Legal Competency: Houston Lawyer

In this first segment of a three-part series of videos discussing Mental Competency and the Insanity Defense, criminal defense attorney George Parnham discusses legal competency as applied to a criminal defense strategy.

There is an important distinction in the difference between competency and criminal responsibility:

• The issue of competency is determined by evaluating whether a defendant is able to adequately assist his attorney in preparing a defense, make informed decisions about trial strategy and determining whether or not defendant has a rational, as well as factual understanding of the process.
• Insanity (or lack of criminal responsibility) refers to whether a defendant can be held legally responsible for his or her criminal behavior.

Competency largely deals with the defendant's present condition, while insanity addresses the mental condition at the time the crime was committed.
Insanity is a legal concept, not a psychiatric concept. Having a diagnosed mental disorder is not sufficient reason, from the court's point of view, to relieve a defendant from all responsibility for illegal acts they may commit: the mental disorder must be of such a degree as to render the individual incapable of knowing that his/her conduct was wrong.

For more information on Mental Incapacity and Insanity Criminal Defense please visit insanitydefenseattorney.com 

The Code of Criminal Procedure, Chapter 46B states that a person is incompetent to stand trial if the person does not have:

1. sufficient present ability to consult with the person's lawyer with a reasonable degree of rational understanding; or 
2.  a rational as well as factual understanding of the proceedings against the person. Further, article 46B.003 states that a defendant is presumed competent to stand trial and shall be found competent to stand trial unless proved incompetent by a preponderance of the evidence.

Further, the statute states that "A defendant is presumed competent to stand trial and shall be found competent to stand trial unless proved incompetent by a preponderance of the evidence."

There is an elaborate procedural process established for determining whether the accused is competent, and ,if so, for restoring the accused to competency through medical effort and returning him to court to stand trial. There are three stages in the pretrial competency determination procedure:

• Stage One - the trial court must be made cognizant that there is a doubt as to the defendant's competency; the court has the right to require examination of the defendant and may appoint disinterested experts to examine the defendant; the court gets the reports; 
• Stage Two - the trial court conducts a hearing to decide if if any evidence exists that might rationally lead to a conclusion that the defendant is incompetent; if evidence of incompetency is produced, the trial judge is required to empanel a jury (not the trial jury) to determine the defendant's competency; 
• Stage Three -the jury (not the trial jury) decides whether the defendant is competent to stand trial by answering two special issues, i.e., whether the defendant is competent to stand trial and, if not, whether there is no substantial probability that the defendant will attain competency to stand trial within the foreseeable future.

Based on the jury's findings regarding incompetency and the probability of restoration, the court will either commit the defendant for restorative care for a period not to exceed 18 months or, if competency cannot be restored, proceed with civil commitment proceedings.
Sometimes competency to stand trial cannot be restored. If the defendant is found competent , the trial proceeds. If the defendant is found incompetent after trial has begun, the trial court declares a mistrial; jeopardy doesn't prevent retrial if competency is later restored. Incompetency to stand trial is not a defense to criminal responsibility.

Art. 46.05 in the Texas Code of Criminal Procedure provides that a person who is incompetent to be executed may not be executed. This statute is in response to Ford v. Wainright, and provides that the condemned person may raise the issue of competency to be executed by a motion with attached affidavits, records, or other evidence. Paragraph (e) indicates that if the condemned has previously filed similar motions and has been found to be competent to be executed, there is a rebuttable presumption of competency. If the trial court determines that the condemned has not made a substantial showing of incompetency in the motion, the trial court will deny it.

Art. 46.05 defines incompetency to be executed as the defendant being unable to understand that he or she is to be executed, that the execution is imminent, and the reason why he or she is being executed.  The condemned has the burden of proving incompetence to be executed by a preponderance of the evidence.
If the trial court determines that the condemned has made a substantial showing of incompetency, they must then order at least two mental health experts to examine the condemned to determine if they are, indeed, incompetent. These experts then report back to the court, the prosecution and the defense attorney. If a stay of execution is issued by the court of criminal appeals, the trial court periodically shall order that the condemned be reexamined to determine if the condemned is no longer incompetent to be executed.

