
It was a highly-charged emotional case from the beginning. It had all the social ingredients for stirring controversy: criminals, crime, guns, self-defense, race, and illegal immigrants. It began last November when a 64-year-old Pasadena retiree named Joe Horn saw his neighbor’s home being burglarized by two Hispanic men, Diego Ortiz and Hernando Riascos Torres, who were in the United States illegally(although Horn at the time didn’t know they were Hispanic because of their African-Columbian descent). Horn called 911 to report the crime. He told the 911 dispatcher that he was armed. The dispatcher instructed Horn to stay inside his own residence. Horn ignored those instructions, pointedly telling the dispatcher that he was going to kill the two men.
June 27, 2008
FLDS GRAND JURY TAKES NO ACTION, YET
Houston Criminal Defense Attorney Discusses Latest Developments in FLDS case and the Beginnings of a Grand Jury Investigation
A West Texas grand jury sitting in Schleicher County heard testimony from a few of the dozens of witnesses subpoenaed to testify concerning allegations made by the Attorney General’s Office that members of the Fundamentalist Church of Jesus Christ of Latter Day Saints forces underage girls into “spiritual marriages.” more...
June 23, 2008
PRIVILEGE OF HABEAS CORPUS EXTENDED TO GUANTANAMO BAY DETAINEES
Houston Criminal Defense Attorney John Floyd Discusses the U.S. Supreme Court’s Decision in Boumediene v. Bush,
The Balance of Powers
In a sharply divided 5-4 ruling, the United States Supreme Court recently extended the privilege of the writ of habeas corpus to “detainees” held Guantanamo Bay, Cuba – commonly referred to as “Gitmo.” The decision marked the first time in the court’s history that it has ruled that non-citizens held in custody by the United States in a territory over which another country has de jure sovereignty enjoys the protection of the Constitution.
June 18, 2008
AMERICA’S TORTURED POLICY OVER TORTURE
Houston Criminal Defense Attorney John Floyd Discusses Bush Administration’s “Torture” Policy and Downstream Consequences
In 1994 America ratified a treaty entitled “Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.” This treaty defined “torture” as “ … any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession," when it is "inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."
June 12, 2008
BARRY BONDS: HOME RUN KING OR STEROID USER?
Houston Criminal Attorney John Floyd Discusses Perjury, Obstruction of Justice and the Barry Bonds Case
Barry Bonds was 21 years of age when he joined the Pittsburgh Pirates in 1986. He was lean, mean, and fast – and certainly not considered a fearsome home run slugger. During his first seven years in the majors, he averaged 25 home runs a year. Then in 1998 St. Louis Cardinals first baseman Mark McGuire eclipsed Roger Maris’ record of 61 home runs in a season by pumping out 70 home runs. The following year Bonds showed up for spring training with the San Francisco Giants with a “bulked up” upper body. In 102 games that year, he still managed to hit 39 home runs. In 2000, Bonds appeared in 143 games and the new “Giant slugger” hammered out 49 home runs. The following year Bonds’ “ballooned up” upper body looked awkward in what appeared to be match-stick legs but it was enough for him to easily breezed by McGuire’s record with 73 home runs. During his last seven full playing seasons (not including 2005 in which he played only 14 games and hit a meager 5 home runs), Bonds averaged 44 home runs. More...
June 8, 2008
FLDS: A LOOK AT AN UNNECESSARY TRAGEDY
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. More...
June 3, 2008
TERRORISM: WILL THE PRIVILEGE AGAINST SELF-INCRIMINATION PREVIAL IN UPCOMING DEATH TRIAL?
Houston Criminal Defense Attorney John T. Floyd Discusses War on Terror and Insult to the Constitution and Fifth Amendment Privilege Against Self Incrimination
The Miami Herald recently reported that the Pentagon has formally approved the application of the death penalty for charges brought against Khalid Sheik Mohammed, the reported architect of 9/11 terror attacks, and four others charged in the conspiracy to carry out those attacks. More...
May 30, 2008
THE JUAN LEONARDO QUINTERO CASE
Houston Criminal Defense Attorney John Floyd Discusses a Juries Decision to Sentence Convicted Cop Killer to Life in Prison
Everyone, including Juan Leonardo Quintero, was unhappy about the May 20, 2008 jury verdict that spared the convicted cop killer an appointment with a state executioner and insured that he would spend the rest of his natural life in a maximum security state prison. More...
May 28, 2008
A DEATH PENALTY TRIAL
By Mr. Billy Sinclair
The death penalty trial in this essay actually occurred. It is based the well-publicized facts, offense reports, and the trial transcript concerning my arrest, indictment, prosecution, and sentence to death for the December 5, 1965 shooting death of a convenience store clerk in East Baton Rouge Parish, Louisiana. The trial was marred by documented suppressed mitigating evidence, perjured testimony, and ineffective assistance of counsel. The death penalty verdict, I believe, was obtained by the State of Louisiana because of these constitutional violations. By the time I was able to establish these violations in a court of law in 1984, they were considered “harmless errors” because the death sentence had been vacated.
But a significant number of the 1100 inmates executed in this country since 1976 were sent to their deaths because of suppressed mitigating evidence, perjured testimony, fabricated forensic evidence, or grossly inadequate legal representation. Further, as was the case in 1965, it was the social status or the race of their victim that influenced the decision by prosecutors to seek the death penalty against them. The following capital trial illustrates not only the harsh reality of how the death penalty is often prosecuted but how the process can be politicized. It presents the best argument for the abolishment of the penalty. It is the only punishment in these United States that can never, ever be prosecuted equitably and justly. More...
May 25, 2008
FLDS: THE RULE OF LAW FINALLY PREVAILS
Houston Criminal Defense Attorney John T. Floyd Discusses In Re Steed: Texas Court of Appeals Finds No Evidence to Support Finding of Danger to Physical Health or Safety of Children at FLDS YFZ Ranch, CPS Failed to Take Reasonable Efforts Short of Separation from Parents
(Read the Opinion: In re Sara Steed)
The FLDS case began with two anonymous telephone calls from a “16-year-old” girl on March 29, 2008 to a local hot line crisis center in Eldorado, Texas. The anonymous caller told a terrified tale of being forced into a “spiritual” marriage to a man named Dale Barlow who she said frequently beat and raped her at the Yearning for Zion Ranch owned by the FLDS church. The anonymous caller said she was forced into this marriage at age fourteen, had an eight-month-old child, and was pregnant again by Barlow. The hot line crisis center reported the anonymous calls to law enforcement officials. More...
May 24, 2008
THE FLDS CASE: THE TEXAS SOLUTION,
PRISON FOR THE MEN, SHAME FOR THE WOMEN
Houston Criminal Defense Lawyer John T. Floyd Discusses Potential Bigamy Charges Facing Those Living on the Yearning for Zion Ranch
The Fundamentalist Church of Jesus Christ of Latter Day Saints (“FLDS”) is the largest Mormon fundamentalist denomination. The FLDS broke from the Church of Jesus Christ of Latter Day Saints (“LDS”) in the 1930s. Located in southern Utah and northern Arizona, the fundamentalists rejected the LDS’s renunciation of polygamy. After the ex-communication of members who continued to practice plural marriages, the fundamentalists decided break all their religious ties to the LDS Church. More...
May 20, 2008
EXECUTIONS: THE UGLY REALITY AND RACIAL IMPLICATIONS CONTINUE
Houston Criminal Defense Lawyer John Floyd Discusses Race to Restart the Death Penalty, Ugly Reality of the Ultimate Penalty
Just 19 days after the U.S. Supreme Court upheld the lethal injection protocol used by most states to carry out executions, the State of Georgia put to death William Earl Lynd on May 6, 2008. Interestingly enough, the Supreme Court said that when lethal injections are carried out “properly,” the result will be an immediate, humane death. Lynd was pronounced dead at 7:51 p.m. – some seventeen minutes after the first drug, sodium thiopental, was administered. Three to five grams of this barbiturate is supposed to induce immediate unconsciousness. Media reports did not indicate that Lynd was immediately rendered unconscious. More...
