JOHN T.
FLOYD LAW
FIRM
Federal Criminal Defense
Lawyer
EXPERIENCED FEDERAL CRIMINAL LAWYER
TRIALS, SENTENCINGS, AND APPEALS
SERIOUS FEDERAL CRIMINAL DEFENSE
Phone (713) 224-0101
E-mail jfloyd@JohnTFloyd.com
"Serious Federal Criminal
Defense Throughout Texas
"
February 05, 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.”
The importance of these doctrines can be measured by the fact that since the adoption of the Federal Rules of Evidence, the U.S. Supreme Court has dealt with evidentiary privilege law more than any other part of the Federal Rules of Evidence, as pointed out by Professor Inwinkelreid.
January 29, 2012
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.
Scott Raymond Shetler was a meth addict/dealer in Pomona, California in September 2009. His drug activities became so obvious that his daughter Jamie anonymously tipped off the Pomona Police Department that her father was using and manufacturing methamphetamine in his residence. Acting on this tip, three police officers arrived at the Shetler residence at 8:00 p.m. on September 22. They noticed a garage door was wide open and one officer detected a “chemical odor” coming from the garage. Standing outside, the three officers saw numerous boxes, motorcycle parts and other equipment in the garage. A partition wall concealed the back portion of the garage from frontal view. The Ninth Circuit explained what happened next:
January 22, 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.
There are, however, three federal statutes that create additional duties to disclose certain evidence. Rule 12.1, 16 and 26.2 of the Federal Rules of Criminal Procedure governs “discovery and inspection” in criminal cases. The more often cited Rule 16 specifically provides:
January 02, 2012
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.
December 26, 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.
December 22, 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.
The total net of the robbery was $23 and approximately a quarter ounce of marijuana. As the trio drove away from the scene, Pinholster reportedly said: “We got ‘em, man, we got ‘em good.”
December 12, 2011
THE ETHICAL IMPLICATIONS OF A BRADY VIOLATIONDisciplinary 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.
November 27, 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.
November 20, 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.
November 13, 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.
October 30, 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.
October 24, 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.
October 09, 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.”
September 29, 2011
18 U.S.C. § 2559: U.S. APPELLATE COURTS IN CONFLICT OVER CHILD PORNOGRAPHY RESTITUTION ISSUESDifficulty 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.
September 25, 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.
September 12, 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.
The Tapia decision is indeed significant as is the court’s examination of the history of federal criminal sentencing. The background facts of the case are fairly simple: Alejandra Tapia was convicted of smuggling illegal aliens into the United States. At her sentencing hearing, the judge determined that the U.S. Sentencing Guidelines called for a sentence of 41 to 51 months. The judge elected to impose the high end 51-month term because he felt the defendant had a drug problem and he wanted her to spend enough time in the federal prison system to complete a 500 hour drug treatment program called Residential Drug Abuse Program (RDAP).At Tapia’s sentencing hearing, the judge specifically stated:
September 05, 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).
To say that the nation’s criminal justice system has a festering constitutional problem with eyewitness misidentification is putting the issue mildly. More than four decades ago the U.S. Supreme Court in a pair of cases, Wade v. United States and Gilbert v. California, announced the groundbreaking rule that post-indictment lineups are a “critical stage” of the criminal proceedings at which a defendant enjoys the right to counsel. The following year the Supreme Court in Simmons v. United Stateslineup evidence is inadmissible if it was unduly influenced by an improper pre-trial photo array and that the test for determining whether such a photo array was “impermissibly suggestive,” trial court would be guided by the “totality of the circumstances” surrounding the lineup. Four years later the Supreme Court, in Neil v. Biggers, once again entered the lineup fray by establishing five non-exclusive factors which should be “weighed against the corrupting effect of any suggestive identification procedure in assessing [the] reliability [of a police lineup] under the totality of the circumstances.” Those factors are:
August 14, 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:
“Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged or finally convicted of the crime or act…”
August 09, 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.
The HPD crime lab has a long, sordid history of knowingly producing flawed forensic evidence and maintaining other flawed evidence-gathering procedures. No matter how much political criticism or media scrutiny that is directed toward the crime lab, it continues to produce evidence that cannot be trusted. This was made clear by crime lab supervisor Amanda Culbertson who told the Chronicle that she and other crime lab personnel “documented” the problems with HPD’s breath-testing vans before they quit out of fear of being fired in “retaliation” for their overseeing of the police officers and “breath testing technicians” who determined whether a DWI offense had occurred.
July 29, 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.
Federal district courts, under 18 U.S.C. § 3582(c), generally do not have the authority to “modify a term of imprisonment once it has been imposed.” This is especially true where the defendant has entered into a plea agreement for a specific sentence endorsed by the sentencing judge. Subsection (c)(2), however, provides the following stipulation: “in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or upon its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.”
July 24, 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.
July 16, 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.
July 05, 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!
June 26, 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.
Rule 44 of the Federal Rules of Criminal Procedure permits a trial court in cases where multiple defendants are represented by the same counsel to promptly hold a hearing to determine the existence of potential conflicts and to advise each defendant of their right to separate representation. The trial court’s failure or refusal to conduct a Rule 44 hearing is not reversible error unless it is established that there was an actual conflict of interest. That’s because Rule 44 is not a mandatory “shall” statute prohibiting the joint representation in a criminal case because such representation is not per se violation of the right to effective assistance of counsel. Although the statute does not use a mandatory “shall,” lawyers who represent clients with potential conflicts are treading on very thin ice and should seriously consider referring one of the clients to another lawyer, possibly working under a joint defense agreement.
June 20, 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.
State Sen. John Whitmire, D-Houston, did not mince words with the newspaper, saying: “I’m outraged on behalf of the sexual assault victims who have had a sexual assault committed and an invasive procedure, that being the rape kit, and then learn that no one has used it in an investigation.”
June 13, 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.
June 06, 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.
May 30, 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.
The U.S. Supreme Court, in Kentucky v. King (May 16, 2011), recently expanded what has been called the “police-created exigency” doctrine in warrantless “kick down the door” searches of a residence. While the warrantless search of a home without a warrant has been traditionally viewed as presumptively unreasonable, law enforcement officials have been allowed to bypass this constitutional impediment when the “exigencies of the situation” make it reasonable to conduct a warrantless search of a suspect’s home. Over the years a number of state and federal courts formulated a rule that the police may not rely upon “exigent circumstances” to justify warrantless searches when the “exigency” was created or manufactured by the police. The Fifth Circuit Court of Appeals, in United States v. Gould (en banc), put it this way: “[A]lthough exigent circumstances may justify a warrantless probable cause entry into a home, they will not do so if the exigent circumstances were manufactured by the agents.”
