John T. Floyd's Comments on Criminal Issues

RACIAL PROFILING AND THE FBI

Mon, 14 Jul 2008 23:43:11 GMT

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. FBI officials said that being able to target for selective investigation Muslims, Arabs and other racial and ethnic groups that fit a “terrorist profile” would enable the agency to fulfill a post 9/11 Congressional mandate to “root out” terrorists before they strike.

JUSTICE ANTONIN SCALIA’S DISSENT FROM THE DARK SIDE

Tue, 08 Jul 2008 16:46:13 GMT

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].

FALSE RAPE ALLEGATIONS

Sat, 05 Jul 2008 20:12:01 GMT

Houston Criminal Defense Attorney John Floyd Discusses False Child Sexual Assault Allegations and Defending the Wrongly Accused

In April 2008, after coming home late from a party, a Wunsche High School student told her father that she had been sexually assaulted at the party by a fellow student. The following day 54-year-old Ruben Cuellar-Romo went with his daughter to her school, and when the daughter pointed out a student as her attacker, Cuellar-Roma stabbed the male student in the chest, stomach and hand. Police quickly determined that the assaulted student, Joshua Chapa, had not been at the party and, therefore, could not have assaulted the girl. Cuellar-Roma was arrested and charged with aggravated assault and remains in the Harris County Jail under a $30,000 bond.

JOE HORN FREE OF CRIMINAL LIABILITY

Tue, 01 Jul 2008 20:05:40 GMT

uly 1, 2008

JOE HORN FREE OF CRIMINAL LIABILITY

Houston Criminal Attorney John Floyd Discusses the Tragedy of the John Horn Case and the Implications of Grand Jury No Bill

It was a highly-charged emotional case from the beginning. It had all the social ingredients for stirring controversy: criminals, crime, guns, self-defense, race, and illegal immigrants. It began last November when a 64-year-old Pasadena retiree named Joe Horn saw his neighbor’s home being burglarized by two Hispanic men, Diego Ortiz and Hernando Riascos Torres, who were in the United States illegally(although Horn at the time didn’t know they were Hispanic because of their African-Columbian descent). Horn called 911 to report the crime. He told the 911 dispatcher that he was armed. The dispatcher instructed Horn to stay inside his own residence. Horn ignored those instructions, pointedly telling the dispatcher that he was going to kill the two men.

FLDS GRAND JURY TAKES NO ACTION, YET

Fri, 27 Jun 2008 22:26:11 GMT

Houston Criminal Defense Attorney Discusses Latest Developments in FLDS case and the Beginnings of a Grand Jury Investigation

A West Texas grand jury sitting in Schleicher County heard testimony from a few of the dozens of witnesses subpoenaed to testify concerning allegations made by the Attorney General’s Office that members of the Fundamentalist Church of Jesus Christ of Latter Day Saints forces underage girls into “spiritual marriages.”

PRIVILEGE OF HABEAS CORPUS EXTENDED TO GUANTANAMO BAY DETAINEES

Mon, 23 Jun 2008 22:30:36 GMT

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.

AMERICA’S TORTURED POLICY OVER TORTURE

Wed, 18 Jun 2008 22:02:16 GMT

Houston Criminal Defense Attorney John Floyd Discusses Bush Administration’s “Torture” Policy and Downstream Consequences

In 1994 America ratified a treaty entitled “Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.” This treaty defined “torture” as “ … any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession,” when it is “inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”

BARRY BONDS: HOME RUN KING OR STEROID USER?

Sat, 14 Jun 2008 08:35:52 GMT

Houston Criminal Attorney John Floyd Discusses Perjury, Obstruction of Justice and the Barry Bonds Case

Barry Bonds was 21 years of age when he joined the Pittsburgh Pirates in 1986. He was lean, mean, and fast – and certainly not considered a fearsome home run slugger. During his first seven years in the majors, he averaged 25 home runs a year. Then in 1998 St. Louis Cardinals first baseman Mark McGuire eclipsed Roger Maris’ record of 61 home runs in a season by pumping out 70 home runs. The following year Bonds showed up for spring training with the San Francisco Giants with a “bulked up” upper body. In 102 games that year, he still managed to hit 39 home runs. In 2000, Bonds appeared in 143 games and the new “Giant slugger” hammered out 49 home runs. The following year Bonds’ “ballooned up” upper body looked awkward in what appeared to be match-stick legs but it was enough for him to easily breezed by McGuire’s record with 73 home runs. During his last seven full playing seasons (not including 2005 in which he played only 14 games and hit a meager 5 home runs), Bonds averaged 44 home runs.

FLDS: A LOOK AT AN UNNECESSARY TRAGEDY

Sun, 08 Jun 2008 21:44:49 GMT

Swift Justice? Houston Criminal Defense Attorney John Floyd Opines on the FLDS Debacle

This column has examined the FLDS case extensively since the military-style raid on the Yearning for Zion Ranch in Eldorado, Texas on April 3, 2008. There are two things that stand out about this tragic case: First, the raid was totally unnecessary and most certainly unlawful; and, second, the financial cost to the state of Texas is a staggering $7 million and the emotional cost to the FLDS parents and children is immeasurable.

TERRORISM: WILL THE PRIVILEGE AGAINST SELF-INCRIMINATION PREVIAL IN UPCOMING DEATH TRIAL?

Wed, 04 Jun 2008 08:36:48 GMT

Houston Criminal Defense Attorney John T. Floyd Discusses War on Terror and Insult to the Constitution and Fifth Amendment Privilege Against Self Incrimination

The Miami Herald recently reported that the Pentagon has formally approved the application of the death penalty for charges brought against Khalid Sheik Mohammed, the reported architect of 9/11 terror attacks, and four others charged in the conspiracy to carry out those attacks.
Media reports disclosed that Military Commission officials have e-mailed the approved capital charges to the attorneys representing the designated “enemy combatants.” The Bush administration approved the death penalty charges against the five suspected terrorists, although dropped charges against a Saudi detainee named Mohammed al-Qahtani who was originally charged with the other 9/11 conspirators.

THE JUAN LEONARDO QUINTERO CASE

Sat, 31 May 2008 08:52:19 GMT

Houston Criminal Defense Attorney John Floyd Discusses a Juries Decision to Sentence Convicted Cop Killer to Life in Prison

Everyone, including Juan Leonardo Quintero, was unhappy about the May 20, 2008 jury verdict that spared the convicted cop killer an appointment with a state executioner and insured that he would spend the rest of his natural life in a maximum security state prison.