May 15, 2007
FLDS: EXPLORING THE SUBJECT OF ABUSE
Houston Criminal Defense Attorney Discusses FLDS Fiasco and the Disproportionate Resources Spent by the State to Persecute this Misunderstood Religious Group
The law enforcement raid last month in Eldorado, Texas on the Yearning for Zion ranch operated by the Fundamentalist Church of Jesus Christ for Latter Day Saints has morphed into the largest child custody case in state history. Charges of polygamy, sexual and physical abuse of children, and forced “spiritual” marriages between older FLDS men and underage girls have become part of the national political and social debate, particularly with respect to sexual and physical abuse of the church’s children. More...
May 11, 2008
SERIOUS OVERCROWDING IN THE HARRIS COUNTY JAIL
HOUSTON CRIMINAL DEFENSE LAWYER John Floyd Discusses Overcrowding in the Harris County Jail and Texas Prisons; Non-Violent Drug Offenders Wasting Away in Prison and Costing Society Billions, Community Treatment Centers and PR Bonds Could Save You Money!
The Houston Chronicle recently reported that the Harris County Sheriff’s Department requested, and received, permission to transfer an additional 1,130 inmates to the West Carroll Detention Center in Epps, Louisiana. The private Louisiana-based detention center is already the home to 600 Harris County inmates at an annual cost of $6 million to local taxpayers. The additional 1130 inmates will cost taxpayers another $15.5 million annually. More...
May 8, 2008
SUPREME COURT RULING ON LETHAL INJECTION WILL PROVE LETHAL
HOUSTON CRIMINAL ATTORNEY John Floyd Discusses Ruling by Supremes in Base v. Rees; Poisoning not Cruel and Unusual Punishment
The Baze Ruling
The United States Supreme Court on September 25, 2007 granted certiorari in the case of Ralph Baze and John C. Bowling, two convicted double murderers, who challenged the constitutionality of lethal injection as it is administered in the State of Kentucky. See: Baze, et al. v. Rees, Comm’r Ky DOC, et al., WL 2075334 (U.S.Ky. 09/25/07). More...
May 5, 2008
FLDS: A TEXAS-SIZED LEGAL DILEMMA
Houston Criminal Defense Attorney John T. Floyd Continues the Discussion about Government Raid at Yearning For Zion and the Potential Criminal Charges to be Filed Against FLDS Members
There have been a series of startling developments in what has become known as the “FLDS case.” This unprecedented child custody case began on March 29, 2008 when an anonymous female caller, identifying herself as a pregnant 16-year-old, reported twice to a hot line crisis center in Eldorado, Texas that she had been a victim of sexual and physical abuse at the local Yearning for Zion ranch by members of the Fundamentalist Church of Jesus Christ of Latter Day Saints. Those anonymous telephone calls triggered a massive military-styled police raid on the YFZ compound several days later resulting in mothers being separated from children and fathers accused of being “pedophiles” for allegedly marrying girls as young as thirteen. More...
May 3, 2008
“ICE” FLEXES DEPORTATION MUSCLE
Houston Criminal Defense Lawyer John T. Floyd Discusses Efforts to Increase Deportation of Illegal Immigrants Convicted of Crimes and Implications on Texas Prisons
The United States Homeland Security unit known as ICE (U.S. Immigration and Customs Enforcement) announced a recent $3 billion effort to deport approximately 450,000 illegal immigrants who are locked up each year in the nation’s jails and prisons. More...
May 1. 2008
CHILD RAPE, THE DEATH PENALTY AND THE POPE
Houston Criminal Attorney John Floyd Discusses Constitutionality and Morality of Death Penalty for Non-Homicide Sex Crimes Committed against Children
While on the papal plane (Shepard One) heading for his first visit to America this April, Pope Benedict XVI informed reporters that he is “deeply ashamed” over the sexual abuse scandals which have rocked the Catholic Church of the United States over the past 25 years. He said the scandals caused him “great suffering.” These scandals involved priests sexually abusing young, mostly male children. A number of these priests were convicted of a litany of sex-related offenses, including aggravated rape. Most of their child victims were under the age of 12 years. Since 2002, when the most infamous scandals surfaced in Massachusetts, the Catholic Church had paid out more than $2 billion to settle civil lawsuits brought by the victims and their families. At least five dioceses were forced to declare bankruptcy. More...
April 30, 2007
FOURTH AMENDMENT: U.S SUPREME COURT CLARIFIES ISSUE OF SEARCH/SEIZURE IN VIOLATION OF STATE LAW
Houston Criminal Defense Attorney John Floyd Discusses Search and Seizure Issues Presented in Virginia v. Moore and Implications on Texas Suppression Claims; Justice Scalia Views Constitution as “Dead” Document.
The Moore Rationale
David Lee Moore was a small time crack dealer in Portsmouth, Virginia. In February 2003 two local police officers heard over their police radio that a person known as “Chubs” was driving with a suspended license. One of the officers knew Moore by the moniker “Chubs.” They ran a license check and learned that Moore’s license had in fact been suspended. The officers located, stopped, and arrested him on the misdemeanor charge of driving with a suspended license. A subsequent search of Moore’s vehicle by the officers discovered 16 grams of crack cocaine and $516 in cash. See: Virginia v. Moore, 543 U.S. _____ (April 23, 2008), Slip Opinion, No. 06-1082, at p. 1. More...
April 26, 2008
PROSECUTORIAL MISCONDUCT
Houston Criminal Defense Attorney, John Floyd, Discusses Fifth Circuit Court of Appeals Decision Finding Reversible Plain Error in Improper Statements of Prosecutor.
Prosecutor’s should not make statements of their personal beliefs as to the truth or falsity of testimony, evidence or guilt of the defendant.
More than seven decades ago the United States Supreme Court held that the primary responsibility of a prosecutor in a criminal case is to seek justice. See: Berger v. United States, 295 U.S. 78 (1935). While a prosecutor has a duty to “prosecute with earnestness and vigor,” the Supreme Court instructed that he may not engage in “improper methods calculated to produce a wrongful conviction.” Id., at 88. The test is whether a prosecutor’s methods “so [infects] the trial with unfairness as to make the resulting conviction a denial of due process.” See: Darden v. Wainwright, 477 U.S. 168, 181 (1986). See also: Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) [Darden test first stated]. In applying this due process test, the Supreme Court has said a prosecutor’s comments alone should be viewed in context of the entire trial to determine whether they undermined the fairness of the proceedings, indicating a reluctance to lightly overturn criminal convictions. See: United States v. Young, 470 U.S. 1, 11-12 (1985).
April 22, 2008
FLDS: THE VICTIM THAT WASN’T
Houston Criminal Defense Attorney John Floyd Discusses Developments in FLDS Case; Anonymous Hoax Caller Used to Support Warrant Illustrates Why Probable Cause Requires More Evidence
The largest child custody case in Texas began with at least two telephone calls on March 29, 2008 from a terrified voice claiming to be a victim of sexual and physical abuse at the Yearning for Zion ranch by members of the Fundamentalist Church of Jesus Christ of Latter Day Saints in Eldorado, Texas. The calls made to a local hot line crisis center triggered a massive military-styled police raid on the YFZ compound several days later that resulted in mothers being separated from children and fathers accused of being “pedophiles” for allegedly marrying girls as young as thirteen. More...
April 18, 2008
DALLAS JUSTICE GIVEN TO THOMAS JOE MILLER-EL
Houston Criminal Attorney John T. Floyd discusses the Saga of Miller-El and the Historical Practice of Racism in the Jury Selection Process
Background and Plea
It was a brutal crime. According to public records, Dorothy Miller-El set it up on November 16, 1985. She had previously worked at the Holiday Inn near the Dallas/Fort Worth International Airport. She provided her husband Thomas Joe Miller-El and Kennard Sonny Flowers with inside information about the motel. The two men entered the motel in the early morning hours where they robbed, bound and gagged two employees: 25-year-old Douglas Walker and 29-year-old Donald Ray Hall. Miller-El asked Flowers if he was going to shoot the two men. When Flowers hesitated, Miller-El shot Walker in the back of the head twice, killing him instantly, and then shot Hall in the side, leaving him paralyzed from the chest down. More...
