In this three part series on grand juries in the USA, Houston, Texas criminal attorney George Parnham explains a little understood part of our criminal justice system.
Grand Juries have recently made headline news in the USA after they have decline to indict police officers in cases which involved what many people consider unreasonable use of force.
On July 17, 2014, Eric Garner died in Staten Island, New York, after a police officer put him in a chokehold. Medical examiners concluded that Garner was killed by "compression of
neck (choke hold), compression of chest and prone positioning during
physical restraint by police", however the NYPD policy prohibits the use of chokeholds and law enforcement personnel contend that it was merely a "headlock".
On December 3, 2014 a grand jury decided not to indict officer Daniel Pantaleo, the NYPD officer accused of choking Garner to death. The event stirred numerous public protests and rallies with charges of police brutality. The Justice Department has announced an independent federal investigation.
On August 9, 2014 in the St. Louis suburb of Ferguson, Missouri, Michael Brown, an 18-year-old black man was fatally shot by Darren Wilson, 28, a white Ferguson police officer. The disputed circumstances of the shooting and the resultant protests and civil unrest received considerable attention in the U.S. and abroad, and sparked a vigorous debate about law enforcement's relationship with African-Americans, and police use of force doctrine in Missouri and nationwide.
The Prosecuting Attorney decided to bring the case in front of a grand jury to determine whether there was probable cause to indict Wilson for his actions. On November 24, it was announced that the jury had decided not to indict Wilson. Legal analysts raised concerns over the prosecutor's unorthodox approach, asserting that this process could have influenced the grand jury to decide not to indict, and highlighted significant differences between a typical grand jury proceeding in Missouri and Wilson's case.
Grand Juries almost always indict in criminal cases, with the common exception being cases which involve police officers. A recent Houston Chronicle investigation
found that “police have been nearly immune from criminal charges in
shootings” in Houston and other large cities in recent years. In Harris
County, Texas, for example, grand juries haven’t indicted a Houston
police officer since 2004; in Dallas, grand juries reviewed 81 shootings
between 2008 and 2012 and returned just one indictment.
There are at least three possible explanations as to why
grand juries are less likely to indict police officers; the
first is juror bias, in that jurors may tend to trust police officers even when the evidence says otherwise. Second is prosecutorial bias; because prosecutors depend on the
police while working on criminal cases, they may be inclined to present a less compelling
case against officers.
A third possible explanation may simply be that
prosecutors normally only bring a case to a grand jury if they think they can get an indictment.
But in high-profile cases such as a police shooting, public pressure can force them to bring charges even if the
case itself is weak.
The decisions by grand juries not to indict officers in these and other cases have spurred various proposals to reform grand
juries. One measure being considered by Congress would require that in an alleged crime involving a
police officer, the governor would appoint a special prosecutor to
conduct a public probable cause hearing that is open to the
public. If passed, law enforcement would
forfeit federal funding unless they adopt the new rules.
In Texas senators recently introduced bills to
eliminate what is referred to as the "key man" or "pick-a-pal" system, requiring the courts to randomly summon jurors instead of allowing a district judge to
pick three to five people to serve as grand jury commissioners, who are
then charged with finding 30 prospective grand jurors and selecting 12
who qualify. Critics have long argued that grand jurors in Texas are
often pulled from those with strong ties to the criminal justice system.
Some of the current proposals may deserve
consideration but they would have greater long-term impact and meaning
if they improve transparency within the criminal justice system more
generally, and are not limited to cases just involving police.
In this three part series on grand juries in the USA, Houston, Texas criminal attorney George Parnham explains a little understood part of our criminal justice system. In certain federal and state crimes, a grand jury is convened to review evidence
and hear witness testimony in order to determine if an individual
should be indicted. This process is a mystery to most defendants, and even many attorneys
are unfamiliar with how to handle the grand jury process.
The "grand jury" was instituted in England about
the middle of the twelfth century, intended to determine cause
for criminal prosecution. Though originally intended to hold the local community
responsible for bringing its malefactors to justice, it has come to
be regarded over the centuries as a safeguard against unwarranted
prosecution and was incorporated into the Fifth Amendment
to the United States Constitution, which provides that "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger..."
Individuals subject to grand jury proceedings do not have a constitutional right to counsel in the grand jury room, nor do
they have a right to confront and cross-examine
witnesses. Additionally, individuals in grand jury proceedings can be
charged with holding the court in contempt (punishable with
incarceration for the remaining term of the grand jury) if they refuse
to appear before the jury. All
evidence is presented by a prosecutor in a cloak of secrecy, as the
prosecutor, grand jurors, and the grand jury stenographer are prohibited
from disclosing what happened before the grand jury unless ordered to
do so in a judicial proceeding.
Grand jury proceedings are secret. No judge is present; the proceedings
are led by a prosecutor; and the defendant has no right to present his
case or (in many instances) to be informed of the proceedings at all.
While court reporters usually transcribe the proceedings, the records
are sealed. The grand jury can compel a witness to testify, but
the target of a grand jury investigation has no right to testify or put
on a defense.
The most persistent criticism of grand juries is that jurors are not a
representative sampling of the community, and are not qualified for
jury service because they do not possess a satisfactory ability to ask
pertinent questions, or sufficient understanding of local government and
the concept of due process. Unlike potential jurors in regular trials
grand jurors are not screened for bias or other improper factors. They
are rarely read any instruction on the law. The prosecutor drafts the charges and decides which witnesses to call, and is not obliged to present evidence in favor of those being investigated. The jurors job is only to judge on what the prosecutor produced.
According to the American Bar Association (ABA), the grand jury has come
under increasing criticism for being a mere "rubber stamp" for the
prosecution without adequate procedural safeguards. Critics argue that
the grand jury has largely lost its historic role of protecting citizens from unfounded accusations by the
government; they provide little protection to accused suspects
and are much more useful to prosecutors. Grand jurors often hear only the
prosecutor's side of the case and are usually persuaded by them: they almost always indict people on the prosecutor's recommendation.
If you have been accused of a serious crime in the state of Texas, you need a reliable and experienced attorney. Visit http://www.parnhamandassociates.com for information on your rights.
As computers have become a part of daily life, so have prosecutions involving the use of computers as a vehicle for child pornography.
Otherwise innocent people may find themselves caught up in overzealous
government investigations of internet sex crimes.