Why did the jury return the verdict anyway? It was truly a slam dunk capital case. The evidence of guilt seemed overwhelming. Houston police officer Rodney Johnson arrested the 34-year-old illegal immigrant/landscaper on September 21, 2006 following a routine traffic stop for speeding. Johnson, by all accounts, was a wonderful person and a “great” cop. It is not known how many “mistakes” he made during his distinguished law enforcement career. It could not have been many because street cops do not enjoy the luxury of making a lot of “mistakes.”

A DEATH PENALTY TRIAL

Wed, 28 May 2008 22:55:32 GMT

The death penalty trial in this essay actually occurred. It is based the well-publicized facts, offense reports, and the trial transcript concerning my arrest, indictment, prosecution, and sentence to death for the December 5, 1965 shooting death of a convenience store clerk in East Baton Rouge Parish, Louisiana. The trial was marred by documented suppressed mitigating evidence, perjured testimony, and ineffective assistance of counsel. The death penalty verdict, I believe, was obtained by the State of Louisiana because of these constitutional violations. By the time I was able to establish these violations in a court of law in 1984, they were considered “harmless errors” because the death sentence had been vacated.

But a significant number of the 1100 inmates executed in this country since 1976 were sent to their deaths because of suppressed mitigating evidence, perjured testimony, fabricated forensic evidence, or grossly inadequate legal representation. Further, as was the case in 1965, it was the social status or the race of their victim that influenced the decision by prosecutors to seek the death penalty against them. The following capital trial illustrates not only the harsh reality of how the death penalty is often prosecuted but how the process can be politicized. It presents the best argument for the abolishment of the penalty. It is the only punishment in these United States that can never, ever be prosecuted equitably and justly.

FLDS: THE RULE OF LAW FINALLY PREVAILS

Sun, 25 May 2008 17:52:00 GMT

Houston Criminal Defense Attorney John T. Floyd Discusses In Re Steed: Texas Court of Appeals Finds No Evidence to Support Finding of Danger to Physical Health or Safety of Children at FLDS YFZ Ranch, CPS Failed to Take Reasonable Efforts Short of Separation from Parents

(Read the Opinion: In re Sara Steed )

The FLDS case began with two anonymous telephone calls from a “16-year-old” girl on March 29, 2008 to a local hot line crisis center in Eldorado, Texas. The anonymous caller told a terrified tale of being forced into a “spiritual” marriage to a man named Dale Barlow who she said frequently beat and raped her at the Yearning for Zion Ranch owned by the FLDS church. The anonymous caller said she was forced into this marriage at age fourteen, had an eight-month-old child, and was pregnant again by Barlow. The hot line crisis center reported the anonymous calls to law enforcement officials.

THE FLDS CASE: THE TEXAS SOLUTION, PRISON FOR THE MEN, SHAME FOR THE WOMEN

Sat, 24 May 2008 19:45:31 GMT

Houston Criminal Defense Lawyer John T. Floyd Discusses Potential Bigamy Charges Facing Those Living on the Yearning for Zion Ranch

The Fundamentalist Church of Jesus Christ of Latter Day Saints (“FLDS”) is the largest Mormon fundamentalist denomination. The FLDS broke from the Church of Jesus Christ of Latter Day Saints (“LDS”) in the 1930s. Located in southern Utah and northern Arizona, the fundamentalists rejected the LDS’s renunciation of polygamy. After the ex-communication of members who continued to practice plural marriages, the fundamentalists decided break all their religious ties to the LDS Church.

EXECUTIONS: THE UGLY REALITY AND RACIAL IMPLICATIONS CONTINUE

Thu, 22 May 2008 10:46:28 GMT

Houston Criminal Defense Lawyer John Floyd Discusses Race to Restart the Death Penalty, Ugly Reality of the Ultimate Penalty

Just 19 days after the U.S. Supreme Court upheld the lethal injection protocol used by most states to carry out executions, the State of Georgia put to death William Earl Lynd on May 6, 2008. Interestingly enough, the Supreme Court said that when lethal injections are carried out “properly,” the result will be an immediate, humane death. Lynd was pronounced dead at 7:51 p.m. – some seventeen minutes after the first drug, sodium thiopental, was administered. Three to five grams of this barbiturate is supposed to induce immediate unconsciousness. Media reports did not indicate that Lynd was immediately rendered unconscious.

FLDS: EXPLORING THE SUBJECT OF ABUSE

Thu, 15 May 2008 22:26:36 GMT

Houston Criminal Defense Attorney Discusses FLDS Fiasco and the Disproportionate Resources Spent by the State to Persecute this Misunderstood Religious Group

The law enforcement raid last month in Eldorado, Texas on the Yearning for Zion ranch operated by the Fundamentalist Church of Jesus Christ for Latter Day Saints has morphed into the largest child custody case in state history. Charges of polygamy, sexual and physical abuse of children, and forced “spiritual” marriages between older FLDS men and underage girls have become part of the national political and social debate, particularly with respect to sexual and physical abuse of the church’s children.

SERIOUS OVERCROWDING IN THE HARRIS COUNTY JAIL

Sun, 11 May 2008 18:51:41 GMT

HOUSTON CRIMINAL DEFENSE LAWYER John Floyd Discusses Overcrowding in the Harris County Jail and Texas Prisons; Non-Violent Drug Offenders Wasting Away in Prison and Costing Society Billions, Community Treatment Centers and PR Bonds Could Save You Money!

The Houston Chronicle recently reported that the Harris County Sheriff’s Department requested, and received, permission to transfer an additional 1,130 inmates to the West Carroll Detention Center in Epps, Louisiana. The private Louisiana-based detention center is already the home to 600 Harris County inmates at an annual cost of $6 million to local taxpayers. The additional 1130 inmates will cost taxpayers another $15.5 million annually.

SUPREME COURT RULING ON LETHAL INJECTION WILL PROVE LETHAL

Fri, 09 May 2008 21:50:08 GMT

HOUSTON CRIMINAL ATTORNEY John Floyd Discusses Ruling by Supremes in Base v. Rees; Poisoning not Cruel and Unusual Punishment

The Baze Ruling

The United States Supreme Court on September 25, 2007 granted certiorari in the case of Ralph Baze and John C. Bowling, two convicted double murderers, who challenged the constitutionality of lethal injection as it is administered in the State of Kentucky. See: Baze, et al. v. Rees, Comm’r Ky DOC, et al., WL 2075334 (U.S.Ky. 09/25/07).

