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February 4, 2012

ATTORNEY-CLIENT PRIVILEGE

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: more...

January 29, 2012

CONFIDENTIAL AND PRIVATE

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.” more...

January 26, 2012

CONDITIONS OF BAIL IN DWI CASES CAN BE HARSH

Politics and Profit Motive Lead to Unreasonable Conditions of Bond in First Time DWI Cases

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

The Texas Legislature in 1999 gave courts the general authority to impose “reasonable conditions” of pre-trial release. This authority was codified in Chapter 17 of the Texas Code of Criminal Procedure. Art. 17.40(a) and has been used by some courts to impose draconian “conditions” of bond in DWI cases on the dubious claim they are related “to the safety of the community.”  Unfortunately, some courts, with pressure from tough on crime advocacy groups who often endorse judges during election cycles, have added such burdensome conditions of bond as to amount to punishment prior to a finding of guilt, disregarding the fundamental principle of “innocent until proven guilty.” more...

 

January 23, 2011

TWO CONFESSIONS: DIFFERENT CONSTITUTIONAL STANDARDS

Confessions after Illegal Search Should be Suppressed if Influenced by Underlying Illegality, Violation of Forth Amendment

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

There are primarily two types of unlawful confessions: custodial confessions obtained in violation of the Fifth Amendment and confessions obtained as products of an illegal search in violation of the Fourth Amendment. The Ninth Circuit Court of Appeals had a recent opportunity in United States v. Shetler to address the latter. more...

January 19, 2011

THE IMPACT OF SMITH V. CAIN

High Court Misses Opportunity to Discuss Ethical Obligations of Prosecutors

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

For reasons we discussed in a previous post, the U.S. Supreme Court had an opportunity in Smith v. Cain to discuss the ethical discovery obligations of both federal and state prosecutors—an idea strongly suggested by the American Bar Association in their amicus brief filed in the case. While the issue before the Court was whether Louisiana prosecutors had committed a Brady violation in a murder case by suppressing favorable evidence, the ABA had encouraged the Justices to use the case to emphasize that a prosecutor’s pre-trial ethical obligations to disclose exculpatory and mitigating evidence under Rule 3.8(d) of the Model Rules of Professional Conduct, 3.09(d) in the Texas Disciplinary Rules of Professional Conduct, are broader and distinct from the post-conviction Brady analysis. In its amicus curiae brief, the ABA framed the issue as follows: more...

January 12, 2012

FEDERAL DISCOVERY AND INSPECTION PROCEDURES

Tunnel Vision Interferes with Duty to Comply with Discovery Obligations

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Most litigation in federal criminal cases regarding discovery of evidence, or lack thereof, is based on claims of violations of due process protections found in the Fifth and Fourteenth Amendments of the Constitution.  These constitutional protections create duties upon the government to disclose to the defendant certain types of evidence that is favorable to the accused because it either questions the defendant’s guilt, exculpatory evidence, or is useful in impeaching a government witness. more...

January 5, 2011

“JUNK SCIENCE” ONCE AGAIN PUTS TEXAS IN NATIONAL FOREFRONT

Defense Lawyers Need to Challenge Questionable Expert Testimony and Conclusions

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

In October 2010 we posted piece titled “Dog Witnesses Kicked Out of the Courtroom” concerning a capital murder case in San Jacinto County. The accused, all members of the same family—Richard Lynn Winfrey Sr. and his son, Richard Jr., and daughter, Megan—were arrested in 2006 for the brutal murder of Murray Wayne Burr, a longtime custodial worker at the high school attended by the Winfrey siblings. Local law enforcement officials considered Winfrey and his two children as “persons of interests” shortly after Burr was murdered in his home, even though DNA evidence found at scene excluded the Winfreys. The proverbial “break in the case” came in 2006 when Richard Sr., who was housed in the Montgomery County jail, told another inmate David Campbell that “some kind of gun and some kind of knife collection” had been taken from Burr’s home, as well as other details about the murder, including the victim’s body being dragged from one room to another. Campbell repeated this information to the authorities. more...

December 28, 2011

WRONGFUL CONVICTION AND PROSECUTORIAL MISCONDUCT

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

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

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

December 20, 2011

HARDY V. CROSS: CONFRONTATION CLAUSE QUAGMIRED IN LEGAL UNCERTAINTY

Confusing Logic from SCOTUS and Conflict Among Appellate Courts Leave Trial Courts Guessing The Meaning Of Confrontation

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

The Sixth Amendment is one of the most important amendments of the United States Constitution. It ensures that an “accused shall enjoy the right … to be confronted with witnesses against him.” In 1988 the U.S. Supreme Court, in Coy v. Iowa, observed that “it is always more difficult to tell a lie about a person ‘to his face’ than ‘behind his back.’” Just two years later, in Maryland v. Craig, the Court made this follow up observation: “[F]ace-to-face confrontation enhances the accuracy of fact-finding by reducing the risk that a witness will wrongfully implicate an innocent person.” That observation is critically important because, as pointed out by the New York-based The Innocent Project, roughly 75 percent of the nation’s 282 DNA exonerations involved eyewitness misidentification. more...

December 17, 2011

THE IMPACT OF PINHOLSTER ON NEWLY-DISCOVERED EVIDENCE
AND BRADY VIOLATIONS

Federal Habeas Claims of “New Evidence” of Undisclosed Exculpatory Evidence Should be Remanded to State Courts

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

In January 1982, Scott Lynn Pinholster, a California native, was an Aryan Brotherhood-type who, along with two like-minded cohorts, went to the home of a local drug dealer named Michael Kumar. The drug dealer was not at home when the Neo-Nazi trio arrived so they began to ransack the residence in search of drugs and money. At this inopportune time, two of Kumar’s friends, Thomas Johnson and Robert Beckett, arrived at the drug dealer’s home where they confronted the burglars. That confrontation led to Pinholster and his cohorts brutally beating and repeatedly stabbing Johnson and Beckett until they were dead. more...

December 14, 2011

A “SLIPPERY SLOPE” TO COMBAT HOMEGROWN TERRORISM

Indefinite Detention of Homegrown Terror Suspects, Citizens inside U.S. Unnecessary and Dangerous Erosion of Civil Liberties

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Like it or not, the term “Jihadist” has become a commonly used term in today’s political lexicon.  In a Congressional Research Service (“CRS”) report titled “American Jihadist Terrorism: Combating a Complex Threat” and issued on November 15, 2011, the report’s author Jerome P. Bjelopera said the term “homegrown jihadist” describes “terrorist activity or plots perpetrated within the United States or abroad by American citizens, legal permanent residents, or visitors radicalized within the United States.” The analyst for the CRS in organized crime and terrorism said the term “jihadist” describes “radicalized individuals using Islam as an ideological and/or religious justification for their belief in the establishment of global caliphate, or jurisdiction governed by a Muslim civil and religious leader known as a caliph.” more...

December 4, 2011

THE ETHICAL IMPLICATIONS OF A BRADY VIOLATION

Disciplinary Action against Rogue Prosecutors Who Intentionally Engage in Wrongful Conduct, Brady Violations Rare

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Among lawyers practicing criminal law, “Brady violation” is probably second only to a “Miranda warning” as the most recognizable legal term in this country’s jurisprudence; and, significantly, both of these U.S. Supreme Court decisions are designed to curb prosecutorial and law enforcement misconduct. It’s an unfortunate commentary on our criminal justice system when these two important must be instructed by the highest court in the nation to obey the law and uphold our most cherished constitutional tenets: right to a fair trial and right to counsel. more...

December 1, 2011

BRADY VIOLATIONS IN WHITE COLLAR, CORRUPTION CONVICTIONS

Serious, Widespread and Intentional Concealment of Evidence by DOJ and US Attorneys

By: Houston Criminal lawyer John T. Floyd and Paralegal Billy Sinclair

Former Alaska lawmaker, Vic Kohring, has entered a guilty plea admitting he accepted bribes from an “oil man” for his help in keeping taxes low on the Alaskan oil industry.  The plea comes after an appellate court tossed out Kohring’s original conviction, along with others convicted in the scandal, after finding that the Government had intentionally withheld evidence in the trials.  Kohring’s case documents the years of scandal resulting from official corruption between the oil industry and Alaska’s politicians and the disturbing pattern of misconduct by prosecutors, hell bent on getting the bad guys, that followed.  more...

November 21, 2011

THE JERRY SANDUSKY CASE

Outrageous Allegations of Child Sexual Abuse and Failure to Report Devastate Presumption of Innocence and Shift Burden of Proof

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Contrary to the screaming media pundits, who have thrown the presumption of innocence out the window, we do not know if former Penn State defensive coordinator is guilty of the 40 child sexual abuse allegations leveled against him by a “Happy Valley” grand jury. We certainly do not presume his guilt. As a criminal defense law firm, we are deeply disturbed, although not surprised, that Sandusky has already been tried, convicted, and sentenced in the court of public opinion. The presumption of innocence and the right to a fair trial has been eroded into oblivion by the cable news networks, like former prosecutor and HLN’s guilt-announcing host Nancy Grace. We would caution the general public to remember the California McMartin “preschool” child sex abuse scandal that began with outrageous allegations of child sex abuse, three years of investigation and six years of trials which did not produce a single conviction, but ended with exposure an array of misconduct by the media covering the story, law enforcement investigators prosecutors who brought it to trial, the child victims and their parents.

more...

November 12, 2011

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

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

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

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

more...

November 10, 2011

DEFENSE ATTORNEY PLACES ACADEMIC INTEREST BEFORE ETHICAL DUTY TO CLIENT

Defense Lawyer Intentionally Failed to Comply with Longstanding Pleading Requirements in Death Penalty Writ

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

It is not our habit, nor is it in our nature, to second guess any strategy employed by a fellow defense attorney, unless that strategy is patently harmful to the client. The Hector Rolando Medina case is such a case—and it indeed begs public exposure. To understand this case we must first discuss the habeas corpus statute involved: Article 11.071, Texas Code of Criminal Procedure (Procedure in Death Penalty Cases), and the case law setting forth longstanding pleading requirements under the statute. A prerequisite to securing habeas corpus relief in a death penalty case requires the applicant to “plead specific facts” which, if proven true, might entitle him to relief. Thus, the initial burden rest with the habeas applicant to file a fact-specific petition, which raises issue(s) of constitutional magnitude; in other words, a constitutional violation which has harmed the applicant. more...

November 8, 2011

MORE SHENANIGANS IN WILLIAMSON COUNTY DA’S OFFICE

DA Announces Policy of Hiding Brady, Potentially Exculpatory Evidence

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

We have become convinced that the only way the Williamson County District Attorney’s office will operate in a lawful and ethical manner is for the State Bar to assign an ombudsman to oversee its day-to-day handling of criminal prosecutions. The behavior of this office in the Michael Morton case has already triggered four investigations, including one by the State Bar (here and here). Grits For Breakfast recently carried yet another report, which was first reported by Wilco Watchdog, concerning allegations of prosecutorial misconduct. This time the misconduct charges involve Assistant District Attorney Tommy Coleman who withheld exculpatory evidence in a 2010 theft case. more...

November 6, 2011

POLICE POWERS PUT IN CHECK

Recording Police Misconduct Protected by First Amendment

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Simon Glik was, and remains, a good citizen. He understands right from wrong no matter who the author of the wrongful action may be. So what he did on the evening of October 1, 2007 was a natural response of a good citizen. As he was walking past the Boston Common, he saw three of Boston’s finest arresting a young man. Moments later he heard a bystander exclaim, “you are hurting him, stop!” Glik, who was only ten feet away from the arresting officers, was concerned enough that the police were using “excessive force,” he began filming the incident on his cell phone. more...

October 29, 2011

ANOTHER INNOCENT MAN FREED AFTER MISTAKEN IDENTIFICATION

Innocence Project Strikes Again: Henry James Freed After 30 Years

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Thanks to the efforts of the New York-based Innocence Project, Henry James became the 273rd inmate in this country to be exonerated by DNA evidence. The first inmate exonerated by DNA came in 1989, and according to the Innocence Project, there have been 206 DNA exonerations since 2000. James, who was 20 years of age when arrested for the aggravated rape of a neighbor, served one month sigh of 30 years in the Louisiana prison system for that wrongful conviction. The average amount of time served by all the DNA exonerees is 13 years. more...

October 25, 2011

WHAT’S THAT: A “RUNAWAY” GRAND JURY!

Harris County Grand Jury Probe focuses on HPD’s Breath-Testing Vans

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

This is our fourth post this year concerning out of control law enforcement “no refusal” DWI policies (here, here, and here). We don’t like them. They are at best, we believe, an unconstitutional invasion of individual privacy. Worse yet, they smack of the kind of things done in a police state—individual rights eliminated to protect the so-called “good of the majority.” The Harris County District Attorney’s Office is high on these no-refusal policies and the so called “no refusal holidays,” which were the obsession of former Assistant District Attorney Warren Diepraam. The DWI enthusiast has since taken his skills and DWI attitudes to the Montgomery County District Attorney’s Office where he occupies the position of “chief” of the Vehicular Crimes Section. more...

October 21, 2011

“PROSECUTOR OF THE YEAR” FEELS THE HEAT

Williamson County Justice System under Scrutiny by State Bar of Texas

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

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

October 18, 2011

“PROSECUTOR OF THE YEAR!”

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

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

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

October 9, 2011

TEXAS’ APPROACH TO TEEN SEXTING

States Reevaluating Criminalization of Juvenile Cyber-Sex

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

This past legislative session Texas joined the ranks of a small number of states which have reduced criminalization “teen sexting.” Gov. Rick Perry signed the law this past June which is designed to, according to Wireupdate, “prevent teenagers from sexting without subjecting them to serious criminal penalties that have life-long consequences.” Before this latest legislation became law on September 1st teenagers could have faced the more serious felony charge of “promotion of child pornography” which, upon conviction, would have resulted in lifetime registration as a “sex offender.”

more...

September 30, 2011

THE CRIMINAL TRIAL: AN ENDANGERED SPECIES?

Federal Judge Says Threat of Mandatory Sentences Used as “Chip” to Coerce Pleas

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

John L. Kane, Jr. is the Senior Judge of the United States District Court in Denver. This prominent jurist recently told the New York Times that criminal defendants are being ”coerced” into pleading guilty with threats of a harsher sentences should they decide to go to trial. “How many times is a mandatory sentence used as a chip in order to coerce a plea? They don’t keep records,” Judge Kane told the newspaper. “That’s what the public doesn’t see, and where the statistics become meaningless.” Judge Kane said that prosecutors “have grown more powerful than judges” and the end result is that “we hardly have trials anymore.” more...

September 23, 2011

18 U.S.C. § 2559: U.S. APPELLATE COURTS IN CONFLICT OVER CHILD PORNOGRAPHY RESTITUTION ISSUES

Difficulty Establishing Restitution Child Pornography Cases

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

In two previous posts (here and here), we discussed the increasing trend of victims of child pornography seeking restitution damages under 18 U.S.C. § 2259 against defendants who were convicted of possessing child pornography depicting their images.  These restitution requests have triggered significant conflicts in the federal courts of appeals, most notably between the Fifth and Second Circuits. On September 8, 2011, the Second Circuit, in United States v. Aumais, reinforced the reasoning it expressed in its August 18, 2011 decision, United States v. Marino; specifically, that these victims must demonstrate a “proximate cause” between a defendant’s possession of the pornographic images and any “harm” suffered by the individual. more...

September 18, 2011

IMPACT OF CRIME VICTIMS RESTITUTION ACTS

Fifth Circuit’s Decision on Restitution in Possession of Child Pornography Cases Creates Sentencing Nightmare

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

In theory the criminal justice system has a fundamental obligation to provide restitution to crime victims. In practice this obligation has created a contentious and ongoing legal debate in federal appellate courts as to how this obligation must be met. Two recent decisions emanating out of the Fifth and Second federal circuits underscore the difficulties faced in deciding when and how restitution is appropriate, the level of harm caused to victims, and the statutory standards by which restitution can be awarded. Last year we dealt with the issue of restitution in child pornography cases which, we believe, has run constitutionally amuck (here). We feel it’s time to examine both the legislative history, and the statutory application, of crime victims’ restitution acts, both of which were discussed at some length by the Second Circuit on August 18, 2011 in United States v. Marino. more...

September 13, 2011

ROMEO AND JULIET, MEET ADAM WALSH

Texas law Allows Removal/Avoidance of Sex Registration for Youthful, Non-Violent Consent Based Sex

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Former President George W. Bush in July 2006 signed into law the Adam Walsh Child Protection and Safety Act. Title I of this act is called the Sex Offender Registration and Notification Act (“SORNA”) which expanded the National Sex Offender Registry, including sanctions up to a maximum of twenty years for sex offenders who do not comply with the law’s registration requirements. This includes juveniles convicted, or adjudicated as delinquent in juvenile court, who are 14 years of age or older and who have been convicted of an offense either more serious or similar to federal aggravated sexual assault. It is this juvenile registration issue that has caused many states, including Texas, to have serious reservations about complying with SORNA. more...

September 8, 2011

DOUBLE STANDARD OF EVIDENCE IN CONRAD MURRAY TRIAL

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Jury selection has begun in the high profile criminal case against Dr. Conrad Murray, the physician charged with involuntary manslaughter in the drug overdose and death of Michael Jackson.  This comes the day after a California Court of Appeals denied Murray’s request to have the jury sequestered in what will assuredly be intense media coverage and “expert” speculation. more...

August 31, 2011

WHAT IS THE PURPOSE OF FEDERAL SENTENCING?

Tapia v. U.S.: Need for Rehabilitation not Proper Factor in Determining Sentence

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

The concept of penal rehabilitation began at the end of the 19th century in this country. Historically criminal sentences in America have been imposed for four reasons: deterrence, retribution, incapacitation, and rehabilitation. Although rehabilitation has been a subject of controversy as a reason for punishment, the State of Texas adopted it as a reason to punish through criminal sentencing. The U.S. Congress, however, has long dispensed with rehabilitation as a basis for criminal sentencing in federal courts. This was evidenced by a recent U.S. Supreme Court decision, Tapia v. United States, which declared that a federal district court judge abused his discretion by lengthening a defendant’s sentence in order to fulfill rehabilitation objectives. more...

August 28, 2011

SUPREME COURT TO TACKLE WITNESS IDENTIFICATION ISSUE

Admissibility of Unreliable Identification Evidence

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

According to the New York-based Innocence Project, 75 percent of the nation’s 273 DNA exonerations involved eyewitness misidentification—and according to Harris County state senator Rodney Ellis, a longtime advocate of eyewitness identification reform, 86 percent of Texas’ 45 DNA exonerations (the most in the nation) involved eyewitness misidentification. Eyewitness misidentification, and its link to wrongful convictions, has been explored several times by us on this site (here, here and here). more...

August 26, 2011

PUNISHMENT: TEXAS STYLE

Life Sentences for DWI, Shoplifting for Habitual Offenders

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Two years ago the Houston Chronicle carried report about a Montgomery County jury imposing a life sentence on a criminal defendant who shoplifted five compact discs from a Wal-Mart in Conroe. The defendant, Brian K. Balentine, was understandably stunned by the sentence. We just posted a piece about how a defendant’s criminal history, and even uncharged prior bad conduct, can come back to haunt him during the punishment phase of a trial. more...

