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DISTRICT ATTORNEYS OFFICE DOES NOT CARE IF CYNTHIA CASH IS ACTUALLY INNOCENT
The Philosophy of Convict at any Cost Continues in Harris County
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
Dr. Patricia Moore is the former associate medical examiner in Harris County. The Houston Chronicle (Sept. 14, 2009) reported that the doctor has been “repeatedly disciplined for failing to follow procedures and for favoring the prosecution in 1998 and 1999” in child death cases.
During Dr. Moore’s tenure with the Harris County Medical Examiner’s Office, she conducted a number of autopsies in children’s deaths whose results have been challenged as not being medically accurate. One of those autopsies involved the 1998 death of a 4-month-old baby, who died in the care of a babysitter named Cynthia Cash, and led the Harris County District Attorney’s Office to file criminal charges against Cash.
Ken Cash, the babysitter’s husband, recently told the Chronicle that “they [District Attorney’s office] railroaded her in that autopsy report. She is innocent.”
Ken Cash’s claim of innocence for his wife recently gained significant support after it was recently discovered that the Harris County Medical Examiner’s office in February 2008 revised the autopsy that served as the genesis of the criminal charge filed against Cynthia Cash and the subsequent prison sentence she received.
According to the Chronicle, the new autopsy report changed the cause of death from “homicide” to “undetermined” and also added that it found no evidence of trauma. This assertion was given credence by Dr. Richard M. Hirshberg, a neurologist expert who reviewed the 2008 revised autopsy report. Hirshberg, who testified at Cash’s trial as a defense expert witness that he had found none of what the Chronicle called “classic signs of shaken baby syndrome,” told the newspaper for its September 14 article: “It’s my firm belief now as it was during the Feb. 5, 1999, trial that [Cynthia Cash] is innocent.”
Cash’s claim of “actual innocence” is also supported by the fact that in at least three other cases the Harris County Medical Examiner’s Office had to revise autopsies in children’s deaths which Dr. Moore had classified as “homicides.” The September 14 Chronicle article was written by Lise Olsen and the reporter found that “two women have been cleared in other cases—including Brandy Briggs, who was jailed at 19 after rushing her baby to the hospital and who spent several years in a prison isolation cell before being freed in 2005.”
Lise Olsen’s review of Dr. Moore’s previous autopsies in child death cases found that in one case prosecutors were forced to dismiss criminal charges after Moore’s autopsy report listing a child’s cause of death as homicide was challenged and the report subsequently changed to list the cause of death as “undetermined.” In a 1997 case involving a child death, Trenda Kemmerer was convicted and remains in prison even though “the child’s autopsy was changed and Moore reprimanded for failing to show objectivity in the case,” Olsen reported.
While Dr. Moore left the Harris County Medical Examiner’s Office in 2002, the Chronicle reported that she has continued to work for the Southeast Texas Forensic Center which services six counties from its Conroe-based office. One of those counties is Montgomery County where in 2007 the newspaper discovered that Dr. Moore was forced to change yet another autopsy report in a child’s death.
This year alone we have posted a series of articles dealing with the dangers of “false forensics” as being comparable to junk science; child sexual assault “expert witnesses” who function as hired guns for the Harris County District Attorney’s Office; and the devastating damage done to individuals and the state’s criminal justice system because of wrongful convictions. All of these related issues are extremely disturbing and gut-wrenching for Harris County criminal defense attorneys who have had to wage an unpopular and unforgiving war against a prosecutorial “convict at any costs” philosophy of the Harris County District Attorney’s office which has reigned supreme for the past three decades.
And it seems as though this philosophy will continue to prevail under the so-called “reform” administration of current District Attorney Pat Lykos. In response to Ken Cash’s plea for “justice” for his imprisoned wife—who the Chronicle reported had to sell the couple’s home to pay for his wife’s legal fees while continuing to raise their young son—Assistant District Attorney Lynn Hardaway nonetheless announced that the District Attorney’s office would oppose Cynthia Cash’s “actual innocence” appeal filed by attorney Charles Portz who secured the freedom of Brandy Briggs.