FLDS: A TEXAS-SIZED LEGAL DILEMMA

Mon, 05 May 2008 22:21:01 GMT

Houston Criminal Defense Attorney John T. Floyd Continues the Discussion about Government Raid at Yearning For Zion and the Potential Criminal Charges to be Filed Against FLDS Members

There have been a series of startling developments in what has become known as the “FLDS case.” This unprecedented child custody case began on March 29, 2008 when an anonymous female caller, identifying herself as a pregnant 16-year-old, reported twice to a hot line crisis center in Eldorado, Texas that she had been a victim of sexual and physical abuse at the local Yearning for Zion ranch by members of the Fundamentalist Church of Jesus Christ of Latter Day Saints. Those anonymous telephone calls triggered a massive military-styled police raid on the YFZ compound several days later resulting in mothers being separated from children and fathers accused of being “pedophiles” for allegedly marrying girls as young as thirteen.

“ICE” FLEXES DEPORTATION MUSCLE

Sat, 03 May 2008 14:36:50 GMT

Houston Criminal Defense Lawyer John T. Floyd Discusses Efforts to Increase Deportation of Illegal Immigrants Convicted of Crimes and Implications on Texas Prisons

The United States Homeland Security unit known as ICE (U.S. Immigration and Customs Enforcement) announced a recent $3 billion effort to deport approximately 450,000 illegal immigrants who are locked up each year in the nation’s jails and prisons.

CHILD RAPE, THE DEATH PENALTY AND THE POPE

Fri, 02 May 2008 23:04:32 GMT

Houston Criminal Attorney John Floyd Discusses Constitutionality and Morality of Death Penalty for Non-Homicide Sex Crimes Committed against Children

While on the papal plane (Shepard One) heading for his first visit to America this April, Pope Benedict XVI informed reporters that he is “deeply ashamed” over the sexual abuse scandals which have rocked the Catholic Church of the United States over the past 25 years. He said the scandals caused him “great suffering.” These scandals involved priests sexually abusing young, mostly male children. A number of these priests were convicted of a litany of sex-related offenses, including aggravated rape. Most of their child victims were under the age of 12 years. Since 2002, when the most infamous scandals surfaced in Massachusetts, the Catholic Church had paid out more than $2 billion to settle civil lawsuits brought by the victims and their families. At least five dioceses were forced to declare bankruptcy.

FOURTH AMENDMENT: U.S SUPREME COURT CLARIFIES ISSUE OF SEARCH/SEIZURE IN VIOLATION OF STATE LAW

Fri, 02 May 2008 23:02:48 GMT

Houston Criminal Defense Attorney John Floyd Discusses Search and Seizure Issues Presented in Virginia v. Moore and Implications on Texas Suppression Claims; Justice Scalia Views Constitution as “Dead” Document.

The Moore Rationale

David Lee Moore was a small time crack dealer in Portsmouth, Virginia. In February 2003 two local police officers heard over their police radio that a person known as “Chubs” was driving with a suspended license. One of the officers knew Moore by the moniker “Chubs.” They ran a license check and learned that Moore’s license had in fact been suspended. The officers located, stopped, and arrested him on the misdemeanor charge of driving with a suspended license. A subsequent search of Moore’s vehicle by the officers discovered 16 grams of crack cocaine and $516 in cash. See: Virginia v. Moore, 543 U.S. _____ (April 23, 2008), Slip Opinion, No. 06-1082, at p. 1.

PROSECUTORIAL MISCONDUCT

Sat, 26 Apr 2008 23:18:37 GMT

Houston Criminal Defense Attorney, John Floyd, Discusses Fifth Circuit Court of Appeals Decision Finding Reversable Plain Error in Improper Statements of Prosecutor. Prosecutor’s should not make statements as their Personal Beliefs as to the Truth or Falsity of Testimony or Evidence or Guilt of the Defendant

FLDS: THE VICTIM THAT WASN’T

Tue, 22 Apr 2008 22:37:08 GMT

Houston Criminal Defense Attorney John Floyd Discusses Developments in FLDS Case; Anonymous Hoax Caller Used to Support Warrant Illustrates Why Probable Cause Requires More Evidence

The largest child custody case in Texas began with at least two telephone calls on March 29, 2008 from a terrified voice claiming to be a victim of sexual and physical abuse at the Yearning for Zion ranch by members of the Fundamentalist Church of Jesus Christ of Latter Day Saints in Eldorado, Texas. The calls made to a local hot line crisis center triggered a massive military-styled police raid on the YFZ compound several days later that resulted in mothers being separated from children and fathers accused of being “pedophiles” for allegedly marrying girls as young as thirteen.

DALLAS JUSTICE GIVEN TO THOMAS JOE MILLER-EL

Sat, 19 Apr 2008 12:59:32 GMT

Houston Criminal Attorney John T. Floyd discusses the Saga of Miller-El and the Historical Practice of Racism in the Jury Selection Process

Background and Plea
It was a brutal crime. According to public records, Dorothy Miller-El set it up on November 16, 1985. She had previously worked at the Holiday Inn near the Dallas/Fort Worth International Airport. She provided her husband Thomas Joe Miller-El and Kennard Sonny Flowers with inside information about the motel. The two men entered the motel in the early morning hours where they robbed, bound and gagged two employees: 25-year-old Douglas Walker and 29-year-old Donald Ray Hall. Miller-El asked Flowers if he was going to shoot the two men. When Flowers hesitated, Miller-El shot Walker in the back of the head twice, killing him instantly, and then shot Hall in the side, leaving him paralyzed from the chest down.

The FLDS Raid and the Extension of the Police State

Sun, 13 Apr 2008 21:48:19 GMT

Houston Criminal Attorney John T. Floyd Discusses Military Style Raid on Eldorado FLDS Compound, Illegal Arrests and Fabricated Probable Cause

The Fundamentalist Church of Jesus Christ of Latter Day Saints (“FLDS”) is the largest Mormon fundamentalist denomination. The FLDS broke from the Church of Jesus Christ of Latter Day Saints (“LDS”) in the 1930s. Located in southern Utah and northern Arizona, the fundamentalists rejected the LDS’s renunciation of polygamy. After the ex-communication of members who continued to practice plural marriages, the fundamentalists decided break all their religious ties to the LDS Church.