August 23, 2011

IMMUNITY DENIED FOR ROGUE PROSECUTOR

Reasonable Prosecutors Should Know Constitution is Implicated When Person is Deprived of Liberty by State Sponsored Seizure and Detention

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

We have posted up several posts this year about prosecutorial misconduct and the tendency by the courts to tolerate, if not bless, this increasing phenomenon which is a disgrace to our criminal justice system. Well, we’re pleased to report that last month the U.S. Court of Appeals, Third Circuit, in Schneyder v. Smith, held a rogue prosecutor accountable for her misconduct. more...

 

August 16, 2011

INTRODUCING EVIDENCE OF PRIOR FALSE ALLEGATIONS

Confronting Witnesses with Prior False Allegations to Support Theory of Bias, Motive or Interest

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

One of the most devastating crimes that can happen to anyone is to be falsely accused of having sexually assaulted a child. A significant number of potential jurors in child sexual assault cases readily admit in jury selection, voir dire, that they do not believe a child would “make up” a story about being abused. But we know it happens (here, here, and here). Children lie about sexual abuse for an endless assortment of reasons: mom told them to do it in bitter divorce custody disputes; they want to “get even” with a relative who was responsible for them being disciplined; they want to be removed from a household, especially in foster care, in which there are a lot of behavioral restrictions; they are emotionally unstable or mentally ill. more...

 

August 9, 2011

EXTRANEOUS OFFENSE EVIDENCE DURING PUNISHMENT

37.07: The Use of Prior Criminal Record, Bad Acts, Reputation and Character at Sentencing

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Once a defendant has been convicted in Texas, either by a jury or a judge, a separate hearing under Art. 37.07 of the Texas Code of Criminal Procedure must be conducted to determine the punishment of the defendant. The prosecution may offer, and the trial judge has broad discretion to admit, evidence of extraneous offenses during this punishment phase. The defense may offer evidence of good character and reputation, as well as evidence contradicting the state’s offer of prior bad acts. Section 3(a)(1) of Art. 37.07 governs the use of extraneous offense and character evidence “after a finding of guilty.” It provides: more...

 

August 4, 2011

TEXAS RAPE-SHIELD: RIGHT TO PRIVACY VS. THE SIXTH AMENDMENT’S CONFRONTATION CLAUSE

TRE 412 Permits Use of Past Sexual Behavior in Limited Circumstances

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Every state in these United States have what is known as “rape shield statutes”—laws that limit a criminal defendant’s ability to cross examine sexual assault victims about their past sexual behavior. Texas’ rape shield statute lies in Rule 412 of the Texas Rules of Evidence and explicitly applies only in sexual assault cases.  The, however, Rule is qualified to permit the use of “past sexual behavior” in certain situations: when it is necessary to rebut or explain scientific or medical evidence offered by the State, Subsection(b)(2)(A): when it is offered by the defendant upon the issue of whether the victim consented to the sexual behavior which is the basis for the charged offense, Subsection (b)(2)(B); and when it is relevant to show “motive or bias” on the part of the victim, Subsection (b)(2)(C). more...

 

July 30, 2011

IT’S TIME TO OVERHAUL “NO REFUSAL” DWI WEEKENDS

HPD, Harris County District Attorney’s Office Present Flawed Evidence in DWI Cases

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

We have thus far this year posted three articles reflecting our disdain, and distrust, of the Houston Police Department’s crime lab and the department’s “no refusal” DWI weekends (here, here, and here). The Houston Chronicle carried a recent article that not only vindicates our criticisms but raised red flags about how the crime lab operates its six “mobile breath-testing vans” used in its “no refusal” DWI weekend campaigns. The newspaper reported that a crime lab supervisor and two other scientists quit their jobs because they did not “trust the integrity” of the vans’ breath-testing results. more...

July 26, 2011

SUPREME COURT CLARIFIES CRACK/POWDER COCAINE’S 713 AMENDMENT

Federal Crack Sentence Reductions: Defendants Sentenced Pursuant to 11(c)(1)(C) Agreements Eligible for 3582(c)(2) Relief

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

In 2007 the U.S. Sentencing Commission issued a retroactive amendment, Amendment 713, to the Sentencing Guidelines designed to eliminate the sentencing disparities in crack cocaine and powder cocaine cases. The amendment became effective in March 2008, and promptly triggered an outbreak of conflicting appellate court decisions, prompting the U.S. Supreme Court to intervene on several occasions and to restore judicial order (here and here). This past term the Court was once again was forced to confront another issue spun off by Amendment 713: whether the amendment could be retroactively applied in cases where a defendant entered into a plea agreement with the Government for a specific sentence. The Court, in Freeman v. United States, answered that question in the affirmative, although in a plurality decision. more...

July 22, 2011

PROSECUTORIAL MISCONDUCT IN CASEY ANTHONY CASE?

Prosecutors Fail to Disclose Favorable Evidence that Contradicted Expert’s Testimony

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

We have repeatedly made clear our disdain for prosecutorial misconduct (here). And here we go again. More dirty, underhanded prosecutorial tactics. Just two days after our July 16 post concerning the Casey Anthony “not guilty” verdict, The New York Times carried a report about these tactics being employed by Orlando prosecutors bent on convicting Anthony for capital murder of her two-year old daughter. In our July 16 post we made the following observation about manner of how little Caylee was murdered that prosecutors presented to the jury: more...

July 16, 2011

OUR TAKE ON THE CASEY ANTHONY VERDICT

Lack of Evidence and Reasonable Doubts Lead to Acquittal

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Now that Casey Anthony has been acquitted on the most serious charges resulting from the death of her young daughter, Caylee, and is scheduled for release next week, virtually every media pundit, along with their side-kick “expert” attorneys has had their say about the case.  And now, after one of the jurors chose to flee the state of Florida in fear of retaliation, we also feel compelled to add a few comments—both about the verdict and the conduct of those expert attorneys leading up to and subsequent to the verdict. more...

July 12, 2011

BULLCOMING v. NEW MEXICO: A DWI CASE WITH IMPORTANT CONSTITUTIONAL IMPLICATIONS

DWI Forensic Laboratory Reports are “Testimonial” for Confrontation Clause Purposes

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

It is not often that a DWI case will find itself in the trenches of constitutional law before the Supreme Court of the United States. But that’s precisely what happened last month when the high court handed down Bullcoming v. New Mexico. The Donald Bullcoming case began in 2005 with a set of background facts similar to many other DWI cases. Bullcoming’s vehicle rammed into the rear of a pickup truck at an intersection in Farmington, New Mexico. The pickup’s driver got out of his truck to exchange insurance information with Bullcoming, but upon noticing that Bullcoming’s eyes were bloodshot and he smelled of alcohol, the pickup’s driver instructed his wife to call the police. more...

June 27, 2011

Police Interrogations of Children

Age is Proper Factor in Miranda Custody Analysis

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

One thing you can depend upon, any time the U.S. Supreme is presented with an issue that involves extending or protecting the interests of a criminal “suspect,” Justices Scalia, Thomas and Alito will be opposed to it. And at first impression, most people will say, “heck, there’s nothing wrong with that—criminals shouldn’t have rights or interests.” But what if that criminal suspect was their 13-year-old son? Would they be so inclined to accept that the police could question and secure a confession from him without their being present? Didn’t think so! more...

June 23, 2011

JOINT REPRESENTATION: THE PITFALLS OF UNCHECKED CONFLICTS OF INTERESTS

Identifying Conflicts when Representing Businesses and their Employees

By: White Collar Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Issues surrounding joint representation by attorneys in criminal cases are fairly straightforward. The U.S. Supreme Court three decades ago, in Cuyler v. Sullivan, held that a defendant in a criminal case may demonstrate a denial of effective representation of counsel, guaranteed under the Sixth Amendment, by satisfying a dual criteria: 1) defense counsel was actively representing conflicting interests, and 2) the conflict(s) had an adverse impact on counsel’s performance while representing the defendant. more...

June 17, 2011

MILITARIZED POLICE “NO KNOCK” SEARCHES KILL INNOCENT PEOPLE

Recent U.S. Supreme Court Decisions Expanding “No Knock” Powers of the Police and Insulating Law Enforcement Abuses Allow a Growing Police State

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

We are no fans of “no knock” searches by the police, especially those launched by militarized SWAT units. We made this clear after a recent U.S. Supreme Court decision expanding police powers to conduct such searches (here). We don’t like them because they kill innocent people indiscriminately. We have permitted our law enforcement agencies to become so militarized that “no knock” searches increased from 3,000 in 1981 to 50,000 in 2005, according to Eastern University of Kentucky criminologist Paul Kraska, and have resulted in the deaths of 40 innocent people during that time, according to the Washington-based Cato Institute. Peter Guither, with Drug War Rant, places the number of innocents killed in “no knock” searches at 42.

more...

June 12, 2011

UNTESTED RAPE KIT CASES AN ONGOING PROBLEM

Delay in Testing Delays Justice for Victims and Wrongly Accused

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

In a June 4, 2011 article titled “Justice Delayed in Rape Cases,” Houston Chronicle staff writer Anita Hassan reported that five years ago the Houston Police Department crime lab had more than 4,000 “rape kits” sitting untested in its “property room freezer.” Some of these cases date back to the 1990s, according to Hassan, and more of them are still sitting idle in neglect waiting to be tested. The crime lab has only tested “200 cases” over the last five years, citing “a lack of manpower” in getting the job done. more...

June 5, 2011

SUPREME COURT BLESSES LAW ENFORCEMENT MISCONDUCT

Lack of Criminal and Civil Accountability Points to Need for Criminal Justice Reform Commissions

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

This session of the U.S. Supreme Court should be noted for its zealous protection of official misconduct by prosecutors and law enforcement officials. In two decisions, Connick v. Thompson and Ashcroft v. Al-Kidd, the nation’s highest court extended a constitutional license to prosecutors and police to violate the law. We have detailed the background facts of both these cases in previous posts (here and here). In the Thompson case, the Court ruled that several New Orleans assistant district attorneys, who were responsible for railroading an innocent man to Louisiana’s death row for 14 years, and the City of New Orleans were not liable for damages under the federal civil rights statute, 42 U.S.C. Sec. 1983. In the al-Kidd case, former U.S. Attorney John Ashcroft was insulated from civil damages under the same statute for permitting al-Kidd and other terrorists suspects to be held indefinitely, without any meaningful evidence of either personal wrongdoing or knowledge about wrongdoing, under the federal material witness statute, 18 U.S.C. Sec. 3144, in the wake of the 9/11 terrorist attacks. more...

May 31, 2011

REQUESTS FOR DNA TESTING PRESENT ENORMOUS CHALLENGES

Right to Appointed Counsel Not Absolute: Courts Only Required to Appoint Counsel if Reasonable Grounds Exist for DNA Testing

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Ruben Gutierrez was convicted of capital murder and sentenced to death for the September 5, 1998 robbery/murder of 85-year-old Escolastica Harrison in Brownsville. The elderly woman owned a mobile home park and the trailer in which she lived doubled as an office. Gutierrez was a friend of Harrison’s nephew. He and the nephew, with other neighbors, frequently gathered behind the Harrison trailer to drink and socialize. Through this relationship Gutierrez got to know a lot about how Harrison conducted her business affairs; specifically, that she did not trust banks and kept all of her money in her trailer/office. Gutierrez was one of the few people who knew Harrison kept large sums of money in the trailer. more...

May 28, 2011

TRANSGENDER RIGHTS: A DEVELOPING LEGAL FRONT

Transgendered Issues Confound Courts and Prison Officials

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

The case of Justin Purdue has captured the interest and emotions of residents of Wharton County, as well as Harris County, for much of the past year. Purdue was born anatomically a man on June 4, 1975 in Camel, California but at some point in his life he believed he was more suited as a woman. He went through several medical procedures to change his appearance so as to be better able to live socially as a woman, although he continued to maintain male genitalia. In 1996 Pardue filed a pro se petition for a name change in Harris County changing his male name from “Justin” to “Nikki Paige Purdue.” Between 1999 and 2007 she used the name of Nikki Purdue-Mata because of a marriage to a man named Emilo Mata. The couple divorced in 2007. more...

May 23, 2011

ACTUAL INNOCENCE: PUTTING A CAMEL THROUGH EYE OF A NEEDLE

Habeas Claims of Actual Innocence Require “Herculean” Burden by Clear and Convincing Evidence

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

It was March 22, 1987. Near midnight. The Dallas Police Department received a report that a man was lying face down in the street. The man was Jeffery Young who was transported to an area hospital, unconscious and bleeding. Before regaining consciousness, Young died and a subsequent autopsy revealed he had died from what the Texas Court of Criminal Appeals said was “severe skull fractures that were the result of multiple blows to the head.” The Dallas police then received another report about a BMW parked in an alley near where Young had been found mortally injured. The police quickly determined the BMW belong to Young.

more...

May 21, 2011

FOURTH AMENDMENT CURTAILED ONCE AGAIN

Kentucky V. King: Warrantless Entry into Residence Reasonable When Exigent Circumstances Exist That Were Not Created By Police

By: Houston Criminal Lawyer John Floyd and Billy Sinclair

The Fourth Amendment to the United States Constitution has historically protected Americans from unreasonable searches and seizures by law enforcement officials. The Fourth Amendment applies to the states through the Due Process Clause of the Fourteenth Amendment. The Fourth Amendment has two long recognized clauses: First, the prohibition against unreasonable searches and seizures; and, second, the requirement that probable cause be established before a search warrant is issued. There are “exigent circumstances” to these two constitutional requirements which allows law enforcement officials to conduct warrantless searches when 1) there is possible imminent destruction of evidence; 2) a real threat to the safety of the general public or law enforcement officials exist; 3) the police are in “hot pursuit” of a suspect; or 4) there is a likelihood that a suspect will flee before law enforcement can obtain a warrant. more...

May 14, 2011

SPECIAL CONDITION X: DESIGNATED AS A SEX OFFENDER

Texas Must Afford Due Process before Imposing Sex Offender Conditions on Parolees

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

The Center for Missing and Exploited Children has reported that there are, on average, 234 registered sex offenders per 100,000 residents in the United States—a total of nearly 730,000 such offenders, with more than 61,000 residing in the State of Texas, making this State second only to California’s approximately 123,000 registered sex offenders. An inherent tragedy behind these figures is that it is too easy for state officials to wrongfully classify a parolee as a sex offender while it is so hard to undo such a classification. more...

May 11, 2011

NINTH CIRCUIT EXPANDS “BORDER SEARCH” INLAND

Extended Border Search Doctrine: Suspicionless Searches of Computers and Cameras Need not be Conducted at Time and Place of Entry

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

It was a case of “first impression” for the Ninth Circuit Court of Appeals—the case of United States v. Howard Cotterman, a repeat sex offender who was arrested at a “border stop” in Lukeville, Arizona in April of 2007. Cotterman, and his wife Maureen, tried to reenter the United States from Mexico at Lukeville. Both had valid U.S. passports. As part of border reentry protocol, an inspector ran a check of the passports through Border and Custom Protection. This routine check produced a Treasury Enforcement Communication System alert on Howard Cotterman’s name—an alert which had been placed in the system by U.S. Immigration and Customs enforcement. The alert stemmed from Cotterman’s 1992 convictions in Long Beach, California for illegal sexual misconduct with a child and child sexual molestation. The ICE alert instructed border inspectors to be on the “lookout” for child pornography. more...

May 7, 2011

DWI BLOOD DRAWS TAKE A HIT

Refusal to Perform DWI Police Tests Not Enough to Substantiate Probable Cause for Blood Draw

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

“No refusal weekends” have become a permanent fixture in the aggressive anti-DWI campaign waged by law enforcements agencies across the State of Texas and the nation. In these programs a judge is on standby to sign a warrant authorizing law enforcement authorities to take a “blood sample” when a suspected DWI driver refuses to take the standard breathalyzer test—and in Texas, if the suspect refuses to voluntary consent to a blood draw, law enforcement authorities can forcefully extract the blood sample. more...

May 5, 2011

OSAMA BIN LADEN IS DEAD

The Cost of the War on Terror: Orwellian Inspired Torture, Extrajudicial Rendition, Racial/Religious Profiling, Warrantless Wiretaps, Investigations without Reasonable Cause…

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Osama bin Laden is dead. Many peoples in the world, especially in the United States, are celebrating the death of the world’s most notorious terrorist. The nature and circumstances of his demise were fitting in light of the life of hate, vengeance, and violence he led. The old adage, “live by the sword, die by the sword,” is appropriate in this case. more...

April 30, 2011

Aggravated Assault NOT Lesser Included of Aggravated Sexual Assault

Defense Lawyers Sound Objection to Lesser Included Offense Causes Appellate Mental Madness

By: Houston Criminal Lawyer John Floyd and Billy Sinclair

The law is rarely ever clearly defined. It is continuously subject to interpretation.
The law is such a fluid creature that finding its true meaning is sometimes very difficult and can strain the bounds of intellectual honesty. This was illustrated on October 20, 2010 by the Texas Court of Criminal Appeals in the case of Oscar Rene Benavidez. more...

April 22, 2011

HOW FAR DOES THE RIGHT TO PRIVACY GO IN A MARITAL HOME?

Wiretaps and Secret Video Taping by Spouses in the Home Can Lead to Criminal and Civil Exposure

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Marriage may well begin in bliss but during divorce often ends in mutually destructive acrimony between the spouses.  Sometimes the acrimony in a failed marriage prompts one of the spouses to do something that violates the law resulting in criminal liability. That’s what happened to J. Duffy in 1996. We came upon Duffy’s case when a local attorney representing a husband charged with aggravated assault on his wife consulted with us regarding the legality of a situation where a husband, who suspected his wife of adultery, wiretapped the home telephone to gather incriminating evidence and recorded statements made by the wife bragging about accusing her husband of the assault.  Was the wiretapping of the home phone legal?  Having represented a client charged with a felony in a similar fact pattern we knew the answer was NO, but did some quick research and found Duffy’s case illustrative of the point. more...

April 17, 2011

UNDER SIEGE: A SOCIETY CONSUMED BY FEAR

Guilt by Association: Politically Inspired Fear of Muslims Continues to Infect Politics, Law Enforcement Investigations and Potential Jurors

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

The month of March was saturated with state and national news events which seem to underscore an unfortunate point about Texas and America: we are a society under siege from fear of those we do not understand and, therefore, do not trust. The Ides of March began when New York’s Republican Congressman Rep. Peter King decided to conduct hearings on the threat of “radical Islam” in America. The chairman of the House Homeland Security Committee defended his congressional inquiry into the “role” the “American Muslim community” has played in what’s become known as “homegrown terrorism.” more...

April 13, 2011

A GOOD LOOK AT POTENTIAL JUROR BIAS

In re Commitment of Seth Hill: The Importance of Uncovering Bias Against Sexual Orientation in Jury Selection

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Every criminal defendant enjoys a right protected by the Sixth Amendment of the United State Constitution to a trial by an impartial jury chosen from a jury panel that represents a fair cross-section of the community. A voir dire examination of a jury venire exists primarily to allow the parties the opportunity to reveal a potential bias among prospective jurors. While a trial court’s discretion at both the state and federal level is virtually unfettered when it comes to controlling voir dire questioning, there are occasions when the appellate courts find an abuse of that discretion when the trial court arbitrarily restricts a specific line of questioning designed to elicit bias among potential jurors. For example, the Second Circuit Court of Appeals held that a trial court was required to conduct an in-depth inquiry, or permit such an inquiry by the parties, into racial bias when a reasonable potential for bias existed because feelings among prospective jurors toward African-American defendant were unknown and he was being tried by a white jury in a predominantly white area. more...