Internet sex crimes such as possession of child pornography or
online solicitation make media headlines, especially when business
owners, teachers, or other prominent citizens are facing these
accusations. Using the internet to solicit sexual acts from a minor is
an incredibly serious offense. Any sex crime charge, even if false, can
be extremely damaging. That's why it's important to seek immediate and
aggressive legal representation.
Some pornography web sites can install software on your computer or come
looking for you without your knowledge, and can then send you to
another web site containing potentially illegal content. In addition
police officers often pose as minors and seek to entice visitors to
Internet chat rooms. In many of these situations, there are several
legal means by which to challenge the legality of the this
process.
Federal law defines “child pornography” in 18 USC Section 2256(B) (8): as "any visual depiction, including any
photograph, film, video, picture, or computer or computer-generated
image or picture, whether made or produced by electronic, mechanical, or
other means, of sexually explicit conduct, where—
(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;
(B) such visual depiction is a digital image, computer image, or
computer-generated image that is, or is indistinguishable from, that of a
minor engaging in sexually explicit conduct; or
(C) such visual depiction has been created, adapted, or modified to
appear that an identifiable minor is engaging in sexually explicit
conduct."
In addition, the Texas Penal Code Section 43.26 states that a person commits an offense if "the person knowingly or intentionally possesses visual material
that visually depicts a child younger than 18 years of age at the time
the image of the child was made who is engaging in sexual conduct; and... the person knows that the material depicts the child".
Strict child pornography laws are important in the fight to keep our children safe from predators and others who attempt to exploit their innocence for criminal purposes. But because the laws are overly broad, they often have the opposite result and can easily be used to convict innocent people.
One example is a fad among teenagers known as "sexting", which involves sending or receiving sexually explicit text messages or photos via cell phones. Although most people understand the difference between a teen's poor decision and an adult exploiting a child for sexual purposes, the law makes no such distinction; in fact, even if the minors consensually shared personal images, both the sender and receiver can end up in
juvenile jail and be forced to register as sex offender for the rest of their lives. In addition to identifying the child to the public, sex offender registration will impact their ability to
get a job, live in certain areas and travel freely throughout their adult life.
Another commonly held assumption by law enforcement is that if a pornographic file shows up
on your computer, it must be yours. In reality, that isn't necessarily the case and with proper legal defense it can be difficult for the prosecution to provethat the file was yours.
In fact there are multiple ways for media to to be downloaded to a person's computer without their knowledge. One of the most obvious, of course, is simply for another user to download files on a shared hard disk drive. But with the expansion of the internet and related technology, especially P2P or file sharing software such as BitTorrent and Limewire, people are increasingly at risk of not only unintentionally downloading illegal materials but also sharing them over the P2P network. A common example is the downloading of multi-part file packages such as .zip, .rar or .7z. These are compressed directories containing multiple files, and although the downloader may only be interested in part of the content they seldom know exactly what the package contains. Additionally, files from anonymous sources may often be intentionally mislabeled or misidentified.
Another possible means of unknowingly spreading or accepting illegal digital media is through computer viruses or hacking. Illegal "botnets" have become a serious internet issue and can be used to literally take over a computer without the owner's knowledge or consent.
When a user's computer is infected with certain types of malicious software, or "malware" -which may lurk in virtually any email, website or digital file- modules are installed which allow the computer to be surreptitiously controlled by a third party. These robot networks of infected computers, or "botnets" can then be directed to connect to IRC channels, download and disseminate files, send mass email messages (spam), or to repeatedly connect to a specific URL, instigating a denial of service (DDOS) attack. In some cases the hacker may even take command of peripheral devices such as a connected webcam, all without the knowledge of the computer's owner.
Serious issues are also connected with the way your computer records and stores the media files that your web browser encounters while you're surfing the internet. Unbeknownst to many people, older versions of browser software such as Internet Explorer and Firefox can, by default, automatically download and save a copy of every media instance -digital photograph, "Flash" video, and graphic- that they encounter. These may include pop-up and pop-under advertisements that the user doesn't actually see. Although modern web browsers include better controls over what the user allows to be saved by default, they are often complicated to use and poorly documented. These images may stay in your browser history indefinitely without your knowledge.
One tool that a defense attorney may use in fighting child pornography charges is metadata- information attached to every digital file which can be used to trace its origin. .JPEG images, a popular file format, usually contains a wide variety of information
including the camera's make and model, focal and aperture information, timestamps and sometimes even GPS coordinates.
Internet crime cases are often highly complex and technical. The specific penalties that a defendant faces for a federal computer crime conviction will vary depending upon the particular offense: imprisonment may be a common denominator for all computer crimes, heavy fines and victim restitution are likely in a case involving fraud and sex offender registration is mandatory in a case involving child pornography.
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 & McWilliams today at (713) 224-3967 or click here for our convenient online submission form.
We will work tirelessly to ensure the best possible outcome for your case.
Medical records have an unusual legal status in that they are not only a physicians’ primary business records, but also confidential information that is at least partially controlled by the patient. Unlike the traditional lawyer–client privilege, there is no common law physician–patient privilege.
Medical ethics has always demanded that physicians respect their patient’s confidences, and in recent years many states have enacted medical privacy laws. These laws usually limit the dissemination of medical information without the patient’s consent, but provide certain exceptions such as allowing for the discovery of medical information when the patient has made a legal claimed based on that information, or if the patient poses a threat to the public health.
These privacy laws modify the presumption that
medical records, as a business record, are subject to discovery in cases against medical care practitioners. In cases where
medical records are at issue in litigation against a medical practitioner (other than cases brought by a patient), medical records are protected from discovery unless the plaintiff can show a
compelling reason why the records are necessary to prove the case. Even
then, the court supervises the discovery and generally requires that
all patient- identifying information be removed.
If the case is brought
in federal court, such as in an antitrust or false
claims case, then the state law protections do not apply. Although
federal judges try to protect patients’ confidential information when
possible, there are many situations, such as a Medicare fraud
prosecution, where the complete records will be
discoverable.
The federal government does not provide a general protection for medical privacy outside of federal institutions, but there is a federal law that protects records dealing with treatment for alcoholism and substance abuse.
The Federal Confidentiality of Substance Abuse Patient Records Statute,
section 543 of the Public Health Service Act (42 U.S.C.A. § 290dd-2) establishes confidentiality
requirements for patient records maintained in connection with
the performance of any federally-assisted alcohol or drug
abuse program providing alcohol or drug abuse treatment, diagnosis, or
referral for treatment. The term "federally-assisted" is broadly
defined to include federally conducted or funded programs, federally
licensed or certified programs, and programs that are tax exempt.