May 21, 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.
The ICE alert, as reasoned by the Ninth Circuit, was sufficient probable cause under 19 U.S.C. §§ 1433 and 1582 to direct the Cottermans to a “secondary inspection area” for a more “thorough search” of their vehicle and belongings. The Lukeville border inspection officer then called Long Beach ICE authorities who had placed the “alert” and was instructed to “search anything” that could contain child pornography. A subsequent search of the Cotterman’s vehicle revealed two laptop computers and three digital cameras. Border inspector Antonio Alvarado was given the task of inspecting the laptops while other agents searched the vehicle. Alvarado’s preliminary search did not reveal any child pornography, but his suspicions were aroused because many of Cotterman’s files were “password protected.”
May 11, 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.
While we feel that bin Laden got this “just deserts,” we cannot in good conscience celebrate his death as a “crowning achievement” for our justice system. On September 11, 2001, bin Laden did more than bring down New York’s famed Twin Towers and cause the death of nearly 3,000 innocent people. The four terrorist attacks he masterminded and orchestrated that day set our nation on a course of action, called the “war on terror,” which has done, perhaps, irreparable damage to our criminal justice system and our historical concepts of justice.
May 02, 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.
Benavidez was indicted for the offense of aggravated sexual assault. At the end the guilt/innocence phase of the Benavidez’s trial, the State submitted a proposed jury charge to the court which would allow the jury to convict Benavidez of a lesser included offense of aggravated assault, should it decide to acquit him on the sexual assault charge. That is where the convoluted legal dispute in the Benavidez case began: State prosecutors believed that aggravated assault was indeed a lesser included offense to the aggravated sexual assault charge which had been charged in the indictment. Benavidez’s defense counsel, however, strongly objected to the proposed charge, being of the firm opinion that aggravated assault could not be a lesser included offense of aggravated sexual assault.
April 25, 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.”
April 18, 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.
April 11, 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.
April 04, 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.
March 24, 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.
The case has drawn the social ire of community activists like Houston’s Quannell X and politicians like U.S. Rep. Ted Poe. While Quannell X roundly condemned the sexual assault of the young girl, he directed pointed criticism at the child’s parents who, according to some reports, did not supervise the 11-year-old’s promiscuous life style which included pretenses at being older and desires to be a “porn star.” Cleveland resident Kisha Williams echoed Quannell X’s criticism, telling the Houston Chronicle: “Where were [the parents] when this girl was seen wandering at all hours of the night with no supervision and pretending to be much older.”
March 20, 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.
But things go awry. He is stopped at a drug checkpoint near the Texas border. A drug-sniffing dog alerts on the trailer of his rig. Border patrol officers have probable cause to search the trailer, but the driver eliminates the need for a warrant with consent to search. The search reveals over 2000 kilograms of marijuana. The driver is arrested. He is eventually indicted 21 U.S.C. § 841(a)(1) with possession with intent to distribute a controlled substance. Under subsection (b)(1)(A) of this statute, the driver faces a mandatory minimum of ten years imprisonment and a maximum of life imprisonment in addition to a possible fine of up to $4 million. With no “priors” or criminal history, the U.S. Sentencing Guidelines will recommend a minimum sentence of approximately 13 years (156 months) in such a case, and probably much worse.
March 13, 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.
March 06, 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).
We have also blogged about the legal difficulties involved in bringing about accountability in “police custody deaths.” This was evidenced most recently in the case of 20-year-old Danroy “D.J.” Henry, a popular Pace University football player, who was killed last October by police outside a bar in Thornwood, New York. The police had been called to the bar after a reported disturbance. Henry, who had been in the bar, left and was sitting inside his parked vehicle when the police arrived and started banging on his window. Thinking the officers were instructing him to move his vehicle, Henry backed his vehicle up striking an officer in the process. The officers responded by pumping a volley of bullets into the vehicle killing Henry.
February 23, 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.
From well financed foreign government intelligence operations to small-time identity thieves, the computer is being used to revolutionize crime. The current boogie-man in the computer world is China. From presidential wannabes like Donald Trump to global computer giants like Google and Microsoft, China is seen not only as a global business competitor but also as a communist spy and saboteur that sneaks into our country via the internet.
February 19, 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...
February 13, 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).
And as they say on music radio, “the hits just keep on coming.” Individual privacy took a major hit recently with a ruling by the California Supreme Court which held the a cell phone’s text messages can be searched without a warrant if its owner has been arrested, and that any incriminating evidence retrieved from it can properly be admitted into evidence at a criminal trial. The court’s ruling in the case of People v. Gregory Diaz essentially held that the warrantless search of a cell phone is “incident of a lawful arrest (See the dissent for good arguments for your motion to suppress). The facts of the Diaz case are these: In April 2007 he made a drug buy from a police informant. The buy was witnessed by a sheriff’s deputy with the Ventura County Sheriff’s Department. The deputy arrested Diaz and found six tablets of Ecstasy. Diaz was transported to a police station where a detective seized his cell phone. The detective subsequently found an incriminating text message on the cell phone which prompted Diaz to confess. He was charged with selling a controlled substance and he moved to suppress the incriminating evidence discovered on his cell phone. The trial court denied Diaz’s motion to suppress and the matter ended up before the California Supreme Court.
January 25, 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.
Bush’s federal judgeship appointments had no greater impact than on the Eighth Circuit Court of Appeals. The former president appointed six of the seven judges in the conservative majority. Bush took special pride in the politically conservative shape he gave the federal judiciary. At an October 2008 conference sponsored by the Cincinnati chapter of the Federalist Society, “the elite network for the conservative movement” reported the New York Times, Bush informed the group that he had appointed one-third of the federal judiciary expected to be serving when he left office.
January 17, 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.”
Anti-DWI activists strenuously argue these kinds of invasive programs help reduce DWI-related traffic deaths. The National Highway Traffic Safety Administration (NHTSA) reports that 10,839 people died in DWI-related traffic accidents in 2009, and that 22.4 percent of motorists suspected of driving under the influence refused to take the breathalyzer test when asked to do so by law enforcement. ABC News reported NHTSA as saying the “no refusal” traffic stops have resulted in “more guilty pleas and fewer trials.” While that is doubtful, “no refusal” programs are becoming very popular.