April 9, 2011

The Paradox that is The War on Drugs

While Some Politicians Question Cost Of Incarcerating Drug Offenders, Big Money and Bigger Forfeitures Keeps Texas Tough On Drug Crime

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

An increasing number of states have abandoned the traditional notion that the best way to combat drug use and trafficking is through the costly practice of extended incarceration. The Wall Street Journal last month reported that Kentucky joined the ranks of South Carolina, Colorado and New York to enact laws that shift spending into less expensive and more effective rehabilitation and intensive drug testing programs. Delaware, Florida, Indiana, Massachusetts and Pennsylvania are currently considering bills that would reduce drug penalties and direct some drug defendants into treatment programs. more...

April 1, 2011

ROGUE PROSECUTORS GET LICENSE TO LIE AND CHEAT

Connick v. Thompson: U.S. Supreme Court Allows Prosecutors to Hide Evidence Favorable to the Accused without Consequence

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

John Thompson spent over 18 years in a Louisiana prison, 14 isolated on death role, after a prosecution described as fundamentally unfair by prosecutorial design.   In Thompson’s struggle for justice, prosecutors intentionally withheld favorable evidence, which indicated he was innocent, prior to trial, during trial and throughout the years he spent in prison.  The Supreme Court has now held this was not a civil rights violation.   more...

March 30, 2011

HARRIS COUNTY DISTRICT ATTORNEY USES LINGUISTICS TO TRANSFORM OLD CASES INTO “COLD CASES”

Decades old cases are prosecuted without any new evidence and with critical fact witnesses missing or dead, increasing likelihood of wrongful convictions

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Roy McCaleb was murdered in Harris County on September 22, 1985. The Houston Chronicle reported that McCaleb’s wife, Carolyn Sue Krizan-Wilson, told the police that a gloved man entered their Galena Park home, raped her, and then shot her husband as he lay sleeping. She said the intruder was the same man who had raped her ten days earlier and he had somehow tracked her down in order to do it again. According to the newspaper, Krizan-Wilson did not report the earlier sexual assault to the police although her son at the time was in the Houston Police Department’s Training Academy. Krizan-Wilson, however, did make an “outcry” to a fellow employee shortly after the first rape occurred. She would later say she was too “embarrassed” to report the first rape. more...

March 26, 2011

OVERZEALOUS FEDERAL PROSECUTION FOR PRODUCTION OF CHILD PORNOGRAPHY REVERSED

U.S. v. Steen: Voyeur’s Video of Child at Tanning Salon Insufficient to Support Conviction

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

You would think that an Assistant U.S. Attorney, charged with prosecuting offenses against the laws the United States, would understand the laws upon which he elects to indict a criminal defendant. But far too often federal prosecutors, especially in “child sex cases,” are more concerned with securing convictions to “notch” the handle on their legal resume than in pursuing justice as they are legally and ethically required to do. Such was the apparent motive for the 2009 prosecution of a petty “voyeur,” Allen Steen, in federal court in Odessa, Texas under the child pornography law, 18 U.S.C. 2551(a)—a statute which carries a mandatory minimum of 15 years upon conviction. more...

March 19, 2011

CONSENSUAL SEX WITH A MINOR, RAPE AND MASS HYSTERIA

Shocking Allegations Of Sexual Assault In Cleveland, Texas

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Allegations of mass rape have literally ripped apart the social fabric of Cleveland, Texas, a Liberty County community of 7000-plus people just 45 miles north of Houston. The town has never been known as a bastion of racial harmony, but the sexual assault of an 11-year-old Hispanic girl there last Thanksgiving by as many as two dozen suspects—most of whom African-American—has splintered the town’s racial coexistence, which according to some was already as tattered as the neglected American flag flying above so many double-wide trailers in small Texas towns like Cleveland. more...

 

March 11, 2011

DRUG CHECKPOINTS AND THEIR AFTERMATH

Drug Mules/Smugglers Beware: Permanent Border Patrol Checkpoints in Texas Seize Tons of Drugs, Marijuana, Illustrate Inhumanity of Drug Laws

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

There are many problems with mandatory minimum sentencing as we have discussed in previous blogs, but the following is just one real life example. He is a Mexican national, a legal resident in this country. He is a long haul truck driver. He has a family to support. He is approached by people who want him to haul a legal shipment of produce. He is told contraband will be concealed in the produce. But he is not told what the contraband is. He is paid one thousand dollars to make the delivery. It will help pay the bills, particularly the medical bills for one chronically ill child. more...

March 8, 2011

5C1.2: “SAFETY VALVE”: ANOTHER FAILED SENTENCING REFORM EFFORT

U.S. Sentencing Guidelines, Mandatory Minimums, Safety Valve Encourage Snitches, Promote False Testimony, Prevent Just Sentences

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Anytime a new penal statute uses the term “reform” you can take to it the bank that the result will produce just the opposite; that its objective to correct a perceived and politically charged threat will, more than likely than not, harvest a new crop of worse injustices.

more...

March 4, 2011

THE SUPREME COURT BACK PEDALS ON THE SIXTH AMENDMENT

Constitutional Right to Confront Witnesses Watered Down: Statements Describing Shooter Not Testimonial, Admissible Without Confrontation and Cross Examination

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

What a strange Supreme Court we have! You know it’s strange when Justice Sonia Sotomayer authors a lead opinion, joined by Roberts, Kennedy, Breyer and Alito, which curtails longstanding constitutional jurisprudence regarding the Sixth Amendment’s Confrontation Clause over the dissent of Justice Antonin Scalia.  However, this was exactly the case in the Court’s recent opinion in Michigan v. Bryant, in which the Court held that statements made to police identifying and describing a “shooter” were not testimonial and thus were admissible in trial, even though the witness was dead and could not testify. more...

March 2, 2010

THE LAW ON GUNS AND FELONS

Texas Legislature Pushing to Allow Concealed Guns on College Campuses, Penalties for Felon in Possession Increase

By Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

The Texas Legislature appears poised to join Utah in enacting legislation that would allow guns on college campuses (an issue rejected in 23 other states).  The legislation would allow college students and professors, who have concealed handgun permits, to pack “heat” on public university property throughout the State of Texas. more...

February 24, 2011

POLICE MISCONDUCT: A GROWING EPIDEMIC?

Houston Police Department, Harris County Law Enforcement Gaining National Reputation for Police Abuse and Misconduct

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

We have blogged in the past about the travesty of police misconduct, especially the kind where brutality is inflicted upon criminal suspects for no reason. The Houston Police Department (HPD) has now been shown in a couple recent disclosures of videos stomping, kicking, and beating defenseless, even handcuffed, suspects and these lawless acts of brutality have roiled this community with outrage, anger, and frustration (here and here). more...

February 19, 2011

THE COMPUTER IS A CRIME MACHINE

Computer Crimes and Prosecutions on the Rise: Cyber Espionage, Theft of Corporate Trade Secrets and Identity Fraud Continue to Increase

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Every human invention designed to benefit mankind has always been corrupted for illegal and immoral purposes. It’s a flaw inherent in the human soul. So it is with the computer—one of man’s most significant inventions and which someday may well be the cause of man’s downfall, at least according to some prophets of doom. While the computer is essentially a wonderful device that services billions of legitimate purposes, it is also an attractive vehicle for criminal pursuits. more...

February 11, 2011

THE PURPOSE OF REASONABLE DOUBT IN CRIMINAL TRIALS

Prosecutorial, Police Misconduct Lead to Wrongful Conviction Unsupported by Evidence

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

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

February 7, 2011

CELL PHONES, TEXTS NOT SAFE FROM POLICE SEARCHES

Fifth Circuit: U.S. Court of Appeals Allows Search of Cell Phone Text Messages without Warrant, After Arrest

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

The popularity of Short Message Service (SMS), text messaging, originated in Europe and Asia before captivating American cell phone users, according to a 2008 CBS News report. SMS’ sudden popularity was linked directly to cost: it was cheaper to send short text messages than to make an actual phone call. CBS News pointed out that it cost less than a penny to send a text message in 2008. Perhaps it was also the cost factor that caused Americans, especially the young, to fall “head on heels” in love with texting in 2008.  According to CTIA, the wireless industry trade association, Americans sent an average of 2.5 billion text messages per day that year, an increase of 160 percent over 2007. This SMS surge was fueled by teens between 13 and 17 who sent and received an average of 1,742 messages per month. And the SMS explosion in America did not escape the economic attention of the cell phone providers: the cost of sending and receiving text message increased by a whopping 100 percent during this same time period. more...

February 4, 2011

THE INNOCENCE PERCENTAGE

46,000 Innocent Lives Destroyed by False Allegations, Wrongful Convictions

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Seton Hall University School of Law Professor D. Michael Risinger in 2007 published the results of a study, Innocents Convicted: An Empirically Justified Wrong Conviction Rate, in the Journal of Criminal Law and Criminology (Vol. 97, No. 3) which said that between 3.3 and 5 percent of all capital rape-murder convictions in this country involve innocent defendants. Going even lower than Professor Risinger’s 3.3 percentage, Radley Balko, senior editor of Reason Magazine, utilized the nation’s prison population in this country in 2008 and a 2% wrongful conviction rate to conclude there were at least 46,000 innocent people incarcerated in the nation’s prison system.  46,000.00! more...

January 30, 2011

WHAT IS REASONABLE DOUBT?

Another Tool for Preventing Wrongful Convictions:  Texas Needs a Statutory Definition of Reasonable Doubt

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Four decades ago in the case of In re Winship the United States Supreme Court firmly established that, as a matter of due process, a person charged with a criminal offense, including a juvenile as in Winship, can be found guilty only after the prosecution has proven every element of the crime “beyond a reasonable doubt.” The Supreme Court dated the term “beyond a reasonable doubt” in American jurisprudence to 1798, some eleven years after our Constitution was adopted. Thus, beyond a reasonable doubt has been the degree of persuasion necessary in criminal cases since the early founding of our nation. It has become the very bedrock of our criminal jurisprudence. As Mr. Justice Frankfurter put it in 1952 in Leland v. Oregon: “ … it is the duty of the Government to establish  … guilt beyond a reasonable doubt. This notion – basic in our law and rightly one of the boasts of a free society – is a requirement and a safeguard of due process of law in the historical, procedural content of ‘due process.’” more...

January 24, 2011

SELF-INCRIMINATION IN YOUR POCKET

California Supreme Court Allows Search of Data Stored on Mobile Phone without Warrant

By: Houston Criminal lawyer John Floyd and Paralegal Billy Sinclair

Early last year we posted a piece about the way federal prosecutors have increased their efforts to secure sensitive data from telecommunications companies about customers’ cell phone use. Prosecutors justified these individual privacy intrusions by saying it helps them trace the movements of drug dealers, human traffickers, and even corrupt politicians. Newsweek called the cell phone “The Snitch in Your Pocket” (March 1, 2010) as they reported about this new crime-fighting effort by federal authorities. And more recently we have reported on additional, more inventive ways the Government has found to intrude into the private lives of everyday, law-abiding citizens under the now incestuous wars of crime and terror (here and here). more...

January 22, 2011

TEXAS DEATH PENALTY INQUIRY SHUT DOWN

The Real Reason for Abolition: Texas Poses Greatest Risk of Executing an Innocent

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

For two days in December of last year Harris County Criminal District Court Judge Kevin Fine allowed attorneys representing accused capital murderer John Edward Green to present evidence that the process for carrying out the death penalty in this state is so flawed that it creates an unconstitutional risk that an innocent person could be executed. The two-day hearing in the Green case drew national and international media attention because it involved a challenge to the death penalty in the very State which has executed more people than any other since the executions resumed in this country on January 17, 1977. more...

January 16, 2011

EXCESSIVE FINES: PROPERTY FORFEITURE IN CHILD PORNOGRAPHY CASES

Courts Stretch Logic and Allow Government Land Grab in Child Porn Case

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Former President George W. Bush appointed more than 200 judges to the federal bench. The Ivy League graduate and former Texas governor had a two-part litmus test for federal judgeship appointments: the appointees had to be young and ideologically conservative. While Bush made a number of “diverse” appointments, the “overall number of minority judges in the federal courts did not increase during his tenure,” said Jennifer Segal Diascro, professor of government at American University’s School of Public Affairs. more...

January 8, 2011

THE CORRUPTION OF FISA

Government Avoids 4th Amendment Requirement of Probable Cause

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

In 1970 it was discovered by a gentleman named Christopher H. Pyle that the U.S. Army Intelligence Command had 1500 commissioned officers whose duty it was to spy on any known protest or demonstration in this country involving 20 or more people. While Pyle’s eventual revelations about this stunning information captured the attention of the Chairman of the Senate Subcommittee on Constitutional Rights, Sen. Sam Ervin, the great Watergate truth-seeking champion, had little authority to do anything about the “spying on Americans” scandal. more...

January 3, 2011

“NO REFUSAL’ BLOOD DRAWS SPREAD

Harris County Goose-Stepping to the Beat of a MADD Drum

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Law enforcement authorities in Texas, and at least six other states, this past New Year weekend engaged in an aggressive anti-DWI campaign. It’s called “no refusal” weekends. In most states, including Harris County, Texas, a judge is on standby at these coordinated DWI traffic stops prepared to sign a warrant permitting the police to take a blood sample if a suspected DWI driver refuses to take the standard breathalyzer. Texas’ “no refusal” programs take it a step further: law enforcement officers can forcibly take a blood sample when a suspected DWI driver refuses to give what is called a voluntary “blood draw.” more...

December 28, 2010

AMERICA: BIG BROTHER IS WATCHING!

Promoting Fear of Muslim Terror Government Continues Invasion into Privacy, Civil Rights

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Did you know that the nation’s Department of Homeland Security (“DHS”) has given $31 billion in grants, including $3.8 billion in 2010 alone, to state and local governments to find and protect Americans from terrorists? more...

December 18, 2010

TEXAS COMMUNITY SUPERVISION REVISITED

Legislative Rush to Punish “Sex” Offenders Removes Punishment Alternatives, Probation, Unnecessarily Increases Prison Overcrowding

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

In 2008 we posted a piece about the restrictions the Texas Legislature had placed on the availability of probation. Historically probation was an alternative to penal incarceration designed to give first offenders and minor offenders a second chance. more...

December 16, 2010

DEFENDING AGAINST JUROR BIAS IN SEX CRIMES

Voir Dire, Inability to Consider Full Range of Punishment: Proper Objection and Practice to Preserve Error for Appeal

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Sex offenses involving children are beyond a doubt the most difficult to defend, particularly when the allegations appear compelling and the witnesses are believable (here, here, and here).  These kinds of sexual assault allegations are easy to indict and even easier to prosecute. All the prosecution needs is the victim’s testimony to secure and sustain a conviction. These offenses are difficult to defend because potential jurors enter the trial setting with a predisposed bias against anyone charged with a sex offense against a child. While the defense counsel tries to exclude these biased jurors from the jury, either through peremptory challenges or challenges for cause, too many effectively conceal their bias in order to serve and convict. These jurors want to be part of a process that convicts the insidious “child molester.” more...

December 11, 2010

THE TEXAS DEATH PENALTY SYSTEM BROKEN

Nationally Recognized Experts, Retired U.S. Supreme Court Justice Cite Risk of Innocents Being Put to Death, State of Texas Replies “No Comment”

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

That question could reasonably be asked of any state that maintains the death penalty. Every system of punishment is cracked in one way or another. The fact that 138 condemned inmates in 26 death penalty states have been exonerated since 1973, and the fact that there have been 261 DNA exonerations in this country since 1989, and the fact that our law books are filled with reversals of criminal convictions and death sentences offers compelling evidence that our entire criminal justice system, and, in particular, our death penalty systems is if not broken, certainly flawed. Earlier this year Harris County Criminal District Court Judge Kevin Fine stirred considerable legal and political controversy when he declared from the bench that Texas’ death penalty procedures were unconstitutional. The backlash was so intense, from the state’s attorney general to its governor, that Judge Fine clarified his ruling the next day by saying he had not actually declared the death penalty process unconstitutional and ordered attorneys in the case to submit additional legal arguments detailing how the process was so flawed that it violated the “cruel and unusual punishment” provisions of the Eighth Amendment. more...

December 10, 2010

WIKILEAKS, JULIAN ASSANGE, AND POSSIBLE CRIMINAL PROSECUTION

Keeping the government in Check, the Uncomfortable Reality of Freedom of the Press

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

WikiLeaks’ founder Julian Assange surrendered to British authorities on December 7, 2010 in connection with sexual assault allegations leveled against the Australian native by Swedish authorities. News media reports said Assange was engaged in consensual sexual encounters with two women (WikiLeak volunteers) in Sweden this past August when the encounters turned non-consensual because Assange would not use a condom. The controversial Assange has gained international acclaim and criticism for his website’s disclosure of thousands of classified U.S. diplomatic cables and documents. The sexual assault charges became prominent after the disclosures occurred. more...

December 5, 2010

WIKILEAKS RENEW  DR. AAFIA SIDDIQUI  MYSTERY

86-year prison term for Dr. Siddiqui: Victory in Courtroom is Loss on Worldwide Public Stage

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

This website has maintained an ongoing interest in the bizarre case of Dr. Aafia Siddiqui (here and here). We have stated we do not know if the Pakistani native is a brilliant neuroscientist or an al Qaeda terrorist as our Government has repeatedly charged she is. What we do know is that our Government has cloaked the Siddiqui case in such mystery and secrecy that we believe she was most likely kidnapped, along with her three children, by Pakistan’s infamous intelligence agency in Karachi in 2003 and turned over to our Government who placed her in secret detention in Bagram military prison in Afghanistan where she was subjected to torture and other forms of debilitating abuse. more...

December 2, 2010

BOTH TERROR AND AMERICAN LEGAL SYSTEM ON TRIAL

Suspected Terrorists should be Transferred to Civilian Custody and Processed in the Criminal Justice System

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Ahmed Khalfan Ghailani was involved in the two bombings of U.S. embassies in Africa in 1998 which killed 224 people, including 12 Americans. To what extent we do not know. The final verdict is mixed on that issue. What we do know is that the New York Times reported Ghailani was captured in Pakistan in 2004 where he was held in one of the CIA’s “secret prisons” for most of the next five years. He was subjected to repeated interrogations and torture during that period before he was transferred to Guantanamo Bay detention facility, according to his attorneys. The Obama administration elected to use the Ghailani case as a test run for its policy that terrorists should be tried in civilian courts rather than before military tribunals (here, here and here). Ghailani was then indicted by a New York federal grand jury on 285 terrorism-related counts, including conspiracy to use weapons of mass destruction and murder in connection with the embassy bombings, and thereafter transferred from military custody to civilian custody. more...