TERROR, TORTURE AND TRANSFERS

Tue, 08 Apr 2008 22:17:10 GMT

Houston Criminal Defense Attorney John Floyd Discusses Continued Litigation Caused by the Bush Administration’s Handling of Detainees at Guantanamo Bay

In 2006 the Congress passed the Military Commissions Act. § 7(a)(1) of that Act, applicable through 28 U.S.C. § 2241(e)(1), deprives courts from having jurisdiction over any “application for a writ of habeas corpus filed by or on behalf of an alien detained in the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.”

KEEP THE GOVERNMENT OUT OF OUR BEDROOMS

Sun, 06 Apr 2008 10:47:30 GMT

Houston Criminal Attorney John T. Floyd Discusses Fifth Circuit Decision Striking Down Obscenity Statute Prohibiting Promotion or Sale of Sex Toys, the Right to Private Sexual Privacy

Do you believe that every American citizen has a constitutionally protected right to sexual privacy in his/her home?

The Texas Legislature and the Texas Court of Criminal Appeals did not think you did until the United States Court of Appeals for the Fifth Circuit recently informed them that every citizen does have an indisputable right to sexual privacy in the home. See: Reliable Consultants, Inc., et al. v. Earle, et al., 2008 U.S. App. LEXIS 3102 (5th Cir. Feb. 12, 2008). The appeals court struck down those portions of the Texas obscenity statute that made it a crime to promote or sell sexual devices [commonly referred to a “sex toys”]. See: Tex. Penal Code § 43.21(a)(5),(6).

BRADY AND THE ROSENTHAL SCANDAL

Sun, 06 Apr 2008 10:36:57 GMT

Houston Criminal Attorney John T. Floyd Discusses the Shadow of the Scandal, Damaged Reputation of D.A’s Office and Concerns of Failure to Disclose Evidence Favorable to the Accused

Charles “Chuck” Rosenthal is no longer the District Attorney of Harris County. Rosenthal was forced to resign recently in the wake of a scandal that disclosed he had used his office computer to send and receive controversial emails with a former intimate partner and D.A. employee. There were also charges that the former DA received racially insensitive and sexually explicit e-mail from friends, including the husband of one of his most controversial assistant district attorneys.

MEDELLIN: TEXAS LAW TRUMPS PRESIDENT’S PEN

Sat, 29 Mar 2008 10:45:59 GMT

Houston Criminal Defense Attorney John T Floyd Discusses Medellin v. Texas; United States Supreme Court Devastates Mexican National’s Rights Under Geneva Convention While Simultaneously Limiting Presidential Power

Jose Ernesto Medellin, a Mexican national, took part in one of the most brutal and horrific crimes to have ever occurred in Harris County. A January 8, 2008 column on the John T. Floyd website outlined the facts of the June 24, 1993 murders of 14-year-old Jennifer Ertman and 16-year-old Elizabeth Pena and Medellin’s role in those murders. There is no need to recount those terrible details in this column.

THE VALUE OF A DIRECT VERDICT STRATEGY

Sun, 16 Mar 2008 20:59:28 GMT

Houston Criminal Attorney John Floyd Discusses His Recent Victory by Instructed Verdict; After State Rests Judge Instructs Jury to Acquit on Charges of Sexual Assault and Find Not Guilty

The John T. Floyd law firm was recently retained to represent a client in Houston charged with sexual assault pursuant to Tex. Penal Code § 22.011. The client is a physical therapist who operates a pain relief center in Houston, Harris County. A patient leveled the accusation that our client inappropriately “fondled” and inserted his finger in her vagina during a physical massage session against her consent. The District Attorney’s Office requested, and received, a grand jury indictment charging our client with sexual assault which also designated him as a “health care services provider.” See: § 22.011(b)(9). We believed our client was wrongly accused and set out to exonerate him.

COURT ALLOWS WRONGFUL CONVICTION LAWSUIT TO PROCEED

Sat, 15 Mar 2008 01:03:53 GMT

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

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

IS WATERBOARDING TORTURE?

Fri, 07 Mar 2008 22:51:16 GMT

Houston Criminal Attorney Discusses Reality of Waterboarding, Torture and the Taint on Confessions Obtained from its Use

The United Nations’ High Commissioner for Human Rights certainly believes that waterboarding is torture. Louise Arbour in January joined with UN special rapporteur on torture Manfred Nowak in the wake of admissions by CIA Director Michael Hayden that the agency had used waterboarding on three terror detainees. Despite the Hayden admissions, the CIA called upon the U.S. Justice Department to investigate whether statements by former CIA agent John Kiriakou to various media organizations about waterboarding violated laws prohibiting the release of classified information.

VIOLENT SEX OFFENDERS: IS CIVIL COMMITMENT A LEGITIMATE SOCIAL RESPONSE?

Wed, 05 Mar 2008 23:13:49 GMT

Houston Criminal Attorney John Floyd Discusses Civil Commitment for Sexually Violent Offenders

The New York Times reported last year (March 4, 2007) that there are approximately 2,700 pedophiles, rapists, and other sexual offenders being held indefinitely by 19 states, mostly in medical treatment centers. The NY Times report was in response to the State of New York joining the parade of states that use “civil commitment” as a way of “protecting” society from “dangerous” sexual predators. Several New York legislators hailed the state’s decision to adopt civil commitment as an opportunity to create a “national model” for not only in isolating dangerous sex offenders but in treating them as well, including “intensive supervision” of those who secure release from their commitment. The following bullet points from the Times report offers a glimpse of “civil commitment” programs nationwide:

THE WALSH ACT AND ITS “SORNA” IMPLICATIONS

Sat, 01 Mar 2008 21:28:02 GMT

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.

THE CASTLE DOCTRINE:STAND YOUR GROUND AND SHOOT TO KILL

Wed, 27 Feb 2008 07:34:59 GMT

Houston Criminal Attorney John T. Floyd discusses the Castle Doctrine and the Growing Support for the Use of Deadly Force in Self Defense

In October 2005 the Florida became the first state in the United States to officially put a “Castle Doctrine” law on its books. Supporters hailed it as a “stand your ground” law while opponents called it a “shoot to kill” license.