January 10, 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.
But in 1975 a younger, and lesser known, Democratic senator from Idaho named Frank Church put the Pyle information to good use. In the wake of President Richard Nixon’s resignation for the massive criminal corruption associated with Watergate, Senator Church used a December 1974 report by New York Times columnist Seymour Hersh concerning widespread CIA warrantless surveillance to bring Pyle’s information before the senator’s U.S. Select Committee to Study Governmental Operations with Respect to Intelligence Activities.
January 03, 2011
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?
A recent, detailed report in the Washington Post, titled Monitoring America, written by Dana Priest and William H. Arkin, said there is now “a web of 4,058 federal, state and local organizations, each with its own counterterrorism responsibilities.” At least 935 of these agencies were established in the wake of 9/11 Twin Tower attacks in New York City.
December 27, 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.
As the American society entered the industrial revolution of the 18th and 19th centuries, which forced more people to “leave the farms” and relocate into tightly congested urban areas where the manufacturing jobs were, crime increased exponentially, as did the rate of penal incarceration. Probation gradually evolved from the humanitarian efforts of states like Massachusetts to “save the souls” of miscreants with a second chance at life to a necessary sentencing tool needed to divert increasingly more serious offenders away from overcrowded state penal systems. Prosecutors also found probation to be an effective leverage against criminal defendants to get them to enter into “plea bargains” and thereby avoid the costly trial by jury process.
December 24, 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.
Just months after U.S. District Court Judge Richard M. Berman, sitting in the Southern District of New York, imposed an 86-year prison term on Dr. Siddiqui following her conviction for shooting American military personnel after her detention in Ghanzi, Afghanistan in July 2008, the highly publicized and controversial WikiLeaks disclosures of U.S. State Department classified cables has reawaken what the British newspaper, The Guardian, calls “one of the most vexed mysteries of the Bush-era ‘war on terror’.”
December 6, 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.
November 24, 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.
November 06, 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.
Curtis Bass was a popular minister in Harris County. He had an impeccable reputation among his flock and in the general community as a fine, upstanding citizen. Bass’ reputation was so stellar that when in the fall of 1994 a 16-year-old church member told her mother, other family members and three educators where she attended school that Bass had sexually molested her in the church’s office in February of that year and again in the church’s parking lot in June of that year, no one believed her.
November 01, 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.
October 24, 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.
We recently reported about the first case, Thompson v. Connick. The Al-Kidd case will have far greater constitutional, as well as national security, implications. The case originates from the Ninth Circuit Court of Appeals, Al-Kidd v. Ashcroft, which held that the former attorney general abused the federal material witness law which allows U.S. citizens to be locked up if they possess information about ongoing criminal investigations.
October 23, 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.
October 11, 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.”
October 04, 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.
September 30, 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.
September 18, 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.”
September 12, 2010
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.
In February 2004 Jeff Skilling was indicted by a grand jury sitting in the Southern District of Texas on 36 charges. The Government charged Skilling and Richard Causey, Enron’s former chief accounting officer, with conspiring to defraud Enron shareholders by misrepresenting the financial condition of the company for their own profit. Count 1 of the indictment alleged their conspiracy had three objects: honest-services wire fraud, money-or-property wire, and securities fraud. The conspiracy charge was brought under 18 U.S.C. Sec. 371 and the wire fraud charges were brought under 18 U.S.C. Sec. 1343. The “honest-services” wire fraud was brought under 18 U.S.C. Sec. 1346. The “honest-services” part of the conspiracy was premised on the Government’s theory that Skilling and Causey conspired to deprive Enron and its shareholders of the “intangible right” of their honest services.
August 31, 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.
And just as the Texas Forensic Science Commission is trying to undo some of the damage caused by the wrongful conviction and execution of Willingham, we learn that the State of Pennsylvania now finds itself in the peculiar position of having to deal with a death penalty case that mirrors the Willingham case. Like Willingham, Daniel Dougherty was an excessive drinker who abused his wife but loved his children—and like Willingham, Dougherty was forced to watch his two children (Danny 4 and Johnny 3) die in a fire that destroyed his home in 1985, according to a recent CNN report.
August 24, 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.
Community activists were not pleased by what they perceive a “slap on the wrist” treatment of the officers by the grand jury. Saying he was “absolutely disappointed” by the grand jury’s actions, community activist Quanell X said the officers should have been indicted for felony assault. “You’re watching a handcuffed young man being beaten by law enforcement officers and the only charge is official oppression,” he was quoted by the Houston Chronicle. “Where’s the assault charge?”
August15, 2010
FEDERAL INMATE SAMUEL KENT DESERVES FAIR TREATMENTUnpopular 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.
August 8, 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.
August 01, 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.
July 25, 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.
July 19, 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.
July 05, 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, including significant number of violent cases, because the crime lab’s initial examinations were flawed. More recently the Chronicle reported that while the costly re-examination of the fingerprint cases for that five-year period did not reveal any wrongly identified suspects, Ron Smith consultants did find that HPD crime lab analysts had made “technical errors” in 62 percent of the cases it had examined. And the price tag to Ron Smith may now even go higher. The City Council is debating whether to give HPD an additional $2.3 million to keep the outside consultants operating in the crime lab’s troubled fingerprint unit during the next fiscal year.
July 01, 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.
June 21, 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.
June 05, 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.”
May, 28 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.
May, 24 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.
May, 20 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.”
May 11, 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.
April 26, 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
April 06, 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
March 29, 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
March 22, 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
March 10, 2010
BIG BROTHER’S WATCHING!
Law Enforcement Seeks Cell Phone Surveillance in Continued War on Crime; But Who’s Watching Them? …Federal Judges
March 02, 2010
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.
February 22, 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.
February 15, 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.