Certain exceptions apply to information held by the Veterans
Administration and the Armed Forces.
As part of the Conditions of Participation for Medicare/Medicaid and Joint Commission requirements, providers must protect patient confidentiality.
Rule 509 of the Texas Rules of Evidence states that:
"There is no physician-patient privilege in criminal proceedings.
However, a
communication to any person involved in the treatment or examination of
alcohol or drug abuse by a person being treated voluntarily
or being examined for admission to treatment for alcohol or drug abuse
is not admissible in a criminal proceeding."
In Texas civil proceedings, confidential communications between a physician and a patient relative to any professional services
are considered privileged and may not be disclosed. Any records of the identity, diagnosis, evaluation, or treatment of a
patient that are maintained by a
physician are also considered confidential. The provisions rule 509 apply even if the patient received
the services of a physician prior to the enactment of the Medical
Liability and Insurance Improvement Act. Exceptions may be made in cases when the proceedings are brought by the patient against a physician, such as cases involving malpractice, or
in license revocation proceedings when the patient is a complaining witness and disclosure is relevant to the
claims (or defense) of the physician. Additionally, exceptions may be made in the following situations:
the patient or someone authorized to act on the patient's behalf submits a written consent;
to substantiate claims for medical services rendered, if the records are relevant to an issue of the physical, mental or emotional condition of a patient when that condition is a part of the party's claim or defense,
in disciplinary investigations or proceedings against a physician provided that the identity of the patient is protected,
in certain involuntary civil commitment proceedings, proceedings for court-ordered treatment or probable cause hearings,
in any proceeding regarding the abuse or neglect, or the cause of any abuse or neglect, of the resident of an "institution"
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. Call (713) 224-3967 for a free consultation or click here for our convenient online submission form.
Conrad Barrett, 27, has been charged with a federal hate crime for allegedly breaking a 79-year-old man's jaw in what authorities described as a racist take on the "knockout game." The victim suffered two jaw fractures and was hospitalized for several days, the complaint said. Barrett's attorney, George Parnham, raised the issue of his client's mental health in court, saying his client has been diagnosed as bipolar and was not on his medication at the time of the attack. Parnham could not say whether his client carried out the attack, but, "mental health issues definitely played a part in anything that occurred." Barrett "is very sorry for this person," Parnham said, adding that he and his client haven't had much opportunity to discuss the facts of the case.
In Florida v. Jardines, the Supreme Court ruled that a “sniff test” by a drug detection dog at the front door of a home constituted an unreasonable “search” within the meaning of the Fourth Amendment. In that case, the Miami-Dade police received a “crime stoppers” tip that Mr. Jardines’ home was being used as a marijuana grow house. The police set up surveillance outside of his home and brought a drug detection dog to the porch of his residence. Only after the handler of the dog notified the detective that the dog had a positive alert for the odor of marijuana did the detective obtain a search warrant.
Consequently, the police searched his home, discovered the marijuana plants and arrested Mr. Jardines. After being charged and convicted of marijiuana trafficking, Jardines argued that the sniff test constituted an illegal search without probable cause and thus the evidence should be deemed inadmissible. The trial court granted Jardine’s motion to suppress the evidence, but the Florida Third District Court of Appeal reversed. On appeal, the Florida Supreme Court upheld the trial court’s decision, stating that the search was unlawful under the Fourth Amendment. The state appealed the case and the United States Supreme Court granted certiorari to review the case.
The Supreme Court affirmed the Florida Supreme Court’s decision by a 5-4 margin along ideological lines. Justice Scalia wrote the majority opinion for the court, joined by Kagan, Thomas, Ginsburg and Sotomayor. Justice Scalia’s majority opinion was focused on a citizen’s property rights rather than the right to privacy. The Court argued that at the heart of the Fourth Amendment stands “the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.”
The Court conceded that police officers have the right to engage a homeowner in a “knock and talk” for the purpose of gathering evidence without a warrant as homeowners have reasonable expectations that the public will approach their door. However, Scalia pointed out that homeowners do not license visitors to “explor[e] the front pant with a metal detector” or the police to “peer into the house through binoculars with impunity.”
The Court determined that bringing a drug detection dog onto a person’s property to obtain evidence without a warrant was an unreasonable search within the meaning of the Fourth Amendment. Although the majority opinion did not address whether Jardines’ privacy was implicated by the search, Justice Kagan wrote a concurring opinion, joined by Ginsburg and Sotomayor, arguing that both his privacy and property rights were implicated. The concurring opinion analogized drug detection dogs to the high-powered binoculars referenced in the majority opinion and argued that where a device is not “in general public use,” and is used to obtain evidence in one’s home, it violates a persons “minimal expectation of privacy.
The Fourth Amendment to the U.S. Constitution defines the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures. If you have been subjected to an unreasonable search by law enforcement, contact Parnham & McWilliams today at (713) 224-3967 or visit www.parnhamandmcwilliams.com. for a free consultation. We are dedicated to protecting your Constitutional Rights.
In 1973 America was gripped by the Watergate scandal, one of the largest and most infamous in the Nation's history. Beginning with the arrest of five men for breaking and entering into the Democratic National Committee (DNC) headquarters at the Watergate complex on June 17, 1972, it would ultimately result in the trials and convictions of dozens of President Richard Nixon's top administration officials and the resignation of Nixon himself.
In February 1973 the Senate created the Select Committee on Presidential Campaign Activities (Resolution S.60) to investigate Watergate and other Nixon campaign abuses, and in May Special Prosecutor (Archibald Cox) was sworn in by the U.S. Department of Justice to direct the investigation.
During the course of their work, the Office of the Special Prosecutor charged several corporations and CEOs with using corporate funds for illegal political contributions. The U.S. Securities and Exchange Commission (SEC) soon recognized the significance to public investors, and their own subsequent inquiry revealed falsifications of corporate financial records as well as secret “slush funds” being used for illegal foreign payments and other purposes.
The SEC eventually exposed further corporate abuses ranging from the outright bribery of high foreign officials to so-called "facilitating payments" made to government functionaries for certain ministerial or clerical duties. Major examples included officials of the Lockheed Aerospace Company paying over $14 million in bribes to various foreign officials in the process of negotiating the sale of aircraft, and the "Bananagate" scandal in which Chiquita Brands paid over $2.5 million in bribes to the President of Honduras to lower taxes on banana exports.
By the culmination of the SEC investigation, over 400 U.S. companies had admitted making questionable or illegal payments in excess of $300 million to foreign government officials, politicians and political parties.