April 13, 2008
The FLDS Raid and the Extension of the Police State
Houston Criminal Attorney John T. Floyd Discusses Military Style Raid on Eldorado FLDS Compound, Illegal Arrests and Fabricated Probable Cause
The Fundamentalist Church of Jesus Christ of Latter Day Saints (“FLDS”) is the largest Mormon fundamentalist denomination. The FLDS broke from the Church of Jesus Christ of Latter Day Saints (“LDS”) in the 1930s. Located in southern Utah and northern Arizona, the fundamentalists rejected the LDS’s renunciation of polygamy. After the ex-communication of members who continued to practice plural marriages, the fundamentalists decided break all their religious ties to the LDS Church. More...
April 10, 2008
PROSECUTORS, MISCONDUCT, AND RACE
Houston Criminal Attorney John Floyd Discusses Improper Use of Race as Factor in Exercising Juror Strikes
The Harris County District Attorney’s office has found itself embroiled in political controversy over the last six months: racially charged and sexually explicit e-mails, the resignation of Chuck Rosenthal, a feud with a grand jury, involvement in a civil rights lawsuit that will cost the county several million dollars, and media criticism of prosecutorial tactics utilized to secure criminal convictions at any cost. More...
April 8, 2007
TERROR, TORTURE AND TRANSFERS
Houston Criminal Defense Attorney John Floyd Discusses Continued Litigation Caused by the Bush Administration’s Handling of Detainees at Guantanamo Bay
In 2006 the Congress passed the Military Commissions Act. § 7(a)(1) of that Act, applicable through 28 U.S.C. § 2241(e)(1), deprives courts from having jurisdiction over any “application for a writ of habeas corpus filed by or on behalf of an alien detained in the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” More...
April 4, 2008
KEEP THE GOVERNMENT OUT OF OUR BEDROOMS
Houston Criminal Attorney John T. Floyd Discusses Fifth Circuit Decision Striking Down Obscenity Statute Prohibiting Promotion or Sale of Sex Toys, the Right to Private Sexual Privacy
Do you believe that every American citizen has a constitutionally protected right to sexual privacy in his/her home? More...
April 02, 2008
BRADY AND THE ROSENTHAL SCANDAL
Houston Criminal Attorney John T. Floyd Discusses the Shadow of the Scandal, Damaged Reputation of D.A’s Office and Concerns of Failure to Disclose Evidence Favorable to the Accused
Charles “Chuck” Rosenthal is no longer the District Attorney of Harris County. Rosenthal was forced to resign recently in the wake of a scandal that disclosed he had used his office computer to send and receive controversial emails with a former intimate partner and D.A. employee. There were also charges that the former DA received racially insensitive and sexually explicit e-mail from friends, including the husband of one of his most controversial assistant district attorneys. More...
March 27, 2008
MEDELLIN: TEXAS LAW TRUMPS PRESIDENT’S PEN
Houston Criminal Defense Attorney John T Floyd Discusses Medellin v. Texas; United States Supreme Court Devastates Mexican National’s Rights Under Geneva Convention While Simultaneously Limiting Presidential Power
Jose Ernesto Medellin, a Mexican national, took part in one of the most brutal and horrific crimes to have ever occurred in Harris County. A January 8, 2008 column on the John T. Floyd website outlined the facts of the June 24, 1993 murders of 14-year-old Jennifer Ertman and 16-year-old Elizabeth Pena and Medellin’s role in those murders. There is no need to recount those terrible details in this column. More...
March 20 2008
PROSTITUTION, POLITICIANS AND PUNISHMENT
Houston Criminal Defense Attorney John T. Floyd discusses Prostitution in light of the Eliot Spitzer Scandal; Selective Prosecution?
New York Gov. Eliot Spitzer recently became the 22nd governor in the history of the United States to leave office under a cloud of scandal before their term ended. He is the 12th governor to resign because of political or legal problems. The other ten governors were either legally removed from office or impeached. Spitzer was forced to resign after it was revealed that he was “Client 9” who paid as much as $80,000 to a $1,000-an-hour call girl under federal indictment in an Internet prostitution ring. Interestingly, six other governors in modern times have survived “sex scandals” while in office and managed to complete their terms. More...
March 16, 2008
THE VALUE OF A DIRECT VERDICT STRATEGY
Houston Criminal Attorney John Floyd Discusses His Recent Victory by Instructed Verdict; After State Rests Judge Instructs Jury to Acquit on Charges of Sexual Assault and Find Not Guilty
The John T. Floyd law firm was recently retained to represent a client in Houston charged with sexual assault pursuant to Tex. Penal Code § 22.011. The client is a physical therapist who operates a pain relief center in Houston, Harris County. A patient leveled the accusation that our client inappropriately “fondled” and inserted his finger in her vagina during a physical massage session against her consent. The District Attorney’s Office requested, and received, a grand jury indictment charging our client with sexual assault which also designated him as a “health care services provider.” See: § 22.011(b)(9). We believed our client was wrongly accused and set out to exonerate him. More...
March 13, 2007
COURT ALLOWS WRONGFUL CONVICTION LAWSUIT TO PROCEED
Houston Criminal Defense Attorney John Floyd Discusses Civil Rights Lawsuits Brought by Those Wrongly Convicted of Crimes.
Dennis Patrick Brown, an African-American was convicted in Covington, St. Tammany Parish, Louisiana in 1984 for the crime of aggravated rape of a white woman and given a mandatory life sentence without the benefit of parole. Twenty years later he was exonerated by DNA evidence and released from custody. See: Brown v. Miller, 2008 LEXIS 4169 (5th Cir., Feb. 27, 2008) More...
March 7, 2008
IS WATERBOARDING TORTURE?
Houston Criminal Attorney Discusses Reality of Waterboarding, Torture and the Taint on Confessions Obtained from its Use
The United Nations’ High Commissioner for Human Rights certainly believes that waterboarding is torture. Louise Arbour in January joined with UN special rapporteur on torture Manfred Nowak in the wake of admissions by CIA Director Michael Hayden that the agency had used waterboarding on three terror detainees. Despite the Hayden admissions, the CIA called upon the U.S. Justice Department to investigate whether statements by former CIA agent John Kiriakou to various media organizations about waterboarding violated laws prohibiting the release of classified information. More...
March 5, 2007
VIOLENT SEX OFFENDERS: IS CIVIL COMMITMENT A LEGITIMATE SOCIAL RESPONSE?
Houston Criminal Attorney John Floyd Discusses Civil Commitment for Sexually Violent Offenders
The New York Times reported last year (March 4, 2007) that there are approximately 2,700 pedophiles, rapists, and other sexual offenders being held indefinitely by 19 states, mostly in medical treatment centers. The NY Times report was in response to the State of New York joining the parade of states that use “civil commitment” as a way of “protecting” society from “dangerous” sexual predators. Several New York legislators hailed the state’s decision to adopt civil commitment as an opportunity to create a “national model” for not only in isolating dangerous sex offenders but in treating them as well, including “intensive supervision” of those who secure release from their commitment. The following bullet points from the Times report offers a glimpse of “civil commitment” programs nationwide: More...
March 1, 2007
THE WALSH ACT AND ITS “SORNA” IMPLICATIONS
Houston Criminal Defense Attorney John Floyd Discusses Sex Offender Registration Act
In July 2006 President George W. Bush signed into law the Adam Walsh Child Protection and Safety Act (“Walsh Act”). Title I of the Walsh Act is called the Sex Offender Registration and Notification Act (“SORNA”) which expanded the National Sex Offender Registry and established sanctions up to a maximum of twenty years for sex offenders who do not comply with the law’s registration requirements. More...