February 08, 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
January 25, 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
January 18, 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
January 11, 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
January 04, 2010
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
December 21, 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
December 07, 2009
TRYING KHALID SHEIKH MOHAMMAD IN FEDERAL COURT IS NOT END OF WORLDFederal Trials Open to the Public, for Terrorism Cases Support American Constitutional Concepts of Fair Trials, Justice
November 23, 2009
THE AGONIZING GITMO DILEMMA
Enemy Combatant Cases in Federal Courts Chart Uncertain Path
By Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
November 09, 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
October 19, 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
September 14, 2009
Sex Tourism: A 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
September 08, 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
August 24, 2009
THE MAGIC DNA BULLET LOSES SOME OF ITS LUSTER
Fabricating Fake DNA, Defending the Accused in the New World
August 10, 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
July 13, 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
July 06, 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
June 22, 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.
June 08, 2009
A GLIMPSE AT THE NATION’S DRUG PROBLEM
20:1 Crack/Powder Ratio Still Flawed; Incarceration of Most Drug Offenders Absurd and Obscene
May 25, 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.
May 11, 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.
May 04, 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.
April 27, 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.”
April 13, 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.
March 30, 2009
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.
March 23, 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.
March 16, 2009
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.
March 09, 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.” 1/
February 23, 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).
February 09, 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.
February 02, 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.
January 12, 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.
January 05, 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.
December 22, 2008
A DISTRICT ATTORNEY’S OFFICE IN NEED OF REFORM
Ethical Lapses, Forensic Impropriety and Extreme Carelessness; Another Day at the Harris County Criminal Justice Center
December 08, 2008
INEFFECTIVE ASSISTANCE OF COUNSEL IN CAPITAL CASES
Failure to Properly Prepare for Trial, Basis for Federal Habeas Relief
In 2001 the two female justices on the U.S. Supreme Court spoke out about the quality of legal representation afforded to criminal defendants facing the death penalty in this nation.
December 01, 2008
THE WAR ON TERROR ENJOYS RECENT VICTORIES
Government Finally Reaches the Holy Land in Complex Case of Providing Financial Support to Terrorist
America has a disposition toward war. The nation was created through war, and except for brief periods of respite, America has been at war with itself and other countries throughout its history. When not at war with other nations, America has found a need to declare “war” on one social ill after another, particularly over the last five decades. Beginning with President Lyndon Johnson’s “war on poverty” through President George W. Bush’s “war on terror” following 9/11, government officials have consistently used a war slogan to justify one social crusade after another.
November 24, 2008
RIGHT TO KEEP AND BEAR ARMS - Supreme Court Discusses “Pre-Existing Right” to Keep and Bear Arms
There have been several recent national news reports concerning the dramatic increase in the sale of firearms, particularly in Texas, since the election of Barack Obama as the next president of the United States. The day after Obama was elected, the Cheaper than Dirt gun store in Fort Worth, Texas sold $101,000 worth of merchandise. Guns stores throughout Virginia have reported that sales have increased by 50 percent since Election Day. The FBI reported that by October 26, 2008 there were 62,000 more background checks for gun purchases than in October 2007 – a 25% increase.
November 17, 2008
YES WE CAN - Now what do WE Do with It
The “election” is over. Former Illinois Senator Barack Obama is now President-elect Obama. While it was a tremendous victory for the “Audacity of Hope” movement, it was an even greater victory for those who believe that social justice, racial tolerance, political unity, and strong presidential leadership are needed for this nation to heal its daunting economic woes and restore its proper role as moral leader in the world community.
November 10, 2008
CAN ONE SPOUSE BE MADE TO TESTIFY AGAINST THE OTHER?
The Spousal Privilege in Criminal Cases
A potential client of the John T. Floyd Law Firm recently asked if his wife could be compelled to give testimony against him concerning possible criminal conduct. Like any answer to most legal questions, our answer to the potential client was “depends upon the circumstances.”
November 03, 2008
HEARSAY EVIDENCE, OBJECTIONS
The Critical Need For Timely And Specific Objections During A Criminal Trial
There is rarely a time when a defense attorney does not find the need to object during a criminal trial because the prosecution either attempts to introduce inadmissible evidence or engages in some questionable conduct concerning the proffer of evidence.
October 27, 2008
THE JUDICIAL WARS INVOKED BY CRACK SENTENCING
Supreme Court: Federal Judges Have Discretion at Sentencing
Under the Sentencing Reform Act of 1984, a federal district court judge must consider each of the factors prescribed in 18 U.S.C. § 3553(a) when imposing an appropriate criminal sentence. The § 3553 factors are:
October 24, 2008
FABRICATION:
The Only Defense In Sexual Assault Cases Not Subject To Rebuttal Evidence, Keeping Extraneous Crimes, Wrongs, and Acts Out
October 06, 2008
CYBERSEX CONVERSATIONS NOT A CRIME?
“Role Playing” in Cybersex Conversations Could be a Legitimate Defense in § 2422(b) Internet Solicitation Cases
September 29, 2008
Fifth Circuit Orders Acquittal in 1964 Mississippi Murder Case, Cold Case Initiative Fails, Statute of Limitation Prevails
Several years ago the Federal Bureau of Investigation created a Cold Case Initiative designed to bring to justice persons who committed horrific racially motivated crimes during the 1950s and 1960s civil rights era. One of those cases involved James Ford Seale, a former Mississippi deputy sheriff, who was convicted in June 2007 of kidnapping and conspiracy to commit kidnapping in the disappearances of Charles Eddie Moore and Henry Hezekiah Dee.
September 22, 2008
CPS VERSUS FLDS
Enormous Mismanagement of the FLDS Case, Loss of $12 Million to Taxpayers, And an Egregious Affront to Fundamental Principles of Law
September 08, 2008
FEDERAL SENTENCING: DISCRETION MAKES A COMBACK
Following Booker, Kimbrough, Rita and Gall; District Courts Exercising Power to Sentence as Deemed Appropriate, Considering Case-Specific Factors, § 3553(a)
August 29, 2008
PRIVILEGE AGAINST SELF-INCRIMINATION
The Fifth Amendment to the United States Constitution provides, in part, that “no person … shall be compelled in any criminal case to be a witness against himself.”
August 25, 2008
MEMBERS OF BRYAN/COLLEGE STATION ALIEN TRAFFICKING ORGANIZATION PLEAD GUILTY
(LAREDO, Texas) – Members of the Ortiz family alien trafficking organization, based in Bryan/College Station, Texas, have pleaded guilty to federal alien trafficking charges, United States Attorney Don DeGabrielle announced today. Immigration and Customs Enforcement (ICE) initiated an investigation into the organization in January 2005, which ultimately revealed a large-scale alien smuggling operation that since 1999 has transported hundreds of undocumented aliens from the Mexican border to the Bryan, Texas, area.