Originally the SEC wasn't directly concerned with the legal implications of bribery: the international business climate of the time had seen such payments as a necessity in order to remain competitive in a rapidly growing corporate environment. Rather, the specific concerns of the SEC were directed at the nondisclosure of such massive payments to investors; the hidden "slush funds" clearly undermined the integrity and reliability of corporate books and records, and the very foundation of the disclosure system established by federal securities laws.
Congress, however, was seriously concerned with the implications these payments had on U.S. foreign policy. The 1975 Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, chaired by Senator Frank Church, had been conducting their own investigation and in a series of hearings that year outlined the involvement of various government organizations including the FBI and CIA. And beyond issues of foreign policy, a "post-Watergate morality" was rapidly coming into play, causing concerns over international perceptions of the U.S. economic stability and the Nation's position as a global leader.
Between June 1975 and September 1977 approximately twenty bills were introduced to address the issue of foreign corporate payments: in March 1976 President Gerald Ford issued a memorandum to various federal agencies establishing a “Task Force on Questionable Corporate Payments Abroad”.
Finally, after more than two years of deliberation, Congress passed the first law in the world governing domestic business conduct with foreign government officials in foreign markets.
The Foreign Corrupt Practices Act of 1977 (15 U.S.C. §§ 78dd-1) was signed into law by President Jimmy Carter on December 19, 1977 with the intended purpose of ending corporate bribery of foreign officials, and the restoration of public confidence in the American business system.
It was amended in 1998 by the International Anti-Bribery Act of 1998 to implement the anti-bribery conventions of the Organization for Economic Co-operation and Development.
Actions:
The Foreign Corrupt Practices Act (FCPA) essentially addresses a) accounting transparency requirements under the Securities Exchange Act of 1934 and b) the bribery of foreign officials by persons connected to the United States, including:
U.S. businesses
• Foreign corporations trading securities in the United States
American nationals or citizens
Residents acting in furtherance of a foreign corrupt practice whether or not they are physically present in the United States
Foreign natural and legal persons in the United States at the time of the corrupt conduct
Foreign firms and/or persons who take any act in furtherance of such a corrupt payment while in the United States.
Regarding accounting transparency, 15 U.S.C. § 78m requires companies with securities listed in the United States to meet specific accounting practices intended to operate in tandem with the FCPA anti-bribery provisions. Corporations covered by these provisions are required to keep books and records that accurately reflect transactions and to maintain adequate internal accounting controls.
The anti-bribery provisions of the FCPA are not restricted to monetary exchanges (the focus is on the intent of bribery rather than the amount), and may include anything of value given to a foreign official for the purpose of obtaining, retaining or directing business to any person or company covered by the law.
Specifically, the anti-bribery provisions of the FCPA prohibit:
"...the willful use of the mails or any means of instrumentality of interstate commerce corruptly in furtherance of any offer, payment, promise to pay, or authorization of the payment of money or anything of value to any person, while knowing that all or a portion of such money or thing of value will be offered, given or promised, directly or indirectly, to a foreign official to influence the foreign official in his or her official capacity, induce the foreign official to do or omit to do an act in violation of his or her lawful duty, or to secure any improper advantage in order to assist in obtaining or retaining business for or with, or directing business to, any person."
The definition of "foreign official" is broad; examples may include doctors at government-owned or managed hospitals or anyone working for a government managed institution. Employees of international organizations such as the United Nations are also considered to be foreign officials under the FCPA.
The Act also governs payments to any recipient if any part of the bribe is ultimately attributable to a foreign official, candidate, or party.
It does draw a distinction between "bribery" and "facilitation" payments, which are made to an official to expedite performance of the duties they are already bound to perform. Payments may also be legal if they are permitted under the written laws of the host country, or if they relate to product promotion.
Penalties:
The U.S. Department of Justice is chief enforcement agency for the FICA, with the Securities and Exchange Commission (SEC) acting in a coordinating role. DOJ involvement in an FCPA matter is guided by the Principles of Federal Prosecution in the case of individuals, and the Principles of Federal Prosecution of Business Organizations in the case of companies. Generally, the following circumstances may trigger an FCPA investigation:
Unusually large commissions, retainers or fees
Refusal to make FCPA-related representations
Unusual methods of payments
Promises of business by or from a government official
Family or business relationships with a government official
Payments of unusual contingent fees
Political contributions
Penalties for corporations and other business entities found in violation of the FCPA may include fines of up to $2 million; individual directors, officers, stockholders, employees and agents can be subject to fines of up to $100,000 and imprisonment for up to five years, although individuals are only subject to the FCPA’s criminal penalties for violations if they acted “willfully". These fines are imposed per occurrence, and individuals fined for violations of the Act may not be indemnified by their employer.
Both companies and individuals can also be held civilly liable for aiding and abetting FCPA anti-bribery violations if they knowingly or recklessly provide substantial assistance to a violator. The attorney general or the SEC may bring a civil action for violation of the FCPA, resulting in fines of up to $10,000 per violation against any firm, its directors, officers, employees, agents and stockholders. In addition, the SEC may seek to impose fines not to exceed (1) the gross amount of the pecuniary gain to the defendant as a result of the violation, or (2) an amount of up to $100,000 for individuals and $500,000 for business entities.
Under federal law, individuals or companies that aid or abet an FCPA violation are as guilty as if they had directly committed the offense themselves.
Defense:
The FCPA contains an exception for "facilitating payments" for "routine governmental action," (also known as "grease" payments) intended as a defense for payments, gifts or tips made in facilitation of non-discretionary acts of lower-level officials as long as they have no discretion to award business to the party making the payment. If a defendant can assert that a payment was legal under the laws of the foreign country in which the payment was made, or that a payment was a reasonable expenditure directly related to promotion, demonstration, or explanation of products or services this may also be used as an affirmative defense.
Forfeiture is a broad term which refers to a loss of property without compensation. The legal history of United States forfeiture laws originated in English Common Law, which allowed for the seizure of properties under three distinct doctrines; escheat upon attainder, in which a person's property reverted to the government upon conviction for a felony or treason; deodand, (guilty property) which allowed the courts to seize property if that particular property was directly involved in an offense regardless of the owner's culpability, and statutory forfeiture which could only be based on specific written laws.
As the laws evolved in the American colonies only statutory forfeiture was legally recognized; forfeiture of property was allowed only if required pursuant to written law. But those written laws did sustain the concept of deodand, which still exists in both Federal and State legislation.