February 27, 2008
THE CASTLE DOCTRINE:STAND YOUR GROUND AND SHOOT TO KILL
Houston Criminal Attorney John T. Floyd discusses the Castle Doctrine and the Growing Support for the Use of Deadly Force in Self Defense
In October 2005 the Florida became the first state in the United States to officially put a “Castle Doctrine” law on its books. Supporters hailed it as a “stand your ground” law while opponents called it a “shoot to kill” license. More...
February 19, 2008
“PLEADING TO A PSI”
Houston Criminal Attorney John Floyd Discusses the Dangers of Pleading Guilty to a Court Without a Plea Bargain as to Sentencing.
In December former Department of Public Safety crime lab technician Jesus Hinojosa, Jr. pleaded guilty in a Houston, Harris County, Texas district court to two counts of possession of more than 400 grams of cocaine with intent to deliver, all of which was stolen from the agency’s Jersey Village crime lab. He elected to be sentenced by a judge who, by law, ordered a “presentence investigation” report. On February 8, 2008, after reviewing the PSI and considering arguments from the defense and prosecution, the district court sentenced Hinojosa to 45 years in prison – an extreme sentence harsh enough to beg the question of whether he would have fared better before a jury. More...
February 14, 2008
NO BAIL FOR REPEAT DOMESTIC VIOLENCE
Houston Criminal Defense Attorney John T. Floyd Discusses Denial of Bail in a Family Violence Cases
The Texas Council on Family Violence reported there were 187,811 incidents of family violence in 2005 throughout the state. 143 of those incidents resulted in the deaths of women by an intimate partner. That death rate declined slightly in 2006 when 120 women were killed by an intimate partner. It was these disturbing figures that prompted the 2007 Texas Legislature to propose a constitutional amendment to Article I, Section 11, of the Texas Constitution [right to bail] that would allow a court to deny bail to those defendants who violate a previous court protective order or a condition of bond in family violence cases. The amendment was put before the voters as Proposition 13, and it was ratified by the electorate on November 7, 2007. This constitutional amendment, which became effective January 1, 2008, was codified as Texas Code of Criminal Procedure, Article 17.152 (2007) [Denial of Bail for Violation of Certain Court Orders or Conditions of Bond in a Family Violence Case]. The statute provides: More...
February 12, 2008
THE RIGHT TO BAIL:TOO OFTEN ABUSED IN HARRIS COUNTY, TEXAS
Houston Criminal Lawyer John T. Floyd Discusses Excessive Bail in Texas Courts
The Eight Amendment to the United States Constitution expressly prohibits excessive bail. This fundamental right allows an accused to be free before conviction, permitting the unhampered preparation of a defense and preventing unjust punishment upon the innocent. More...
February 3, 2007
PROSTITUTION: “THE WORLD’S OLDEST PROFESSION” AND NOW A VERY SERIOUS CRIME
HOUSTON CRIMINAL DEFENSE ATTORNEY John T. Floyd Discusses Federal Prosecutions of Prostitution Rings
Eric Hayes and Terrence Williams were “pimps” in a nationwide prostitution ring until they were convicted last October in a Toledo, Ohio federal court. In fact, they referred to themselves as “pimp partners.” Their prostitution ring used both juvenile and adult women who were trained and disciplined to live off the earnings from their “johns.” The pimp partners ran a lucrative criminal enterprise that set a fee schedule for particular sexual services, controlled certain areas where only their prostitutes could work, and shared information with other pimps about the activities of the police in their area.
Their immense area of operation spanned 12 states, including Texas, and the District of Columbia. More...
January 30, 2007
ILLEGAL POSSESSION OF A FIREARM BY A CONVICTED FELON
Houston Criminal Defense Attorney John Floyd Discusses the Current State of the Law Regarding Illegal Possession of a Firearm by a Felon
Terry Blanet Hukill, a convicted felon, was arrested in October 2006 by the Dallas Police Department for illegal possession of 21 firearms, including a sawed-off shotgun. The arrest culminated an investigation by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) under a Project Safe Neighborhoods program, a nationwide federal effort targeting gun crimes. On December 14, 2007 U.S. District Judge Jane J. Boyle sentenced Hukill, who pleaded guilty in September to possessing a prohibited firearm (sawed-off shotgun) and possession of a firearm by a convicted felon, to fifteen years in prison. More...
January 25, 2008
CAN DELETED PORN BE USED IN A POSSESSION OF CHILD PORNOGRAPHY CASE?
Houston Criminal Defense Attorney John T. Floyd Discusses How Deleted Computer Files Can be Used in the Prosecution of a Child Pornography Case
FBI agent Randall Clark is part of the Houston Area Cyber Crimes Task Force. His job is to track and catch sex predators looking for child victims on the internet. In a recent interview with the Houston CHRONICLE, Clark said that “we know whenever there are kids online, there will be predators, so we try to get into those places [like MySpace].” More...
January 20, 2007
ATHELETES, STEROIDS, FALSE STATEMENTS AND PERJURY: THE NEED FOR COUNSEL
Houston Criminal Attorney John Floyd Discusses Lying About Steroids; Recent Criminal Investigations and Convictions
Marion Jones was an astounding Olympian sprinter who captured five Gold medals. She was the darling of not only the international sports world but of the American people as well. Then the world collapsed around this charming sports figure. In 2003 a federal criminal investigation was initiated in Northern California concerning the distribution of anabolic steroids, other illegal performance-enhancing drugs, and related money-laundering activities. The investigation centered on Balco Laboratories, a corporation that performed blood-tests for athletes. More...
January 18, 2008
DESTRUCTION OF THE CIA INTERROGATION TAPES: A SAGA OF OFFICIAL ABUSE OF POWER
Criminal Defense Attorney John Floyd Discusses Whether Destruction of CIA Torture Tapes Could Lead to Criminal Culpability for the President or his Crew
The terrorist attack on September 11, 2001 on the New York World Trade Center’s Twin Towers not only inflicted a terrible human tragedy on America but set into motion reactionary forces within our government that would undermine this nation’s fundamental moral, ethical, and legal obligations to the international community. More...
January 13, 2008
WHEN WILD ANIMALS ATTACK
Houston Defense Attorney John Floyd discusses Potential Texas Tort Liability for Zoo Attacks. What if it happened in Texas?
THE ATTACK
It was last Christmas evening. Most of the visitors at the San Francisco Zoo had given way to the approaching chill of evening and left for a dinner meal with family and friends. Rather than spending the evening with his family as they wanted, 17-year-old Carlos Sousa joined two brothers, 23-year-old Kulbir Dhaliwal and 19-year-old Paul Dhaliwal, for a trip to the zoo. More...
January 4, 2008
THE MEDELLIN CONSTITUTIONAL CRISIS
Houston Criminal Attorney John Floyd Discusses Consular Notification Under the Article 36 of the Vienna Convention
They were called the “Black and Whites” in 1993 – a Harris County predatory street gang. There were eight of them, including Jose “Joe” Ernesto Medellin. It was 11:30 p.m. on the evening of June 24. Earlier in the evening 17-year-old Raul Villareal has been initiated into the gang by fighting a rival gang member. The Black and Whites were in a city park drinking beer and celebrating the outcome of that initiation ritual. More...
December 31, 2007
THE AGE OF STEROIDS OR STEROID RAGE?
Houston Criminal Attorney John Floyd Discusses Due Process
in Light of Major League Baseball and the Mitchell Report
On December 13, 2007 former Senate Majority Leader George Mitchell submitted to Major League Baseball what has become known as “the Mitchell Report.” The “report” is the culmination of a 20-month investigation into the illegal use of steroids by major league baseball players. The Mitchell Report named 86 current and former players from all 30 major league teams as having used steroids during their playing careers. Two of the most prominent players named in the report are seven-time Cy Young Award winner Roger Clemens and current Yankee and former Astros pitcher Andy Pettitte. More...