August 18, 2008
Texas Man Pleads Guilty in International Child Exploitation Enterprise Case
WASHINGTON and PENSACOLA, Fla. – Erik Raymond Wayerski, 46, of Leander, Texas, pleaded guilty today to charges related to his involvement in a vast global child pornography trafficking enterprise, Acting Assistant Attorney General Matthew Friedrich of the Criminal Division, Acting U.S. Attorney for the Northern District of Florida Thomas F. Kirwin and FBI Executive Assistant Director J. Stephen Tidwell announced.
August 11, 2008
THE INEQUITY OF ONE DEATH, ONE LIFE; Inequities in the Application of the Death Penalty
By: Houston Criminal Defense Attorney John T. Floyd and Mr. Billy Sinclair
On July 23, 2008 the State of Mississippi executed Dale Leo Bishop for his involvement in the beating death of 22-year-old Marcus James Gentry. The Bishop execution was significant only because he became the third person put to death in this country who did not actually kill the victim while the actual killer received life imprisonment.
August 04, 2008
FLDS MEMBERS INDICTED BY GRAND JURY
By: Houston Criminal Defense Attorney John Floyd and Mr. Billy Sinclair
The grand jury is a powerful weapon in the hands of state and federal prosecutors. An old legal adage says that a prosecutor can get a grand jury to indict a ham sandwich if it the “target” of a criminal investigation.
July 28, 2008
FBI SUPPORT EMPLOYEE AND SON CHARGED IN FEDERAL INDICTMENT
DALLAS — A support employee with the FBI in Dallas, Deborah Lee Stinson, 55, and her son, Mark Alan Stinson, 27, both Dallas residents, have been charged with conspiracy to commit wire fraud and structuring transactions to evade reporting requirements, announced U.S. Attorney Richard B. Roper of the Northern District of Texas. Both defendants surrendered this morning to federal officials and will make their initial court appearance this afternoon before U.S. Magistrate Judge Paul D. Stickney at 3:00 p.m.
July 21, 2008
RACIAL PROFILING AND THE FBI
Houston Criminal Attorney John Floyd Discusses FBI’s Push to Legitimize Racial Profiling
On July 3, 2008 the Associated Press reported that the United States Justice Department was considering adoption of new rules that would allow the FBI to investigate persons without any probable cause of wrongdoing.
July 14, 2008
JUSTICE ANTONIN SCALIA’S DISSENT FROM THE DARK SIDE
Houston Criminal Attorney John Floyd Discusses Scalia’s Blistering Dissent Accusing Justices of Aiding Terrorist
The Supreme Court on June 12, 2008 issued a decision that marked the first time in the nation’s history that the constitutional right to the writ of habeas corpus was conferred on enemy aliens detained abroad by American military forces engaged in an ongoing war. See: Boumediene v. Bush, 553 U.S. ____ (2008) [Slip Opinion No. 06-1195 & 06-1196].
July 07, 2008
HOUSTON ATTORNEY INDICTED FOR RECEIVING AND POSSESSING CHILD PORNOGRAPHY
(HOUSTON, Texas) - Warren Reid Williamson, of Houston, was arrested yesterday by immigration and Customs Enforcement (ICE) agents for attempting to receive, receiving and possessing child pornography as well as destruction of records, United States Attorney Don DeGabrielle has announced. A federal grand jury indicted Williamson Wednesday, June 25, 2008.
June 30, 2008
PRIVILEGE OF HABEAS CORPUS EXTENDED TO GUANTANAMO BAY DETAINEES
Houston Criminal Defense Attorney John Floyd Discusses the U.S. Supreme Court’s Decision in Boumediene v. Bush, The Balance of Powers
In a sharply divided 5-4 ruling, the United States Supreme Court recently extended the privilege of the writ of habeas corpus to “detainees” held Guantanamo Bay, Cuba – commonly referred to as “Gitmo.” The decision marked the first time in the court’s history that it has ruled that non-citizens held in custody by the United States in a territory over which another country has de jure sovereignty enjoys the protection of the Constitution.
June 23, 2008
BARRY BONDS: HOME RUN KING OR STEROID USER?
Houston Criminal Attorney John Floyd Discusses Perjury, Obstruction of Justice and the Barry Bonds Case
Barry Bonds was 21 years of age when he joined the Pittsburgh Pirates in 1986. He was lean, mean, and fast – and certainly not considered a fearsome home run slugger. During his first seven years in the majors, he averaged 25 home runs a year.
June 16, 2008
Texas Businessman Found Guilty of Submitting False Statements to Federally Insured Bank
WASHINGTON – A federal jury convicted a Sherman, Texas, businessman on two counts of submitting a false statement to a federally insured financial institution, Acting Assistant Attorney General Matthew Friedrich announced today. The charges arose from a multi-district investigation conducted by the Federal Bureau of Investigation (FBI) and Internal Revenue Service (IRS) Criminal Investigation Division.
June 09, 2008
TERRORISM: WILL THE PRIVILEGE AGAINST SELF-INCRIMINATION PREVIAL IN UPCOMING DEATH TRIAL?
Houston Criminal Defense Attorney John T. Floyd Discusses War on Terror and Insult to the Constitution and Fifth Amendment Privilege Against Self Incrimination
June 02, 2008
A DEATH PENALTY TRIAL - By Mr. Billy Sinclair - May 28, 2008
The death penalty trial in this essay actually occurred. It is based the well-publicized facts, offense reports, and the trial transcript concerning my arrest, indictment, prosecution, and sentence to death for the December 5, 1965 shooting death of a convenience store clerk in East Baton Rouge Parish, Louisiana. The trial was marred by documented suppressed mitigating evidence, perjured testimony, and ineffective assistance of counsel. The death penalty verdict, I believe, was obtained by the State of Louisiana because of these constitutional violations. By the time I was able to establish these violations in a court of law in 1984, they were considered “harmless errors” because the death sentence had been vacated.
May 26, 2008
EXECUTIONS: THE UGLY REALITY AND RACIAL IMPLICATIONS CONTINUE
Houston Criminal Defense Lawyer John Floyd Discusses Race to Restart the Death Penalty, Ugly Reality of the Ultimate Penalty
May 19, 2008
CHINESE CHEMIST CONVICTED IN THEFT OF TRADE SECRETS
(HOUSTON, Texas) – A Chinese formulation chemist has been convicted and sentenced for committing theft of trade secrets from an International company doing business here locally, United States Attorney Don DeGabrielle and FBI - Houston Special Agent in Charge Andrew R. Bland III announced today.
