John T. Floyd's Comments on Criminal Issues

Special Rule of Privilege in Criminal Cases Provides Greater Protection to the Criminally Accused

Sun, 05 Feb 2012 00:58:22 GMT

Special Rule of Privilege in Criminal Cases Provides Greater Protection to the Criminally Accused

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Ernest “Randy” Comeaux is currently an inmate serving six life sentences, without the benefit of parole, at the David Wade Correctional Center in Homer, Louisiana. The facts of Comeaux crime were detailed by a Louisiana Court of Appeals in the matter of Smith v. Lafayette Parish Sheriff’s Department on April 24, 2004:

CONFIDENTIAL AND PRIVATE

Sun, 29 Jan 2012 19:11:58 GMT

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.”

CONDITIONS TO BAIL IN DWI CASES CAN BE HARSH

Thu, 26 Jan 2012 15:48:11 GMT

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

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

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

TWO CONFESSIONS: DIFFERENT CONSTITUTIONAL STANDARDS

Mon, 23 Jan 2012 19:16:30 GMT

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:

THE IMPACT OF SMITH V. CAIN

Thu, 19 Jan 2012 23:56:39 GMT

High Court Misses Opportunity to Discuss Ethical Obligations of Prosecutors

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

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

FEDERAL DISCOVERY AND INSPECTION PROCEDURES

Fri, 13 Jan 2012 00:43:08 GMT

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.

“JUNK SCIENCE” ONCE AGAIN PUTS TEXAS IN NATIONAL FOREFRONT

Thu, 05 Jan 2012 22:28:07 GMT

Defense Lawyers Need to Challenge Questionable Expert Testimony and Conclusions

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

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

WRONGFUL CONVICTION AND PROSECUTORIAL MISCONDUCT

Wed, 28 Dec 2011 08:15:42 GMT

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.

HARDY V. CROSS: CONFRONTATION CLAUSE QUAGMIRED IN LEGAL UNCERTAINTY

Tue, 20 Dec 2011 18:35:00 GMT

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.

THE IMPACT OF PINHOLSTER ON NEWLY-DISCOVERED EVIDENCE

Sat, 17 Dec 2011 20:11:29 GMT

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 ETHICAL IMPLICATIONS OF A BRADY VIOLATION

Sun, 04 Dec 2011 22:25:22 GMT

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

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

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

BRADY VIOLATIONS IN WHITE COLLAR, CORRUPTION CONVICTIONS

Fri, 02 Dec 2011 00:14:29 GMT

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

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

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

THE JERRY SANDUSKY CASE

Mon, 21 Nov 2011 18:04:29 GMT

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.

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

Sat, 12 Nov 2011 20:44:17 GMT

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

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

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

DEFENSE ATTORNEY PLACES ACADEMIC INTEREST BEFORE ETHICAL DUTY TO CLIENT

Thu, 10 Nov 2011 20:16:56 GMT

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

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

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

MORE SHENANIGANS IN WILLIAMSON COUNTY DA’S OFFICE

Tue, 08 Nov 2011 23:15:50 GMT

DA Announces Policy of Hiding Brady, Potentially Exculpatory Evidence

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

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

POLICE POWERS PUT IN CHECK

Sun, 06 Nov 2011 20:24:29 GMT

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.

ANOTHER INNOCENT MAN FREED AFTER MISTAKEN IDENTIFICATION

Sat, 29 Oct 2011 19:05:21 GMT

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.

WHAT’S THAT: A “RUNAWAY” GRAND JURY!

Tue, 25 Oct 2011 18:30:40 GMT

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

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

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