Through most of American history the government itself rarely invoked forfeiture law, except in cases of tax-revenue violations or extreme cases such as piracy. However, in 1970 Congress enacted the Comprehensive Drug Abuse Prevention and Control Act (21U.S.C.A. § 881), which authorized federal prosecutors to bring civil forfeiture actions against the properties of persons convicted of participating in "continuing criminal enterprises". At first this law was severely limited in practice, but by 1978, Congress had amended it to allow the forfeiture of any proceeds and property traceable to the purchase of an illegal drug.
The Racketeer Influenced and Corrupt Organizations Act (RICO) (18 U.S.C.A. §§ 1961 et seq.) is another vehicle for forfeiture in federal court. RICO allows federal authorities to seize the property of persons engaged in a pattern of racketeering; persons who are convicted two or more times within a ten-year period of certain crimes such as murder, kidnapping, perjury, extortion, gambling or narcotics offenses may be forced to forfeit any property that is traceable to the crimes.
Under the 1978 amendments -known as the Psychotropic Substances Act- the federal government was authorized to proceed in rem against property; i.e., forfeiture actions are taken against the property itself, not against its owner. In these proceedings the guilt or innocence of the property owner is irrelevant: the government may seize property from persons suspected of a crime without actually charging them.
In 1984 the Forfeiture Act was further amended by the Comprehensive crime control act which expanded it to authorize the forfeiture of real property (land and buildings) that is purchased, used, or intended to be used to facilitate narcotics trafficking. However, in some cases courts have allowed real property forfeiture regardless of whether the property was used to store or manufacture drugs.
Texas State Forfeiture Laws:
In Texas, asset forfeiture is covered by The Code of Criminal Procedure (chapter 59) which defines property subject to forfeiture (“contraband”), the persons who may claim the property, and the procedures required for the state to seize the property. Forfeiture cases are “civil cases” in Texas.
Article 59.01 of the Texas Code of Criminal Procedure defines “Contraband” as “property of any nature, including real, personal, tangible, or intangible" that is used in the commission of any first or second degree felony under the Penal Code, in the statute itself, or in several other statutes. “Contraband” also includes the proceeds acquired from the commission of felonies listed in the statute or gained from a crime of violence.
In order to secure a forfeiture of property in Texas the State must prove by "a preponderance of the evidence” that the property is contraband; in other words, that it was used in the commission of a crime or it is the proceeds from illegal activity.
Although Chapter 59 does not provide additional evidentiary requirements beyond proof that the property is contraband, the Texas Supreme Court has ruled that the State must also show probable cause, and in this context the Fifth Circuit Court of Appeals has held that probable cause is a reasonable belief that “a substantial connection exists between the property to be forfeited and the criminal activity defined by the statute.”
In interpreting Chapter 59, Texas courts have ruled that contraband is money or other property derived from or intended for use in a criminal transaction. Forfeiture proceedings are therefore available to prosecutors in almost every conceivable criminal case.
However, Chapter 59 of the Texas Code of Criminal Procedure also provides a safe harbor for "innocent owners." Pursuant to article 59.02(c), "[a]n owner or interest holder's interest in property may not be forfeited . . . if the owner or interest holder:
Acquired and perfected the interest before or during the act or omission giving rise to forfeiture or, if the property is real property, he acquired an ownership interest, security interest, or lien interest before a lis pendens notice was filed;
and
Did not know or should not reasonably have known of the act or omission giving rise to the forfeiture or that it was likely to occur at or before the time of acquiring and perfecting the interest or, if the property is real property, at or before the time of acquiring the ownership interest, security interest, or lien interest."
The statutory safe harbor is an affirmative defense, i.e. the party must prove their status and that it is exempted from the statute because of the standing of another person (besides the criminal actor) as an owner of the property.
Controversies:
Civil asset forfeiture has been strongly criticized by civil liberties advocates for its reduced standards for conviction and the fact that burden of proof is shifted to the individual. Because the Forfeiture Act allows law enforcement agencies to receive portions of the proceeds from property forfeiture, many critics claim that it detracts from the police function of fighting violent crime and argue that law enforcement agencies may be placed in a situation where they become financially dependent on the very drug activity that they are supposed to curtail.
Proponents of forfeiture argue that drug activity and racketeering are well documented sources of violent crime, and the proceeds gained through asset forfeitures and the subsequent sales of such property increase the capacity to fight violent crime.
Forfeiture Procedure
Forfeiture proceedings may be either criminal or civil. If the government seeks forfeiture pursuant to criminal charges it must establish the defendant's guilt beyond a reasonable doubt, and if the defendant is acquitted they are entitled to have the property returned.
However, in a civil forfeiture proceeding the US Government sues the item of property, not the person; the owner is effectively a third party claimant and does not need to be charged with any crime. The prosecution must only show reasonable grounds to believe that the property was used in (or derived from) illegal activities, and the owner must prove on a "preponderance of the evidence" that it is not. If the defendant fails to rebut the showing of probable cause with sufficient evidence the government may keep the property.
Since the government can choose the type of case, a civil case is almost always chosen. These cases can take up to three years and the costs are generally very high for the owner, often exceeding the value of the property itself.
The United States Marshals Service is responsible for managing and disposing of properties seized and forfeited by Department of Justice agencies, with the United States Treasury Department being responsible for properties seized by Treasury agencies. Both programs maximize the net return from seized property by sales at auctions or to the private sector.
Criminal Forfeiture Defense:
Criminal forfeiture is a punitive action by the government against the offender, and occurs as part of a sentence following a conviction. 18 U.S.C. § 982 and 21 U.S.C. § 881 outline the various offenses and procedures governing criminal forfeiture.
The nature of a criminal case allows the defendant protections under the Fourth and Fifth Amendments. The property must be specifically identified in the indictment in order to serve notice to the defendant, and opportunity must be given to contest the forfeiture. Although the conviction requires the government to prove guilt "beyond a reasonable doubt," the forfeiture is subject to the lower burden of preponderance of the evidence. The burden also shifts to the defendant if the government can adequately show that the property was acquired around the time of the crime, and no other likely source existed.
Since criminal forfeiture requires conviction of a crime the first line of defense is against the actual conviction, but the defense is required to prove the property did not have the necessary relationship to the crime in order to avoid the penalty.