May 12, 2008
SUPREME COURT RULING ON LETHAL INJECTION WILL PROVE LETHAL
HOUSTON CRIMINAL ATTORNEY John Floyd Discusses Ruling by Supremes in Base v. Rees; Poisoning not Cruel and Unusual Punishment
May 05, 2008
FOURTH AMENDMENT: U.S SUPREME COURT CLARIFIES ISSUE OF SEARCH/SEIZURE IN VIOLATION OF STATE LAW
Houston Criminal Defense Attorney John Floyd Discusses Search and Seizure Issues Presented in Virginia v. Moore and Implications on Texas Suppression Claims; Justice Scalia Views Constitution as “Dead” Document.
April 28, 2008
OWNERS/MANAGERS AND DRIVERS OF COMMERCIAL BUS COMPANIES INDICTED FOR DRUG TRAFFICKING
(HOUSTON, Texas)—Eighteen persons, including alleged drug traffickers and the owners/operators of commercial bus companies operating from Mexico into the Rio Grande Valley to numerous U.S. cities and their drivers, have been indicted for transporting large loads of marijuana and cocaine in specially modified commercial buses and money laundering.
April 21, 2008
Two Indicted in San Antonio in Connection with Federal Civil Rights Investigation
WASHINGTON – The Justice Department announced that a federal grand jury in San Antonio, Texas, has returned a seven-count indictment today, charging former Bexar County Adult Detention Center (BCADC) Corrections Officer Brandit Franco with federal civil rights violations for using excessive force against two inmates in 2006. Deputy U.S. Marshal Benjamin Bates was also indicted for his misconduct related to the grand jury investigation of the incident.
April 14, 2008
TERROR, TORTURE AND TRANSFERS
Houston Criminal Defense Attorney John Floyd Discusses Continued Litigation Caused by the Bush Administration’s Handling of Detainees at Guantanamo Bay
April 07, 2008
SEVERAL CHARGED IN CONSPIRACY TO OBTAIN FRAUDULENT IMMIGRATION BENEFITS
(HOUSTON, Texas) - A federal grand jury has returned a 19-count indictment against five individuals for conspiring to obtain fraudulent work visas for more than 80 Indian nationals, United States Attorney Don DeGabrielle announced today.
March 31, 2008
PROSTITUTION, POLITICIANS AND PUNISHMENT
Houston Criminal Defense Attorney John T. Floyd discusses Prostitution in light of the Eliot Spitzer Scandal; Selective Prosecution?
March 24, 2008
WISE COUNTY, TEXAS, RANCHER SENTENCED TO 10 YEARS IN FEDERAL PRISON ON MONEY LAUNDERING CONVICTION
Susan Gail Ray Admitted Fraudulently Obtaining Approximately $6 Million From Her Employer - the Gasparilla Inn in Boca Grande, Florida
March 17, 2008
Federal jury convicts Texas man of possessing, transporting child pornography - Defendant faces up to 30 years in federal prison
DALLAS - A federal jury here today convicted a Grand Prairie, Texas, resident on both counts of a superseding indictment charging one count of transporting and shipping child pornography, and one count of possessing child pornography. U.S. Attorney Richard B. Roper, Northern District of Texas, announced the conviction; U.S. Immigration and Customs Enforcement (ICE) investigated this case.
March 10, 2007
THE WALSH ACT AND ITS “SORNA” IMPLICATIONS
Houston Criminal Defense Attorney John Floyd Discusses Sex Offender Registration Act
In July 2006 President George W. Bush signed into law the Adam Walsh Child Protection and Safety Act (“Walsh Act”). Title I of the Walsh Act is called the Sex Offender Registration and Notification Act (“SORNA”) which expanded the National Sex Offender Registry and established sanctions up to a maximum of twenty years for sex offenders who do not comply with the law’s registration requirements.
March 03, 2008
Departments of Justice and Homeland Security Announce International Initiative Against Traffickers in Counterfeit Network Hardware
WASHINGTON - Assistant Attorney General Alice S. Fisher of the Criminal Division, Assistant Director James Finch of the FBI’s Cyber Division, Assistant Secretary Julie L. Myers, U.S. Immigration and Customs Enforcement (ICE), Commissioner W. Ralph Basham, U.S. Customs and Border Protection (CBP), and Inspector Peter Goulet of the Royal Canadian Mounted Police (RCMP) today announced the results to date of an ongoing international enforcement initiative between the United States and Canada that targets the illegal distribution of counterfeit network hardware manufactured in China.
February 25, 2008
U.S. Congressman and Associates Indicted on Multiple Counts Including Fraud, Extortion, and Money Laundering
WASHINGTON - Assistant Attorney General Alice S. Fisher of the Criminal Division, and U.S. Attorney Diane J. Humetewa announced today that a federal grand jury in Tucson, Ariz. returned a 35-count indictment yesterday against Richard G. Renzi, 49, of Flagstaff, Ariz., the U.S. Representative from Arizona’s first congressional district; James W. Sandlin, 56, of Sherman, Texas, a real estate investor and Renzi's business associate; and Andrew Beardall, 36, of Rockville, Md., Renzi’s business associate.
February 18, 2008
PROSTITUTION: “THE WORLD’S OLDEST PROFESSION” AND NOW A VERY SERIOUS CRIME
HOUSTON CRIMINAL DEFENSE ATTORNEY John T. Floyd Discusses Federal Prosecutions of Prostitution Rings
Eric Hayes and Terrence Williams were “pimps” in a nationwide prostitution ring until they were convicted last October in a Toledo, Ohio federal court. In fact, they referred to themselves as “pimp partners.”
February 11, 2008
TWO HORIZON HIGH SCHOOL STUDENTS SENTENCED TO FEDERAL PRISON FOR MARIJUANA DISTRIBUTION OPERATION
United States Attorney Johnny Sutton announced that 18-year-old Rene Humberto Perez and 19-year-old Rosalia Vega of El Paso were sentenced to 121 months and 46 months in federal prison, respectively, for their roles in a marijuana smuggling and distribution organization.