“The Court of Criminal Appeals held that a claim of actual innocence based upon newly-discovered evidence should not be overturned lightly and the burden on the defendant who has had error-free proceedings is exceedingly heavy,” wrote the assistant D.A. assigned to the case in opposition to Cash’s actual innocence appeal.
That’s legal blasphemy! What the District Attorney’s Office is saying—and we concede that its position is based on a Texas Court of Criminal Appeals precedent—is that it is perfectly okay to maintain the conviction of an innocent person so long as she/he had an “error-free” trial. The Fifth Circuit Court of Appeals has taken the same constitutional position by saying that the issue of “actual innocence” is not subject to review in a federal writ of habeas corpus proceeding. While the U.S.
Supreme Court upheld the Fifth Circuit’s position, the nation’s high court has not directly addressed the “actual innocence” issue as an independent basis for relief. The Court, however, on August 17, 2009 gave some indication that it is now prepared to decide whether “actual innocence” is a basis for federal habeas review when it remanded the Troy Davis case, a highly publicized Georgia death penalty case, for a hearing on the condemned inmate’s claim of actual innocence. In an unusual written response to Justice Scalia’s dissent in the case, Justices Stevens, with Justices Ginsburg and Breyer concurring, pointed out: “… The substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing.”
Justice Stevens went directly to the heart of the actual innocence issue. He pointed out that Justice Scalia “would pretermit all of these unresolved legal questions on the theory that we must treat even the most robust showing of actual innocence identically on habeas review to an accusation of minor procedural error. Without briefing or argument, he concludes that Congress chose to foreclose relief and that the Constitution permits this. But imagine a prisoner in Davis’s situation, who possesses new evidence conclusively and definitively proving, beyond any scintilla of doubt, that he is an innocent man. The dissent’s reasoning would allow such a petitioner to be put to death nonetheless. This Court correctly refuses to endorse such reasoning.”
The Harris County District Attorney’s Office has taken the same hard-line and now discredited position in the Cynthia Cash case that was taken by Justice Scalia in the Troy Davis dissent: that actual innocence, standing alone, is not a constitutional basis for release so long as the State gave the defendant an “error-free” trial. The District Attorney’s Office is aware of the recent constitutional shift on the actual innocence issue reflected in the Troy Davis ruling. It is also aware that the very basis for its original decision to bring criminal charges in the Cynthia Cash case—the autopsy report prepared Dr. Patricia Moore—has since been revised and discredited. Therefore, it can reasonably be concluded that the Lykos administration is just as determined to maintain the “convict at any costs” prosecutorial philosophy of her predecessors (Charles Rosenthal and Johnny Holmes).
The District Attorney’s office, through spokesperson Hardaway, attempted to justify its opposition to Cynthia Cash’s actual innocence claim by saying that other “evidence presented at trial from doctors who thought [the baby] was a victim of shaken baby syndrome.” If District Attorney’s office is so confident in its case, why it join with attorney Charles Portz in a request for a Troy Davis style evidentiary hearing endorsed by the U.S. Supreme Court just last month.
Supporting a Troy Davis type hearing would have been consistent with a number of actions taken by the Texas Legislature in this year’s session. The Texas Criminal Defense Lawyers Association (TCDLA) recently released a summary of these actions and will soon publish them in an upcoming edition of TCDLA’sVoice of the Defense. The TCDLA summary includes the following significant actions taken relative to the issue of “innocence”:
- HB 498:Relating to the creation of a commission to investigate and prevent wrongful convictions. This bill establishes an Innocence Commission with a Timothy Cole advisory panel on wrongful convictions to assist the Task Force on Indigent Defense in conducting a study and preparing a report regarding the prevention of wrongful convictions.
- HB 1736:Relating to the compensation of persons wrongfully imprisoned. This bill, known as the Tim Cole Act, increases payments and services to wrongfully imprisoned persons. It allows compensation to go to a person’s heirs in lump-sum if the person received a posthumous pardon for being wrongfully imprisoned. Further, it allows a lump-sum compensation of $80,000 per each year of wrongful imprisonment and $25,000 per each year served on parole or as a registered sex offender. Further, it allows for payment of higher education tuition and fees for a person wrongfully imprisoned. Further, it allows for reentry services for wrongfully convicted persons. Further, it authorizes services for wrongfully imprisoned persons including medical and dental care.