December 19. 2007
SUPREME COURT CRACKS BARRIER ON CRACK SENTENCING
Houston Criminal Defense Attorney John T. Floyd Discusses Significant Developments Effecting Crack Cocaine Sentences from U.S. Supreme Court and U.S. Sentencing Commission
The United States Supreme Court on December 10, 2007 issued a ruling in a case that will effectively reduce some of the crack cocaine sentences for nearly twenty thousand federal inmates – 85 percent of them African-American. See: Kimbrough v. United States, No. 06-6330 (2007). The following day the U.S. Sentencing Commission voted to allow these inmates to immediately apply for sentence reductions. Slightly more than 2500 of them will be eligible for early release over the next year. More...
December 17, 2007
IN THE WAKE OF THE JOE HORN SHOOTINGS
Houston Criminal Attorney John Floyd Continues Discussion of Deadly Force in Self Defense in Light of More Recent Shootings
During the afternoon of November 14, 2007 a Pasadena, Texas resident named Joe Horn was working at his computer in his own home. He heard the sound of breaking glass. He looked out his window. He saw two men [later identified as Miguel Antonio DeJesus and Diego Ortiz] breaking into his neighbor’s home. Horn retrieved a shotgun, called 911, and informed the operator about the burglary in progress. The 911 operator instructed Horn to remain inside his residence – that the police were on their way. Horn did not heed those instructions. He went outside, confronted the two burglary suspects, and killed both of them as they attempted to flee. More...
December 14, 2007
HOW FAR DOES THE POWER OF HABEAS CORPUS EXTEND?
Houston Criminal Defense Attorney John T. Floyd Discusses Latest Gitmo Appeals before Supreme Court: Will America Remain Symbol of Liberty?
The United States Supreme Court on December 5, 2007 heard oral arguments in a case that will ultimately answer this critically important constitutional question. See: Boumediene v. Bush, 2007 WL 4252686 (U.S. 2007). More...
December 9, 2007
JOE HORN’S SELF-DEFENSE SAGA CONTINUES
Part Two: Discussion of Use of Deadly Force and Self Defense by Houston Criminal Defense Attorney John T. Floyd
On November 14, 2007 a Pasadena, Texas resident named Joe Horn shot and killed two men who had burglarized his neighbor’s home. The case immediately generated national media attention, and an onslaught of Internet discussion. This case captured the public’s imagination for several reasons. First, Horn called a 911 operator to not only report the burglary but to state his willingness to use deadly force and perhaps kill Miguel Antonio DeJesus and Diego Ortiz with his shotgun. The 911 recording, which has been publicly repeated thousands of times, captured the operator’s instructions that Horn remain inside his residence and Horn’s repeated comments that he was going to shoot, and kill, the burglary suspects. More...
December 5, 2007
TEXAS STIFFENS PUNISHMENT FOR SEX OFFENDERS
Houston Criminal Defense Attorney John T. Floyd Discusses Lynch Mob Mentality of 2007 Texas Legislature Handling of Sex Offenders
The 2007 Texas Legislature enacted a number of measures that severely increased the punishment for sex offenders. One of those measures makes second convictions for first-degree "sexually violent offenses" involving victims 14 years of age or younger a capital crime punishable by death or life without parole. A "sexually violent offense" is indecency with a child involving contact, sexual assault, aggravated sexual assault, sexual performance by a child, aggravated kidnapping involving intent to violate or abuse sexually, and first-degree burglary committed with intent to commit one of the sex offenses in this list. More...
November 29, 2007
IN DEFENSE OF THY NEIGHBOR
Houston Criminal Defense Attorney John T. Floyd Discusses Texas Self Defense Law in Light of the John Horn Shooting
On Wednesday, November 14, at about 2:00 p.m. a Pasadena, Texas man named Joe Horn was working at his computer inside his own residence in the 4900 block of Timberline when he heard the sound of breaking glass. He looked out the window of his home and saw two Hispanic men, Miguel Antonio DeJesus and Diego Ortiz, breaking into his neighbor’s house – a neighbor that Horn did not know very well. The 61-year-old Horn retrieved his 12-gauge shotgun from his pickup truck where he kept it for personal protection. Horn then called a 911 operator to report the burglary in progress. He explicitly told the operator that he was armed with a shotgun and that he was going out to shoot the two men to prevent the burglary of his neighbor’s home. The 911 operator repeatedly instructed Horn to remain inside his house until the police arrived. The following are excerpts from that 911 call: More...
November 22, 2007
THE DUTY TO REPRESENT
Houston Criminal Defense Attorney John Floyd Discusses the Ethical Dilemma of Representing the Cooperating Witness
True criminal defense lawyers relish the opportunity to fight a case before a jury; to force the government to trial whether they like it or not. Criminal defense lawyers believe that often it is only in trial, before a jury of our peers, that true justice can come forth. And we also know that many times a jury trial is necessary to achieve any victory for the client, whether that is by achieving a lesser sentence than offered by the government or by total acquittal and vindication. More...
November 13, 2007
THE RESPONSE TO JUVENILE CRIME AND YOUTH VIOLENCE
Criminal Defense Attorney John T. Floyd
In the 1970s, when crime and violence had turned the nation’s big cities into urban arenas of fear, suspicion and distrust, Former Houston Police Chief B.K. Johnson told TIME Magazine (March 23, 1981) that “we have allowed ourselves to degenerate to the point where we’re living like animals. We live behind burglar bars and throw a collection of door locks at night and set an alarm and lay down with a loaded shotgun beside the bed and then try to get some rest.” Former Louisiana Corrections Secretary C. Paul Phelps said that “the most dangerous creature in the world is the 16 or 17 year old kid who comes from the ghetto. It makes no difference whether he’s white, black, Hispanic or Chinese.” More...
November 7, 2007
HUMAN TRAFFICKING
Houston Criminal Defense Attorney John T. Floyd
The Houston CHRONICLE, in a front-page October 28, 2007 article entitled “Houston a Major Hub for Human Trafficking,” reported that the U.S. State Department estimates that approximately 17,500 people are trafficked into the United States each year. More...
November 2, 2007
POLICE CUSTODY DEATHS
Houston Criminal Defense Attorney’s Perspective, Allegations Police Abuse in the Jail
This past summer Houston police were summoned to a “disturbance call” at a home in the 9200 block of Denton. The call had been placed by the mother of 35-year-old Johnell Patrick, a thrice-convicted drug offender. More...
October 25, 2007
THE HOLY LAND FOUNDATION VERDICT
Criminal Defense Attorneys in Dallas Raise Reasonable Doubt and Force Mistrial
Under its original name Occupied Land Fund, the Holy Land Foundation was established in California in 1989 by Ghassan Elashi and other Palestinian Muslims. The purpose of the Foundation was to provide assistance to Palestinians displaced by a Palestinian uprising against Israel’s occupation of the West Bank and Gaza. The uprising became known as the “intifada.” The most aggressive, and violent, resistance in the intifada came from the Iranian-backed organization called Hamas which had been established in 1987. The leader of Hamas, Mousa Abu Marzook, was married to Elashi’s cousin. More...
October 22, 2007
U.S. CONSTITUTION IMPALED ON THE SWORD OF FANATICISM
HOUSTON CRIMINAL DEFENSE ATTORNEY Discusses The United States Supreme Court’s Refusal To Hear El-Masri And Allegations Of CIA Torture
Last April we reported about the case of Khaled El-Masri, a German citizen of Lebanese descent, who in December 2003 was traveling in Macedonia when he was taken into custody by that nation’s law enforcement officials on some technicality concerning his passport. They held El-Masri in their custody for twenty-three days at a hotel in Skopje before turning him over to American CIA operatives. That began an odyssey of torture for El-Masri and an official plundering of time-honored principles of law set forth in this nation’s Bill of Rights and its Constitution. More...