Civil Forfeiture (In Rem) Defense:
Unlike criminal forfeiture civil forfeiture proceeds directly against the property rather than the owner. In theory, civil actions are remedial; the government seeks to remedy a harm through the fiction of the property's "guilt" rather than punish the defendant. The same statutes apply, but also include Customs procedures from 19 U.S.C. § 1602 which involve searches, seizures, administrative procedure, holding, and disposal. Since the government determines which form of forfeiture to use, it is not surprising that most are carried out using the civil procedure. Civil forfeiture cases generally involve cash or real properties which the government contends were the proceeds generated by criminal activity, such as drug sales or racketeering.
Once the government establishes probable cause of the property's connection to a crime it may seize the property by executing a warrant. No criminal charges or convictions against the owner are required. Notice occurs through presentation of the warrant and publication in a newspaper, and a party must file a claim within the designated answer period to request a civil hearing.
The roles of the parties are now changed; instead of a criminal prosecutor the hearing concerns a plaintiff (the United States in the case of Federal forfeitures) and a defendant (the property in question). The owner is effectively put in the position of being a third party claimant.
Civil hearings also involve a more lenient burden of proof than "beyond a reasonable doubt." Once the government establishes probable cause that the property is subject to forfeiture the owner must prove by "preponderance of the evidence" that it is not.
Defending Asset Forfeiture
and Motions for Return of Seized Property:
Courts interpret the statutory defenses stringently. For instance, courts may apply an objective standard to determine if the owner should have had knowledge of the property's illegal use, rather require proof of actual knowledge. The law enforcement agency that confiscated the property must still prove that the officers possessed reliable information (Probable Cause) that the property was connected to an illegal activity; the owner may argue that no crime actually occurred, that the government lacked probable cause, or that the property is not closely enough connected to the crime to be considered an instrumentality or proceeds. If a probable cause challenge fails the owner may also attempt to prove that the property involved was derived from a legitimate source.
Yet another potential defense exists if the owner can show that they did not know about or consent to the illegal use of their property. This defense is generally easier to make in cases where the third party owner acquired their interest in the confiscated property before the illegal activity took place, however some statutes specifically exclude innocent third party owners from being able to seek relief.
Finally, there are time limits imposed on the government when filing forfeiture cases and / or bringing them to trial: excessive delays may be legal cause for a dismissal of the case. And due to the remedial nature of civil forfeiture cases, seizure of properties with a value disproportional to the case may be deemed unconstitutional and unjust.
Motions for return of seized property may be brought under Rule 41(g) of the Federal Rules Of Criminal Procedure in both criminal forfeiture matters and, under the court's general equity jurisdiction, in civil forfeiture matters. Civil forfeiture claimants may also pursue the return of seized property by filing motions for summary judgment or motions to dismiss the forfeiture complaint. Other issues can also be raised in a motion for summary judgment or a motion to dismiss. Filing these motions forces the government to show that it has probable cause for the seizure of the property.
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. The lawyers of Parnham &
McWilliams are dedicated to defending the rights of the accused and our
criminal defense attorneys are committed to the presumption of
innocence. 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.
For these and other reasons, it is vital that those accused of a crime
select the most competent, experienced and effective attorney available.
The right to a public trial has recently become a rather hot topic in Texas trial and appellate courts. New courtroom configurations, larger venire panels, and the regular voir dire practice of many trial court judges and their staff have come under much closer scrutiny of late. This has forced Texas appellate courts to re-examine exactly what the right to a public trial actually means and more specifically what are its limitations.
The Sixth Amendment to the United States Constitution grants criminal defendants the right to a public trial. The right to a public trial is also an element of due process under the Fourteenth Amendment. This right is additionally guaranteed by both the Texas Constitution [Tex. Const. Art. 1 § 10] and the Code of Criminal Procedure [C.C.P. Arts. 1.05, 1.24]. At its heart, the right of public trial is a reflection of the constitutional framers’ insistence on transparent government. The U.S. Supreme Court has observed that one of the primary purposes served by conducting trials in public is the prevention of the abuses inherent in secret proceedings that cause courts to become instruments of oppression against the accused.
The right to a public trial, however, is not absolute and must be balanced against circumstances that justify the exclusion of members of the public. For example, it may be appropriate to limit access to the courtroom when the conduct of bystanders creates a reasonable probability that the jury's verdict would be affected in some manner. The decision to limit access to the courtroom is within the court's discretion.
The right to a public trial is generally satisfied if members of the public and press have the opportunity to attend the trial and report what they have observed. It has also been suggested that, at the very least, the defendant's relatives, friends, and counsel must be allowed to be present for the requirement of a public trial to be satisfied. It is this point, particularly as it relates to the jury selection process, that has become a point of contention for many Texas trial court’s in recent years.
The prime example of the situation described here can be found in a case from the 232nd District Court of Harris County which Parnham & McWilliams recently had reversed on appeal. During jury selection, the court bailiff asked for all members of the audience to leave the courtroom to allow room for the prospective jury panel to be brought into the courtroom. The standard jury panel for felony cases in Harris County is approximately sixty (60) venirepersons. This number of people takes up the entirety of the public seating area of the standard Harris County courtroom. As a result, it has (or had) become the regular course of business to remove the public from the courtroom to allow the venire panel to be seated. However, no other accommodations were considered and none of the excluded members of the public were informed that they could return to the courtroom after the panel had been seated. It was simply the standard operating procedure of that court (as well as most if not all the other Harris County District Courts) and had never really been questioned. In our case, the Court of Appeals reversed the defendant’s conviction because the trial abused its discretion by implementing this practice.
There is a presumption that a criminal trial shall be open and public, but this presumption may be overcome if it is shown that closure is necessary to preserve higher values, and if the closure is narrowly tailored to fit that interest. This decision must be based on the circumstances of each individual case. There is a four-part test for determining whether the right to a public trial has been violated: (1) the party seeking to close the hearing must advance an overriding interest which is likely to be prejudiced; (2) the closure must be no broader than necessary to protect that interest; (3) the court must consider reasonable alternatives; and (4) the court must make findings adequate to support its action.
If the defendant's right to a public trial is denied by the trial court in an abuse of discretion, the usual remedy on appeal is reversal and remand. Trial courts are required to consider alternatives to closure even when they are not offered by the parties in part because criminal trials are important to the public whether or not any party has asserted the right. A closure should be implemented pursuant only to a narrowly drawn order that articulates the interest being served by closure and makes findings specific enough that a reviewing court can determine whether closure was the proper.
-By Dee McWilliams, Parnham & McWilliams
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. Visit http://www.parnhamandmcwilliams.com for more information.