- HB 2058:Relating to the standards for attorneys representing indigent defendants in capital cases. This bill requires a trial attorney appointed as lead counsel in a capital cases to have at least five years of criminal law experience. Further, it requires that an appellate attorney appointed as lead counsel in the direct appeal of a capital case to have, in addition to the five years of criminal law experience, to have: a) authored a significant number of appellate briefs, including appellate briefs in homicide cases and other cases involving an offense punishable as a capital felony, felony of first degree, or other enumerated offenses; b) have trial or appellate experience in the use of and challenges to mental health or forensic expert witnesses and the use of mitigating evidence at the penalty phase of a death penalty trial; and c) have participated in continuing legal education courses or other training relating to criminal defense in appealing death penalty cases.
- SB 1091:Relating to the establishment of the capital writs committee and the office of capital writs. Establishes a capital writs committee and office of capital writs to handle writs in death penalty cases.
- SB 1681:Relating to requiring the corroboration of certain testimony to support a criminal conviction. Requires corroboration before a person can be convicted on the testimony of a jailhouse informant. Further, provides that corroboration is not sufficient if it only shows that the offense was committed.
- HB 2002:Relating to a right of a close relative to seek expunction of arrest records and files on behalf of a deceased person. Authorizes a close relative to file a petition for expunction for a deceased person.
The Harris County District Attorney’s Office has seen six criminal defendants it wrongfully convicted with either false or fabricated forensic evidence, perjured testimony or mistaken identification ordered released by the courts since 2004. These six Harris County wrongful convictions, and scores of others statewide, influenced the Texas Legislature to take the aforementioned drastic steps to repair a seriously flawed prosecutorial system in both Harris County and the State of Texas.
The Cynthia Cash case offered the Lykos administration a real opportunity to erase some of the horrific shame of the Rosenthal/Holmes administrations. It elected not to do so. Instead, the District Attorney’s Office chose to stand firm with the shameful “convict at any costs” prosecutorial philosophy she inherited, notwithstanding the recent repudiations of that philosophy by both the Texas Legislature and the U.S. Supreme Court.
SOURCES:
1/http://www.chron.com/disp/story.mpl/metropolitan/6617198.html
2/https://www.johntfloyd.com/comments/august09/sixth-innocent-harris-county-man-freed.htm
3/https://www.johntfloyd.com/comments/july09/17a.htm
4//https://www.johntfloyd.com/comments/july09/06a.htm
5/https://www.johntfloyd.com/comments/june09/30a.htm
6/https://www.johntfloyd.com/comments/june09/11a.htm
7/https://www.johntfloyd.com/comments/may09/01a.htm
8/https://www.johntfloyd.com/comments/april09/16a.htm
9/https://www.johntfloyd.com/comments/march09/22a.htm
10/https://www.johntfloyd.com/comments/march09/16a.htm
11/http://www.scotusblog.com/wp/wp-content/uploads/2009/08/court-order-Davis.pdf[Troy Davis Opinion]
12/Ex parte Franklin, 72 S.W.3d 671 (Tex.Crim.App. 2002) {actual innocence standards]
13/Herrera v. Collins, 954 F.2d 1029 (5th Cir. 1992) [“actual innocence” claim not ground for federal habeas relief], affirmed by U.S. Supreme Court inHerrera v. Collins, 506 U.S. 390 (1993) [left open possibility that in a capital case “a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of the defendant unconstitutional” and thereby making actual innocence issue subject to federal habeas review]
14/http://www.tcdla.com/
15/Kristin Etter, Gonzalez and Place,http://www.tcdla.com/voiceforthedefense/voiceforthedefense.htm
16/Tex. Civil Practice and Remedies Code, § 103.001 [HB 1736]
17/Tex. Civil Practice and Remedies Code, § 103.052 [HB 1736]
18/Tex. Civil Practice and Remedies Code, § 103.054 [HB 1736]
19/Tex. Government Code, § 501.091 [HB1736]
20/Tex. Health and Safety Code, § 614,021 [HB 1736]
21/Tex. Code of Crim. Procedure, § 26.052(d)(2) [HB 2058]
22/Tex. Code of Crim. Procedure, § 26.052(2)(3) [HB 2058]
23/Tex. Government Code, Chapter 78 to Subtitle F, Title 2 [SB 1091]
24/Tex. Code of Crim. Procedure, Adds § 38.075 [SB 1681]
25/Tex. Code of Crim. Procedure, Adds § 55.011 [SB 2002]
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
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John T. Floyd Law Firm
3730 Kirby Drive # 750, Houston
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Mr John is a great human being and a very knowledgeable attorney. He has always called me back promptly,advised me very clearly and never rushed our conversation. i was wrongfully accused … More and Mr John had my case DISMISSED!! on the day of trial after fighting for me for two years. I am very thankful to the John T. Floyd Law Firm. You will not go wrong with John. Mr John you deserve way more then 5 stars.Thank youShaikh.