 

December 1, 2010

REFORM CAN SOMETIMES BE BAD MEDICINE                                    

Anonymous Inside Sources Criticize Harris County District Attorney

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Like all cold and flu medicine, “reform” at the governmental level sometimes gags those resistant to changing practices and policies away from the bad toward the good. Harris County District Attorney Pat Lykos was elected on the theme that she would introduce “reform” to the district attorney’s office and put an end to the often illegal and unethical practices of the “convict at any cost” which hallmarked the former administrations of Charles “Chuck” Rosenthal and his predecessor Johnny Holmes. The trial of a criminal case is controlled by three entities: the judge, the prosecutor, and the defense counsel. To be effective and responsible, each entity must do their job in an honest, decent, and fair way. That was seldom the case under Rosenthal and Holmes. more...

 

November 18, 2010

THE CONSTITUTIONAL QUICKSAND OF JESSICA’S LAW IN TEXAS

Texas Penal Code 21.02, Continuing Sexual Abuse of a Child, Thwarts Long Established Requirement of Unanimous Verdicts

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

It’s been called arguably the second “most serious offense” in the State of Texas: Texas Penal Code 21.02, The Continuous Sexual Abuse of a Child. The statute provides that a person commits the continuous sexual abuse of a child if (1) during a period that is 30 or more days in duration, the person commits two or more acts of sexual abuse, regardless of whether the acts of sexual abuse are committed against one or more victims, and (2) at the time of the commission of each of the acts of sexual abuse, the actor is 17 years of age or older and the victim is a child younger than 14 years of age. This law was enacted by the Legislature is 2007 and was part of Texas’ version of Jessica’s Law. These laws have met with serious constitutional challenges across the country. more...

November 11, 2010

NAIT RECEIVES MIXED BLESSING FROM APPEALS COURT

Unindicted Co-Conspirator in Holy Land Appeals Case in Fight to Clear Name

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

The Holy Land Foundation for Relief and Development, formerly the nation’s largest Islamic charity organization based in Dallas, Texas, and seven of its leaders were indicted in 2007 with providing “material support” to a terrorist organization, primarily to Hamas. We have posted up articles about the case (here and here). A 2008 trial resulted in convictions for all those indicted and with Holy Land being labeled as the “largest terrorism financing” Islamic group in the country. In 2009 its founders were given life sentences. more...

 

November 4, 2010

SEXUAL ASSAULT DEFENSES SEVERELY RESTRICTED

Extraneous Offenses: The Impact of Bass on Admissibility of other Crimes, Wrongs and Bad Acts.

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

We wrote about the Curtis Bass case last year (here). We will restate the facts of the Bass case here to illustrate the profound effect the case has had on defending sexual assault cases, particularly those involving child victims. more...

 

October 30, 2010

THE COST OF MURDER/THE PRICE OF INNOCENCE

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. more...

October 23, 2010

ANOTHER ROGUE PROSECUTOR/IMMUNITY CASE

Supreme Court will Hear Al-Kidd v. Ashcroft to Determine if the Former Attorney General can be Held Responsible for Illegal Arrest and Detention of Muslim Man under Material Witness Statute

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

The U.S. Supreme Court will hear a second case involving a rogue prosecutor abusing his power. This second case involves former U.S. Attorney John Ashcroft who was sued under the federal civil rights statute, 42 U.S.C. Sec. 1983, by Abdullah Al-Kidd. more...

October 16, 2010

FREEDOM OF SPEECH SURVIVES YET ANOTHER ASSAULT

Freedom of Speech: Conviction for Lying about Medal of Honor Reversed

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

No one likes a liar, a blowhard, or someone who takes credit for something he doesn’t deserve. But that description applies to most of us at one point or another in their lives. People lie about things to make themselves look better in the eyes of others; people embellish life events (the proverbial fish story about the “one that got away”); and people tend to take more credit than they deserve when they are part of a group success (like claiming credit for scoring the winning touchdown in a flag football game when they actually never caught a pass in their lives). This is the general state of human nature, a mirror reflection of those who tediously grope through mundane, sometimes insignificant, lives trying to simultaneously cope with personal fallibility and certain mortality. more...

October 9, 2010

PROSECUTORIAL MISCONDUCT: THE SCOURGE OF THE CRIMINAL JUSTICE SYSTEM

Thompson v. Connick; Jury Awards 14 Million Dollars to Man Who Served 18 Years in Prison for Crime he Did Not Commit After Prosecutors Hid Favorable Evidence

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Last year the U.S. Supreme Court in Van de Kamp v. Goldstein effectively reinforced a longstanding constitutional rule of law that prosecutors who engaged in unethical and criminal misconduct to secure criminal convictions are immunized from civil liability. They are protected by the doctrine of absolute immunity which insulates public officials from civil liability when performing their official duties, even if their conduct is unethical and criminal so long as the conduct is carried out within the scope of the official’s duties. more...

October 6, 2010

DOG WITNESSES KICKED OUT OF THE COURTROOM?

Winfrey v. State: Evidence of Dog Scent Line-Up Identification, Standing Alone, Legally Insufficient to Support Conviction

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair.

The San Deigo Police Foundation reports that police dogs work 8 ½ years before being retired and it costs $8500 to replace a retired canine. Dogs serve a legitimate purpose in crime prevention: their sense of smell is nearly 50 times stronger than humans and they can search an area 10 times quicker than a human. Dogs have a long history in law enforcement.  For example, bloodhounds were used as early as the 18th century in Europe to track criminals. Germany and Belgium became the first European countries to formalize training of dogs in police work, mostly guard duty. German sheperds served Third Reich well in World War II and returning American soldiers brought this information home with them from the front lines. Following the lead of London and other large European police departments, major American city police departments also began to establish K-9 units in the 1970s, consisting mostly of German sheperds, in their crime-fighting duties. more...

September 30, 2010

DR. AAFIA SIDDIQUI: THE PUNISHMENT DOES NOT FIT THE CRIME

86 Year Federal Sentence Handed to the Gray Lady of Bagram Greater Than Necessary, Cruel and Unusual

By: Houston Criminal Lawyer John Floyd and Billy Sinclair

Depending on who you believe, Dr. Aafia Siddiqui is either an American-educated Pakistani neuroscientist kidnapped in Pakistan in 2003 and tortured by Americans in the infamous Bagram prison in Afghanistan over the next four years or she is a captured al Qaeda terrorist who tried to kill six American military personnel in Ghazni, Afghanistan in 2008. Whichever she is, she did not deserve the 86 year sentence U.S. District Court Judge Richard M. Berman imposed on her on September 23, 2010 because she posed a threat of “recidivism.” more...

September 28, 2010

ACTUAL INNOCENCE IN POST-CONVICTION PROCEEDINGS

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. more...

September 25, 2010

TEXAS DISCOVERY PROCEDURES

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. more...

September 22, 2010

PREVENTING FALSE CONFESSIONS

Requirement That Interrogations Be Recorded Is the Best Way To Preserve Integrity Of Confessions

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

The New York-based Innocence Project reports that as of September 10, 2010 there have been 258 DNA exonerations in this country. The project says that 25 percent of them involved false confessions and incriminating statements. more...

September 13, 2010

RECOMMENDATIONS FROM THE TIMOTHY COLE ADVISORY PANEL ON WRONGFUL CONVICTIONS

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. more...

September  8, 2010

“NO REFUSAL” BLOOD DRAWS AND SOBRIETY  CHECKPOINTS: CONSTITUTIONAL DILEMMAS

Law Enforcement Willing to Lessen Constitutional Protections to Appease Mothers Against Drunk Driving

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

For the past fifteen years the State of Texas either led the nation or ranked in the top five states in DWI fatalities. The Century Council reported in 2008 there were nearly six-million traffic accidents reported in this country to the police which took the lives of 37,361 people—11,773 of the deaths involved crashes in which a driver had a blood-alcohol reading of .08 or higher. A blood alcohol level (BAL) of .08 is considered intoxicated in the State of Texas. more...

September 3, 2010

THE MINEOLA SWINGER CLUB CASE: A LEGAL NIGHTMARE

Lying Texas Ranger, Overzealous Child Advocate Experts and Pro-Prosecution Judge Mock Justice

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Most human tragedies are produced by random acts of Nature run amok. But far too often human tragedies are man-made, particularly in our criminal justice system. That’s what has happened in the so-called “Mineola swingers club” case. According to Michael Hall, in his latest Texas Monthly article about the case titled “Trial and Error,” this criminal justice tragedy began in 2005 when Margie Cantrell, a career “foster mom”  (27 adopted children over 36 years) who either fled or migrated from California to Texas in 2004, walked into the Mineola Police Department, located in Wood County (just north of Tyler), and informed the police that two of her foster children had been forced to perform “sex shows” at the Retreat Club, a local “swingers’ club.” more...

August 31, 2010

WRONGFUL CONVICTIONS: TRAGIC RUSH TO JUDGMENTS

Tunnel Vision By Investigators and Prosecutors Convicts, Imprisons the Innocent

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Last year we blogged about the tragic wrongful convictions of three innocent Texas inmates, Ricardo Rachel, Timothy Cole (here and here), and Ernest Sonnier. This year has proven just as tragic. We have thus far blogged about the wrongful convictions of four more innocent Texas inmates: Donald Wayne Good, Anthony Robinson, Allen Wayne Porter, and Michael Anthony Green. The wrongful conviction emblem seems to have been deeply etched on the face of Texas justice. But convicting innocent people is not a phenomenon unique to this state. more...

August 28, 2010

ROGER CLEMENS TAKES THE MOUND AGAINST U.S.  GOVERNMENT

False Statements, Perjury and Prosecutorial Over-Charging

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Between 1984 and 2006, Roger Clemens, a seven-time Cy Young Award winner, was arguably the best—certainly one of the top five—pitchers ever to take the mound in Major League Baseball (“MLB”). Nicknamed the “Rocket,” Clemens’ 354 wins (ninth on the all-time win list) and his 4,672 strikeouts (third only to career strikeout leader Nolan Ryan and runner up Randy Johnson) make a compelling argument that he is one of the greatest MLB pitchers of all time. more...

August 24, 2010

THE SKILLING EFFECT

18 USC 1346, Honest Services Prosecutions Require Bribes or Kickbacks

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

The Enron Corporation was founded in 1985. Its headquarters were located in downtown Houston. It became the seventh highest revenue grossing company in America. Between 1995 and 2000 alone, its annual revenues rose from $9 billion to $100 billion. Jeffery Skilling, a longtime Enron officer, was an integral component in company’s phenomenal rise to economic success and corporate power. Between February and August 2001, he served as CEO of the company before he abruptly resigned. Less than four months later Enron declared bankruptcy and its stock value plummeted. The nation’s economic and political institutions were stunned by the far-reaching economic and political implications of the company’s collapse. more...

August 17, 2010

ARSON MURDER: TOO MANY MISTAKES DEMANDS SCRUTINY

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. more...

August 15, 2010

APPELLATE COURTS DON’T ALWAYS GET IT RIGHT EITHER

U.S. Fifth Circuit Court of Appeals Corrects itself by Holding Overt Act Not Element of Conspiracy to Launder Money, 18 U.S.C. § 1956(h)

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Money laundering is a process through which either the source or use of proceeds from illegal financial transactions are concealed. The primary purpose of a money laundering operation is to hide either the origin or destination of money derived from ill-gotten gain. Most money laundering operations are tied to illicit drug trafficking. The Office of National Drug Control Policy estimates that Americans spend $65 billion each year on illicit drugs. Since federal law enforcement agencies seize only $1 billion in drug money each year, according to the U.S. Drug Enforcement Administration, there is a lot of illegal money being laundered at both national and international levels. In 1986 Congress passed the Money Laundering Control Act, which is codified in the United States Code, Title 18, Section 1956, and is the statute most often used by the U.S. Justice Department to prosecute money launderers. In 2007 former Assistant U.S. Attorney Charles Intriago told USA Today that it is easy “to move money in and out [of the country], using U.S. companies, without a trace. This is a glaring problem.” more...

 

August 13, 2010

NO EXCUSE FOR POLICE BRUTALITY

Misdemeanor Charges for Beating of Handcuffed 15-Year Old Lead to Community Outrage

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Four Houston police officers were indicted on June 23, 2010 on misdemeanor charges of “official oppression” in connection with the beating of  a handcuffed 15-year-old black burglary suspect—an incident “caught on tape” by a private business surveillance camera.  The officers were immediately terminated from duty by Houston Police Chief Charles McClelland after the complaints were announced. Three others involved in varying degrees in the beating and its aftermath were also fired. Five other officers were given two-day suspensions for “policy violations unrelated to the arrest” of the burglary suspect, although Chief McClelland did not disclose the roles of these five officers in the wake of the beating incident. more...

 

August 10, 2010

FEDERAL INMATE SAMUEL KENT DESERVES FAIR TREATMENT

Unpopular Judge Deserves Humane and Fair Treatment While in Federal Custody

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Last year former U.S. District Court Judge Samuel Kent pleaded guilty to an obstruction of justice charge and received a 33-month sentence. He was committed to the U.S. Bureau of Prisons. Kent’s attorneys, Dick DeGuerin and Sean Buckley, recently filed a comprehensive motion in the U.S. District Court for the Houston Division to vacate and correct his prison sentence because of the physical and psychological abuse he has endured at the hands of federal prison officials. The abuse includes being mislabeled a “sex offender”—a status which precludes him from participating in certain substance abuse counseling programs—and being held in harsh solitary confinement while being transferred from one federal or state penal facility to another. more...

August 7, 2010

OSTRICH INSTRUCTION REJECTED IN FEDERAL ONLINE SOLICITATION

Deliberately Avoiding the Truth to Deny Criminal Knowledge

By Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

What is an “ostrich instruction?”

Also known as a “willful blindness” or “deliberate indifference” instruction in many federal circuits, an ostrich instruction is a jury instruction given when a criminal defendant claims a lack of guilty knowledge about the crime but there is some evidence the defendant deliberately elected to remain ignorant to avoid confirmation. Put succinctly, an ostrich instruction is generally given in cases where defendants deliberately close their eyes to the truth. It is not routinely used in federal online solicitation cases filed under 18 U.S.C. § 2422(b), which prohibits the knowing persuasion, inducement, enticement or coercion of a minor under 18 years of age to engage in prostitution or other illegal sexual activity. more...

 

August 3, 2010

HOUSTON, HARRIS COUNTY NEEDS AN EMERGENCY DNA LAB

Independent DNA Lab Necessary to Successfully Prosecute Dangerous Criminals and Prevent Wrongful Convictions

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Last month we posted a blog about the ever increasing need for an independent crime lab in Harris County. The Houston Chronicle  reported recently about Harris County District Attorney Pat Lykos’ call for an “emergency DNA lab.” The newspaper reported that the Houston Police Department’s (HPD) DNA lab, which has been plagued with mismanagement and scandals over the past several years, has 4,076 rape kits dating back to 1996 which have not been DNA tested and another 969 criminal cases scheduled for DNA testing. more...

August 1, 2010

MISTAKEN IDENTIFICATIONS SENT TWO INNOCENT MEN TO PRISON

Suggestive Police Procedures and Mistaken Identification Resulted in Two More Wrongful Convictions and Incarcerations, One for 27 Years

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Our criminal justice system is flawed. Its imperfections can be found in the 255 DNA exonerations of innocent offenders and the 138 people released from death row since 1973 in this country. But, paradoxically, its perfection lies in its willingness and ability to correct the imperfections brought about by human mistake. According to the New York-based Innocence Project, mistaken identification is the “greatest cause for wrongful convictions,” playing a role in 75 percent of the nation’s DNA exonerations. more...

July 29, 2010

CAMERON TODD WILLINGHAM: IMPROPER OR WRONGFUL CONVICTION?

Texas Forensic Science Commission Concludes Flawed Science Used In Trial That Led To Conviction and Execution

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

It was December 1991 in Corsicana, Texas. Cameron Todd Willingham was alone in his residence with his three small children—Amber 2, and one-year-old twins, Karmon and Kameron. A fire broke out in the residence. Willingham managed to escape the fire. The three children did not, dying a horrible death trapped in the flames that quickly engulfed the residence. Willingham was immediately targeted as a suspect for arson murder. He was indicted on January 8, 1992. After turning down an opportunity to plead guilty for a life sentence, he was tried, convicted, and sentenced to death in August 1992. He was executed on February 17, 2004, angrily telling all those present that he was an innocent man. more...

July 24, 2010

PSR OBJECTIONS OVER PLAIN ERROR DOCTRINE

Criminal Defense Attorneys Must File Objections to Pre-Sentence Report in Federal Criminal Cases to Protect Appellate Rights

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

The United States Congress, with the Sentencing Reform Act of 1984, established the U.S. Sentencing Guidelines. These “Guidelines” not only guide but require U.S. District Court judges to consider all the sentencing factors Congress set forth in 18 U.S.C. § 3553(a) before imposing sentence in criminal cases. The U.S. Supreme Court in a series of cases has made it abundantly clear that the Guidelines are not mandatory but rather advisory in nature—a guide for the judge to utilize in crafting the appropriate sentence. more...

July 13, 2010

WHEN “NOT GUILTY” DOES NOT MEAN INNOCENCE

Monetary Damages Under § 2513, for Unjust Conviction and Imprisonment, Requires Showing of ‘Truly Innocent,’ Even After Acquittal

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Robert E. Graham, a West Virginia native, was indicted by a Federal grand jury for 39 criminal offenses. It is not uncommon for the United States Government, armed with an arsenal of prosecutorial resources through the U.S. Justice Department, to overcharge criminal defendants. It is a tactic designed to force criminal defendants into unwanted guilty pleas or to overwhelm juries with so much documentary evidence that jurors will almost automatically vote “guilty” on the flimsy premise that the defendant must have done something wrong to face so many charges involving so much “evidence,” even if there is no factual basis for the evidence. more...

July 9, 2010

A CHILD CANNOT BE BOTH CRIMINAL AND VICTIM

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

The Texas Supreme Court recently held that a child under the age of fourteen could not be found guilty of a Class B misdemeanor offense of prostitution. This case began when a 13-year-old identified by the court as B.W. waved over a Houston undercover police officer driving an unmarked vehicle and offered to perform oral sex on him for $20. The officer agreed, and as soon as the teenager got in the officer’s vehicle, he arrested her for prostitution. The case was originally brought in the criminal district court, but as soon as the District Attorney’s Office learned the girl was only thirteen, the criminal complaint was dismissed and charges were re-filed under Articles 51.02(2) and .04(a) of the Texas Family Code. more...

July 6, 2010

A DEFENSE ATTORNEY’S NARROW MARGIN FOR ERROR

Ineffective Assistance of Counsel: Criminal Defense Lawyer’s Questions about Defendant’s Post Arrest Silence Opens Door to Cross Examination By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Criminal defendants have a Sixth Amendment right to effective assistance of counsel in criminal prosecutions against them. The United States Supreme in 1984 handed down Strickland v. Washington which set forth the constitutional standard a criminal defendant must satisfy in order to establish that he/she was not effectively represented by their attorney. First, the defendant must prove that the defense attorney’s performance “fell below an objective standard of reasonableness,” and, second, the defendant must prove that counsel’s deficient performance so prejudiced his/her defense that the guilty verdict is unreliable and fundamentally unfair. more...