“PLEADING TO A PSI”

Tue, 19 Feb 2008 23:22:27 GMT

Houston Criminal Attorney John Floyd Discusses the Dangers of Pleading Guilty to a Court Without a Plea Bargain as to Sentencing.

In December former Department of Public Safety crime lab technician Jesus Hinojosa, Jr. pleaded guilty in a Houston, Harris County, Texas district court to two counts of possession of more than 400 grams of cocaine with intent to deliver, all of which was stolen from the agency’s Jersey Village crime lab. He elected to be sentenced by a judge who, by law, ordered a “presentence investigation” report. On February 8, 2008, after reviewing the PSI and considering arguments from the defense and prosecution, the district court sentenced Hinojosa to 45 years in prison – an extreme sentence harsh enough to beg the question of whether he would have fared better before a jury.

NO BAIL FOR REPEAT DOMESTIC VIOLENCE

Thu, 14 Feb 2008 23:21:50 GMT

Houston Criminal Defense Attorney John T. Floyd Discusses Denial of Bail in a Family Violence Cases

The Texas Council on Family Violence reported there were 187,811 incidents of family violence in 2005 throughout the state. 143 of those incidents resulted in the deaths of women by an intimate partner. That death rate declined slightly in 2006 when 120 women were killed by an intimate partner. It was these disturbing figures that prompted the 2007 Texas Legislature to propose a constitutional amendment to Article I, Section 11, of the Texas Constitution [right to bail] that would allow a court to deny bail to those defendants who violate a previous court protective order or a condition of bond in family violence cases. The amendment was put before the voters as Proposition 13, and it was ratified by the electorate on November 7, 2007. This constitutional amendment, which became effective January 1, 2008, was codified as Texas Code of Criminal Procedure, Article 17.152 (2007) [Denial of Bail for Violation of Certain Court Orders or Conditions of Bond in a Family Violence Case]. The statute provides:

THE RIGHT TO BAIL:TOO OFTEN ABUSED IN HARRIS COUNTY, TEXAS

Tue, 12 Feb 2008 00:22:29 GMT

Houston Criminal Lawyer John T. Floyd Discusses Excessive Bail in Texas Courts

The Eight Amendment to the United States Constitution expressly prohibits excessive bail. This fundamental right allows an accused to be free before conviction, permitting the unhampered preparation of a defense and preventing unjust punishment upon the innocent.

PROSTITUTION: “THE WORLD’S OLDEST PROFESSION” AND NOW A VERY SERIOUS CRIME

Mon, 04 Feb 2008 02:20:00 GMT

HOUSTON CRIMINAL DEFENSE ATTORNEY John T. Floyd Discusses Federal Prosecutions of Prostitution Rings

Eric Hayes and Terrence Williams were “pimps” in a nationwide prostitution ring until they were convicted last October in a Toledo, Ohio federal court. In fact, they referred to themselves as “pimp partners.” Their prostitution ring used both juvenile and adult women who were trained and disciplined to live off the earnings from their “johns.” The pimp partners ran a lucrative criminal enterprise that set a fee schedule for particular sexual services, controlled certain areas where only their prostitutes could work, and shared information with other pimps about the activities of the police in their area.

ILLEGAL POSSESSION OF A FIREARM BY A CONVICTED FELON

Thu, 31 Jan 2008 00:45:57 GMT

Houston Criminal Defense Attorney John Floyd Discusses the Current State of the Law Regarding Illegal Possession of a Firearm by a Felon

Terry Blanet Hukill, a convicted felon, was arrested in October 2006 by the Dallas Police Department for illegal possession of 21 firearms, including a sawed-off shotgun. The arrest culminated an investigation by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) under a Project Safe Neighborhoods program, a nationwide federal effort targeting gun crimes. On December 14, 2007 U.S. District Judge Jane J. Boyle sentenced Hukill, who pleaded guilty in September to possessing a prohibited firearm (sawed-off shotgun) and possession of a firearm by a convicted felon, to fifteen years in prison.

CAN DELETED PORN BE USED IN A POSSESSION OF CHILD PORNOGRAPHY CASE?

Sat, 26 Jan 2008 00:02:01 GMT

Houston Criminal Defense Attorney John T. Floyd Discusses How Deleted Computer Files Can be Used in the Prosecution of a Child Pornography Case

FBI agent Randall Clark is part of the Houston Area Cyber Crimes Task Force. His job is to track and catch sex predators looking for child victims on the internet. In a recent interview with the Houston CHRONICLE, Clark said that “we know whenever there are kids online, there will be predators, so we try to get into those places [like MySpace].”

ATHELETES, STEROIDS, FALSE STATEMENTS AND PERJURY: THE NEED FOR COUNSEL

Sun, 20 Jan 2008 21:55:47 GMT

Houston Criminal Attorney John Floyd Discusses Lying About Steroids; Recent Criminal Investigations and Convictions

Marion Jones was an astounding Olympian sprinter who captured five Gold medals. She was the darling of not only the international sports world but of the American people as well. Then the world collapsed around this charming sports figure. In 2003 a federal criminal investigation was initiated in Northern California concerning the distribution of anabolic steroids, other illegal performance-enhancing drugs, and related money-laundering activities. The investigation centered on Balco Laboratories, a corporation that performed blood-tests for athletes.

DESTRUCTION OF THE CIA INTERROGATION TAPES: A SAGA OF OFFICIAL ABUSE OF POWER

Fri, 18 Jan 2008 23:16:55 GMT

Criminal Defense Attorney John Floyd Discusses Whether Destruction of CIA Torture Tapes Could Lead to Criminal Culpability for the President or his Crew
The terrorist attack on September 11, 2001 on the New York World Trade Center’s Twin Towers not only inflicted a terrible human tragedy on America but set into motion reactionary forces within our government that would undermine this nation’s fundamental moral, ethical, and legal obligations to the international community.

WHEN WILD ANIMALS ATTACK

Sun, 13 Jan 2008 20:44:19 GMT

Houston Defense Attorney John Floyd discusses Potential Texas Tort Liability for Zoo Attacks. What if it happened in Texas?

THE ATTACK

It was last Christmas evening. Most of the visitors at the San Francisco Zoo had given way to the approaching chill of evening and left for a dinner meal with family and friends. Rather than spending the evening with his family as they wanted, 17-year-old Carlos Sousa joined two brothers, 23-year-old Kulbir Dhaliwal and 19-year-old Paul Dhaliwal, for a trip to the zoo.