February 04, 2008
ILLEGAL POSSESSION OF A FIREARM BY A CONVICTED FELON
Houston Criminal Defense Attorney John Floyd Discusses the Current State of the Law Regarding Illegal Possession of a Firearm by a Felon
January 28, 2008
Former Kellogg, Brown & Root (KBR) Employee Pleads Guilty in Scheme to Defraud the Department of Defense
WASHINGTON – Wallace A. Ward, 26, of Spring Lake, NC, a former employee of Kellogg, Brown & Root (KBR) who worked at the Bagram Airfield in Afghanistan, pled guilty today in U.S. District Court to conspiracy to receive bribes, make false statements, and file false claims announced Assistant Attorney General Alice S. Fisher of the Criminal Division, and U.S. Attorney Chuck Rosenberg of the Eastern District of Virginia. Judge T.S. Ellis III set sentencing for April 11, 2008. Ward faces a maximum sentence of five years in prison, a fine of $250,000 and three years of supervised release.
January 21, 2008
DESTRUCTION OF THE CIA INTERROGATION TAPES: A SAGA OF OFFICIAL ABUSE OF POWER
Criminal Defense Attorney John Floyd Discusses Whether Destruction of CIA Torture Tapes Could Lead to Criminal Culpability for the President or his Crew
January 14, 2008
FORMER BP AGENT AND HIS WIFE CHARGED WITH TRANSPORTING ALIENS
(LAREDO, Texas) - David Cruz, 32, a former Border Patrol agent stationed in Laredo, and his wife, Susana Lopez-Portillo De Cruz, 35, have been arrested as a result of warrants issued following the December 2007 return of a sealed indictment charging them with conspiring with others to transport and harbor illegal aliens, United States Attorney Don DeGabrielle and Immigration and Customs Enforcement (ICE) Special Agent in Charge Jerry Robinette announced today.
January 07, 2008
THE AGE OF STEROIDS OR STEROID RAGE?
Houston Criminal Attorney John Floyd Discusses Due Process in Light of Major League Baseball and the Mitchell Report
December 31, 2007
PLEA IN CASE INVOLVING BOMB THREATS TO AIRPORT
(McALLEN, Texas) – A 19-year-old U.S. citizen living in Reynosa, Mexico, pleaded guilty before a federal judge to one count of providing false and misleading information by an internet threat/hoax to the McAllen Miller International Airport, United States Attorney Don DeGabrielle announced today.
December 24. 2007
SUPREME COURT CRACKS BARRIER ON CRACK SENTENCING
Houston Criminal Defense Attorney John T. Floyd Discusses Significant Developments Effecting Crack Cocaine Sentences from U.S. Supreme Court and U.S. Sentencing Commission
December 17, 2007
HOW FAR DOES THE POWER OF HABEAS CORPUS EXTEND?
Houston Criminal Defense Attorney John T. Floyd Discusses Latest Gitmo Appeals before Supreme Court: Will America Remain Symbol of Liberty?
December 10, 2007
TEXAS STIFFENS PUNISHMENT FOR SEX OFFENDERS
Houston Criminal Defense Attorney John T. Floyd Discusses Lynch Mob Mentality of 2007 Texas Legislature Handling of Sex Offenders
The 2007 Texas Legislature enacted a number of measures that severely increased the punishment for sex offenders. One of those measures makes second convictions for first-degree "sexually violent offenses" involving victims 14 years of age or younger a capital crime punishable by death or life without parole.
December 03, 2007
Three Former British Bankers Plead Guilty to Wire Fraud in Enron Case
WASHINGTON – Three former employees of the British bank National Westminster Bank Plc (Nat West) have pleaded guilty to a charge of wire fraud in connection with a secret investment with former executives of the Enron Corporation, Assistant Attorney General Alice S. Fisher of the Criminal Division announced today.
November 26, 2007
THE DUTY TO REPRESENT
Houston Criminal Defense Attorney John Floyd Discusses the Ethical Dilemma of Representing the Cooperating Witness
November 19, 2007
HUMAN TRAFFICKING
Houston Criminal Defense Attorney John T. Floyd
The Houston CHRONICLE, in a front-page October 28, 2007 article entitled “Houston a Major Hub for Human Trafficking,” reported that the U.S. State Department estimates that approximately 17,500 people are trafficked into the United States each year.
November 12, 2007
SUPREME COURT TO DECIDE THE 100:1 CRACK/POWDER COCAINE RATIO
Houston Criminal Attorney John T. Floyd Discusses the Inherent Tragedy Caused by the Crack/Powder Cocaine Ratio and the Unreasonably Long Prison Sentences for Low-Level, Non-Violent First Offenders.
November 05, 2007
THE ANGOLA TWO
There are actually state punishments worse than death. The Angola Two have experienced such a punishment.
It was through the “Prisoner Grievance Committee” that I came to know an inmate named Irvin “Life” Breaux. A New Orleans native, Life was serving a life sentence for killing another inmate who made homosexual advances toward him. Life was one of the many “militants” who had been locked up in 1972 following the stabbing death of a prison guard named Brent Miller at the Louisiana State Penitentiary. I chronicled Life’s story and his tragic death in an article entitled “A Prison Tragedy” published in the prison’s newsmagazine, THE ANGOLITE (July-Aug. 1979). I won the prestigious American Bar Association’s Silver Gavel Award in 1980 for the article.
October 29, 2007
CRIMINAL ATTORNEYS STILL WATCHING THE U.S. SUPREME COURT, DECISIONS EFFECTING SENTENCING GUIDELINES
Rita v. United States, 125 S.Ct. 2456, 2463, 168 L.Ed.2d 203 (2007)
While the U.S. Supreme Court’s decision in Booker gave many defense attorneys hope that the often draconian Sentencing Guidelines would soon be pronounced dead, they still remain largely intact. Judges must still consult and consider the guidelines and, with Rita’s “presumption of reasonable” standard, any sentence they hand down within the guidelines will most likely withstand appellate review. However, the Supreme Court has created a real opening for “thorough adversarial testing” of the sentencing procedure by allowing judges to depart from the guidelines if given good reason under the factors set forth in 18 U.S.C. § 3553. Defense attorneys must take this opportunity to effectively present their clients’ best case at sentencing before the federal courts. After all, criminal defendants and their offenses of conviction are unique and individual and should be treated as such by the courts when assessing a just punishment.