Mr. Parnham's insistence that juries and legislators consider context and mental capacity will help move focus from verdict to treatment and catalyze a societal shift from outraged condemnation to awareness and primary prevention. He is totally committed to ensuring that his clients are heard and, to whatever extent possible, understood. In instances where misrepresentation or misstatement about the factual circumstances of an accusation have been leaked to the public, whether intentionally or not, it is imperative to "set the record straight" and do whatever can be done to level the playing field of public opinion.

Criminal defense strategies applied in these situations need to be created for the particular offense, evidence involved and based upon the defendant's needs. Contact Parnham & Associates today at (713) 224.3967 or use our convenient online submission form. We will work tirelessly to ensure the best possible outcome for your case.

Texas Cybercrimes Lawyer

Recent media coverage has been rife with stories of large-scale data breaches, hacks and online financial crime. New trends in cyber crime are emerging all the time, with estimated costs to the global economy running to billions of dollars.
In the past, cyber crime was committed mainly by individuals or small groups. Today, we are seeing highly complex cyber criminal networks bring together individuals from across the globe in real time to commit crimes on an unprecedented scale. Criminal organizations turning increasingly to the Internet to facilitate their activities and maximize their profit in the shortest time. The crimes themselves are not necessarily new – such as theft, fraud, illegal gambling, sale of fake medicines – but they are evolving in line with the opportunities presented online and therefore becoming more widespread and damaging.

Most states have enacted internet and computer crimes statutes: many of these statutes not only provide for criminal prosecution but also for civil liability. In Texas, cyber crime is defined by the Texas Computer Crimes Statute (Penal Code, Title 7, Chapter 33) to include:

• Knowingly accessing a computer, computer network or computer system without the consent of the owner;
• Knowingly soliciting a minor under the age of 17 over the internet, text message, or other electronic system, to meet in person for the purpose of engaging in sexual behavior with the defendant;
• Knowingly accessing a computer system, network, program, software or machine that is part of a voting system that uses direct recording electronic voting machines and tampers with the votes or the ability of someone to vote.
• Creating a web page or leaving messages on a social networking site using the persona of another without the person's consent and with the intent to harm, defraud, intimidate or threaten someone; or
• Referencing the name, domain address, phone number or any other identifying information of a person without that person's consent, intending to cause the recipient to think the message is truly coming from that person, with the intent to harm or defraud someone.

The penalties for computer crimes depend on the nature and seriousness of the crime committed:
For gaining access to a computer without the consent of the owner the penalty may range all the way from a "Class B" misdemeanor (up to 180 days in a county jail and/or a fine of up to $2,000) up to a first degree felony (five to 99 years in a state prison and/or a fine of up to $10,000). The factor influencing the degree of the penalty imposed is the value of money or property that the defendant benefitted from and/or was lost by the victim.
For soliciting a minor, the crime is charged as a third degree felony (two to ten years in state prison and/or a fine of up to $10,000). However, if the minor is under 14 years of age, then it may be a second degree felony (two to twenty years in a state prison and/or a fine of up to $10,000).
For tampering with a voting machine, the penalty is a first degree felony. This is a very serious penalty with a sentence between five to 99 years in a state prison and/or a fine of up to $10,000.
Online harassment is usually charged as a third degree felony; however, if the crime involves falsifying an electronic message with the intent to harm or defraud, the defendant may instead be charged with a "Class A" misdemeanor (not more than one year in a county jail and/or a fine of no more than $4,000). If the message was intended to summon a response by emergency personnel, it will be elevated to a third degree felony.