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What I liked the most was that he actually returned my phone after leaving a message unlike pretty much everyone else I called prior. He listened and answered my question with the best … More advice that would benefit me the most. I was actually lost from moving to Texas from a different state we’re laws vary and he pointed me toward the right direction to get a understanding of if I need to do business with him now or after I contact a lawyer in my home state.
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John is honestly the best! The whole team is. He answered me in a timely manner and helped me when my friend was going through a situation in Houston, Texas as an inmate. He was so … More thorough, honest, and without charging me sent me so much information because I was out of the loop. He never once tried to take you for your money, he did all that he could to. help me and I can't thank him enough.
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I have used John on two occasions and found him to have full knowledge of Texas law, diligent, creative in plan, and aggressive in defense. He is the best criminal defense attorney … More in the State of Texas. No reason to look elsewhere.
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I have been calling to get some legal advice pertaining to gun rights. A few legal offices would not even take my call because quote " your not a client and Im losing money. … More I I called John T. Floyd Law Firm and they were not only able to answer my question, but gave great detail information, and further elaborated on their answer. I hope I do not have to use them in the future, but if I do need to, they will be my first call.
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Great lawyer! Needed some advice and gave me a Consultation, and advice for steps to take, without any hassle l, Was a honest guy and actually wanted to help me and not just take my … More money! Highly recommend!!Positive
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Attorney Floyd replied very timely to my inquiry and he provided practical advice. I will not hesitate to contact him in the future if I need additional legal counsel.
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Highly recommend, down to earth lawyer. Talked to me about my legal issues without being super money hungry and genuinely wanted to help me with my legal problems. 5 stars ⭐️.
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Very knowledgeable and professional. I called and left a message Friday morning and before end of business that day I received a call back.Positive
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Excellent service and a lawyer that doesn't lie. He does what he says. JW recommends him.
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One of the best services Ive used in awhile. Thank you for all the help and answers. You got my life back. Thank youPositive
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Im impressed. This guy was polite and professional and most important...he listened.
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Good experience and very good lawyer
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It was a pleasure speaking with John. He is knowledgeable and has a true desire to help the people of society. I turned to him for some guidance of a long-standing issue. He never … More rushed our conversation and went out of his way to look into the details to provide the right answer as well as assist me anyway he could. Thank you for our conversations and I wish your and your firm the best. If you need a lawyer, John Floyd is your guy!