October 17, 2007
SUPREME COURT TO DECIDE THE 100:1 CRACK/POWDER COCAINE RATIO
Houston Criminal Attorney John T. Floyd Discusses the Inherent Tragedy Caused by the Crack/Powder Cocaine Ratio and the Unreasonably Long Prison Sentences for Low-Level, Non-Violent First Offenders.
Derrick Kimbrough was arrested in Norfolk, Virginia on two offenses involving of possession crack and powder cocaine as well as a single firearm offense. State authorities dismissed their case in favor of federal prosecution. The federal drug offenses exposed Kimbrough to a sentence range of 10 years to life imprisonment and a mandatory sentence range of 5 years to life imprisonment on the firearm offense to be served consecutively. More...
October 12, 2007
“MISTAKES” IN A LAST-MINUTE DEATH APPEAL
Grievances Filed by Criminal Attorneys across the State; Intentional mishandling of the request for an extension of the filing deadline by Judge Sharon Keller reflects the mean-spirited, biased, and callous nature of not only those who advocate but those who enforce the ultimate punishment. More...
October 11, 2007
YET ANOTHER HARRIS COUNTY DNA EXONERATION
Houston Criminal Defense Attorneys Beware! Exoneration Marks Third Criminal Defendant Wrongfully Convicted Because of Mishandling of Evidence by the Houston Police Crime Lab
In May of 1993, in the Third Ward of Houston, Texas, a 38-year-old woman was asleep in her home when she was abruptly awakened by a man who put a knife to her throat. The intruder raped the woman and fled the residence. The victim called the police to report the sexual assault. Two police officers arrived at the scene one hour later. The officers identified a “wet spot” on the sheet where the rape occurred. The rape victim told the officers that she had felt the assailant’s features during the attack but had only gotten a brief glimpse of him while he was in her home. The only light in the victim’s residence came from a street light across the street. More...
October 9, 2007
CRIMINAL ATTORNEYS STILL WATCHING THE U.S. SUPREME COURT, DECISIONS EFFECTING SENTENCING GUIDELINES
Rita v. United States, 125 S.Ct. 2456, 2463, 168 L.Ed.2d 203 (2007)
While the U.S. Supreme Court’s decision in Booker gave many defense attorneys hope that the often draconian Sentencing Guidelines would soon be pronounced dead, they still remain largely intact. Judges must still consult and consider the guidelines and, with Rita’s “presumption of reasonable” standard, any sentence they hand down within the guidelines will most likely withstand appellate review. However, the Supreme Court has created a real opening for “thorough adversarial testing” of the sentencing procedure by allowing judges to depart from the guidelines if given good reason under the factors set forth in 18 U.S.C. § 3553. Defense attorneys must take this opportunity to effectively present their clients’ best case at sentencing before the federal courts. After all, criminal defendants and their offenses of conviction are unique and individual and should be treated as such by the courts when assessing a just punishment. More...
October 5, 2007
HOUSTON CRIMINAL ATTORNEY DISCUSSES CRUEL AND UNUSUAL PUNISHMENT, DEATH PENALTY BY LETHAL INJECTION
The United States Supreme Court on September 25, 2007 granted certiorari in the case of Ralph Baze and John C. Bowling, two convicted double murderers, who challenged the constitutionality of lethal injection as it is administered in the State of Kentucky. See: Baze, et al. v. Rees, Comm’r Ky DOC, et al., ___ Ct. ____, 2007 WL 2075334 (U.S.Ky. 09/25/07). More...
September 30, 2007
CRIMINAL DEFENSE ATTORNEYS KNOW FIRST HAND THE FBI CANNOT BE TRUSTED WITH UNCHECKED INVESTIGATIVE POWERS, ADMINISTRATIVE SUBPOENAS
The USA Patriot Act was became law on October 26, 2001 – some six weeks after the 9/11 terrorists attacks on the twin towers of the World Trade Center. The Act increased the government’s surveillance powers in both criminal and intelligence investigations, permitting an easier process for the law enforcement and intelligence communities to share information while conducting these two types of investigations. More...
September 29, 2007
THE LAW AND CONTRADICTION
It has been said that the law is a mystery. One thing is certain: those who make and interpret the law often reach contradictory and antipodean results. This reality frequently reduces the law’s noble pursuit of justice irrelevant. Two recent news stories underscores this reality: the decision by the United States Senate to block efforts by a bipartisan effort to restore the right of terrorism suspects to utilize habeas corpus to challenge their detention and other remedies to challenge conditions of their confinement; and the decision by U.S. District Judge Aleta Trauger declaring unconstitutional the three-drug protocol used to execute condemned inmates in Tennessee. More...
September 24, 2007
PENILE PLETHYSMOGRAPHY:BIG BROTHER AND PUNISHING THOUGHT
Criminal Defense Attorneys Keep Eye on Conditions of Probation, Parole and Supervised Release, Sex Crimes Convictions
What kind of condition is penile plethysmography? More to the point, what is plethysmography?
The word “plethysmograph” Greek words “plethysmos” and “graphos.” The former mean “enlargement” and the latter means “to write.” A penile plethysmorgraph, therefore, is an instrument that measures the volume of the penis (or its erection). See, Odeshoo, Jason D., “Of Penology and Perversity: The Use of Penile Plethysmorgraphy on Convicted Child Sex Offenders, 14 Temp. Pol. & Civ. Rts. L.Rev. 2004, p. 6. More...
September 19, 2007
POLICE POWERS VERSUS RIGHT OF PRIVACY/FREE SPEECH
Criminal Defense Attorneys Will Face Expanded Use of State WireTapping
The Texas Legislature recently increased the powers of law enforcement to conduct electronic surveillance. The new legislation (SB823) allows cities with populations of 500,000 or more to operate their own “pen register” devices that have the capacity to capture real time outgoing telephone numbers dialed from a targeted telephone. More...
September 14, 2007
A 2007 TEXAS LEGISLATIVE SUMMARY
The 80th Texas Legislative Session, as other legislators across the United States, was preoccupied with sex offenses and sex offenders. This is hardly surprising given the intense media attention to these types of cases and the public outrage against sex crimes. So, rather than focus on a myriad or other issues that would bring real change to the lives of our citizens and purposeful change to our system of criminal justice, our legislature took the easy way out and focused, again, on an easy target. More...
September 7, 2007
INEFFECTIVE ASSISTANCE OF COUNSEL:THE FAILURE TO INVESTIGATE
Criminal Defense Lawyers Must Diligently Investigate Facts Supporting Possible Defenses, Witnesses
The right to effective assistance of counsel is guaranteed by the Sixth Amendment to the U.S. Constitution. See, McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970). This constitutional guarantee attaches to both retained and appointed counsel. See, Cuyler v. Sullivan, 446 U.S. 335, 344-45 (1980). More...
September 6, 2007
WHEN ERROR IS HARMLESS
Federal Criminal Appeal Lawyers Struggle With “Harmful” Errors
In 1962 Ruth Elizabeth Chapman and Thomas Leroy Teale robbed, kidnapped, and murdered a bartender in the State of California. See, Chapman v. California, 386 U.S. 18, 19, 87 S.Ct. 824 (1967). They were tried and convicted together. The two defendants did not take the witness stand in their own defense. Chapman received a life sentence and Teale was sentenced to death. Id. More...
September 1, 2007
STATEMENTS OF CO-CONSPIRATORS
Criminal Defense Attorneys must Fight to Prevent Admission of Prejudicial Statements of Unindicted Co-Conspirators
In December 2001 the Dallas-based Holy Land Foundation for Relief and Development was shut down after being accused by the federal government of being a fund-raising front for Hamas, a militant Palestinian group the United States has designated as a terrorist organization. The government charged that the self-described Muslim charity organization had funneled $12 million in illegal aid to Hamas. Another approximately 250 Muslim groups and individuals were named as “unindicted co-conspirators.” More...
