John T. Floyd Law Firm
Houston Criminal Lawyer

"Serious Criminal Defense Throughout Texas"

Experienced Criminal Defense Lawyer
Trials, Sentencings and Appeals
Federal And State Criminal Defense

Phone # (713) 224-0101
Toll Free 1-866-374-1327
E-mail jfloyd@JohnTFloyd.com

Top Lawyers for the People - 2008 HTexas

Criminal Process

WHAT YOU SHOULD KNOW ABOUT THE CRIMINAL TRIAL PROCESS.

Houston Criminal Defense Attorney John T. Floyd provides vigorous representation for his clients through every stage of the criminal trial process. It is a critical process that demands diligent legal representation from the initial criminal investigation through any final appeal.

March 13, 2007

COURT ALLOWS WRONGFUL CONVICTION LAWSUIT TO PROCEED

Houston Criminal Defense Attorney John Floyd Discusses Civil Rights Lawsuits Brought by Those Wrongly Convicted of Crimes.

Dennis Patrick Brown, an African-American was convicted in Covington, St. Tammany Parish, Louisiana in 1984 for the crime of aggravated rape of a white woman and given a mandatory life sentence without the benefit of parole. Twenty years later he was exonerated by DNA evidence and released from custody. See: Brown v. Miller, 2008 LEXIS 4169 (5th Cir., Feb. 27, 2008)

In 1996 a U.S. Justice Department report found that between 20 to 25 percent of all defendants convicted in sex crimes are innocent. By the end of 2007 more than 200 people in American prisons had been exonerated by DNA evidence, and 60 percent of those exonerations involved African-American or Hispanic persons – and of those exonerated in rape cases, 85 percent of them were African-American men convicted of raping white women.

Why are so many African-American men wrongfully convicted for raping white women?

The Dennis Patrick Brown case offers some revealing insight. The Fifth Circuit outlined the background facts that led up to Brown’s wrongful conviction:

“Jane Doe, a white woman, was raped in her home in Covington, Louisiana, in 1984. She provided her minipad and underwear to the police, along with specimens from a rape examination, all of which were forwarded to the Louisiana State Police Crime Laboratory. Ms. Doe also assisted the police in creating a sketch of her attacker, though the sketch lacked identifiable features because the attack had occurred in the dark and the attacker had worn a baseball cap and mask. Later, Ms. Doe identified Brown as her attacker in a line-up; he had been asked to volunteer for the line-up only as a ‘fill-in’ and was not represented by counsel. The police obtained samples of blood, hair, and saliva, and fingerprinted Brown but did not arrest him.

The foundation of the American criminal judicial process is based upon the Fifth Amendments prohibition that no individual shall be denied life or liberty without the benefit of due process and equal protection of the law. The Founding Fathers were dedicated the principle of establishing an adversarial system of justice that rejected all the features of European inquisitorial systems of justice. They developed a concept of due process of law that extended to the individual a panoply of protections against the arbitrary power of the government. These due process protections were stated in the Sixth Amendment to the United States Constitution:

•In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Equal protection and additional due process protections were later expanded by the Fourteenth Amendment to the United States Constitution and made applicable to all the States:

•Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

In Texas, Article 1, Section 10, of the Texas Constitution outlines the “rights” of any individual accused of a crime:

•In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury. He shall have the right to demand the nature and cause of the accusation against him, and to have a copy thereof. He shall not be compelled to give evidence against himself, and shall have the right of being heard by himself or counsel, or both, shall be confronted by the witnesses against him and shall have compulsory process for obtaining witnesses in his favor, except that when the witness resides out of the State and the offense charged is a violation of any of the anti-trust laws of this State, the defendant and the State shall have the right to produce and have the evidence admitted by deposition, under such rules and laws as the Legislature may hereafter provide; and no person shall be held to answer for a criminal offense, unless on an indictment of a grand jury, except in cases in which the punishment is by fine or imprisonment, otherwise than in the penitentiary, in cases of impeachment, and in cases arising in the army or navy, or in the militia, when in actual service in time of war or public danger.