June 30, 2010

THE TIME HAS COME FOR AN INDEPENDENT REGIONAL CRIME LAB

Continued Scandals in Houston, Harris County Criminal Justice System Beg for Independent Regional Crime Lab

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

The “crime lab” for the Houston Police Department (HPD) has become a hotbed of flawed forensic evidence. Earlier this year we blogged about a Houston Chronicle report that taxpayers would have to pick up an $80,000 bill to a Science Laboratory and Training Centre contracted by the city to clear up a backlog of 300 firearms forensic cases in the HPD crime lab. Just weeks earlier we had blogged about yet another Chronicle report that found taxpayers would have to foot a $3 million bill to Ron Smith & Associates, a Mississippi-based consultant firm, for its consultants re-examine some 4,300 fingerprint cases processed by the HPD crime lab between 2004 and 2009, more...

June 25, 2010

TERRORISM LAW HELD CONSTITUTIONAL

Material Support of Foreign Terrorist Organizations vs. Freedom of Speech and Association

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Founded in 1974, the Partiya Karkeran Kurdistan (PKK) was established as a Marxist-Leninist insurgent group composed of Turkish Kurds who formed to seek Kurdish independence from Turkey.  By the late 1990s the group had had morphed from a rural-based insurgent group into a full-fledged terrorist organization, sometimes using suicide bombings on civilian targets. more...

June 19, 2010

ADAM WALSH ACT UNDER CONSTITUTIONAL SCRUTINY

Growing Practice of “No Bond” and Unreasonably Harsh Sentences for Some Child Sex Crimes Sparks Judicial Concern

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

In July 2006 former President George W. Bush signed into law the Adam Walsh Child Protection and Safety Act (“Walsh Act”). Title I of the Walsh Act, the Sex Offender Registration and Notification Act (“SORNA”), received the most media attention because it 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...

June 12, 2010

TEXAS MAKING FUTURE CRIMINALS

Children in Foster Care Residential Treatment Centers at High Risk of Neglect, Mistreatment and Abuse

By: By Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

In a 2002 article for Child Trends, Dr. Richard Werthheimer, Ph.d, said there were more than 556,000 children in foster care in this country—many of whom suffered from serious emotional, behavioral, developmental, and other health problems. That figure represented an increase from 302,000 in 1980. While black children at the time accounted for 15 percent of the nation’s children, they represented 30 percent of those entering foster care and 42 percent of those living in foster care. Hispanic children, who represented 16 of the nation’s children, represented just 18 percent entering and living in foster care. more...

June 9,2010

HOUSTON LAW ENFORCEMENT FACES TOUGH TIMES

Decreased Police Budget: Increased Unsolved Crime, Botched Investigations, Wrongful Arrests and Convictions

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Thomas Hargrove, Scripps Howard News Service, reported last month that 6,000 homicides go unsolved in this country each year. Hargrove said the number of “unsolved homicides” has risen at an alarming rate even though the nation’s homicide rate has decreased to levels last seen in the 1960s. Most of these unsolved homicides occur in dozens of the nation’s largest cities. more...

June 8, 2010

U.S. SUPREME COURT TAKES ANOTHER BITE OUT OF MIRANDA

Suspects Must Invoke Rights Unambiguously; Justice Sotomayer Strongly and Forcefully Dissents as High Court Narrows Miranda

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Our last post dealt with the prospect that the Obama administration may modify the long-standing “public safety exception” of Miranda v. Arizona—the 1966 Supreme Court that established the following prophylactic rules for warning criminal suspects taken into police custody: 1) right to remain silent, 2) anything a suspect says can be used against him in a court of law, 3) suspect has right to have an attorney present during police questioning, and 4) if the suspect cannot afford an attorney, one will be appointed to him prior to police questioning. more...

June 1, 2010

THE CONTINUED ASSAULT ON MIRANDA

Abandoning Miranda in Terrorism Cases Contrary to Constitution and Beginning of Slippery Slope towards Neo-Con Police State

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

The United States Supreme Court in 1966 handed down Miranda v. Arizonawhich mandated to every law enforcement agency in this country that they advise all criminal suspects their right to silence; that anything they say can and may be used against them in a court of law; and that they have a right to an attorney. Findlaw columnist and former White House counsel John Dean has written two (here and here) recent columns in response to comments made by U.S. Attorney General Eric Holder on May 9, 2010 on several Sunday morning news/talk shows that the “Miranda warnings” given to terror suspects should perhaps be modified. Dean warned the Obama administration that, if the Holder comments represented possible “new policy,” it is navigating down a constitutional “slippery slope” by “messing with Miranda rights to fight terrorism.” more...

May 29,2010

THE RIGHT TO CONFINE FOREVER

Indefinite Detention: Preemptive Punishment for Future Sex Crimes

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

On May 17, 2010 the United States Supreme Court in United States v. Comstock upheld a federal statute that gives Government the power to civilly commit indefinitely a “sexually dangerous person” after he has completed serving his criminal sentence. The statute, 18U.S.C. Sec. 4248, was the subject of one of our blogs earlier this year. §4248 has three basic components. First, it allows a federal district court to civilly commit an offender currently in the “custody of the [Federal] Bureau of Prisons” if that offender (1) has previously “engaged or attempted to engage in sexually violent conduct or child molestation,” (2) currently “suffers from a serious mental illness, abnormality, or disorder,” and (3) “as a result of” those conditions is “sexually dangerous to others” in that “he would have serious difficulty in refraining from sexual violent conduct or child molestation if released.” more...

May 28, 2010

FBI STEPS UP INQUISITION AGAINST MUSLIM AMERICAN COMMUNITY

Know Your Legal Rights Before Talking to the FBI

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

The Fort Hood shooting massacre last year, the Christmas day bombing attempt, and the Times Square car bombing attempt have prompted the FBI to again increase its surveillance of the Muslim American community in this country. Muslim Advocates recently issued a “community alert” informing all Muslim Americans, but especially those from Pakistan and South Asia, that the FBI may be contacting them for information and advice in “addressing violent extremism.” Muslim Advocates was so concerned that it offered a free webinar about how Muslims can freely and safely work with law enforcement. more...

May 25, 2010

SUPREME COURT ADDRESSES LIFE WITHOUT PAROLE FOR JUVENILES

Are Life Sentences Appropriate for Juvenile Offenders?

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

The United States Supreme Court finally addressed for the first time a long debated issue: whether juveniles can be sentenced to life without parole (“LWOP”), a sentence normally reserved for the very worst offenders. In its decision finding that LWOP for juvenile offenders was unconstitutional, the Court pointed out that only six states in this country do not have LWOP for juveniles. Fortunately, the State of Texas is one of those states. The Legislature last year eliminated the penalty provision from its sentencing practices. more...

May 18, 2010

TWO MORE DNA EXONERATIONS

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. more...

May 15, 2010

THE FLAWS OF TEXAS’ EXPUNCTION STATUTE

Client Acquitted by Jury but Still Branded by Criminal Records, Background Checks

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

In 2008 and 2009, The John T. Floyd Law Firm won three acquittals in the cases of Michael Serges, whose ordeal in the Harris County court system was the subject of a Houston Press feature story reporter Chris Vogel. more...

May 13, 2010

DEFENDING THE WRONGLY ACCUSED

Houston Press Reports Our Victory in Court and Client’s Life After False Allegations

By:  Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

One of our recent success stories was profiled in the cover story of the May 6-12, 2010, edition of the Houston Press.  In Oh Hold, The Press exposed the hard reality that charges of child sex crimes can haunt a person for life, even though he may be exonerated before a jury of his peers, or, as it was in this case, after two separate trials and two “not guilty” verdicts.

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May 8, 2010

THE PITFALLS OF EXPERT TESTIMONY IN CHILD SEXUAL ABUSE CASES

Child Sexual Assault Expert Lies about Conclusions of Study

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

We have written previously about the prolific use of “child sexual abuse experts” in child sexual assault cases. In particular, we have criticized the testimony such experts from the Harris County Children’s Assessment Center (“CAC”). While seldom providing any specific source, these experts testify that the professional “literature” and “studies” reveal child sexual abuse victims rarely ever make “false” allegations about such abuse. The experts confidently inform juries that the rate of false allegations in child sexual abuse cases is about “three percent.” While our Texas Court of Criminal Appeals has held that such generalized testimony does not constitute impermissible “bolstering” of a child sexual abuse victim’s testimony, criminal defense attorneys who have faced this kind of “expert” testimony in emotionally-charged child sexual assault cases understand clearly that such testimony does lend tremendous bolstering-like credibility to the child’s testimony. more...

May 7, 2010

POLICE BRUTALITY: A GROWING PANDEMIC

Houston Police Department Embroiled in Allegations of Brutality Again

By Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

In a 2007 blog, Paul Craig Roberts wrote that “ … Americans are in a far greater danger from their own police force than they are from foreign terrorists … The only terrorists most Americans will ever encounter is a policeman with a badge, nightstick, mace and Taser. A Google search for ‘police brutality videos’ turns up 2,210,000 entries. Some entries are foreign and some are probably duplications, but the number is so large that a person could do nothing but watch police brutality videos for the rest of his life. A search on ‘You Tube’ alone turned up 2,280 police brutality videos.” more...

May 1, 2010

THE TRAGEDY OF POSTPARTUM DEPRESSION, PSYCHOSIS, AND INFANTICIDE

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

The postpartum depression debate has awakened once again in Harris County in the case of Narjes Modarresi, who is accused of killing her two-month old son. Anytime a mother harms her child deep-seated emotions are stirred in the community. Mothers are protective by nature. It’s an instinct rooted in the DNA of all animals, especially humans. more...

April 29, 2010

THE DANGERS OF CRIMINAL IDENTIFICATIONS

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. more...

April 24, 2010

THE SUPREME COURT MAKES A DIFFICULT CHOICE

Free Speech:  Federal Law Criminalizing Depictions of Animal Cruelty Declared Unconstitutional

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

There are times when the U.S. Constitution protects human activity that is repugnant and seemingly socially irredeemable. The U.S. Supreme Court recently handed down a ruling in the case of Robert J. Stevens who was convicted under a federal statute titled 18 U.S.C. Sec. 48 which prohibits the “depiction of animal cruelty.” This statute was enacted by Congress to, as the Supreme Court said, “criminalize the commercial creation, sale, or possession of certain depiction of animal cruelty.” more...

April 21, 2010

THE POLITICS OF SUPREME COURT NOMINATIONS

Obama Must Expose Judicial Activism of Right Wing and Nominate Justice with Abundance of Empathy for the Rights of the Individual and Protection of the Social Good

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

The recent retirement of Associate Justice John Paul Stevens has created the second opportunity for President Barak Obama to appoint a justice to the U.S. Supreme Court. The appointment of Supreme Court justices have always been roiled in political posturing by both Democrats and Republicans in Congress. In point of fact, Republicans have already laid out the gauntlet, warning the president that they are prepared fight the nomination of a “judicial activist.” more...

April 16, 2010

TEXAS COURT OF CRIMINAL APPEALS STRIKES BALANCE FOR RULE OF LAW

Wilson v. State; Court Reverses Conviction Obtained After Finding Investigator Used False Fingerprint Lab Report to Obtain Confession

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

It was New Year’s Day, 2006. Ronald Wilson called 911 to report he had discovered a man’s body on a San Antonio street while walking with his son. The police responded to the call and found the body of Amos Gutierrez who had been killed with a single fatal gunshot. The police also found a magazine clip near Gutierrez’s body. The investigation into Gutierrez’s death quickly revealed information implicating Wilson in the crime. He was arrested on misdemeanor charges. 1/ more...

March 31, 2010

MIRANDA TAKES MORE HITS FROM SUPREME COURT

Florida v. Powell and Maryland v. Shatzer:  Why Criminal Suspects Should Never Talk to the Police Without an Attorney

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

In December 2008 police officer Timothy Abernethy was chasing a suspect through a Houston apartment complex when the suspect, M. J. Landor, reportedly fired several shots at the officer. According to official reports, one of the bullets knock the 11-year police veteran to the ground at which time Landor approached him and shot him in the head. A massive police manhunt was undertaken to apprehend Landor, a parole violator, who was captured several hours later. Landor reportedly gave the police a detailed confession to the crime during several hours of police questioning. more...

March 29, 2010

IS HIV A DEADLY WEAPON?

Texas Prosecutors Use HIV as Deadly Weapon in Aggravated Sexual Assault Case

By:   Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Let us state quite emphatically at the outset that we do not know if K. L. Sellars is guilty of the crime the Harris County District Attorney’s Office has leveled against him. Many people are wrong accused of crimes they did not commit, so we will leave judgment that to a jury of his peers.  more...

March 26, 2010

OBAMA and MCCAIN: FORMER PRESIDENTIAL RIVALS EMBRACE TORTURE AND ASSASSINATION

Continuing Bush’s War on Terror, Obama Continues Policy of Unfettered Presidential Power to Assassinate Americans Abroad and McCain Sponsorsthe Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Sen. John McCain was once an honorable man, a respected “war hero,” and a “maverick” politician who stood on principle before political expediency. In 2000 the Arizona senator waged a “maverick” campaign for the Republican presidential nomination from inside his Straight Talk Express bus and stunned the nation with a convincing victory over heavily favorite Texas Gov. George W. Bush in the New Hampshire primary. He became an instant media “darling” who suddenly had the respect and admiration of most moderate Republicans and independents. The Vietnam “war hero” had taken on the Republican Party establishment and won. more..

March 22, 2010

CHILD PORN RESTITUTION RUN AMUK

Federal Judges Split on Issue of Restitution in Possession of Child Pornography Cases

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Her name is “Amy.” She is twenty years of age. When she was a child, 8 or 9 (according to media reports), Amy was sexually abused by her uncle. The uncle took photos of the abuse and posted the images on the Internet. Amy’s images became some of “the most widely circulated child pornography images online,” according to Associated Press writer Amy Forliti in a recent report. more..

March 18, 2010

ARE WE ALL POTENTIAL JIHADISTS?

Arrest of “Jihad Jane” Adds Fuel to Fight Against Racial Profiling

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Leonard Pitts is an excellent columnist. He recently wrote a piece about Colleen LaRose, the Pennsylvania housewife turned Islamic jihadist, whose arrest made it abundantly clear why airport security is not only necessary but essential. Whether conscious or not, most Americans believe “terrorists” can be easily profiled by their physical appearance,” unusual” accents, the clothes they wear, or the facial hair they sport. “Terrorists” are not white, blond, and mainstream in dress and mannerisms. American media has convinced us that real terrorists are either bearded Arabs or dark-skinned Africans who dress like Muslims. more..

March 17, 2010

CAN THE SMELL OF POT LEAD TO WARRANTLESS ARREST?

Odor of Burnt Marijuana, alone, may be sufficient for a warrantless entry but insufficient to establish probable cause for a specific arrest.

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Some defense attorneys—and not without a legitimate basis—mistakenly believe that if a police officer detects the odor of marijuana inside a residence, the officer does not have probable cause to enter the residence and arrest the suspected owner of the drug without a warrant. This belief can be traced to a 2002 decision by the Texas Court of Criminal Appeals in State v. Steelman which held that “the detection of the odor of marijuana in a certain place will not inevitably provide probable cause to arrest a person who is at that place.” 1/ more..

March 14, 2010

“BAD MOON ON THE RISE”

Keep America Safe: Right Wing Fanatics Attack Lawyers, Constitution, and Fundamental Right to Legal Representation

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Every major movement or cause throughout this nation’s history which sought constitutional protections for those the government had denied, from racial minorities ostracized by segregationists laws to those persecuted for their religious beliefs, was led by lawyers. Our fundamental notions of social justice, which are grounded in this nation’s Bill of Rights and in Federal and state constitutions form the original colonies, exist because of the courage of lawyers to form, frame and preserve those notions. Lawyers have always borne the brunt of criticism from political conservatives who really believe in many respects that our government should be run as a totalitarian state like fascism. more..

March 8, 2010

TEXAS DEATH PENALTY PROCEDURE UNCONSTITUTIONAL?

Judge Acknowledges Innocent People Have Likely been Executed

Harris County Criminal District Court Judge Kevin Fine on Thursday, March 4, 2010, created a tsunami of controversy in the Texas legal community when he reportedly made a comment that he was declaring the state’s death penalty unconstitutional. The comment was made during a hearing on a motion filed by defense attorneys in the case of John Edward Green Jr. who is facing a capital murder charge. What Judge Fine actually did was to declare Article 37.071 of the Texas Code of Criminal Procedure unconstitutional which is the statute that outlines the procedures for imposing the death sentence in this state. more..

March 5, 2010

BIG BROTHER’S WATCHING!

Law Enforcement Seeks Cell Phone Surveillance in Continued War on Crime; But Who’s Watching Them?  …Federal Judges

In an article titled “The Snitch In Your Pocket,” Newsweek Magazine (March 1, 2010) reported that in recent years Federal prosecutors have been “seeking what seemed to be unusually sensitive records, internal data from telecommunications companies that showed the locations of their customers’ cell phones—sometimes in real time, sometimes after the fact.” The prosecutors justified their pursuit of this individualized personal information “to trace the movements of suspected drug traffickers, human smugglers, even corrupt public officials” through their cell phones. more..

February 26, 210

PROBLEMS WITH POSITIVE IDENTIFICATIONS

Leading Cause of Wrongful Convictions: Mistaken Identification by Eyewitnesses

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

There have been 251 innocent people exonerated in this country by DNA evidence over the last two decades. The most disturbing aspect of this phenomenon of “convicting the innocent” is that more than 75 percent of those convictions involved mistaken identifications (according to the New York-based Innocence Project)—one or more witnesses pointing a finger of guilt at the wrong person. What is even more disturbing is that at least one-third of these mistaken identification cases involved two or more witnesses. more..

February 24, 2010

A “TIP OF THE HAT” FOR A JOB WELL DONE:

Court Recommends New Trial for Man Sentenced to Life in Prison for Capital Murder After Finding State’s Expert Testimony Incompetent

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

We have blogged rather extensively about the “convict at any costs” agenda which has ruled the Harris County District Attorney’s Office for the past three decades. “Convict at any costs” means the frequent use of fabricated forensic evidence, knowingly allowing perjured testimony into a criminal trial, withholding exculpatory evidence from defendants (particularly those known to be innocent), and injecting race in its death penalty decision-making. more..

February 18, 2010

AN ELECTION TORPEDOES THE CONSTITUTION

Politics of Terror Threaten Constitution

By:  Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

The recent election of Republican Senator Scott Brown in Massachusetts has effectively torpedoed the constitutional right to silence by any “terror suspect” arrested on American soil. Elected to replace the legendary liberal Senator Ted Kennedy, who died of brain cancer last August, Brown used the “politics of terror” to seal his stunning upset victory over Massachusetts Attorney General Martha Coakley. Brown accused the Obama administration of being “soft on terror” with its decisions to close Guantanamo Bay and to prosecute “9/11 mastermind” Khalid Sheikh Mohammad and co-conspirators in a New York federal civilian court rather than before a military tribunal. more..

February 15, 2010

RELEASED SEX OFFENDERS: A GROWING UNDERCLASS

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

In 1994 the United States Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act which required all states to create programs mandating that certain kinds of sex offenders register with state or local authorities. Congress added teeth to the Act by threatening the states with a ten percent loss of federal anti-crime funding for failure to comply. more..