THE MEDELLIN CONSTITUTIONAL CRISIS

Fri, 04 Jan 2008 22:55:05 GMT

Houston Criminal Attorney John Floyd Discusses Consular Notification Under the Article 36 of the Vienna Convention

They were called the “Black and Whites” in 1993 – a Harris County predatory street gang. There were eight of them, including Jose “Joe” Ernesto Medellin. It was 11:30 p.m. on the evening of June 24. Earlier in the evening 17-year-old Raul Villareal has been initiated into the gang by fighting a rival gang member. The Black and Whites were in a city park drinking beer and celebrating the outcome of that initiation ritual.

THE AGE OF STEROIDS OR STEROID RAGE?

Mon, 31 Dec 2007 23:38:39 GMT

Houston Criminal Attorney John Floyd Discusses Due Process
in Light of Major League Baseball and the Mitchell Report

On December 13, 2007 former Senate Majority Leader George Mitchell submitted to Major League Baseball what has become known as “the Mitchell Report.” The “report” is the culmination of a 20-month investigation into the illegal use of steroids by major league baseball players. The Mitchell Report named 86 current and former players from all 30 major league teams as having used steroids during their playing careers. Two of the most prominent players named in the report are seven-time Cy Young Award winner Roger Clemens and current Yankee and former Astros pitcher Andy Pettitte.

SUPREME COURT CRACKS BARRIER ON CRACK SENTENCING

Thu, 20 Dec 2007 00:14:26 GMT

Houston Criminal Defense Attorney John T. Floyd Discusses Significant Developments Effecting Crack Cocaine Sentences from U.S. Supreme Court and U.S. Sentencing Commission

The United States Supreme Court on December 10, 2007 issued a ruling in a case that will effectively reduce some of the crack cocaine sentences for nearly twenty thousand federal inmates – 85 percent of them African-American. See: Kimbrough v. United States, No. 06-6330 (2007). The following day the U.S. Sentencing Commission voted to allow these inmates to immediately apply for sentence reductions. Slightly more than 2500 of them will be eligible for early release over the next year.

IN THE WAKE OF THE JOE HORN SHOOTINGS

Mon, 17 Dec 2007 23:34:39 GMT

Houston Criminal Attorney John Floyd Continues Discussion of Deadly Force in Self Defense in Light of More Recent Shootings

During the afternoon of November 14, 2007 a Pasadena, Texas resident named Joe Horn was working at his computer in his own home. He heard the sound of breaking glass. He looked out his window. He saw two men [later identified as Miguel Antonio DeJesus and Diego Ortiz] breaking into his neighbor’s home. Horn retrieved a shotgun, called 911, and informed the operator about the burglary in progress. The 911 operator instructed Horn to remain inside his residence – that the police were on their way. Horn did not heed those instructions. He went outside, confronted the two burglary suspects, and killed both of them as they attempted to flee.

HOW FAR DOES THE POWER OF HABEAS CORPUS EXTEND?

Sat, 15 Dec 2007 00:52:10 GMT

Houston Criminal Defense Attorney John T. Floyd Discusses Latest Gitmo Appeals before Supreme Court: Will America Remain Symbol of Liberty?

The United States Supreme Court on December 5, 2007 heard oral arguments in a case that will ultimately answer this critically important constitutional question. See: Boumediene v. Bush, 2007 WL 4252686 (U.S. 2007).

JOE HORN’S SELF-DEFENSE SAGA CONTINUES

Sun, 09 Dec 2007 18:02:37 GMT

Part Two: Discussion of Use of Deadly Force and Self Defense by Houston Criminal Defense Attorney John T. Floyd

On November 14, 2007 a Pasadena, Texas resident named Joe Horn shot and killed two men who had burglarized his neighbor’s home. The case immediately generated national media attention, and an onslaught of Internet discussion. This case captured the public’s imagination for several reasons. First, Horn called a 911 operator to not only report the burglary but to state his willingness to use deadly force and perhaps kill Miguel Antonio DeJesus and Diego Ortiz with his shotgun. The 911 recording, which has been publicly repeated thousands of times, captured the operator’s instructions that Horn remain inside his residence and Horn’s repeated comments that he was going to shoot, and kill, the burglary suspects.

TEXAS STIFFENS PUNISHMENT FOR SEX OFFENDERS

Tue, 04 Dec 2007 23:23:34 GMT

Houston Criminal Defense Attorney John T. Floyd Discusses Lynch Mob Mentality of 2007 Texas Legislature Handling of Sex Offenders

The 2007 Texas Legislature enacted a number of measures that severely increased the punishment for sex offenders. One of those measures makes second convictions for first-degree "sexually violent offenses" involving victims 14 years of age or younger a capital crime punishable by death or life without parole. A "sexually violent offense" is indecency with a child involving contact, sexual assault, aggravated sexual assault, sexual performance by a child, aggravated kidnapping involving intent to violate or abuse sexually, and first-degree burglary committed with intent to commit one of the sex offenses in this list.

IN DEFENSE OF THY NEIGHBOR

Fri, 30 Nov 2007 09:21:59 GMT

Houston Criminal Defense Attorney John T. Floyd Discusses Texas Self Defense Law in Light of the John Horn Shooting

On Wednesday, November 14, at about 2:00 p.m. a Pasadena, Texas man named Joe Horn was working at his computer inside his own residence in the 4900 block of Timberline when he heard the sound of breaking glass. He looked out the window of his home and saw two Hispanic men, Miguel Antonio DeJesus and Diego Ortiz, breaking into his neighbor’s house – a neighbor that Horn did not know very well. The 61-year-old Horn retrieved his 12-gauge shotgun from his pickup truck where he kept it for personal protection. Horn then called a 911 operator to report the burglary in progress. He explicitly told the operator that he was armed with a shotgun and that he was going out to shoot the two men to prevent the burglary of his neighbor’s home. The 911 operator repeatedly instructed Horn to remain inside his house until the police arrived. The following are excerpts from that 911 call:

THE DUTY TO REPRESENT

Thu, 22 Nov 2007 19:42:23 GMT

Houston Criminal Defense Attorney John Floyd Discusses the Ethical Dilemma of Representing the Cooperating Witness

True criminal defense lawyers relish the opportunity to fight a case before a jury; to force the government to trial whether they like it or not. Criminal defense lawyers believe that often it is only in trial, before a jury of our peers, that true justice can come forth. And we also know that many times a jury trial is necessary to achieve any victory for the client, whether that is by achieving a lesser sentence than offered by the government or by total acquittal and vindication.