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John represented me in court for roughly 2 years. I won't (and shouldn't) get into any serious details, but let me tell you that I couldn't have chosen anyone better. … More Seriously.Every appearance in court I felt very comfortable. The judge and DA's had a high regard for his reputation. There is a time I recall where simply his presence greatly impacted the court's interpretation of my case and persons. We were in front of the stand and the judge could not stop talking about John's prestige and past accomplishments and how that took in relation to my case. I kept silent in front of the judge, but I observed then that John's popularity and reputation within the court had already given me a better looking rapport with the judge. Let me tell you, I never had more confidence then, knowing that the judge held him in such high regard.This is not to mention how personable John is. I'll be honest that during the stress of court, sharing a laugh with your lawyer helps a lot. This may sound a lot, but I really appreciated the relationship we had then. This is also not to mention that he was able to deal very well with any DA that rotated over the years. Seriously, John was great, prompt with information and very hands on with my case. I had great peace those 2 years until everything wrapped up.If you're looking for a lawyer, I highly, HIGHLY recommend the John T. Floyd Law Firm. He IS nationally renowned, you know. He'll get the job done to the utmost confidence. He's very experienced and has a great record to boot. I am glad to have had him represent me in court and trust me that I never thought I'd ever say that (and whoever does?). We explored every avenue of victory together and I personally enjoyed the experience, despite the seriousness of the accusation.If you have a case that needs to be represented at the highest levels, choose John T. Floyd. He's a good man and very good at what he does. Him and his team has the experience you need to make the best decisions and options to get the best outcome for your case. We got the best result I could possibly ask for, thank God.Seriously. Hire John. He knows what he's doing.Seriously.
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One of the few honest lawyers I have ever talked to. His complimentary consultation was knowledgeable and thorough. He knew exactly what the issue was and how to handle it. His candid … More appraisal of the situation and how to proceed saved me thousands of dollars in legal fees. If you have a case requiring expertise in John's area of practice, look no further. Hire this man!
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I had the opportunity to read an article that Mr. Floyd wrote and it was very interesting. I called him about the article and advice concerning a similar situation. He not only gave … More me excellent advice, he pointed out not just what I wanted to hear but what I needed to hear concerning my situation. The Good, The Bad and The ugly in a manner or speaking. He spoke with an open and honest heart with information to help me and not just to get a client.
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He took time out of his day to answer my legal questions and didn’t even charge me. I would definitely recommend him to you.
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Gave free consultation on getting gun rights back. He truly cares about gun rights and getting you the help you deserve. 100% worth a callPositive
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Very professional, great quality work, and very friendly and helpful. Overall, their service is phenomenal. I recommend Mr. Floyd to anyone.
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Mr. Floyd took the time to explain his experience with the law to me in layman's terms. Definitely give him a call.Positive
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He was honest , knowledgeable , and professional about what we talked about. Most lawyers are just about the money , but not john.Positive
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He was very truthful and honest with us very great man I would recommend him and we would use him again
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Very professional honest and works hard currently working my husband’s appeal I pray he does his best workPositive
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I contacted John T. Floyd Law firm and I was very satisfied with service extremely helpful and friendly thank you Mr. FloydPositive
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This law frim was informative,great response time ,and the attorney called back not some secretary or legal assistant thank u guys for all your help wish it was more like youPositive … More
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I would highly recommend Mr Floyd. He was very helpful and knowledge with a legal question I had.Positive
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He explained my case better then any other lawyerPositive
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Very informative
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Had the pleasure speaking with John Floyd on a personal matter, he was very responsive, nothing but exceptional, and he really cares about you with sincerity and most importantly knows … More what is he talking about! No games or bs, his approach to my situation even though I knew it was probably way smaller then what he normally takes on, he was extremely helpful and didn't care about the size of the matter like other attorneys do. He really looked out for my best interests. You can tell he has decades of experience doing what he does just by chatting with him. I would highly recommend him.
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Words can’t describe how grateful I am for working with John, he went above and beyond my expectation. I was wrongly accused and hired many lawyers before hiring John Floyd but they … More all disappointed me, I had lost hope until a friend of mine referred me to John. From the start he had my best interest in mind and gave helpful advice, he explained the process and guided me. He put more work and time than all my previous lawyers that cost me thousands of dollars. He was constantly communicating with court and defended me more than all lawyer i had hired before him. Don’t waste your time and money like I did, believe me when I say I hired countless lawyers before him and no one came close to John. I’m forever thankful for him for fighting for my innocence and getting my case dismissed. Thank you so much🙏🏼🙏🏼
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I called Mr Floyd and left a message, with in the hour I received a call back with much more information then I could have ever expected. Mr Floyd was very informative on every question … More I had for him. He seemed like he cared, instead of like most attorneys that you talk to that are just out for a quick buck. If you want someone that is going to shoot strait with you, and has your best interest in hand, this is you guy. This was the best experience that I have ever had with an lawyer.