In general, criminal activity has followed the global rise in personal usage of the internet; as more of our information becomes digitized, the risks of theft and fraud grow proportionately. With the rise of virtual social networking a new issue has evolved: personal attacks involving intimidation and harassment through the various digital networks that are now a part of our lives.
Prior to the advent of public internet access various pieces of legislation had been enacted on both State and Federal levels to deal with harassment. Although freedom of speech is protected by the First Amendment, a spoken or written "true threat" is criminalized due to the intent to harm or intimidate. The US Supreme Court definition of "true threat" is "statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group". Unfortunately the Court has not clearly defined a test for determining what types of speech constitute a true threat, and as a result the lower courts have been left to adopt various tests to determine whether speech constitutes a true threat.
Social Networking in the Digital Age
Beginning in the late 1980s Bulletin Board Systems (BBS) began to gain popularity on the then fledgling internet as a text-based means of social interaction. Because the majority of users were limited to telephone modems connecting to local hubs, BBS tended to be geographically localized and topic specific, and therefore relatively easy to moderate. Serious issues involving harassment seldom arose as individual users were readily identifiable. However, by the 1990's the advent of extended services such as CompuServe and AOL not only provided instant e-mail communication to a large segment of the public, but also offered a plethora of open forums in which strangers were able to interact under relative anonymity. Instances of harassment and intimidation by individual users began to escalate, and because of the sheer volume of traffic these incidents became increasingly difficult to regulate. As new technology was introduced users were provided with options such as live chat, video conferencing and instant messaging which are virtually unregulated and often lack sufficient security to ensure privacy.
By the early 21st century true digital "social networking" as we now know it had come into use with the introduction of portals such as MySpace which were specifically designed to encourage users to share personal information. Backed by large scale media campaigns these systems have now attracted millions of users who often fail to realize their vulnerabilities and lack of privacy. Combined with advances in internet search capabilities which allow access to large amounts of information on virtually anyone who is active online, this has led to an unprecedented increase in online harassment and predation.
Cyberharassment, Cyberstalking and Cyber-Bullying
Three terms are generally accepted in addressing intimidation and harassment over digital networks:
Cyberharassment itself is defined as speech or text that directs obscenities and /or derogatory comments at specific individuals, focusing for example on gender, race, religion, nationality or sexual orientation, however on a federal level it is usually used in a context specifically dealing with obscenities of a sexual nature. The definition of "harassment" must meet the criterion that a reasonable person, in possession of the same information, would regard it as sufficient to cause another reasonable person distress.
Cyberharassment differs from cyberstalking in that it may generally be defined as not involving a credible threat. Some states approach cyberharassment by including language addressing electronic communications in general harassment statutes, while others have created stand-alone statutes. On the Federal level, the Interstate Communications Act (18 U.S.C. § 875(c)) criminalizes the making of threats via Internet.
Cyberstalking is the use of electronic means to stalk or harass an individual or a group of individuals and often (but not exclusively) applies to cases in which the victim is an adult. It may include defamation, monitoring, threats or gathering information that may be used to harass. Cyberstalking is separate from spatial or offline stalking, however the two are often combined and both are criminal offenses. Cyberstalking is a criminal offense that comes into play under state anti-stalking laws, slander laws, and harassment laws. The current US Federal Anti-Cyber-Stalking law is found at 47 USC sec. 223. A majority of states also have laws that explicitly include electronic forms of communication within spatial stalking or harassment laws. In addition, most law enforcement agencies have cyber-crime units and often Internet stalking is treated with more seriousness than reports of physical stalking. Cyberstalking may be considered the most dangerous of the three types of Internet harassment, based on a posing credible threat of harm. Sanctions range from misdemeanors to felonies.
Cyberbullying is the use of the Internet and related technologies to harm other people, in a deliberate, repeated, and hostile manner and often (but not exclusively) applies to cases in which the victim is a juvenile. Cyberbullying has been defined by The National Crime Prevention Council: “When the Internet, cell phones or other devices are used to send or post text or images intended to hurt or embarrass another person." There are laws that only address online harassment of children or focus on child predators as well as laws that protect adult cyberstalking victims, or victims of any age: currently, there are more than 45 cyberstalking (and related) laws on the books.
School safety is also an increasing focus of state legislative action: school bullying and harassment policies are being supplemented to provide students protection from cyberbullying.
Federal Cyberstalking Laws
Federal law provides a number of important tools to combat cyberstalking. As previously mentioned, the Interstate Communications Act (18 U.S.C. § 875(c)) forbids the transmission of "any communication in interstate or foreign commerce containing a threat to injure the person of another" and this has been determined to include threats via the telephone or Internet. Violations are punishable by up to five years in prison and a fine of up to $250,000. However, 18 U.S.C. 875 applies only to communications of actual threats: it would not apply in a situation intended only to harass or annoy another (absent some threat). Also, it is not clear that it would apply to situations involving the use of public forums such as chat rooms to encourage others to harass or annoy another person.
Certain forms of cyberstalking may also be prosecuted under the Communications Decency Act (47 U.S.C. 223), which includes a provision making it a federal crime to use a telephone or telecommunications device to annoy, abuse, harass, or threaten any person at the called number. Although this statute is broader than 18 U.S.C. 875 in that it covers both threats and harassment, Section 223 applies only to direct communications between the perpetrator and the victim and also would not apply to a situation involving messages in public forums. Moreover Section 223 is only a misdemeanor and punishable by not more than two years in prison.
The Interstate Stalking Act (18 U.S.C. 2261A) makes it a crime for any person to travel across state lines with the intent to injure or harass another person and, in the course thereof, places that person or a member of that person's family in a reasonable fear of death or serious bodily injury. Although a number of serious stalking cases have been prosecuted under Section 2261A, the requirement that the stalker physically travel across state lines makes it largely inapplicable to cyberstalking cases.
Finally, the Protection of Children from Sexual Predators Act (18 U.S.C. 2425) makes it a federal crime to use any means of interstate or foreign commerce (such as the Internet) to knowingly communicate with any person with intent to solicit or entice a child into unlawful sexual activity. While this new statute provides important protections for children, it does not cover harassing phone calls to minors absent a showing of intent to entice or solicit the child for illicit sexual purposes.
Current statutes address some forms of cyberstalking, but there are major gaps in the federal law. The Department of Justice has expressed misgivings about the adequacy of federal law to respond to cyberstalking, as the law generally deals only with direct communication between the perpetrator and the victim; when the perpetrator persuades third parties to be become participants and vehicles of the harassment the law is inadequate. In addition, while a federal stalking law has passed, it involves instances of interstate travel; the perpetrator must travel across state lines making the law frequently inapplicable.