August 28, 2007
THE MICHAEL VICK SAGA
A Criminal Defense Lawyers Perspective
Michael Vick and Don Imus. What do they have in common. Well, to begin with, soup for the goose, soup for the gander.
Both became well known public figures, celebrities of sorts – one as a highly proficient NFL quarterback and the other as a quasi shock-jock. Both used their special talents to become icons in their individual professions; both shocking and astonishing people inside and outside their respective media- driven careers with individual bad choices.
Then they both suffered an ignominious fall from public grace because of incredibly stupid personal behavior. Imus chose to refer on-the-air to the ladies of the Rutgers University basketball team as “nappy-headed ‘hoes” and Vick chose to fight dogs (pit bulls, mostly; some of whom were killed) and operate a gambling enterprise around this criminal enterprise.
But beyond these stupid personal choices, the two men enjoyed yet another bond – both were victims of orchestrated public outrage. More...
August 25, 2007
THE JOSE PADILLA CONVICTION: A BUSH VICTORY OR A DEFEAT FOR CIVIL LIBERTIES
Criminal Defense Lawyers for Padilla Argue for Dismissal Due to Outrageous Conduct of the Government
Jose Padilla was initially arrested in 2002 at the O’Hare International Airport in Chicago, with a lot fanfare by the U.S. Justice Department, on a charge that he was involved in a plot to plant a radiological “dirty bomb” in the United States. He was declared an “enemy combatant” and transferred to military custody at a naval brig in Charleston, South Carolina. Reportedly, he was subjected to physical torture, relentless interrogations, and a litany of other physical/psychological abuses and deprivations over the next three years before both military and intelligence investigators, as well as federal prosecutors, concluded there was no “dirty bomb” plot. More...
August 22, 2007
Expert Testimony in Child Pornography Cases
In a previous Web Front Page Column (CHILD PORN: WHAT IS VIRTUAL, WHAT IS REAL), it was pointed out that in federal child pornography prosecutions under 18 U.S.C. § 2252(a)(B) the Government is under no statutory or constitutional obligation to present “expert testimony” that the alleged pornographic images are of a real child. See, United States v. Rodriquez-Pacheco, 475 F.3d 434 (1st Cir. 2007). While the government has a constitutional burden to prove beyond a reasonable doubt that the alleged pornographic images are of a real, non-virtual child, the matter is an issue of fact to be decided by the jury and those determinations can be based on the actual images, videotapes, photographs, etc., absent expert testimony. Id,, at 444. More...
August 20, 2007
CHILD PORN: WHAT IS REAL, WHAT IS VIRTUAL?
Criminal Defense Lawyers Must Closely Examine Evidence In Child Pornography Cases to Rule Out Virtual Images: Government Retains Burden to Prove Images of a Real Child.
It is a federal crime to possess child pornography. See: 18 U.S.C. § 2252(a)(B). See also: Child Pornography Prevention Act of 1996 (CPPA), 18 U.S.C. § 2251.
The United States Supreme Court in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389 (2002) held unconstitutional those provisions of § 2252(a)(B) that extended child pornography to any sexually explicit image that “conveys the impression” that it depicts “a minor engaging in sexually explicit conduct.” Id., 535 U.S. at 258. See also: United States v. Rodriquez-Pacheco, 475 F.3d 434 (1st Cir. 2007). More...
August 15, 2007
TERRORISM SENTENCING ENHANCEMENT
Federal Criminal Lawyers Must be Prepared to Fight the Terrorism Sentencing Enhancement Found in USSG § 3A1.4.
Sabri Benkahla was convicted on charges of making false statements to a federal grand jury and lying to the FBI and for obstructing justice with statements that he had never seen or received military-type training in Pakistan and possibly Afghanistan in 1999. See, United States v. Benkahla, 2007 WL 2254657 (E.D.Va. Aug. 3, 2007). More...
August 11, 2007
FISA AND THE PROTECT AMERICA ACT OF 2007
Criminal Defense Lawyers Will Find Evidence Obtained By Secret FISA Warrants Can Be Used In Domestic Criminal Prosecutions
On August 5 President George W. Bush signed into law The Protect America Act of 2007.
“We know that information we have been able to acquire about foreign threats will help us detect and prevent attacks on our homeland,” President Bush said upon signing the controversial legislation. “Mike McConnell, the Director of National Intelligence, has assured me that this bill gives him the most immediate tools he needs to defeat the intentions of our enemies. And so in signing this legislation today, I am heartened to know that his critical work will be strengthened and we will be better armed to prevent attacks in the future.” More...
August 6, 2007
MEDICARE/MEDICAID FRAUD:
Criminal Defense Lawyers Defending Medicare and Medicaid Fraud.
Fraud has been woven into the fabric of the federal health care programs, Medicare and Medicaid, since their inception. Congress in 1977 conducted a series of hearings to examine the infestation of theft and patient abuse prevalent in the Medicaid program. See, Medicare and Medicaid Fraud and Abuse § 6.11 (2007)[Alice G. Gosfield] {hereinafter MedFraud}. More...
August 1, 2007
DEFENDING TERRORISM CRIMES
Criminal Defense Lawyers Begin Fight with Aggressive Pretrial Litigation
United States v. Abdi
Defending any criminal case is a monumental undertaking, even those seemingly “open-and-shut” cases. But defending a terrorism case demands not only the utmost professional skill but a reserve of personal courage. A criminal defense lawyer in a terrorism case understands at the outset that the Government will bring to bear all its awesome prosecutorial resources to secure a criminal conviction. The defense lawyer must be prepared to attempt to match resource with resource in defense of his client. Further, the lawyer representing a person accused of terrorism, like others accused of heinous crimes which stir public demands for punishment, must remain focused and stand fast to defend and protect this most vulnerable client if the rule of law and principles of fairness and justice are to survive. More...
July 27, 2007
INDICTMENTS FOR MORTGAGE FRAUD ON THE RISE
Investigations and Indictments for mortgage fraud are on the rise in the current climate of the sub-prime mortgage scandal. From high profile investigations involving the powerful to small time straw buyers, the government is showing a zero tolerance policy when it comes to investigating and prosecution of allegations of mortgage fraud. More...
JULY 25, 2007
A RIGHT OF CONFRONTATION
The Confrontation Clause of the Sixth Amendment guarantees a criminal defendant the right to confront and cross-examine adverse witnesses against him. Inherent in this Sixth Amendment guarantee is the right of the defendant to be present at every stage of the criminal trial in order to effectively cross-examine adverse witnesses. See, Pointer v. Texas, 380 U.S. 400, 403 (1961). See also: 36 Geo.L.J.Ann,Rev.Crim.Proc., 628 (2007). More...
July 17, 2007
THE CRACK COCAINE LEGACY: PUINISHMENT DISPARITY IN THE FEDERAL COURTS
In 1986 University of Maryland basketball sensation Len Bias was found dead from a cocaine overdose. Despite toxicology reports showing that the drug overdose resulted from powder cocaine, media reports connected the basketball star’s death to a “crack” cocaine overdose and continued to spread that misperception. More...
July 12, 2007
INTERNET SEARCH FOR TEEN SEX A COSTLY PROPOSITION
Chris C. was really a small town gentleman living in a big city, Houston, Texas. He was married, mid-40s, professional with a nice home, and a secure job. All outward appearances indicated he was a normal, hard-working husband/father, but he had a problem. He had a perverse desire to have sex with a teenage girl. He wanted the sex to be safe, anonymous, and away from home. He had heard of the opportunities to find such sex on the Internet. He was initially hesitant, afraid, knowing that the Internet was filled with traps. More...