In addition to state laws, the federal government has entire sections and task forces which are dedicated to computer crimes. Computer crimes are most often classified as federal offenses when they involve "crossed" state lines or actions which are unlawful under federal law.
In 1986, Congress passed the Computer Fraud and Abuse Act (CFAA) . This law has been amended and expanded as internet technology has advanced, and it continues to form the basis for federal prosecutions of computer-related criminal activities. Other relevant federal statutes include the Electronic Communications Privacy Act (ECPA), the Identity Theft Enforcement and Restitution Act of 2008 (ITERA), and certain provisions of the USA PATRIOT Act.
The federal computer fraud and abuse statute protects federal computers, bank computers, and computers used in interstate and foreign commerce. It shields them from trespassing, threats, damage, espionage, and from being corruptly used as instruments of fraud. It is not a comprehensive provision, but instead it fills crack and gaps in the protection afforded by other federal criminal laws. In general subsection 1030(a) criminalise:
• Computer trespassing (e.g., hacking) in a government computer, or on any computer if it results in exposure to certain governmental, credit, financial, or computer-housed information;
• Damaging a government computer, a bank computer, or a computer used in, or affecting, interstate or foreign commerce (e.g., a worm, computer virus, Trojan horse, time bomb, a denial of service at tack, and other forms of cyber attack, cyber crime, or cyber terrorism);
• Committing fraud, an integral part of which involves unauthorized access to a government computer, a bank computer, or a computer used in, or affecting, interstate or foreign commerce;
• Threatening to damage a government computer, a bank computer, or a computer used in or affecting interstate or foreign commerce;
• Trafficking in passwords for a government computer, or when the trafficking affects interstate or foreign commerce, and
• Accessing a computer to commit espionage.
In general, violations are punishable by imprisonment for not more than 10 years (not more than 20 years for second and subsequent offenses) and/or a fine of not more than $250,000 (not more than $500,000 for organizations). However, the general espionage sentencing guideline may also apply in some cases, which calls for a base sentencing level of 30 (carrying an initial sentencing range beginning at 8 years' imprisonment) and of 35 (an initial sentencing range beginning at 14 years) if top secret information is involved.
Further, if a violation is committed for terrorist purposes the minimum sentencing level is 32 and the criminal history category is VI which means the sentencing range begins at 17.5 years' imprisonment (and begins at 24.33 years' imprisonment if top secret information is involved).

There are a number of possible opportunities in preparing a legal defense against computer crimes charges. Statutes of limitations may prohibit prosecution for many—but not all—computer crimes if more than 5 years have passed since any alleged criminal act occurred. Additionally, because government agents usually either physically search a defendant's computers or electronically access their files, the legality of those searches may be brought into question. Information illegally obtained by government agents without a warrant or consent will often be suppressed if a defense attorney is able to prove that the defendant's rights were violated. In many computer crime "sting" investigations, federal agents have been known to urge or solicit individuals to commit computer crimes, and this kind of influence by law enforcement may constitute entrapment. If a defense attorney can prove that a defendant would not have committed a crime if not for the urging of law enforcement, a jury may find that the defendant was entrapped, and no conviction or is then possible. An attorney experienced in computer crime defense will be able to sort through the complex evidence these cases often involve, determining how best to challenge the government and protect your rights.

If you have been charged with an internet based cyber crime you need an experienced criminal defense lawyer. Contact Parnham & Associates today at (713) 224.3967 or use our convenient online submission form. Depending on the circumstances, we have many options in mounting a strong defense for you.

Houston Lawyer: Shannon Miles Found Mentally Incompetent

On August 28, 2015, at approximately 8:30 p.m., Harris County sheriff's deputy Darren Goforth was shot and killed in Cypress, Texas, while pumping gas. A 30-year-old man named Shannon Miles, who held a minor criminal history prior to the shooting, was named as the prime suspect. He was arrested the next day and charged with capital murder in relation to Goforth's death.

In the months since Miles was arrested experts for both the defense and the prosecution examined him and came to separate conclusions that he is unfit to go to trial. Prosecutors agreed with Miles' defense team that he is "schizophrenic and episodically psychotic" and incompetent to stand trial, meaning he will be committed to a state mental hospital until he can understand the charges against him. However, 61 other inmates are currently waiting for a bed in the same hospital and it will be months before Miles is moved from the Harris County Jail.