February 11, 2010

MICHAEL JACKSON’S DOCTOR CHARGED WITH INVOLUNTARY MANSLAUGHTER

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

How do you save someone determined to destroy himself?

That question will surely be in the mind of most jurors who will ultimately decide the personal and professional fate of Dr. Conrad Murray, a Houston cardiologist, who was formally charged on February 8, 2010 with involuntary manslaughter in Los Angeles in connection with Michael Jackson’s death. Murray was the superstar’s personal physician last June when he administered the powerful anesthetic propofol and two sedatives to help Jackson, a renowned insomniac, get some sleep. The sleep aids put the pop singer to sleep permanently. more..

February 5, 2010

WHO IS AAFIA SIDDIQUI: TERRORIST OR GOVERNMENT PAWN?

The Tragic Case of the “The Gray Lady of Bagram”

By:  Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

The U.S. Government contends Aafia Siddiqui’s alleged links to terrorism began in June 2001—some three months before the 9/11 terror attacks on New York City’s Twin Towers. According to government sources, Siddiqui made a trip from Quetta, Pakistan to Monrovia, Liberia, where she was met by a car and driven to the Hotel Boulevard, a known al Qaeda safe house. A week later Siddiqui allegedly left Monrovia in the same inauspicious manner in which she arrived—the only difference being is that she carried with her a large parcel of Africa’s illegal diamonds, a hard-to-trace but key funding source for al Qaeda’s terror operations. more..

January 29, 2010

MORE EVIDENCE OF BAD EVIDENCE, AGAIN

Criminal Defense Attorneys Must Question Findings, Conclusions of Forensic Experts

By:  Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

We have posted a number of blogs about the “junk science” associated with forensic evidence—a science popularized by network television with drams like “CSI” and its spin-offs. It would indeed by an ideal world if all the evidence-gathering and analysis reflected in these TV programs reflected the real world of crime and criminal prosecutions. The reality is that while these shows may entertain their legion of loyal viewers, they do a tremendous disservice to our criminal justice more..

January 24, 2010

VIOLENCE IS A NATURAL GROWTH INDUSTRY

Prison Systems Breed Future Violence

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

The Wall Street Journal (Jan. 8, 2010) carried a report about the decreasing violent crime rate across the country. The report, based on FBI statistics, said all major violent crimes—homicide, forcible rape, robbery and aggravated assault—have been decreasing since 2007. Homicides decreased by 4.4 percent between 2007 and 2008, and by 10 percent during the first six months of 2009. Major cities like Washington, D.C., San Francisco, and Los Angeles recorded decreases in homicides levels not seen since the 1960s. more..

January 20, 2010

CHILD PORNOGRAPHY: JUDICIAL CHAOS LEADS TO HORRIFIC SENTENCING DISPARITIES

Court Describes Federal Sentencing Disparities as “A Picture of Injustice”

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

In 1984 the United States Congress enacted the Sentencing Reform Act (“SRA”), and as part of the Act, Congress created the United States Sentencing Commission (“Commission”) to “establish sentencing policies and practices for the Federal criminal justice system.” 1/ The Commission was charged with the responsibility of creating U.S. Sentencing Guidelines (“Guidelines”) that would assist Federal judges in the sentencing process to fulfill Congress’ five purposes for imposing criminal sentences. 2/ more..

January 14, 2010

THESE ARE DANGEROUS TIMES IN WHICH WE LIVE

Civil Commitment: Pre-Emptive Strike against Future Acts by Convicted Sex Offenders

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

In 1999 John Charles Volungus plead guilty in the United States District Court for the Western District of Kentucky to three federal criminal sex offenses: possession of child pornography; receipt of child pornography through interstate commerce by means of a computer; and use of a facility of interstate commerce (computer) to persuade a person under the age of eighteen to engage in a sexual act. 1/ He was sentenced to 53 months in the custody of the Federal Bureau of Prisons (“BOP”) to be followed by a term of supervised release. He was released from actual custody only to have his supervised release revoked. He was returned to the custody of the Bureau of Prisons for another23 months. more...

January 9, 2010

MILITARY COMMISSIONS ACT OF 2009

Fear Mongers Continue Calls for Military Tribunals to Avoid Burdens of Complying with Constitution and Rule of Law

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

The day after we posted our blog “Argument Against Gitmo Closure Defeated By Act of Terrorism” (Dec. 28, 2009), in which we pointed out that Republican opponents of the Obama administration’s decision to close Guantanamo Bay, had not suggested that Christmas Day attempted airline bomber Umar Farouck Abdulmutallab be tried before a military tribunal rather than in a civilian court, Rep. Peter King (R-N.Y.) led an awakened chorus of Republican voices saying Abdulmutallab should not be tried as a “criminal defendant” in a federal civilian court but rather as a “terrorist” before a military tribunal. more...

January 5, 2010

A CALL FOR ACTION: A NEED FOR REAL CHANGE

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. more...

December 28, 2009

ARGUMENT AGAINST GITMO CLOSURE DEFEATED BY ACT OF TERRORISM

Recent Arrest, Detention and Charging of Attempted Airplane Bomber Illustrate Fed’s Ability to Handle Terror Suspects in Civilian Courts

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Two recent decisions by President Obama’s administration has drawn intense criticism designed to manipulate the natural fear Americans have of terrorism since 9/11: the decision to try the 9/11 mastermind Khalid Sheikh Mohammed (KSM), and his co-conspirators, in a New York federal civilian court and the decision to transfer “terror suspects” currently housed at the U.S. detention facility (“Gitmo”) in Guantanamo Bay, Cuba to the Thomson Correctional Center in Thomson, Illinois. more...

December 23, 2009

EXTRANEOUS OFFENSE EVIDENCE IN FEDERAL COURT

Probative or Prejudicial:  Evidence of Previous Drug Convictions Admitted to Show Proof of Intent in Drug Case

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

We have written recently about the dangers of the use of extraneous offense evidence at the state trial level; specifically, that the Texas Court of Criminal Appeals has virtually eliminated the availability of any defense in sexual assault cases, particularly those involving a child, when the State has in its possession extraneous offense evidence and the defendant wished to avoid its admission in court. The Fifth Circuit Court of Appeals recently confronted and outlined the parameters of extraneous offense evidence at the federal trial level. more...

December 19, 2009

THE REAL DANGER OF EXTRANEOUS OFFENSE EVIDENCE

Man Convicted on 2 Counts Indecency with a Child Found Actually Innocent After Nearly Two Decades in Prison: Extraneous Evidence False, Expert Testimony Wrong.

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

We have written on numerous occasions about the dangers of “extraneous offense evidence” when allowed into evidence in a criminal trial. What is extraneous offense evidence? more...

December 15, 2009

SEXUAL ASSAULT CASES: THE RIGHT TO PRESENT A DEFENSE EFFECTIVELY ELIMINATED

Defense Attorneys Fight Prosecutors Prejudicing the Jury with Extraneous Acts, Wrong, Crimes

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

It is the firm belief of among defense attorneys that a criminal defendant should only have to defend against the charge leveled in a charging instrument: a bill of information or a grand jury indictment. But that is not the case in nearly every sexual assault case, especially those involving children. more...

December 8, 2009

MORE EVIDENCE OF BAD EVIDENCE

Criminal Defense Attorneys Must Request and Analyze Procedures for Testing, Accepted Protocols and Handling of Forensic Evidence

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

A criminal defense attorney’s worst nightmare is that the prosecution will rely upon bad evidence to convict his/her client. Defending against relevant, admissible evidence is difficult enough, but there is no real defense against shoddy law enforcement’s collection, processing, and storage of the evidence the prosecution will rely upon in criminal cases. The Houston City Police Department (“HPD”) has a long, sordid history of destroying, botching, and even manufacturing false evidence in criminal cases. The HPD crime lab had to be shut down by the Mayor’s Office in 2002 in the wake of disclosures that lab analysts had mishandled DNA evidence, destroyed evidence, and misrepresented evidence in criminal trials. The fallout from the crime lab scandal still reverberates in our criminal justice system with the exoneration of at least six individuals. more...

December 3, 2009

TRYING KHALID SHEIKH MOHAMMAD IN FEDERAL COURT IS NOT END OF WORLD

Federal Trials Open to the Public, for Terrorism Cases Support American Constitutional Concepts of Fair Trials, Justice

By Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair

While there are many security and legal problems associated with major terrorism trials conducted in federal courts in the United States, Republican critics of the Obama administration’s decision to try Khalid Sheikh Mohammad (“KSM”) in a New York federal court have methodically spread unnecessary fear in order to politicize that decision. What may be good for the country, much less our legal system, does not factor into their conservative political agenda to undermine the Obama presidency at every turn. It’s tantamount to an irresponsible lunatic standing up in a crowded theater and hollering “fire” just to see how much panic and chaos he can cause. more...

November 29, 2009

TEXAS FORENSIC SCIENCE COMMISSION LACKS CREDIBILITY

Governor’s Sacking of Commission’s Head Stalls Review of Junk Science Convictions

By:  Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

The Texas Legislature created the Forensic Science Commission (“FSC”) in 2005 to investigate what the Texas Monthly called “scientific negligence and misconduct.” The legislature acted following the February 2004 execution of Cameron Todd Willingham and the October 2004 decision by Pecos County District Attorney Ori White to free Ernest Willis from capital murder charges. Willingham and Willis had both been convicted of capital murder and sentenced to death for murders they allegedly committed by setting fires to dwellings in which five people were killed—two women in Willis’ case and Willingham’s three young daughters. more...

November 21, 2009

IS OSAMA BIN LADEN A TERRORIST OR AN “UNPRIVILEGED BELLIGERENT”?

Politics as Usual: Republicans Desperately Seek Outrage to be Relevant

By:  Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

U.S. Attorney General Eric Holder recently appeared before a U.S. Senate committee hearing to explain his decision to prosecute Khalid Sheikh Mohammed, and his four co-conspirators, in federal civilian court rather than let them be tried before a military commission under the 2009 Military Commissions Act. There were a number of sharp, biting exchanges between Holder and Republican senators, all of whom have joined ranks in a calculated political agenda to oppose the Obama administration not only on this decision but any decision it makes on any front. more...

November 18, 2009

THE AGONIZING GITMO DILEMMA

Enemy Combatant Cases in Federal Courts Chart Uncertain Path

By Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

On January 22, 2009, just days after assuming the presidency, Barak Obama announced that he would close the Guantanamo Bay, Cuba, detention facility where hundreds “suspected terrorists” have been held for years without trial under an official Bush-administration created designation “enemy combatant.” Civil libertarians and prominent constitutional scholars have long advocated the closure of the facility while political conservatives have fought hard in the trenches to keep the internationally-criticized torture facility open. more...

November 13, 2009

NO ACCOUNTABILITY FOR PROSECUTORS GONE ROGUE

Absolute Immunity from Civil Liability, Accountability for Prosecutors

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

The primary ethical and legal duty of a criminal prosecutor is to serve the interests of justice—not their personal interests of winning at any costs as is too often the case with a many prosecutors. This was made clear in October 2008 in the federal prosecution of then-Senator Ted Stevens (R-Alaska) for high-profile corruption charges. The federal prosecutors in the case were determined to bring down one of the most powerful lawmakers in this country—at any costs. D.C. District Court Judge Emmet Sullivan lambasted those prosecutors at the time saying that in his 25 years on the bench he had “never seen mishandling and misconduct like what I have seen” in Sen. Stevens’ case. more...

November 7, 2009

THE RIGHT TO AN IMPARTIAL TRIAL STRUCK WITH CRITICAL BLOW

Failure to Strike Prosecutor, Victim of Sex Crime, from Jury not Ineffective Assistance of Counsel

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

The Sixth Amendment to the United States Constitution guarantees every criminal defendant a right to an impartial trial. 1/ Selecting a jury of twelve men and women to hear a criminal case is perhaps the most critical stage in the trial process where a defense attorney must provide effective representation. He has a pool of prospective jurors representing a cross-section of the community from which to select the people who will hear the facts and fairly consider the case. This jury pool is a minefield of human experiences that range from concealed bias and prejudice to open fairness and impartiality. The task of the defense attorney is to navigate through the minefield without exploding a mine that will injure his client’s opportunity for an impartial trial. more...

October 30, 2009

TEXAS ATTORNEY DISCREDITS SPIRIT OF LEGAL PROFESSION

Flagrant Exhibit of Unprofessionalism, Disloyalty to Executed Client Adds to Nationwide Scrutiny of Willingham Execution

By Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

We’re not in the habit of criticizing fellow criminal defense attorneys, but, and unfortunately, we feel compelled to discuss the antics of Mr. David Martin, of Corsicana, Texas, recently displayed on nationwide television.  Martin was Cameron Todd Willingham’s defense attorney during Willingham’s August 1992 capital murder trial. Willingham had been charged with intentionally setting fire to his Corsicana, Texas house in December 1991 which killed his three small children. Martin was appointed to defend Willingham who maintained from the outset that he was innocent of starting the fire that killed the three children. more...

October 26, 2009

DISTRACTED DRIVING: ‘A MENACE TO SOCIETY’

Death Cause by Distracted Driving While on Cell Phone Leads to Conviction for Negligent Homicide

By Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair.

It was an emotional crime, to be sure. The father of the daughter convicted of the crime now no longer believes in the criminal justice system, and the convicted daughter still does not believe she committed a crime at all—even though the 25-year-old father of a child is dead because of the daughter’s behavior. more...

October24, 2009

DOMESTIC VIOLENCE: A SENSITIVE SUBJECT TO APPROACH

October is Domestic Violence Awareness Month: Friends and Family Need to Get Involved to Stop the Cycle of Abuse, Save a Life

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

This past August Christiana “Tina” Guerra Lewis became another statistic; a victim of a social epidemic far more deadly than the HINI virus. The night before her death, according to the Houston Chronicle, Lewis asked her mother to go with her the next day to get a restraining order against R.P., a man with a lengthy criminal record with at least two dozen arrests including an assault on a family member and injuring a child. more...

October 16, 2009

“STOP AND FRISK”

Increased Use of Stop and Frisk Leads to Increased Constitutional Abuses, Legitimizes Racial Profiling

By: Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair

Law enforcement officials claim “stop and frisk” is one of their most effective crime prevention practices. Civil libertarians, however, claim that “stop and frisk” is being used as another racial profiling tool against hundreds of thousands of innocent citizens each day across the country. The Associated Press recently released statistics showing that law enforcement stop and question more than one million people each year in the nation’s largest cities—a figure that reflects a sharp increase in the use of “stop and frisk” over the past few years. The AP figures revealed that most of the individuals stopped and frisked were black and Hispanic men, most of whom were innocent of any criminal wrongdoing. more...

October 14, 2009

WHO ARE THE REAL HOME GROWN TERRORISTS?

Right-Wing Patriot Groups, White Supremest, Neo-Nazis Pose Growing Threat

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

The mainstream media over the past two weeks has been saturated with an endless stream of stories about Najibullah Zazi, a suspected Afganhani terrorist reportedly involved in a plot of bomb New York City’s mass transit system; Michael Fenton, an American converted to Islam who allegedly planted and attempted to trigger a fake vehicle bomb in front of a Springfield, Illinois federal court building with the help of undercover FBI operatives; and Hosam Maher Smadi, a Jordanian who also allegedly planted and attempted to trigger a fake vehicle bomb at a Dallas skyscraper with the help of undercover FBI operatives. All three allegedly terrorist plots were exposed by the FBI this past September following the arrests of these individuals. more...

October 7, 2009

ROGUE JUROR DID NOT PREVENT ACQUITTAL

Another Not Guilty:  Client Falsely Accused of Indecency with Child Acquitted After Trial by Jury

By: Houston Criminal Defense Lawyer John Floyd

Every prospective juror summoned to court for jury duty in a criminal case is questioned by counsel for the State and defendant as to his/her willingness to follow the law as given by the judge at the conclusion of the trial. A prospective juror who cannot, for whatever reason, state unequivocally that he/she will follow the law is excused for cause. Thus, a juror accepted by both the defense and the State for jury service has a solemn duty bound by a sworn oath to follow the law. more...

October 5, 2009

TEXAS GOV. RICK PERRY IMPEDES INQUIRY ABOUT WHETHER TEXAS EXECUTED AN INNOCENT MAN

Governor’s abrupt Dismissal of Chairman, Two Members of Texas Forensic Science Commission on Eve of Hearing Smacks of Political Cover-up

By: Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair

It is one thing for a governor to have possibly presided over the execution of an innocent man but quite another for that governor to effectively shut down an official investigation into whether the forensic evidence used convict the man was reliable. more...

October 2, 2009

THE “JUNK SCIENCE” OF DOG SCENT LINEUPS

Popular Law Enforcement Dog Handler Discredited After False Results, Exaggerated Claims of Accuracy Exposed

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

We have blogged (False Forensics: An Attorney’s Worst Nightmare, May 1, 2009) in the past about the dangers of “false forensic” evidence being used in courtrooms to convict innocent people. The New York-based Innocence Project reported in 2007 that 65% of the nation’s first 200 DNA exonerations in this country involved fraudulent, unreliable or limited forensic science. more...

October 1, 2009

SEX OFFENDER REGISTRATION LAWS BEG REFORM

Some in Law Enforcement, Legislatures, Find Federal Sex Offender Registration Laws Too Broad, Onerous

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

In April 2009 CNN reported that there are 38 states in these United States which require juveniles convicted of sex offenses to “register” as sex offenders. The Houston Chronicle (September 21, 2009) featured a front page article by Renee C. Lee (“A Long Wait to Get Past Crime”) which reported that there are approximately 3,600 registered juvenile sex offenders in the State of Texas, according to the Texas Department of Public Safety. The newspaper noted that eleven of these juveniles were ten years of age when they were registered. more...

September 26, 2009

NEVER, EVER TALK TO POLICE WITHOUT A LAWYER

Recent Terrorism Related Arrests Illustrate Need to Consult Lawyer Before Interviewing with Law Enforcement

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

This legal maxim is rooted in the very soul of every criminal defense attorney. Even if an individual is innocent, no one should ever talk to the police once the police make it clear they are investigating a crime, or a potential crime, and they feel the individual has either some involvement or knowledge about the crime. This advice is especially true when it comes to the FBI whose agents are skilled in the art of interrogation and proficient at tricking a person into making a false statement. more...

September 23, 2009

COURT TAKES HARDLINE STAND IN CHILD EXPLOITATION CASE

Video Taped Consensual Sex with Minor Gets Federal Time

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

The federal statute that governs the production of child pornography provides, in part, that “any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in . . . any sexually explicit conduct for the purpose of producing any visual depiction of such conduct or for the purpose of transmitting a live visual depiction of such conduct, shall be punished as provided under subsection (e) . . . if that visual depiction was produced or transmitted using materials that have been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means . . . .” 1/ more...

September 21, 2009

LIFE WITHOUT PAROLE FOR JUVENILES ELIMINATED

Texas Takes Small First Step Towards Humane Treatment, Punishment for Youthful Offenders

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

The Texas Criminal Defense Lawyers Association (TCDLA) releases every two years after each session of the Texas Legislature a summary of new or amended laws enacted during the legislative session. This year Kristin Etter (TCDLA’s Voice of the Defense) has provided this continuing education service from TCDLA to criminal defense attorneys throughout the state. more...