The right to counsel, privilege against self-incrimination, and trial by jury have been the touchstone of due process of law rooted in the foregoing constitutional provisions. All other due process/equal protection rights emanated from this trilogy of constitutional guarantees. The following are the abbreviated stages of the criminal trial process during which these guarantees should be remembered and forced into play:

•During police investigations that collect physical and eyewitness evidence designed to identify and arrest a suspect for the offense committed.
•In the investigatory stage a suspect enjoys the protection from unreasonable searches and seizures by law enforcement authorities.
•In the investigatory stage a suspect has a right to retain counsel of his choice.
•Once taken into custody a suspect has a right to silence, appointed counsel if he/she cannot afford one, and right to reasonable bail (unless bail is barred by law in capital cases).
•The decision by the State’s prosecuting attorney, who has tremendous discretion in these matters, to decide, first, whether the suspect should be prosecuted, and, second, if so, for what charge he/she should be prosecuted.
•Charging decisions can be determined through a preliminary hearing or presentation of the case to a grand jury.
•Once the State has leveled a specific charge, the suspect becomes the accused who can then challenge the substance of the State’s case through pretrial motions and statutory regulated discovery.
•Pretrial preparation includes informal exchanges and negotiations between the defense attorney and prosecutor designed to protect the accused from “overcharging” and prosecutorial misconduct.

The Sixth Amendment right to an attorney attaches at the initiation of the adversarial process whether by way of formal charge, preliminary hearing, indictment, information, or arraignment. See: Brewer v. Williams, 430 U.S. 387, 398 (1977). At least after a formal charge has been filed an accused has the absolute right to rely upon an attorney as a constitutional buffer between him/her and the State. See: Maine v. Moulton, 474 U.S. 159, 176 (1985). A formal charge transforms the suspect into an accused. See: Kirby v. Illinois, 406 U.S. 682, 689 (1972). The accused at this point in the adversarial process “finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law” with the need for a skilled criminal defense attorney. Id.

In Texas, the adversarial criminal trial process commences when an individual is arrested pursuant to a warrant obtained through a complaint filed with a court. See: Barnhill v. State, 657 S.W.2d 131, 132 (Tex.Crim.App. 1983). From this juncture forward, the accused enjoys the right to assistance of counsel at every “critical stage” of the prosecution. See: Upton v. State, 853 S.W.2d 548, 553 (Tex.App. 1993). A pretrial stage is considered “critical” if the accused needs assistance in coping with legal problems or assistance in meeting his adversary. See: Green v. State, 872 S.W.2d 717, 720 (Tex.Crim.App. 1994). Any post-indictment police interrogation is certainly a “critical stage.” See: Westbrook v. State, 29 S.W.2d 103, 117 (Tex.Crim.App. 2000).

Texas Code of Criminal Procedure article 33.03 (Vernon 2003) provides that a criminal defendant has a statutory right to be present during his/her trial. See: Routier v. State, 112 S.W.3d 554, 575 (Tex.Crim.App. 2003). The trial begins when the jury is impaneled and sworn. See: Sanchez v. State, 138 S.W.3d 324, 329 (Tex.Crim.App. 2001). A trial is fundamentally unfair, and constitutionally unacceptable, if the defendant is denied counsel at any critical stage of his/her trial. See: United States v. Cronic, 446 U.S. 648, 659 (1984). Whether a particular stage is “critical” is determined by counsel’s usefulness at the time and whether the defendant lost any rights at that stage. See: Garcia v. State, 97 S.W.3d 343, 347 (Tex.App.-Austin 2003, no pet.).

The following proceedings have been determined to be a “critical stage” in a criminal case:

•The taking of evidence on the defendant’s guilt.
•Final summation or closing argument.
•Preliminary hearings.
•Arraignment.
•Jury selection.
•In camera hearing on the admissibility of evidence.
•Punishment.
•Appeal.

See: Medley v. State, 47 S.W.3d 17, 22 (Tex.App.-Amarillo 2000); Mempa v. Rhay, 389 U.S. 128, 134 (1967).

John T. Floyd is committed to providing skilled advocacy in his criminal defense work, and protection of the individual from the awesome powers of the State. He stands ready to assist, and defend, anyone facing the investigatory and prosecutorial powers of the State.

What You Should Know About the Criminal Trial Process
Mr. Floyd Provides vigorous representation at every stage of a criminal case:

The Initial Investigation
Mr. Floyd's practice is to take an aggressive posture as soon as an individual believes that he or she is a target or suspect regarding criminal activity.

Unless special circumstances exist, Mr. Floyd advises all clients to remain silent when contacted by law enforcement officials.