Under Texas law, a suspect can stand trial only if he meets a legal definition of competency, meaning he understands the charges against him and can aid lawyers in his defense. Miles' situation is similar to some of Houston's most infamous cases that have also raised the issue of the competency of the defendant, including Andrea Yates, the Clear Lake mother charged with capital murder in the 2001 drowning deaths of her five children, and Robert Gillham. Gillham, who has never been to trial, was accused of arson in 2009 and has been trapped in "...a revolving door of competency and incompetency" for more than six years;  repeatedly sent to state hospitals where his competency is restored, then returned to the Harris County jail where his condition deteriorates again, restarting the cycle.

Houston Texas Criminal Defense Attorney George Parnham is currently advocating for implementation of local mental health services in the Harris County criminal justice system. Mr. Parnham's insistence that juries and legislators consider context and mental capacity will help move focus from verdict to treatment and catalyze a societal shift from outraged condemnation to awareness and primary prevention. He is totally committed to ensuring that his clients are heard and, to whatever extent possible, understood. In instances where misrepresentation or misstatement about the factual circumstances of an accusation have been leaked to the public, whether intentionally or not, it is imperative to "set the record straight" and do whatever can be done to level the playing field of public opinion. 

Criminal defense strategies applied in these situations need to be created for the particular offense, evidence involved and based upon the defendant's needs. Contact Parnham & Associates today at (713) 224.3967 or use our convenient online submission form. We will work tirelessly to ensure the best possible outcome for your case.

Houston Lawyer: Prosecutorial Vindictiveness

Prosecutorial vindictiveness refers to filing a lawsuit for purposes of harassing the defendant when there is no genuine basis for the suit. If the defendant in the lawsuit wins and has evidence that the suit was filed out of harassing or vengeful motives and without any legal or factual foundation, it may be the basis of a claim for damages against the person who filed the original action. If vindictive prosecution is clearly proved against the party who brought the original suit, punitive damages may be awarded along with special and general damages.

A prosecutor may violate a defendant’s due process rights if they are using their decision to prosecute for purposes of retaliation; for example, charging the defendant with a more serious offense after the defendant appeals the conviction of a lesser offense,  or charging the defendant with an offense although the defendant has not violated the law.

North Carolina v. Pearce, 395 U.S. 711 (1969), is a United States Supreme Court case that forbids judicial “vindictiveness” from playing a role in the increased sentence a defendant receives after a new trial. In sum, due process requires that a defendant be “free of apprehension” of judicial vindictiveness. Time served for a new conviction of the same offense must be “fully credited,” and a trial judge seeking to impose a greater sentence on retrial must affirmatively state the reasons for imposing such a sentence.

The United States Supreme Court considered two respondents’ writs for habeas corpus in their decision. The first respondent, Pearce, was convicted of assault with intent to rape and sentenced to twelve to fifteen years. His first conviction was reversed in a state court proceeding because his involuntary confession was improperly admitted in his first trial. On retrial, he was convicted and sentenced to an eight-year prison term. Both the state and Pearce agreed that this sentence, combined with his previous time served, amounted to a harsher sentence than he had originally received. His conviction was affirmed on appeal to the Supreme Court of North Carolina. Pearce then brought a habeas proceeding in federal court, and the federal district court as well as the Court of Appeals for the Fourth Circuit both declared that Pearce’s new sentence was “unconstitutional and void.”When the state failed to re-sentence him after sixty days, the federal court ordered Pearce to be released. At this point, the Supreme Court granted certiorari.

The second respondent, Rice, plead guilty to four counts of second-degree burglary, and he was sentenced to ten years in prison. The judgment was set aside in a state court proceeding two and a half years later, after Rice successfully argued his constitutional right to counsel was violated at trial. He was retried in Alabama state court, convicted, and sentenced to twenty five years in prison, with no credit given for the time he had already served. In his habeas corpus petition, the federal district court and Court of Appeals for the Fifth Circuit declared that the increased sentence was a violation of due process and “unconstitutional.” The Supreme Court granted certiorari.