September 17, 2009

DISTRICT ATTORNEY’S OFFICE DOESN’T CARE IF CYNTHIA CASH IS ACTUALLY INNOCENT

The Philosophy of Convict at any Cost Continues in Harris County

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Dr. Patricia Moore is the former associate medical examiner in Harris County. The Houston Chronicle (Sept. 14, 2009) reported that the doctor has been “repeatedly disciplined for failing to follow procedures and for favoring the prosecution in 1998 and 1999” in child death cases. more...

September 10, 2009

SEX TOURISM: AN INTERNATIONAL DILEMMA

Federal Initiatives Aimed at The Continuing Problems of Human Trafficking , Sex Slavery and Exploitation of Children

By: Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair

It was called “Operation Twisted Traveler”—a joint law enforcement initiative between the U.S. Justice Department and U.S. Immigration and Customs Enforcement (ICE) that targeted American citizens traveling to Cambodia to have sex with children.  Last month, the Justice Department announced the arrest of three American men charged with traveling to Cambodia to sexually abuse children. All three of the men were allegedly previously convicted of sex offenses involving children. more...

September 7, 2009

RACE AND RELIGION: THE STARTING POINT OF TERRORISM INVESTIGATIONS

Religious and Racial Profiling Justified in McCarthy Era Inspired Investigations and Tactics

By: Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair

          The September 11, 2001 Al-Qaeda attacks on the Twin Towers in New York City, and the reaction to those terrorist attacks by President George Bush’s administration, left this nation with a tragic and despicable legacy that has tarnished our great Country’s reputation and image worldwide.  One part of this legacy was the government’s voluntary interview program that used race and religion as the primary factors for initiating contact with individuals which continues to be fueled by the faulty premise that these two factors create “suspect communities” from which real and suspected “terrorists” could be found. more...

September 1, 2009

CIA PROBE NECESSARY TO PROTECT RULE OF LAW

Investigating Crimes of Torture: Expecting and Demanding Accountability

By: Houston Criminal Attorney John Floyd and paralegal Billy Sinclair

          U.S. Attorney General Eric Holder recently selected a Connecticut federal prosecutor named John H. Durham to investigate whether the CIA’s destruction of the videotapes of harsh interrogation techniques inflicted upon terror suspects between 2002 and 2003 merit a full blown investigation of the agency employees (or independent contractors hired by the agency) who conducted those interrogations and those government officials who approved them. more...

August 29, 2009

REFORM OR INCOMPETENCE:  THE PAT LYKOS ERA OFF TO UNCERTAIN START

Harris County District Attorney’s Office Administration Begins to Define Itself

By:  Houston Criminal Defense Attorney John Floyd and paralegal Billy Sinclair

The Houston Chronicle reported recently in yet another article that a number of veteran prosecutors have departed from the Harris County District Attorney’s Office. Throughout DA Pat Lykos’ 2008 campaign to replace the former district attorney, Charles “Chuck” Rosenthal who was forced to resign in disgrace, rumors dogged the “reform” candidate that, as a criminal district court judge, Lykos had a reputation for being intemperate, rude, and pronged to stirring unrest in both her courtroom and chambers. more...

August 25, 2009

ASKING HARD QUESTIONS TO ARRIVE AT THE APPROPRIATE PUNISHMENT

Judges Should Question Victims, Witnesses, About Offense Before Imposing Punishment

By: Houston Criminal Defense Lawyer John Floyd and Billy Sinclair

Under Texas law, a criminal defendant has the option of allowing either the jury that convicted him or the judge presiding over the trial to assess punishment. more...

August 23, 2009

2009 CAIR AWARD: ASSISTING THE MUSLIM COMMUNITY

Pro Bono Legal Representation in Voluntary Interviews, Profiling by FBI

By: John Floyd, Houston Criminal Defense Attorney

On August 15th, 2009, I received an award in recognition of my pro bono work for the Muslim community in Houston.   CAIR-TX, Houston Chapter, presented the award upon which was inscribed:  “In Recognition of:  His personal dedication and committed assistance in providing protection to our community from undue harassment from federal agencies.”  The award came after years, and hundreds of hours of pro bono work, representing individuals targeted under the Department of Justice’s voluntary interview program.  In almost every case, these individuals were targeted for interview simply because of their religious beliefs, places of worship or country of origin and were not suspected of any criminal activity whatsoever.  The voluntary interview program is simply an intelligence gathering effort designed to collect data about the Muslim community in hopes of preventing future acts of terrorism. more...

August 19, 2009

THE MAGIC DNA BULLET LOSES SOME OF ITS LUSTER

Fabricating Fake DNA, Defending the Accused in the New World

By: Houston Criminal Defense Attorney John Floyd and Billy Sinclair, Paralegal

We have blogged on several occasions in the recent past about the fallibility of forensic evidence, sharing the opinion of others that more often than not it’s “junk science.” However, DNA evidence has generally remained insulated from the ever increasing scientific indictment of forensic evidence in general. Not any more. The New York Times recently reported (August 18, 2009) about a paper published online by the journal Forensic Science Internal: Genetics. Citing this authoritative paper, the Times reported that scientists in Israel have established that it is now possible to fabricate DNA evidence, “undermining the credibility of what has been the gold standard of proof in criminal cases.” more...

August 18, 2009

HOUSTON ATTORNEY ANDY NOLEN: A DISHONEST LAWYER?

False, Anonymous Web Attacks on Fellow Members of the Harris County Bar; Unethical and Pathetic

By Houston Criminal Defense Lawyer John Floyd

This is a difficult and unfortunate article to post.  It is about a fellow attorney: Andy Nolen, or someone associated with the law firm that carries his name. This Houston “criminal defense attorney,” as he calls himself, has been responsible for posting negative  “comments” on the Yahoo Local websites about various Harris County criminal defense attorneys, including myself. more...

August 15, 2009

TRIAL OBJECTIONS MUST BE CLEAR AND PRECISE

Court of Criminal Appeals of Texas Finds Lawyer’s Careful and Repeated Objections did not Preserve Error

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

Criminal trials are governed by strict rules of evidence and procedures. It is the duty of a defense attorney to not only know but understand these rules and procedures precisely. We have written several times in the past about the harm caused by a defense attorney’s inadvertent failure to make specific, timely and properly lodged objections during the course of a criminal trial.  The Texas Court of Criminal Appeals recently delivered that same unreasonable message once again and in no uncertain terms.  more...

August 12, 2009

SIXTH INNOCENT HARRIS COUNTY MAN FREED

Hall of Shame: Texas Leads Nation in DNA Exonerations

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

That the Houston City Police Department’s Crime Lab was a lawless, rogue unit serving the “convict at any costs” philosophy of the Harris County District Attorney’s Office during the Johnny Holmes and Charles “Chuck” Rosenthal administrations, between 1980 and 2005, is no longer a subject of serious debate. Dozens, possibly hundreds, of innocent people—mostly poor minorities charged with homicides or sex crimes—were railroaded off to Texas prisons based on fabricated (or at best faulty) forensic evidence supplied by the Crime Lab and/or due to mistaken identification secured to corrupt pretrial photo lineup procedures. more...

August 3, 2009

SENTENCING ENTRAPMENT: A FALLOUT OF REFORM

Prosecutors and Law Enforcement Officials Manipulate Investigations, Defendants Receive Greater Sentences

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

What is sentencing entrapment?

In a syndicated column that appeared in the Houston Chronicle (July 23, 2009), Larry Frankel, the legislative counsel for the ACLU in Washington, D.C., called sentencing entrapment “a little-known phenomenon in our criminal justice system” and it occurs “when the government through its agents or informants makes a person, who may have a predisposition to engage in one sort of criminal activity, to engage in more serious criminal activity that exposes that person to harsher punishment.” more...

July 29, 2009

A GOOD FAMILY DOCTOR OR A SECRET PEDOPHILE?

Child Pornography and Exploitation

By:  Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Neighbors say the couple that lived in the $1 million home in the 11100 block of South Country Squire Road were “the sweetest on the block” who brought cakes to the new home owners that moved into the exclusive neighborhood. The 69-year-old orthopedic surgeon who lived at the residence was considered the “ideal grandfather figure.” He reportedly bought expensive gifts, including rent-free houses, for the economically deprived parents of several of his youngest child patients. Over a two-decade period he spent as much as $250,000 on these gifts. more...

July 25, 2009

THE UNRELENTING MARCH AGAINST FLDS

Texas Legislature Joins the Hunt

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

Besides March winds, April showers, and June humid heat, the one thing you can go to bank on: when state lawmakers, either in Texas or any other state, get involved is trying to legislate religion and morality, you will have a witch-hunt. Lawmakers are generally panderers to public opinion, not servants of public interest. If they believe one vote can be had by manipulating public fears or social outrage, they will get involved in any issue that generates media attention. The Eldorado, Texas-based FLDS (Fundamentalist Church of Jesus Christ of Latter Day Saints), therefore, became an ideal target for legislative scrutiny during this past session. more...

July 21, 2009

MENTALLY RETARDED TEEN GETS 100 YEARS

Mentally Disabled Youth with IQ Of 47, Allowed to Plead Guilty to Sexual Assault of a Child, Judge Orders Sentences to be Served Consecutively

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

The jury said it did not like the sentencing options made available to it. The judge said he was not pleased that he had to sentence an 18-year-old Paris, Texas teenager to 100 years in prison. The district attorney said he “sympathized” with teenager’s situation but it had to be remembered that he “committed a violent sexual crime against a little boy.” more...

July 17, 2009

CHILD ADVOCATES OR HIRED GUNS?

Criminal Defense Attorneys Must Be Prepared To Aggressively Challenge Child Assessment Center, Child Abuse Experts

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

The “Mission” statement of the Houston Children Assessment Center “is to provide a professional, compassionate, and coordinated approach to the treatment of sexually abused children and their families and to serve as an advocate for all children in our community.” In its 2008 Annual Report, Yolanda Green, President of the Board of Directors of CAC, added that CAC “is an agency where children whose lives have been torn apart are given hope and the opportunity to begin the road to recovery.” more...

July 14, 2009

THE DIFFICULTIES FACED IN INSANITY CASES

Lawyer Ineffective for Failure to Investigate, Request Medical Records Indicating Possible Insanity; (Be careful what you ask for…)

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Spencer Ojeifo Imoudu was not a normal individual. In August 2005 the Bexar County resident stole a vehicle parked outside a pawn shop. The vehicle belonged to the owner of the pawn shop. He, and another witness, saw Imoudu get in the vehicle and drive off. The two men raced to the witness’s truck and sped away after Imoudu. During the high speed chase, Imoudu turned into oncoming traffic, crashing head on into an oncoming vehicle. The driver of the other vehicle was killed. Imoudu was arrested and charged with felony murder and manslaughter. He eventually pled guilty to the two charges in exchange for a 17-year sentence with an affirmative finding of a deadly weapon. 1/ more...

July 8, 2009

SUPREME COURT CHANGES CONFESSION LANDSCAPE

Montejo v. Louisiana; Suspects in Criminal Investigations Must Invoke Right to Counsel and Remain Silent, Even if Represented by Counsel

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

Former U.S. Supreme Court Justice Robert H. Jackson often warned his judicial colleagues that the court was “forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added.” more...

July 6, 2009

SHOULD EVIDENCE OF PRIOR FALSE ABUSE ALLEGATIONS BE ADMISSIBLE IN SEXUAL ASSAULT CASES?

Inadmissible Evidence under 608(b) of the Texas Rules of Evidence May be Admissible under 613(b), Rule 412 or Confrontation Clause

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

A Harris County federal jury recently awarded $5 million to George Rodriquez for the 17 years he spent in the Texas prison system after being wrongfully convicted of the rape of a 14-year-old girl. And a Harris County district court judge last December ordered Ricardo Rachell released after he spent six years in the Texas prison system after being wrongfully convicted of sexually molesting an eight-year-old boy. more...

July 3, 2009

MICHAEL JACKSON’S DEATH, POTENTIAL CRIMINAL LIABILITY

Doctors Move to Hire Criminal Defense Attorney Vital in Protecting His Reputation and Liberty in the Jackson Whirlwind

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

The death of celebrity brings out the worst in humanity. The recent death of singer/entertainer Michael Jackson has once again proven this tragic point. We have seen it all before: the lurid headlines, anonymous sources, and grist mill of rumors all designed to insinuate wrongdoing by any and every one associated with the celebrity-figure from nanny to granny. To paraphrase American author Ann Morrow Lindberg, we make our heroes in America only to destroy them. more...

July 2, 2009

IS ROBERT ALLEN STANFORD A REAL FLIGHT RISK?

The Bail Reform Act of 1984 and the Presumption for Release on Bond

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

On June 18, 2009, a federal grand jury returned a 21-count indictment against Houston businessman and chairman of the Board of Directors of Stanford International Bank, Robert Allen Stanford (also known as “Sir Allen Stanford”). The indictment charged that Stanford conspired with others associated with his business enterprise, the Stanford Financial Group, to commit wire fraud, mail fraud, and obstruction of a Securities Exchange Commission investigation. The indictment essentially charged that Stanford and his co-conspirators were responsible for the loss or theft of nearly $1.1 billion investors had deposited through Certificates of Deposit into the Stanford International Bank. more...

June 30, 2009

THE DNA FALLOUT CONTINUES

District Attorney’s Office of the Third Judicial District v. Osborne; U.S. Supreme Court Blocks Ability for Wrongfully Convicted to Prove Innocence

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

George Rodriquez spent 17 years in the Texas prison system for a crime he did not commit. He was 26 years of age in 1987 when he was wrongfully convicted by a Harris County jury for the rape of a 14-year-old girl. The jury based its decision on a critical piece of forensic evidence; a pubic hair found in the victim’s underwear. A serologist with the Houston City Police Department’s Crime Lab determined that the pubic hair did not belong to another suspect in the rape case, Isidro Yanez. The serologist testified at Rodriquez’s trial, saying that while his forensic testing ruled out Yanez, it did not rule out Rodriquez. more...

June 23, 2009

A DEFENSE ATTORNEY IN THE HEAT OF BATTLE

Rule 606(b) of the Texas Rules of Evidence; Conducting Inquiry into Juror Misconduct

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

Johnny Ray Ocon was put on trial in Ector County, Texas for the crime of aggravated sexual assault of a child. Sex offense cases involving children are the most difficult for a criminal defense attorney to try. Defense attorneys must be very careful and thorough during the voir dire of prospective jurors to identify any hidden biases a juror may harbor in such cases. It is not always easy to sift through an individual juror’s personality in the short period of time, and with a limited number of questions, to identify and isolate any prejudices the juror may have against the defendant. more...

June 20, 2009

U.S. SUPREME COURT LIMITS VEHICLE SEARCHES

Arizona v. Gant, 129 S.Ct. 1710, (2009); Vehicle Searches after Arrest

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Consider the following hypothetical. Two patrol officers with the Houston Police Department were following a Cadillac in an area known for gang and drug activity. Loud music was coming from the vehicle as it swerved several times from lane to lane. The officers decided to stop the vehicle for failure to maintain a single lane of traffic. In Texas, a law enforcement officer may lawfully stop a person for a traffic law violation. 1/ more...

June 17, 2009

DNA CHICKENS COME HOME TO ROOST

City of Houston Sued; Disgraced Crime Lab on Trial After Wrongfully Convicted Man Exonerated After 17 Years in Prison

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

George Rodriquez was a 26-year-old young man in 1987 when he was convicted of raping a 14-year-old girl in Harris County. A critical piece of evidence that led to his conviction was a pubic hair found in the girl’s underwear. A serologist with the Houston City Police Department’s crime lab, who we now know had a history of fabricating evidence to suit local prosecutorial and law enforcement needs, determined that the hair did not belong to a suspect named Isidro Yanez but the serologist did not eliminate Rodriquez as the owner of the hair. Seventeen years later DNA, which was not used as evidence in criminal trials in 1987, established that the hair in fact belonged to Yanez and not to Rodriquez. more...

June 11, 2009

THE HARRIS COUNTY CRIMINAL JUSTICE SYSTEM

Past Abuses, Hopes for Better Future

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Three recent stories in the Houston Chronicle exposed serious flaws in the Harris County criminal justice system. The first story concerned a 60-year prison term imposed on Andrew Wayne Hawthorne, a serial child molester. Hawthorne molested an eight year old boy in the fall of 2002. A crime for which a wrongly accused man, Ricardo Rachell, was convicted and sentenced to prison.  Ricardo Rachell was convicted for this sexual assault and spent more than six years in the Texas prison system before readily available DNA evidence at the time of his arrest was finally tested and established his innocence. more...

June 7, 2009

A GLIMPSE AT THE NATION’S DRUG PROBLEM

20:1 Crack/Powder Ratio Still Flawed; Incarceration of Most Drug Offenders Absurd and Obscene

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

In May 2007 the U.S. Sentencing Commission sent a report to Congress recommending that the 100:1 sentencing ratio in crack/powder cocaine cases be reduced to 20:1. The 100:1 ratio under the U.S. Sentencing Guidelines required federal district courts to treat one gram of crack cocaine as the equivalent of 100 grams of powder cocaine. That disparate sentencing scheme created thousands of horrendous miscarriages of justice in the federal sentencing process with all sorts of ugly racial implications. Crack cocaine offenders, disproportionately African American, were routinely punished 100 times more severely than powder cocaine offenders. more...

June 3, 2009

“JUICED” BY THE DESIRE FOR FITNESS

Addiction to Pumping Iron and Juicing Leads to Massive Arrests in Houston Area and Ft. Bend County

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

It was billed by raiding law enforcement officials as the “largest drug operation” in Fort Bend County history.  The stark, glaring headlines and the “perp walks” would lead one to believe that a violent Mexican drug cartel had just been “busted” in Fort Bend County. more...

May 30, 2009

THAT NAGGING ILLEGAL IMMIGRATION DEBATE

No Probations for Illegal Aliens: The Problem with Blanket Law Enforcement Policies on Undocumented Immigrants

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

In September 2006 Houston police officer Rodney Johnson was shot in the back of the head by an illegal immigrant the officer had just arrested following a routine traffic stop. And in March 2009 Houston police officer Rick Salter was shot in the face by an illegal immigrant during a narcotics raid. more...

May 22, 2009

THE GITMO DILEMMA

Don’t We Have Prison Space for a Few More?

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

Shortly after assuming the presidency, Barak Obama announced his intention to close the military detention facility at Guantanamo Bay, Cuba, which currently houses 240 individuals classified as “enemy combatants” suspected of having engaged in some form of terrorism against the United States. The president stated that he was studying the various options for dealing with these detainees. more...

May 19, 2009

THE RIGHT TO KNOW IN THE REAL WORLD

The President’s Balancing Act; Public’s Right to know, Due Process for Terrorist

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

President Barak Obama has drawn considerable political flak recently from liberal Democrats, human rights groups, and “left-leaning” bloggers for two terror-related decisions: the decision to fight the court-ordered release of dozens of photos of terror suspects being subjected to torture interrogation techniques; and the decision to resurrect the military tribunals set up during the Bush administration to try terror suspects. This new wave of criticism from the president’s natural base of supporters comes of the heels of massive political flak he incurred several weeks ago from Republicans, right-wing radio talk show hosts, and the “new voice” of the Republican Party, former vice-president Dick Cheney, concerning the administration’s decision to release of U.S. Justice Department “terror memos” authorizing CIA torture interrogations in 2002. more...