October 22, 2007
THE LAW AND CONTRADICTION
It has been said that the law is a mystery. One thing is certain: those who make and interpret the law often reach contradictory and antipodean results. This reality frequently reduces the law’s noble pursuit of justice irrelevant. Two recent news stories underscores this reality: the decision by the United States Senate to block efforts by a bipartisan effort to restore the right of terrorism suspects to utilize habeas corpus to challenge their detention and other remedies to challenge conditions of their confinement; and the decision by U.S. District Judge Aleta Trauger declaring unconstitutional the three-drug protocol used to execute condemned inmates in Tennessee.
October 15, 2007
ENILE PLETHYSMOGRAPHY:BIG BROTHER AND PUNISHING THOUGHT
Criminal Defense Attorneys Keep Eye on Conditions of Probation, Parole and Supervised Release, Sex Crimes Convictions
October 08, 2007
WHEN ERROR IS HARMLESS
Federal Criminal Appeal Lawyers Struggle With “Harmful” Errors
In 1962 Ruth Elizabeth Chapman and Thomas Leroy Teale robbed, kidnapped, and murdered a bartender in the State of California. See, Chapman v. California, 386 U.S. 18, 19, 87 S.Ct. 824 (1967). They were tried and convicted together. The two defendants did not take the witness stand in their own defense. Chapman received a life sentence and Teale was sentenced to death. Id.
October 01, 2007
THE JOSE PADILLA CONVICTION: A BUSH VICTORY OR A DEFEAT FOR CIVIL LIBERTIES
Criminal Defense Lawyers for Padilla Argue for Dismissal Due to Outrageous Conduct of the Government
more...
September 24, 2007
TERRORISM SENTENCING ENHANCEMENT
Federal Criminal Lawyers Must be Prepared to Fight the Terrorism Sentencing Enhancement Found in USSG § 3A1.4.
Sabri Benkahla was convicted on charges of making false statements to a federal grand jury and lying to the FBI and for obstructing justice with statements that he had never seen or received military-type training in Pakistan and possibly Afghanistan in 1999. See, United States v. Benkahla, 2007 WL 2254657 (E.D.Va. Aug. 3, 2007).
September 17, 2007
MEDICARE/MEDICAID FRAUD:Criminal Defense Lawyers Defending Medicare and Medicaid Fraud
Fraud has been woven into the fabric of the federal health care programs, Medicare and Medicaid, since their inception. Congress in 1977 conducted a series of hearings to examine the infestation of theft and patient abuse prevalent in the Medicaid program. See, Medicare and Medicaid Fraud and Abuse § 6.11 (2007)[Alice G. Gosfield] {hereinafter MedFraud}.
September 10, 2007
A PALESTINIAN IN AN AMERICAN PRISON
Essay by Billy Wayne Sinclair
E-mail Billy Wayne Sinclair Billy@JohnTFloyd.com
He was short.
I was tall.
He was an Arab.
I was an American.
He was a Muslim.
I was a Christian.
September 3, 2007
THE CRACK COCAINE LEGACY: PUINISHMENT DISPARITY IN THE FEDERAL COURTS
In 1986 University of Maryland basketball sensation Len Bias was found dead from a cocaine overdose. Despite toxicology reports showing that the drug overdose resulted from powder cocaine, media reports connected the basketball star’s death to a “crack” cocaine overdose and continued to spread that misperception.
August 27, 2007
THE INFORMANT IN THE NEW YORK TERROR PLOT
Earlier this month (June ’07) the federal government indicted four men – one from Trinidad, another from Tobago, and the other two from Guyana – in a “terror plot” that targeted New York’s John F. Kennedy International Airport. Labeled “homegrown terrorists,” the four men were introduced to the American public with sensational media fanfare and boogaboo warnings from federal law enforcement officials.
August 20, 2007
GOTTI CRIME FAMILY TAKES A HIT
Peter Gotti, John Matera, and Thomas Carbonaro, all members of the New York City Carlos Gambino Crime Family, were charged in a federal indictment of participating in a criminal enterprise under the Racketeer Influenced and Corrupt Organization Act (RICO). A jury found Carbonaro and Gotti, the brother of former crime boss John Gotti, guilty of racketeering and racketeering conspiracy in violation of 18 U.S.C. § 1962 (c) and (d); and extortion in the construction industry in violation of 18 U.S.C. § 1951. See, United States v. Matera, et al., No. 05-0392 (2nd Cir. May 30, 2007).
August 13, 2007
THE TERROR ATTACK ON CIVIL LIBERTIES
America has lauded itself as a country that cherishes individual liberty. Our constitution and the Bill of Rights are held out as models for the rest of the world to immolate. But America has never been comfortable protecting civil liberties in times of national crises.
August 06, 2007
Government Continues Assault on Writ of Habeas Corpus
Ali Saleh Kahlah Al-Marri is a resident alien in the United States. He was arrested in this country and labeled an “unlawful enemy combatant.” He has an appeal pending before the Fourth Circuit Court of Appeals. This appeal raises several significant issues:
Can the provisions of the Military Commissions Act which foreclose habeas corpus relief to an “enemy combatant” be applied to an individual who has not been “properly determined” to be an enemy combatant.
JULY 27, 2007
A RIGHT OF CONFRONTATION
The Confrontation Clause of the Sixth Amendment guarantees a criminal defendant the right to confront and cross-examine adverse witnesses against him. Inherent in this Sixth Amendment guarantee is the right of the defendant to be present at every stage of the criminal trial in order to effectively cross-examine adverse witnesses. See, Pointer v. Texas, 380 U.S. 400, 403 (1961). See also: 36 Geo.L.J.Ann,Rev.Crim.Proc., 628 (2007).
July 11, 2007
Boumediene v. Bush; Court Turns Deaf Ear to Fundamental Principals of the Great Writ of Habeas Corpus and Gives Big Brother a Blank Check.
On April 2, 2007 the United States Supreme Court refused to hear an appeal from the United States Court of Appeals for the District of Columbia which, in February, ruled that Guantanamo Bay detainees did not have a right to habeas corpus review of their indefinite confinement or any other constitutional protections. Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007). The Supreme Court’s refusal to hear the Boumediene appeal effectively closes the door to any judicial relief for the approximately 385 held at the Guantanamo facility for more than five years - unless the Supreme Court at some point chooses to revisits Boumediene issues.
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