About twenty years after Pearce was decided, the Court  overruled Pearce by implication in Alabama v. Smith, 490 U.S. 794 (1989). As a result, current jurisprudence interprets Pearce’s holding to provide a defendant with a “rebuttable presumption of vindictiveness.” This doctrine of a rebuttable presumption of vindictiveness, absent an affirmative indication of objective facts justifying an increased sentence, is referred to as the Pearce Principle.

If the presumption of vindictiveness arises, it may be rebutted by showing that a legitimate and objective reason supported the change in the indictment or the basis for the indictment itself. However, if no presumption of vindictiveness arises, the defendant may show that the prosecutor was actually vindictive in her prosecution. The defendant may present direct evidence showing that the prosecutor was vindictive.

Additionally, if the prosecutor bases their decision of whether to prosecute on the basis of race, gender, or ethnicity than the prosecutor may be guilty of selective prosecution. A claim of selective prosecution must be raised in a timely manner before the trial has commenced, otherwise the claim may be regarded as untimely and waived.
In order for the defendant to prevail on a selective prosecution claim they must overcome a strong presumption that prosecutors have properly performed their duties. A selective prosecution claim is typically analyzed in accordance with the equal protection standards; the defendant must produce evidence that shows that the prosecutor engaged in selective prosecution which had a discriminatory effect upon the defendant, and that the prosecution was pursued with discriminatory intent.

When it comes to criminal law cases, an experienced and effective criminal defense attorney can mean the difference between a prison sentence and reduced or dismissed charges. Even in less serious cases, a good criminal defense attorney can make a serious impact on the outcome of the case by ensuring that the rights of the accused are protected throughout the legal process. If you have been accused of a crime, please contact us today for a free consultation with an aggressive and resourceful criminal defense attorney. We will work tirelessly to ensure the best possible outcome for your case. 

Misconduct of the Prosecution: Houston Attorney- Part II

Prosecutors are required by law to disclose any evidence that tends to exonerate or exculpate you from criminal charges which could help demonstrate your actual innocence or that could reduce your sentence to you and your defense counsel. Called "Brady material,"  this requirement means that prosecutors must disclose evidence known only to police, agreements relating to witness testimony and any other information that tends to show you may not be guilty. Failures to disclose this and other misconduct by the prosecutor may be the basis for appeal or other post-conviction/post-judgment relief.

Impeachable Testimony: Brady v. Maryland, 373 U.S. 83 (1963)

In 1963, the state of Maryland prosecuted John L.Brady and a companion, Mr. Boblit, for murder. Brady admitted being involved in the murder, but claimed Boblit had done the actual killing. The prosecution had actually withheld a written statement by Boblit confessing that he had committed the act of killing by himself and the defendant challenged his conviction, arguing it had been contrary to the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
The Supreme Court held that withholding exculpatory evidence violates due process "where the evidence is material either to guilt or to punishment"; and the court determined that under Maryland state law the withheld evidence could not have exculpated the defendant but was material to the level of punishment he would be given. Hence the Maryland Court of Appeals' ruling was affirmed.

 Because of the Brady ruling, prosecutors are required to notify defendants and their attorneys whenever a law enforcement official involved in their case has a confirmed record of knowingly lying in an official capacity.  Brady evidence also includes evidence material to credibility of a civilian witness, such as evidence of false statements by the witness or evidence that a witness was paid to act as an informant.

Frequently, prosecutorial misconduct is not apparent during trial proceedings; knowledge of misconduct may surface only after a trial has ended. Like all appellate or post-conviction/post-judgment litigation, appeals or collateral challenges based on prosecutorial misconduct involve complex rules and procedures.

 If you believe prosecutorial misconduct occurred in your criminal case, contact Parnham & Associates today for a free consultation with an aggressive and resourceful criminal defense attorney. We will work tirelessly to ensure the best possible outcome for your case.