Cyberbullying and State Legislation
Current research defines cyberbullying as "an aggressive, intentional act or behavior that is carried out by a group or an individual repeatedly and over time against a victim who cannot easily defend him or herself". Though the use of sexual remarks and threats are sometimes present in cyberbullying, it is not the same as sexual harassment and does not necessarily involve sexual predators: it also typically occurs among peers. In 2011 the National Crime Prevention Council reported that cyber-bullying is a problem that affects almost half of all American teens. Several high profile cases of teen suicide have been directly linked to cyberbullying, including the suicide of Ryan Halligan and the suicide of Megan Meier, the latter of which resulted in United States v. Lori Drew which charged Drew of violations of the Computer Fraud and Abuse Act (CFAA) (18 U.S.C. § 1030) over the alleged "cyberbullying".
During the summer of 2006, Missouri residents Lori Drew, her daughter, and Drew's employee, Ashley Grills, allegedly decided to create a MySpace account for a non-existent 16-year-old boy in order to discover whether Meier was spreading false statements about Drew's daughter. Drew allegedly used the MySpace account to contact Meier, initiate a virtual relationship, and finally to send negative messages which were subsequently multiplied by other MySpace users, culminating in Meier's depression and suicide.
Although state prosecutors declined to press charges due to lack of evidence, the U.S. Attorney for the Central District of California undertook prosecution of federal charges in connection with the case and Drew was indicted by the Grand Jury on four counts. The first count alleged a conspiracy arising out of a charged violation of 18 U.S.C. § 371, and the others alleged that Drew violated the CFAA by accessing MySpace servers to obtain information regarding Meier in breach of the MySpace Terms of Service.
The case was heard by a jury which only found Drew guilty of a misdemeanor violation of the CFAA. U.S. District Judge George H. Wu formally granted Drew's motion for acquittal, overturning the jury's guilty verdict. In his opinion, Judge Wu stated that allowing a violation of a website's Terms of Service to constitute an intentional access of a computer without authorization or exceeding authorization would "...result in transforming section 1030(a)(2)(C) into an overwhelmingly overbroad enactment that would convert a multitude of otherwise innocent Internet users into misdemeanant criminals" and granted Drew's motion for acquittal.
Following United States v. Lori Drew, Missouri updated its laws to include electronic and internet harassment; many other states (as well as many counties and cities) rapidly followed suit, although the legislation varies widely in scope. Currently 38 states have enacted "cyberstalking" or "cyberharassment" laws, or have laws that explicitly include electronic forms of communication within more traditional stalking or harassment laws: however, most stalking and cyberstalking statutes require proof of a “credible threat” of violence which might not be present in instances of peer related bullying. Similar to speech and harassment laws at the federal level, individual states continue to wrestle with defining the problem and what legal actions to take when a violation occurs. Nonetheless, 34 states have enacted explicit legislation dealing with "cyberbullying". Some specifically proscribe cyberbullying as a prohibited act within the operative provision of the law, others target the broader act of bullying and include cyberbullying within the statutory definition.
Current cyberbullying laws also primarily focus on the public school setting by requiring school boards to set policies that prohibit cyberbullying. As the safety of schools is increasingly becoming a focus of state legislative action, one of the major areas of contention seems to be whether school districts can interfere in the behavior or speech of students that occurs away from campus. Many cases dealing with freedom of speech on and off school grounds have worked their way up to the United States Supreme Court.
However, states are realizing that speech or behavior committed off?campus can result in a clear disruption of the school environment and public schools equipped with trained guidance counselors may be better suited than the juvenile-justice system to address cyberbullying among youth.
Lacking clear guidance from the Supreme Court, lower federal and state courts have disagreed whether online speech created off-campus is protected. If courts determine online expression created off-campus is beyond the reach of public schools, some current and proposed cyberbullying laws may be rendered unconstitutional. Because most cyberbullying occurs off-campus, limiting cyberbullying laws to speech created on public-school campuses would seriously undermine their effectiveness in addressing the problem. Until the Supreme Court clarifies the authority of schools over online speech, legislators and educators must respond to cyberbullying in a way that avoids restricting students’ free speech rights.
Habeas corpus is a Latin phrase meaning literally "you have the body" - historically, the concept dates back at least to the signing of the Magna Carta in England in 1215 but the actual procedure was first codified in English law in 1679. In legal terms, a writ of habeas corpus is a judicial mandate ordering that a person be brought before a judge or court so it can be determined whether or not that person has been convicted lawfully. Prior to its implementation a person could be imprisoned indefinitely without being charged with any particular crime, a practice which was often used to silence political or religious dissent; by petitioning for habeas corpus, a prisoner (or someone acting on their behalf) could request a person in authority to present charges and determine whether they have actually broken any laws.
Today habeas corpus is considered a fundamental right in many countries, including the United States: The Suspension Clause of the United States Constitution specifically includes it, stating that "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." In addition to Federal law, many States (including Texas) also specify provisions for habeas corpus, and it has been called "the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action."
There are two parts to the process of habeas corpus: firstly, the person charged (or someone acting on their behalf) files a petition for habeas corpus which questions the legality of the charges. If the petition is successful, a judge will issue a writ of habeas corpus. This is an actual order for the person to be brought to court. Habeas corpus can be used in various situations, such as to challenge the amount of bond or to challenge a contempt order, but most commonly it is used to attack a final conviction after all appeals have been decided and while the person is still under restraint. While "restraint" commonly refers to imprisonment, the definition has been expanded in Texas to include some other effects of a conviction such as probation. In fact, the final conviction itself may meet the restraint requirement because it can be used to increase punishment for a subsequent offense.
It is also important to note that habeas corpus is generally limited to constitutional claims such as suppression or failure to disclose evidence, a conviction based on perjured testimony, ineffective assistance of counsel, the use of an involuntary or coerced confession or jury misconduct or bias.
Petitions for writs of habeas corpus may be filed in both state and federal court. Although federal courts may be more sympathetic to habeas corpus claims than state courts, federal writs must be filed within one year of a conviction becoming final. In Texas a state writ may be filed at any time after your conviction is final, but the court could dismiss your application under the doctrine of laches, which basically asserts that the claim has unreasonably delayed.
If you have been accused of a crime, contact Parnham & McWilliams today at (713) 224-3967 or click here for our convenient online submission form. Depending on the circumstances, we have many options in mounting a strong defense for you, and we will work tirelessly to ensure the best possible outcome for your case.