July 2, 2007
THE SLIPPERY SLOPE OF POST-CONVICTION APPEALS
The first, and perhaps most important, statute a criminal defendant should become aware of following an arrest is Rule 103 of the Texas Rules of Evidence. Rule 103(a)(1) requires that an objection be made to any pretrial, trial or post-trial error in order for it to be heard on direct appeal. A criminal defendant should stress to his attorney, whether appointed or retained, that he/she expects the attorney to object to any adverse rulings made by the trial court throughout the criminal proceedings against the defendant. While some of the objections clearly will not have a basis in law, the defense attorney should nonetheless make the objection, research the issue, and be prepared to present it on direct appeal. The failure to object by a defense attorney will haunt a criminal defendant throughout the post-conviction process.
June 28, 2007
THE “GREAT WRIT” SURVIVES TO FIGHT ANOTHER DAY
Ali Saleh Kahlah al-Marri is a Qatari national and a legal resident of the United States. He lawfully entered the United States with his wife and children on September 10, 2001, to pursue a master's degree at Bradley University in Peoria, Illinois, where he had obtained a bachelor's degree in 1991. The very next day, September 11, terrorists hijacked four jet airliners and ruthlessly attacked the sovereignty of the United States. More...
June 22, 2007
HOUSTON CRIME LAB NEEDS SPECIAL MASTER
Two years ago the “crime lab” for the Houston Police Department was a national scandal. Its shoddy analysis and unprofessional investigation protocol had apparently resulted in the conviction of scores of innocent criminal defendants. Mayor Bob White vowed to clean up the disgraceful mess and restore law enforcement integrity to the crime laboratory. Michael Bromwich, a former U.S. Justice Department inspector, was assigned the task of investigating the crime lab, its procedures, and issue recommendations. Bromwich fulfilled his commission on June 13, 2007 when he issued a 400-page report whose recommendations were not readily embraced by the very city officials who pushed for Bromwich’s investigation in 2005. More...
June 18, 2007
THE INFORMANT IN THE NEW YORK TERROR PLOT
Earlier this month (June ’07) the federal government indicted four men – one from Trinidad, another from Tobago, and the other two from Guyana – in a “terror plot” that targeted New York’s John F. Kennedy International Airport. Labeled “homegrown terrorists,” the four men were introduced to the American public with sensational media fanfare and boogaboo warnings from federal law enforcement officials. More...
June 9, 2007
Punishments for Convictions Upon Multiple Counts of Indecency with a Child, Sexual Assault of a Child, Aggravated Sexual Assault of a Child, and Incest Can be Stacked and Run Consecutively
Multiple counts in an indictment can charge different discreet and specific criminal acts. Multiple instances of certain sex crimes involving children have been specifically defined as arising out of or being part of the same criminal episode. Section 3.03 of the Texas Penal Code expressly authorizes sentences arising from convictions on multiple counts of sex crimes against children to run concurrently or consecutively. Stacking punishments can therefore be authorized in cases involving multiple acts against a single victim or single acts committed upon multiple victims. Therefore, it is possible that a single indictment against a single defendant could allege hundreds of counts of sexual assault of a child upon which a conviction could be had on each count and the sentences for each count stacked. More...
June 4, 2007
GOTTI CRIME FAMILY TAKES A HIT
Peter Gotti, John Matera, and Thomas Carbonaro, all members of the New York City Carlos Gambino Crime Family, were charged in a federal indictment of participating in a criminal enterprise under the Racketeer Influenced and Corrupt Organization Act (RICO). A jury found Carbonaro and Gotti, the brother of former crime boss John Gotti, guilty of racketeering and racketeering conspiracy in violation of 18 U.S.C. § 1962 (c) and (d); and extortion in the construction industry in violation of 18 U.S.C. § 1951. See,
United States v. Matera, et al., No. 05-0392 (2nd Cir. May 30, 2007). More...
June 1, 2007
THE LETHAL INJECTION PROTOCAL
Philip Ray Workman was executed in the Tennessee death chamber on May 9, 2007.
Twenty-six years before, on August 5, 1981, Workman robbed a Wendy’s restaurant in Memphis. He forced all the employees and a customer into the manager’s office where he collected the day’s receipts into a bag. See, Workman v. Bredesen, ____ F.3d _____, 2007 WL 1311330 (6th Cir. Tenn.) [May 7, 2007]. More...
May 28 2007
THE TERROR ATTACK ON CIVIL LIBERTIES
America has lauded itself as a country that cherishes individual liberty. Our constitution and the Bill of Rights are held out as models for the rest of the world to immolate. But America has never been comfortable protecting civil liberties in times of national crises. More...
May 15, 2007
Online Solicitation of a Minor The Impact of Adam Walsh on 18 U.S.C. § 2422(B)
It was a perfect photo op: President George W. Bush surrounded by crime victim advocates and key Congressional leaders as he signed on July 27, 2006 the “Adam Walsh Child Protection and Safety Act of 2006.” More...
May 11, 2007
IMPACT OF DNA EXONERATIONS ON THE NATION’S CRIMINAL JUSTICE SYSTEM
In 2000 a free lance writer named J.J. Maloney wrote a piece entitled, “Will DNA Evidence Revolutionize Criminal Law” for the online publication CRIME Magazine.
In the ensuing decade the nation’s criminal justice system has witnessed the dramatic way DNA evidence has indeed revolutionized the way criminals are prosecuted and defended in a court of law. More...
May 1, 2007
Government Continues Assault on Writ of Habeas Corpus
Ali Saleh Kahlah Al-Marri is a resident alien in the United States. He was arrested in this country and labeled an “unlawful enemy combatant.” He has an appeal pending before the Fourth Circuit Court of Appeals. This appeal raises several significant issues:
Can the provisions of the Military Commissions Act which foreclose habeas corpus relief to an “enemy combatant” be applied to an individual who has not been “properly determined” to be an enemy combatant? More...
April 27, 2007
State Secrets Privilege Used to Protect Executive Misconduct, Invites use of Torture
The Fourth Circuit in El-Masri v. United States, 479 F.3d 296 (4th Cir. 2007) recently issued a decision that brings into focus the dangerous threat posed by the “war of terror” to the United States Constitution and our historically sacred Bill of Rights. More...
April 22, 2007
Rule Against Multiplicity and Child Pornography Crimes, United States v. Buchanan, No. 04-41364 (5th Cir. 04/10/07)
18 U.S.C. § 2252(a)(2) provides:
(a) Any person who –
(2) knowingly receives or distributes, any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported, by any means, including computer, or knowingly reproduces any visual depiction for distribution in interstate or foreign commerce or through the mails, if – More...
April 17, 2007
Court Allows U.S. Citizen to be Executed in Iraq
Mohammad Munaf is an American citizen. In 2005 he traveled to Iraq where, one year later, he was convicted on kidnapping charges and sentenced to death by the Central Criminal Court of Iraq. See, Munaf v. Green, WL 1029074 (D.C. Cir. 04/06/07) More...
April 12, 2007
Boumediene v. Bush; Court Turns Deaf Ear to Fundamental Principals of the Great Writ of Habeas Corpus and Gives Big Brother a Blank Check.
On April 2, 2007 the United States Supreme Court refused to hear an appeal from the United States Court of Appeals for the District of Columbia which, in February, ruled that Guantanamo Bay detainees did not have a right to habeas corpus review of their indefinite confinement or any other constitutional protections. Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007). The Supreme Court’s refusal to hear the Boumediene appeal effectively closes the door to any judicial relief for the approximately 385 held at the Guantanamo facility for more than five years - unless the Supreme Court at some point chooses to revisits Boumediene issues. More...
April 11, 2007
Evidence of Torture may become Public at Padilla Trial
In May 2002 Jose Padilla arrived at the Chicago O’Hare International Airport abroad an international flight from Zurich, Switzerland where he was taken into custody by federal law enforcement authorities on a Material Witness Warrant. The federal authorities had allegedly obtained information, through torture interrogation, from al-Qaida operative Abu Zubaydah that implicated Padilla in suspected terrorist activity against the government of the United States. The U.S. Justice Department released information that Padilla was part of an al-Qaida plot to detonate a radioactive “dirty bomb” in an American city. More...
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