THE RESPONSE TO JUVENILE CRIME AND YOUTH VIOLENCE

Tue, 13 Nov 2007 23:35:31 GMT

Criminal Defense Attorney John T. Floyd

In the 1970s, when crime and violence had turned the nation’s big cities into urban arenas of fear, suspicion and distrust, Former Houston Police Chief B.K. Johnson told TIME Magazine (March 23, 1981) that “we have allowed ourselves to degenerate to the point where we’re living like animals. We live behind burglar bars and throw a collection of door locks at night and set an alarm and lay down with a loaded shotgun beside the bed and then try to get some rest.” Former Louisiana Corrections Secretary C. Paul Phelps said that “the most dangerous creature in the world is the 16 or 17 year old kid who comes from the ghetto. It makes no difference whether he’s white, black, Hispanic or Chinese.”

HUMAN TRAFFICKING: AN EVIL ENTERPRISE

Wed, 07 Nov 2007 10:53:57 GMT

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.

POLICE CUSTODY DEATHS

Fri, 02 Nov 2007 07:25:48 GMT

Houston Criminal Defense Attorney’s Perspective, Allegations Police Abuse in the Jail

This past summer Houston police were summoned to a “disturbance call” at a home in the 9200 block of Denton. The call had been placed by the mother of 35-year-old Johnell Patrick, a thrice-convicted drug offender.

THE HOLY LAND FOUNDATION VERDICT

Fri, 26 Oct 2007 06:44:47 GMT

Criminal Defense Attorneys in Dallas Raise Reasonable Doubt and Force Mistrial

Under its original name Occupied Land Fund, the Holy Land Foundation was established in California in 1989 by Ghassan Elashi and other Palestinian Muslims. The purpose of the Foundation was to provide assistance to Palestinians displaced by a Palestinian uprising against Israel’s occupation of the West Bank and Gaza. The uprising became known as the “intifada.” The most aggressive, and violent, resistance in the intifada came from the Iranian-backed organization called Hamas which had been established in 1987. The leader of Hamas, Mousa Abu Marzook, was married to Elashi’s cousin.

U.S. CONSTITUTION IMPALED ON THE SWORD OF FANATICISM

Mon, 22 Oct 2007 22:52:00 GMT

HOUSTON CRIMINAL DEFENSE ATTORNEY Discusses The United States Supreme Court’s Refusal To Hear El-Masri And Allegations Of CIA Torture

Last April we reported about the case of Khaled El-Masri, a German citizen of Lebanese descent, who in December 2003 was traveling in Macedonia when he was taken into custody by that nation’s law enforcement officials on some technicality concerning his passport. They held El-Masri in their custody for twenty-three days at a hotel in Skopje before turning him over to American CIA operatives. That began an odyssey of torture for El-Masri and an official plundering of time-honored principles of law set forth in this nation’s Bill of Rights and its Constitution.

SUPREME COURT TO DECIDE THE 100:1 CRACK/POWDER COCAINE RATIO

Wed, 17 Oct 2007 22:48:33 GMT

Houston Criminal Attorney John T. Floyd Discusses the Inherent Tragedy Caused by the Crack/Powder Cocaine Ratio and the Unreasonably Long Prison Sentences for Low-Level, Non-Violent First Offenders.

Derrick Kimbrough was arrested in Norfolk, Virginia on two offenses involving of possession crack and powder cocaine as well as a single firearm offense. State authorities dismissed their case in favor of federal prosecution. The federal drug offenses exposed Kimbrough to a sentence range of 10 years to life imprisonment and a mandatory sentence range of 5 years to life imprisonment on the firearm offense to be served consecutively.

“MISTAKES” IN A LAST-MINUTE DEATH APPEAL

Fri, 12 Oct 2007 23:49:11 GMT

Grievances Filed by Criminal Attorneys across the State; Intentional mishandling of the request for an extension of the filing deadline by Judge Sharon Keller reflects the mean-spirited, biased, and callous nature of not only those who advocate but those who enforce the ultimate punishment.

YET ANOTHER HARRIS COUNTY DNA EXONERATION

Thu, 11 Oct 2007 23:17:04 GMT

Houston Criminal Defense Attorneys Beware! Exoneration Marks Third Criminal Defendant Wrongfully Convicted Because of Mishandling of Evidence by the Houston Police Crime Lab

In May of 1993, in the Third Ward of Houston, Texas, a 38-year-old woman was asleep in her home when she was abruptly awakened by a man who put a knife to her throat. The intruder raped the woman and fled the residence. The victim called the police to report the sexual assault. Two police officers arrived at the scene one hour later. The officers identified a “wet spot” on the sheet where the rape occurred. The rape victim told the officers that she had felt the assailant’s features during the attack but had only gotten a brief glimpse of him while he was in her home. The only light in the victim’s residence came from a street light across the street.

CRIMINAL ATTORNEYS STILL WATCHING THE U.S. SUPREME COURT, DECISIONS EFFECTING SENTENCING GUIDELINES

Tue, 09 Oct 2007 22:27:42 GMT

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.

HOUSTON CRIMINAL ATTORNEY DISCUSSES CRUEL AND UNUSUAL PUNISHMENT, DEATH PENALTY BY LETHAL INJECTION

Fri, 05 Oct 2007 06:09:53 GMT

The United States Supreme Court on September 25, 2007 granted certiorari in the case of Ralph Baze and John C. Bowling, two convicted double murderers, who challenged the constitutionality of lethal injection as it is administered in the State of Kentucky. See: Baze, et al. v. Rees, Comm’r Ky DOC, et al., ___ Ct. ____, 2007 WL 2075334 (U.S.Ky. 09/25/07).

CRIMINAL DEFENSE ATTORNEYS KNOW FIRST HAND THE FBI CANNOT BE TRUSTED WITH UNCHECKED INVESTIGATIVE POWERS, ADMINISTRATIVE SUBPOENAS

Sun, 30 Sep 2007 19:22:18 GMT

The USA Patriot Act was became law on October 26, 2001 – some six weeks after the 9/11 terrorists attacks on the twin towers of the World Trade Center. The Act increased the government’s surveillance powers in both criminal and intelligence investigations, permitting an easier process for the law enforcement and intelligence communities to share information while conducting these two types of investigations.

