John T. Floyd Law Firm

Two Privileges Protecting the Husband-Wife Relationship: Confidential Communications and Refusal to Testify in Criminal Proceedings - As we pointed out in a 2008 post, there are two marital/spousal privileges in Texas: the confidential communication privilege as defined by Rule 504(a) and the privilege not to testify in a criminal trial as defined by Rule 504(b) of the Texas Rules of Evidence.

Protecting Attorney Client Relationship, Privileged Information from Government Subpoena - The attorney work-product and the attorney-client privilege are often confused with each other. Although related, insofar as they both concern the attorney client relationship, they are distinct privileges protecting different types of information for completely different rationales.

Investigation of Intentional Prosecutorial Misconduct by Williamson County DA’s Office - In the 1980s Michael Morton was wrongfully, and unjustly, convicted of the murder of his wife (here and here). To say that prosecutorial misconduct was the primary reason for Morton’s conviction would be the proverbial understatement.

Core of Defense of Third Person is What the Actor Reasonably Believes Concerning the Situation of the Third Person - It was a hectic, confusing scene in Dallas on December 2, 2007. A fight broke out between two gangs: Kirby Block and Manett Boys. It was never clearly established what, or who, precipitated the fight.

In a previous post, we outlined the case of Ernest “Randy” Comeaux, an inmate serving six life sentences for a series of rapes from the mid-1980s to the mid-1990s in Lafayette Parish, Louisiana. The background of the case can be found here. In November of 1998 Lafayette Police Department Captain James Craft received an anonymous telephone call that linked Comeaux to the rapes.

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:

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.”

High Court Misses Opportunity to Discuss Ethical Obligations of Prosecutors - 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.

Tunnel Vision Interferes with Duty to Comply with Discovery Obligations - 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.

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

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

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

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

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).

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.

Williamson County District Attorneys Gain Distinction for Hiding Evidence, Wrongful Conviction and Hard Fought Cover-Up - Ken Anderson was a prosecutor in Williamson County, Texas, in 1986. In fact, he became Williamson County’s longest tenured district attorney with 16 ½ years as the county’s chief prosecutor and 5 ½ years as an assistant district attorney.

Texas legislature pushing to allow concealed guns on college campuses, penalties for felon in possession increase.

Houston Police Department, Harris County law enforcement gaining national reputation for police abuse and misconduct.

Computer crimes and prosecutions on the rise: cyber espionage, theft of corporate trade secrets and identity fraud continue to increase.

Prosecutorial, police misconduct lead to wrongful conviction unsupported by evidence.

Fifth Circuit: U.S. Court of Appeals allows search of cell phone text messages without warrant, after arrest.

46,000 innocent lives destroyed by false allegations, wrongful convictions.

Another tool for preventing wrongful convictions: Texas needs a statutory definition of reasonable doubt.

California Supreme Court allows search of data stored on mobile phone without warrant.

Courts stretch logic and allow government land grab in child porn case.

Government avoids 4th Amendment requirement of probable cause.

Legislative rush to punish “sex” offenders removes punishment alternatives, probation, unnecessarily increases prison overcrowding.

Voir Dire, inability to consider full range of punishment: proper objection and practice to preserve error for appeal.

Texas Penal Code 21.02, continuing sexual abuse of a child, thwarts long established requirement of unanimous verdicts.

Unpopular judge deserves humane and fair treatment while in federal custody.

Deliberately avoiding the truth to deny criminal knowledge.

Suggestive police procedures and mistaken identification resulted in two more wrongful convictions and incarcerations, one for 27 years.

Texas forensic science commission concludes flawed science used in trial that led to conviction and execution.

Criminal defense attorneys must file objections to pre-sentence report in federal criminal cases to protect appellate rights.

Ineffective assistance of counsel: criminal defense lawyer’s questions about defendant’s post arrest silence opens door to cross examination.

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

Growing practice of “no bond” and unreasonably harsh sentences for some child sex crimes sparks judicial concern.

Suspects must invoke rights unambiguously; Justice Sotomayer strongly and forcefully dissents as high court narrows Miranda.

Abandoning Miranda in terrorism cases contrary to constitution and beginning of slippery slope towards neo-con police state.

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 Fort Hood shooting massacre last year, the Christmas day bombing attempt, and the Times Square car bombing attempt have prompted the FBI to again increase its surveillance of the Muslim American community in this country.

The September 11, 2001 Al-Qaeda attacks on the Twin Towers in New York City, and the reaction to those terrorist attacks by President George Bush’s administration, left this nation with a tragic and despicable legacy that has tarnished our great Country’s reputation and image worldwide.

The Texas Criminal Defense Lawyers Association (TCDLA) releases every two years after each session of the Texas Legislature a summary of new or amended laws enacted during the legislative session.

In April 2009 CNN reported that there are 38 states in these United States which require juveniles convicted of sex offenses to “register” as sex offenders.

Popular law enforcement dog handler discredited after false results, exaggerated claims of accuracy exposed.

Governor’s abrupt dismissal of chairman, two members of Texas Forensic Science Commission on eve of hearing smacks of political cover-up.

Every prospective juror summoned to court for jury duty in a criminal case is questioned by counsel for the State and defendant as to his/her willingness to follow the law as given by the judge at the conclusion of the trial.

Increased use of stop and frisk leads to increased constitutional abuses, legitimizes racial profiling.

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

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

In May 2007 the U.S. Sentencing Commission sent a report to Congress recommending that the 100:1 sentencing ratio in crack/powder cocaine cases be reduced to 20:1.

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

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

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

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

Every one has heard of the phrase “proof beyond a reasonable doubt.” But there are three primary standards of proof: preponderance of evidence; clear and convincing evidence; and reasonable doubt.

The rule of law prevails over the demands of politics

Legal Opinions Redefine Torture, Criminal Acts

Foreign Investigation of Torture Techniques Sanctioned by Bush Administration

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

Defense Lawyers Must Prepare for Federal Sentencing

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

Federally funded task forces make online crimes against children top priority.

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