It is natural to believe that you can convince someone of your innocence or talk yourself out of the situation. In most cases, however, speaking directly with law enforcement officials will significantly impair your ability to present the best possible defense.

In short, do not speak to anyone about criminal allegations for which you could be a target. Do not speak to law enforcement authorities without your lawyer present.

The Arrest
If you are arrested, please remember that you have the right to remain silent and the right to an attorney. These rights can easily be lost if you are not careful and do not understand the criminal investigation process.

Please understand that everything you say WILL be used against you. Investigators often indicate that suspects will receive better or special treatment if they will cooperate and speak freely. Everyone should understand that police officers/investigators have no legal authority to make agreements that bind the State. Therefore, they cannot make things better for you after charges are filed. An investigator may also suggest that an innocent person has nothing to hide and therefore does not need a lawyer. These are common investigative techniques used to press an individual for information and cooperation.

Mr. Floyd strongly advises that his clients not speak with law enforcement officers without the presence of a lawyer.

The Grand Jury
The grand jury hears evidence presented by the district attorney's office and then decides whether to issue an indictment. The grand jury is an independent body, whose functions include not only the investigation of crime and the initiation of criminal prosecution but also the protection of the citizenry from unfounded criminal charges.

While grand juries are sometimes described as performing accusatory and investigatory functions, the grand jury's principal function is to determine whether or not there is probable cause to believe that one or more persons committed a certain offense within the venue of the court. Thus, it has been said that a grand jury has but two functions -- to indict or, in the alternative, to return a "no-bill." See Wright, Federal Practice and Procedure, Criminal Section 110.

The grand jury's power, although expansive, is limited by its function toward possible return of an indictment. Costello v. United States, 350 U.S. 359, 362 (1956). Accordingly, the grand jury cannot be used solely to obtain additional evidence against a defendant who has already been indicted. United States v. Woods, 544 F.2d 242, 250 (6th Cir. 1976), cert. denied sub nom., Hurt v. United States, 429 U.S. 1062 (1977). Nor can the grand jury be used solely for pre-trial discovery or trial preparation. United States v. Star, 470 F.2d 1214 (9th Cir. 1972). After indictment, the grand jury may be used if its investigation is related to a superseding indictment of additional defendants or additional crimes by an indicted defendant. In re Grand Jury Subpoena Duces Tecum, Dated January 2, 1985, 767 F.2d 26, 29-30 (2d Cir. 1985); In re Grand Jury Proceedings, 586 F.2d 724 (9th Cir. 1978).

The grand jury has broad powers to subpoena witnesses regarding criminal allegations. In fact, once subpoenaed by the grand jury, an individual cannot refuse to appear. This power to subpoena witnesses also applies to the suspects of the grand jury's investigation. While a suspect cannot refuse to appear before the grand jury, they may, however, refuse to answer specific questions if the response to that question could tend to incriminate them.

A witness or suspect called before the grand jury has no right to have their attorney present during the proceedings. Therefore, Mr. Floyd insists on thoroughly preparing his clients prior to their appearance before the grand jury.

Remember:
You may refuse to answer any question if a truthful answer to the question would tend to incriminate you.
Anything that you do say may be used against you by the grand jury or in a subsequent legal proceeding.

Trial

"The guarantees of jury trial in the Federal and State Constitutions reflect a profound judgment about the way in which law should be enforced and justice administered. A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government. 23 [391 U.S. 145, 156] Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority. The framers of the constitutions strove to create an independent judiciary but insisted upon further protection against arbitrary action. Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it. Beyond this, the jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power - a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges. Fear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence. The deep commitment of the Nation to the right of jury trial in serious criminal cases as a defense against arbitrary law enforcement qualifies for protection under the Due Process Clause of the Fourteenth Amendment, and must therefore be respected by the States." - United States Supreme Court Justice Byron White, Duncan v. Louisiana, 391 U.S. 145 (1968).

Mr. Floyd strongly believes that extensive trial preparation is the key to conducting a successful trial. Once retained to represent a client, Mr. Floyd fully investigates the facts surrounding the case and all relevant legal issues that could be raised at trial. Each case is different and will require a defense carefully constructed to the specific facts and concerns of the case.

Preparation is the key to success.

Appeal
An individual convicted of a crime has thirty (30) days in Texas and ten (10) days in Federal Court, in which to file a notice of appeal. If you should wish to appeal a conviction, it is urgent that you contact an attorney immediately as time is of the essence.