THE LAW AND CONTRADICTION

Sat, 29 Sep 2007 13:52:36 GMT

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.

PENILE PLETHYSMOGRAPHY:BIG BROTHER AND PUNISHING THOUGHT

Mon, 24 Sep 2007 09:56:14 GMT

Criminal Defense Attorneys Keep Eye on Conditions of Probation, Parole and Supervised Release, Sex Crimes Convictions

What kind of condition is penile plethysmography? More to the point, what is plethysmography?

The word “plethysmograph” Greek words “plethysmos” and “graphos.” The former mean “enlargement” and the latter means “to write.” A penile plethysmorgraph, therefore, is an instrument that measures the volume of the penis (or its erection). See, Odeshoo, Jason D., “Of Penology and Perversity: The Use of Penile Plethysmorgraphy on Convicted Child Sex Offenders, 14 Temp. Pol. & Civ. Rts. L.Rev. 2004, p. 6.

POLICE POWERS VERSUS RIGHT OF PRIVACY/FREE SPEECH

Wed, 19 Sep 2007 23:15:18 GMT

Criminal Defense Attorneys Will Face Expanded Use of State WireTapping

The Texas Legislature recently increased the powers of law enforcement to conduct electronic surveillance. The new legislation (SB823) allows cities with populations of 500,000 or more to operate their own “pen register” devices that have the capacity to capture real time outgoing telephone numbers dialed from a targeted telephone.

A 2007 TEXAS LEGISLATIVE SUMMARY

Sat, 15 Sep 2007 14:43:33 GMT

The 80th Texas Legislative Session, as other legislators across the United States, was preoccupied with sex offenses and sex offenders. This is hardly surprising given the intense media attention to these types of cases and the public outrage against sex crimes. So, rather than focus on a myriad or other issues that would bring real change to the lives of our citizens and purposeful change to our system of criminal justice, our legislature took the easy way out and focused, again, on an easy target.

INEFFECTIVE ASSISTANCE OF COUNSEL:THE FAILURE TO INVESTIGATE

Fri, 07 Sep 2007 23:25:06 GMT

Criminal Defense Lawyers Must Diligently Investigate Facts Supporting Possible Defenses, Witnesses

The right to effective assistance of counsel is guaranteed by the Sixth Amendment to the U.S. Constitution. See, McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970). This constitutional guarantee attaches to both retained and appointed counsel. See, Cuyler v. Sullivan, 446 U.S. 335, 344-45 (1980).

In 1984 the U.S. Supreme Court established a two-prong test to be used by the lower courts in evaluating ineffective assistance claims: a criminal defendant must prove that counsel’s performance was “deficient” because it fell below an objective standard of reasonableness; and that this deficient performance so prejudiced the defendant that the resulting conviction or death sentence is unreliable or fundamentally unfair. See, Strickland v. Washington, 466 U.S. 668, 687 (1984).

WHEN ERROR IS HARMLESS

Thu, 06 Sep 2007 08:26:56 GMT

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.

STATEMENTS OF CO-CONSPIRATORS

Mon, 03 Sep 2007 14:36:55 GMT

Criminal Defense Attorneys must Fight to Prevent Admission of Prejudicial Statements of Unindicted Co-Conspirators

In December 2001 the Dallas-based Holy Land Foundation for Relief and Development was shut down after being accused by the federal government of being a fund-raising front for Hamas, a militant Palestinian group the United States has designated as a terrorist organization. The government charged that the self-described Muslim charity organization had funneled $12 million in illegal aid to Hamas. Another approximately 250 Muslim groups and individuals were named as “unindicted co-conspirators.”

THE MICHAEL VICK SAGA

Mon, 03 Sep 2007 14:36:03 GMT

A Criminal Defense Lawyers Perspective

Michael Vick and Don Imus. What do they have in common. Well, to begin with, soup for the goose, soup for the gander.

Both became well known public figures, celebrities of sorts – one as a highly proficient NFL quarterback and the other as a quasi shock-jock. Both used their special talents to become icons in their individual professions; both shocking and astonishing people inside and outside their respective media- driven careers with individual bad choices.
Then they both suffered an ignominious fall from public grace because of incredibly stupid personal behavior. Imus chose to refer on-the-air to the ladies of the Rutgers University basketball team as “nappy-headed ‘hoes” and Vick chose to fight dogs (pit bulls, mostly; some of whom were killed) and operate a gambling enterprise around this criminal enterprise.
But beyond these stupid personal choices, the two men enjoyed yet another bond – both were victims of orchestrated public outrage.

THE JOSE PADILLA CONVICTION: A BUSH VICTORY OR A DEFEAT FOR CIVIL LIBERTIES

Mon, 03 Sep 2007 14:34:57 GMT

Criminal Defense Lawyers for Padilla Argue for Dismissal Due to Outrageous Conduct of the Government

Jose Padilla was initially arrested in 2002 at the O’Hare International Airport in Chicago, with a lot fanfare by the U.S. Justice Department, on a charge that he was involved in a plot to plant a radiological “dirty bomb” in the United States. He was declared an “enemy combatant” and transferred to military custody at a naval brig in Charleston, South Carolina. Reportedly, he was subjected to physical torture, relentless interrogations, and a litany of other physical/psychological abuses and deprivations over the next three years before both military and intelligence investigators, as well as federal prosecutors, concluded there was no “dirty bomb” plot.

Expert Testimony in Child Pornography Cases

Sun, 26 Aug 2007 23:42:20 GMT

In a previous Web Front Page Column (CHILD PORN: WHAT IS VIRTUAL, WHAT IS REAL), it was pointed out that in federal child pornography prosecutions under 18 U.S.C. § 2252(a)(B) the Government is under no statutory or constitutional obligation to present “expert testimony” that the alleged pornographic images are of a real child. See, United States v. Rodriquez-Pacheco, 475 F.3d 434 (1st Cir. 2007). While the government has a constitutional burden to prove beyond a reasonable doubt that the alleged pornographic images are of a real, non-virtual child, the matter is an issue of fact to be decided by the jury and those determinations can be based on the actual images, videotapes, photographs, etc., absent expert testimony. Id,, at 444.

THE JOSE PADILLA CONVICTION: A BUSH VICTORY OR A DEFEAT FOR CIVIL

Sun, 26 Aug 2007 23:40:53 GMT