May 15, 2009

A DREW PETERSON DEFENSE

Legislators and State Prosecutors Attempting to Deny Confrontation Clause Guarantees, Presumption of Innocence

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

Former Illinois police sergeant Drew Peterson has been married four times. Wife three, Kathleen Savio, died under mysterious circumstances in February 2004 just weeks before her divorce settlement with Peterson was to become final. Her dead body was found lying face down in an empty bathtub. Her hair was soaked in blood from a head wound. A Coroner’s Jury ruled her death an accident. more...

May 12, 2009

JUDGE SAMUEL KENT: SHOULD HE BE IMPEACHED?

SHOULD HE CONTINUE TO RECEIVE HIS PENSION?

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

These two questions have stirred considerable debate in both the legal community and general public in south Texas. Normally it is not a subject that would provoke a response by us. But the tenor of those demanding the impeachment of Judge Kent and those who have said he should not receive his pension have caused us some concern. Now that the federal judge has sentenced to 33 months in prison, we decided to weigh in on these two important questions. more...

May 9, 2009

A DEFENSE AGAINST TORTURE

The rule of law prevails over the demands of politics

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

In the wake of the Obama administration’s release of the “terror memos” and the political firestorm the release generated, the president has instructed U.S. Attorney General Eric Holder to review all the facts and circumstances surrounding the “torture” interrogations conducted by CIA and U.S. military personnel and make a determination of whether criminal charges should be filed either against those who approved the torture interrogations or those who conducted them, or both. Any decision Attorney General Holder makes will trigger an intense political backlash. more...

May 5, 2009

INADVERENT TRIAL ERROR COSTLY FOR CLIENT

Offer of Proof; Preserving Error for Appellate Review under Rule 103(a) (2)

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

 

In a recent article (“False Forensics: An Attorney’s Worst Nightmare.” 05-01-09), we reported on the increasing problems associated with the specialized field of forensic science. Prestigious organizations and scientists are calling now for a National Institute of Forensic Science with strict standards and enforcement mechanisms set up to insure that only truthful and valid forensic evidence is used to convict criminal defendants. It was faulty forensic science and lack of professional standards that prompted a former Houston Police more...

May 1, 2009

FALSE FORENSICS: AN ATTORNEY’S WORST NIGHTMARE, INJUSTICE TO US ALL

Gary Alvin Richard; Wrongly Convicted Man Released after 22 Years

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

They are called “experts.” Prosecutors parade them into court dressed in respectful suit ware and carry resumes packed with a laundry list of degrees. They then testify about the science of “forensic evidence” in ways that more often confuse rather than clarify the issues being tried in a criminal case. Worst yet, many of these “CSI” experts testify falsely, or in misleading fashion, about test results they either did not perform correctly or whose results they manufactured to fit a given prosecutorial objective. Incompetent or unethical “forensic experts” are a criminal defense attorney’s worst nightmare. more...

April 27, 2009

THE PLAGUE OF PIRACY

Youthful Pirate Faces Life in Federal Prison if Convicted on Piracy Charges

By: Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair

Abduwali Abdukhadir Muse, the lone survivor of the four Somali pirates who attacked the United States flagged-ship Maersk Alabama on April 8, 2009, was recently indicted in the United States District Court for the Southern District of New York on five criminal counts, including piracy under Section 1651 of the Title 18 of the United States Code. The other three pirates did not fare as well. They were killed four days earlier in spectacular fashion by Navy Seals sharp shooters who also rescued the captain of the Maersk Alabama. If convicted of piracy, Muse will face a life sentence under United States Code Title 18, Section 1651. more...

April 22, 2009

THE CIA TERROR MEMOS

Legal Opinions Redefine Torture, Criminal Acts

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

The Bush administration’s 2001 declaration of “war on terror” critically—if not irreparably—injured the constitutional soul of America. This nation can no longer look other civilized countries in directly in the eye and unequivocally say it is the moral leader of the “free world.” The recently released CIA “terror memos” demonstrate that during the eight-year presidential tenure of George W. Bush the United States became a nation that subscribed almost exclusively to the base Machiavellian political dogma of “the end justifies the means.”  Those who have defended, and continue to defend, the “torture” practices carried out under the Bush administration say they were a necessary weapon in the “war on terror” declared by President Bush after the three September 11, 2001 terror attacks against the United States by the international terrorist organization, al-Qaeda. more...

April 20, 2009

TORTURE FALLOUT CONTINUES

Foreign Investigation of Torture Techniques Sanctioned by Bush Administration

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

CIA Director Leon Panetta announced on April 9, 2009 that it would shut down those “black site” secret prisons in foreign countries utilized by the George Bush administration to house, and torture, suspected terrorists—many of whom were kidnapped off public streets in their home countries by either CIA agents or CIA operatives, and who had never been formally charged with any terror-related activity. more...

April 16, 2009

THE CONTINUING SAGA OF THE WRONGFULLY CONVICTED

Factors Contributing to Wrongful Convictions and Unjust Imprisonment

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

In a March 16, 2009 article (“Cold Shoulder from Lubbock Officials in Cole Case”), we wrote extensively about the tragic wrongful conviction of Timothy Cole. A military veteran and college student, this son of a school teacher and Bell Helicopter manager was convicted in 1986 for the December 1985 rape of a Texas Tech student in Lubbock, Texas. Despite vigorous protestations of innocence from Cole and his family, Cole was convicted and sentenced to 25 years in prison where he died fourteen years later. more...

April 11, 2009

CHILD PORN: AN INCREASING PROBLEM IN ALL SEGMENTS OF SOCIETY

Federally Funded Task Forces Make Online Crimes Against Children Top Priority

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

There has been a recent rash of media reports about local residents getting arrested or sentenced for possession of child pornography. For example, on March 13, 2009, the Houston Chronicle carried a report about a Houston attorney being given a six and one-half year sentence by U.S. District Court Judge Sim Lake. Williamson possessed 84 child pornography images on his computer. After he completes his prison sentence, the suspended attorney will be under “supervised release” for the rest of his life, must register as a sex offender, and attend a sex offender treatment program. more...

April 8, 2009

WHAT IS SEXTING?

Sexting Among Children; Criminal Behavior or Brash Sign of the Times

By: Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair

First, and foremost, “sexting” among teenagers can be a crime. Second, it’s stupid, sophomoric behavior that can quickly ruin reputations, destroy employment opportunities, and cost a lot of money to deal with its legal consequences. more...

April 5, 2009

DISTRICT ATTORNEY PAT LYKOS CONTINUES NEW ERA OF PROSECUTORIAL REFORM IN HARRIS COUNTY

Successful Batson Challenge Reveals Racial Discrimination in Harris County Jury Selection

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

Assistant District Attorneys Mark Donnelly and Rifian Newaz are considered seasoned, professional prosecutors by their colleagues in the Harris County District Attorney’s Office. Many Harris County defense attorneys also hold the prosecutors in high professional esteem. In fact, we recently paid tribute to ADA Donnelly for his recent professional efforts to undo the tragic wrong done to Ricardo Rachell who was wrongfully convicted and who spent six years in prison for the aggravated sexual assault of a child. more...

March 30, 2009

A TEXAS BIGAMY DEFENSE

The Constitutional Implications of Lawrence v. Texas on the Texas Bigamy Statute

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

The State of Texas will probably experience of series of bigamy trials stemming from the mass arrests made in the “infamous FLDS case” last year. The John T. Floyd Law Firm has been asked on a number of cases if there is a legitimate constitutional challenge to the Texas bigamy statute. See: Tex. Penal Code, § 25.01. more...

March 26, 2009

FLDS REVISITED: ONE YEAR LATER

Aftermath of the Texas CPS Raid

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

In the fall of 2003 members of the Fundamentalist Church of Jesus Christ of Latter Day Saints (“FLDS”) arrived in Eldorado, Texas. They purchased a 1700-acre ranch four miles outside of town. They called it the “Yearn for Zion Ranch” (“YFZ”). More members arrived. They constructed a mammoth temple and created their own community. They lived in peace. more...

March 22, 2009

THE RACHELL REPORT

Harris County District Attorney’s Office Discloses “Cascading, System-Wide Breakdown” Led to Wrongful Conviction and 6 Years Imprisonment of Innocent Man

By: Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair

On December 14, 2008, we posted a blog titled The Conflicting Faces of Crime. One of those faces involved the wrongful conviction of Ricardo Rachell in 2003 for the aggravated sexual assault of an eight year old boy. Rachell was released from custody in December 2008 after he was exonerated by DNA evidence. The Harris County District Attorney’s Office and the Houston Police Department undertook a joint investigation to determine what went wrong in the Rachell case. On March 12, 2009, the two law enforcement agencies released the “Rachell Report” (“report”) which concluded that Rachell’s wrongful conviction was the result of a “cascading, system-wide breakdown.” more...

March 16, 2009

COLD SHOULDER FROM LUBBOCK OFFICIALS IN COLE CASE

DNA Exonerations: Improper Eyewitness Identification Procedures and Poor Police Work; A Deadly Combination

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

Dying in prison is a sad, tragic affair. Timothy Cole died in a Texas prison in 1999 from asthma complications. He was 39 years of age. The prison’s health care officials notified the security staff of the inmate’s death. In all likelihood, a prison guard escorted an inmate orderly to Cole’s “bunk” where his blanket and sheets were stripped from a thin plastic-covered mattress. The guard used a master key to open a commissary-purchased combination lock on a foot locker that contained Cole’s “personal belongings.” The orderly sorted through the items to separate “state-issued” property from Cole’s personal belongings (letters, legal files, photos, etc.). The state and personal items were placed in separate plastic trash bags. The meager items in those trash bags represented the sum total of a man’s life in prison. more...

March 15, 2009

CAPITAL PUNISHMENT:

AN INDICTMENT BY A DEATH ROW SURVIVOR

By: Billy Sinclair

I am pleased to announce, through the website of the John T. Floyd Law Firm, that my wife, Jodie, and I have recently released our second book, Capital Punishment: An Indictment by a Death Row Survivor. Released by the prestigious publishing house Arcade Publishing (New York), Capital Punishment is a collection of fourteen essays that examines the entire spectrum of the subject of the death penalty: its methods of executions, its Southern regional phenomenon, its racism, its tortuous botched executions, and its impact on our society. more...

March 13, 2008

BOOK RELEASE

CAPITAL PUNISHMENT: AN INDICTMENT BY A DEATH ROW SURVIVOR

By: Houston Criminal Defense Lawyer John Floyd

I am happy to announce the release of another book by my good friends Billy and Jodie Sinclair entitled Capital Punishment: An Indictment by a Death Row Survivor, released by Arcade Publishing (New York).  The book is a compelling collection of essays commenting on the death penalty from many different perspectives about this controversial and, in my opinion, most despicable, inhumane and arcane of punishments that continues to thrive in this so called modern world. more...

March 9, 2009

THE PERILS OF POWER

Power Corrupted and the Struggle for the Rule of Law

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Harris County District Attorney Pat Lykos recently announced that local defense attorneys will be provided with copies “offense report(s)’ prepared by police in criminal cases. This new policy in Harris County, which should have been standard practice for years, is slowing making its way to the court rooms.  Of course, the policy comes with caveats such as confidentiality agreements, redactions etc.  This disclosure policy removes another corrupt vestige from the era of former District Attorney Charles “Chuck” Rosenthal—an era when suppression of favorable evidence, perjured testimony, manufactured evidence, and corruption of forensic evidence passed for the “rule of law” as his assistant district attorneys competed in a “conviction at any cost” prosecutorial environment. more...

March 4, 2009

UN-INDICTED CO-CONSPIRATOR(S): AN UNNECESSARY STIGMA

The Right Wing and the Council on American-Islamic Relations; No Due Process for the Unindicted

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

What exactly is a un-indicted co-conspirator?

Attorney Peter R. Rient defined the term as any person the Government alleges “agreed with others to violate the law but who is not charged with an offense and who, consequently, will not be tried or sentenced for his criminal conduct.” more...

February 25, 2009

“BAD DAY AT BLACK ROCK” FOR JUDGES IN SOUTH TEXAS

Judges Reap What They Sowed

By Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair

There may be no Hero to the rescue in this dark drama hanging over the state and federal judiciaries in South Texas. The clouds in the horizon are as ominous as those that preceded Hurricane Ike last September. A sitting federal judge, the Honorable Samuel Kent who formerly oversaw maritime law cases for the past seventeen years in Galveston, was facing trial in a Houston federal district court on federal sex crime charges. The local media was reporting that attorneys who regularly practiced before Judge Kent were following the case with utter amazement and, we suspect, a near morbid fascination. more...

February 21, 2009

SENTENCING DEPARTURES SINCE BOOKER

Defense Lawyers Must Prepare for Federal Sentencing

By: Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair

The United States Supreme Court in 1996 held that federal district court judges had discretion to depart from the recommendations of the U.S. Sentencing Guidelines. See: Koon v. United States, 518 U.S. 91, 98 (1996). more...

February 14, 2009

OBJECTIONS, BOLSTERING, AND APPELLATE REVIEW

Objections to Bolstering Testimony Should Communicate Evidentiary Basis

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

The Texas Rules of Evidence, Article 103, requires that a timely objection be based on a specific ground in order to preserve for appellate review an alleged trial error concerning the admissibility of evidence. more...

February 11, 2009

ANDRE THOMAS: INSANE IN TEXAS

Executing the Insane: Past Witch Hunt; Current Shame

By Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Just after noon on December 9, 2008 a corrections officer assigned to Texas’ death row was making a normal security round in Building 10 when he observed what appeared to be blood on the face of condemned inmate Andre Thomas. The inmate told the officer he had pulled out his last good eye and eaten it. Prison doctors quickly determined the condemned inmate needed additional medical treatment. Security staff transported him to the East Texas Medical Center in Tyler. After Thomas received medical treatment, the Texas Department of Public Safety and Corrections transferred him to the Jester 4 Psychiatric Unit in Richmond where he remains as of this writing. more...

February 7, 2009

OBSCENE EMAILS AND CARTOONS NOT PROTECTED BY FIRST AMENDMENT

Obscene Drawings, Cartoons, Sculpture, Paintings that Depict Minors Engaged in Sexually Explicit Conduct Not Protected Free Speech

By: Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair

On March 30, 2004, Dwight Whorley visited a public resource room maintained by the Virginia Employment Commission in Richmond. The room is equipped with Commission computers, printers and copiers which may be used by job seekers. A woman in the room noticed that Whorley was receiving what appeared to her as child pornography on a Commission computer. She promptly alerted Commission staff about suspicions. An officer manager and two supervisors went to the resource room where they found Whorley standing in front of a printer with some papers in his hand. One of the supervisors requested that Whorley show him the documents. Whorley complied. The documents depicted Japanese anime-style cartoons of children engaged in explicit sexual conduct with adults. more...

February 3, 2009

IS LARRY RAY SWEARINGEN GUILTY OF CAPITAL MURDER?

Actual Innocence Not Recognized Ground for Relief in Federal Habeas Corpus Jurisprudence

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

Is Larry Ray Swearingen guilty of capital murder?  The State of Texas, through Montgomery County Assistant District Attorney Marc Brumberger, believes that he is. The parents of Melissa Trotter, Charles and Sandra Trotter, believe that he is. The Texas Court of Criminal Appeals believes that he is. more...

January 30, 2009

JUDICIAL WAR OVER CRACK SENTENCING COMES TO AN END

Moore and Spears: District Courts have Discretion to Reject the 100:1 Crack/Powder Cocaine Ratio

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

Last October we posted a blog entitled “The Judicial Wars Invoked by Crack Sentencing” (Oct. 24, 2008). The blog focused on a judicial tiff between the U.S. Supreme Court and the Eighth Circuit Court of Appeals in the case of James Eric Moore. We are pleased to report that the Supreme Court has finally put this issue to bed in two cases this Term. more...

January 25, 2009

CSAAS IN TEXAS CRIMINAL TRIALS

Rule 702 Expert Testimony v. Bolstering, Child Sexual Abuse Accommodation Syndrome

By: Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair

In 1983, Roland Summit in a published paper coined the phrase “Child Sexual Abuse Accommodation Syndrome” (CSAAS). See: 7 Child Abuse and Neglect 177 (1983).Summit’s syndrome set forth five specific characteristics children may exhibit following sexual abuse. Summit intended that CSAAS be utilized by law enforcement and child protective services investigators, as well as clinicians, to explain the coping behavior of children sexually abused by adults. He did not intend for CSAAS to be used, as it has been in some states, as a diagnostic tool to tell juries in criminal trials that sexual abuse has in fact occurred. The five CSAAS characteristics are listed below: more...

January 19, 2009

CHILD PREDATORS AND PUNISHMENT

Disparate Treatment of Sex Offenders, Punishment and Public Policy

By:  Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair

“Child predator” is now among the two worst words in the American lexicon. A 42-year-old Houston resident, we will call him John Doe, recently learned as much. According to allegations by law enforcement, the Magnolia High School institutional aide decided last October to look up former students on Facebook from high schools where he had worked. more...

January 14, 2009

SAME CLIENT: ANOTHER TRIAL, ANOTHER ACQUITTAL

Client Falsely Accused of Child Sexual Abuse Wins Second Acquittal Against Determined Public Integrity Unit Prosecutor

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

In early 2008 the Harris County District Attorney’s Office launched an investigation into alleged sexual abuse of inmates housed at a county detention facility. It is unclear exactly what prompted the inquiry, but a reasonable assumption can be made that the decision was influenced by the massive media and legislative attention given to evidence uncovered in 2007 by the Texas Rangers about widespread sexual abuse of inmates by staff in the state’s juvenile detention facilities.

more...

January 10, 2009

NO RIGHT TO SUE INTERNET SEX SERVICE

Looking for Love in all the Wrong Places, Turning a Blind Eye

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

SexSearch is an “online adult dating service.” It charges a fee to assist its paid members in their search of sexual encounters. An Ohio gentleman identified only as John Doe became a “Gold Member” of SexSearch in October 2005 for a fee of $29.95 per month. John Doe accepted the “Terms and Conditions” of the website which included a “promise” that he was at least 18 years of age. more...

January 8, 2009

STANDARDS OF PROOF

Reasonable Doubt; Foundation of a Free Society

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

Every one has heard of the phrase “proof beyond a reasonable doubt.” But there are three primary standards of proof: preponderance of evidence; clear and convincing evidence; and reasonable doubt. Black’s Law Dictionary (8th Ed. 1990) provides the definitions of each in order of importance: more...

January 2, 2009

ONLINE SOLICITATION OF A MINOR

Online Solicitation of a Minor Statutes and Free Speech

By:  Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair

In 2005 the Texas Legislature enacted Article 33.021, Texas Penal Code, which prohibits “sexually explicit” communications between someone who is 17 years or older and someone who “represents himself or herself to be younger than 17 years of age.” Some respected legal bloggers have opined that such online sexually explicit “communications” may violate the First Amendment’s guarantee of free speech. more...

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