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I can state with confidence that Mr. Floyd and his team are the most competent and professional lawyers one can hope for. My case was quite complex and I admit that as a law student … More I was not the most patient client. Mr. Floyd did a phenomenal job of managing the bench, prosecution and myself! The result was above expectation, and I will never hesitate to recommend this firm regardless of the caliber of the case at issue.
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It was a pleasure working with Mr. Floyd. I contacted him regarding a legal matter and he was extremely knowledgeable about the law, and responded in a timely manner. I appreciated … More the fact I did not feel rushed, and he made sure he thoroughly answered all questions I had. I would highly recommend him!Positive
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Spoke with John Floyd about a 45 year old criminal case I was involved in. I had very little information about the case and John helped me search what records were available and gave … More me guidance to find more information. He was very professional and took his time helping me. I may need to hire a lawyer on this case and Mr. Floyd will be the man.Thanks John.
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Very professional and straight forward. He's not going to waste your time or money. Very knowledgeable in a large range of possible matters one could face living in these days … More and times. If ever you need legal assistance, this is who I would suggest. Awesome!Positive
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I called about some legal questions I needed to get clarified and John was able to give me clarification and sound advice. I will definitely contact John for all future legal questions … More and issues.Thank you John!Positive
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Knows his stuff and well respected with DA and judges. I have referred him a couple times and every client has been satisfied
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John is beyond knowledgeable! If I decide to pursue my case any further I would only have him represent me.
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What a great attorney, this guy really took time out of his day to answer my questions and explain my case to me. Very grateful, thank you so muchPositive
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Absolutely a very professional lawyer. Very well read in the current law and more than willing to help if needed.
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Mr. John he’s a professional he knows what he’s doing and he’s patient they recommend Him stronglyPositive
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Great service, very knowledgable and happy to help with any questions I had
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Quick to action and helpful and knowledgeable with entertainment industry based issues!
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Responded on a holiday week. Very knowledgeable and reassuring.
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Very professional
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I want to thank John T. Floyd and all of his team. He is the best lawyer who cares aboutHis clients and fights really hard to get the best outcome. He is a fighter and he is awesome!!!I … More recommend if any one needs criminal defense , he is the BEST. We had a really serious caseAnd we are very thankful for the outcome. Thank you John!!!!! God bless you!!!!!!
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The attorneys at John T. Floyd Law Firm work diligently to achieve the best possible results for their clients. They are caring and knowledgeable professionals. Their expertise in the … More law and their experience as trial attorneys makes them the right choice as a defense attorney. I recommend this law firm highly.
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From beginning to end this firm handled my case like the top tier professionals they are. I would not trust ANYONE else with my legal needs after having less than stellar experiences … More with other teams. Thank you Floyd!!!
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I really felt like the team cared about my case and am super satisfied with the outcome. Would not recommend anyone else!
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These guys do amazing work and have phenomenal service! Hands down best in the Houston area!!
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John and Chris are true professionals! Love those guys like family!
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Mr. Floyd and his team are very knowledgeable, informative, and helpful.
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A team you can depend on to stand up and fight for you to prove the truth the whole truth!
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Mr. John T. Floyd represented me.I couldn't be happier with the outcome he managed to achieve on an VERY Important case that was dismissed the day of Trial. He is patient & … More very knowledgeable of the legal system. I HIGHLY recommend him to anyone in need of a lawyer!John, I am forever grateful & satisfied with the effort you put forth & all you did for me. Thank you isn't enough!God bless you & your family!
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The John T. Floyd Law Firm assisted me, and I can tell you that the attorney took the time to answer my questions, and I didn't feel rushed or dismissed as I have experienced in … More the past with attorneys. The attorney was very nice and extremely knowledgeable. Initial impressions and continued excellent customer service are big factors for me and as such I would highly recommend this firm.
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I thank you for your efforts to help Felons regain their Civil rights, and for the information on possession , I am A convicted Felon, no violent history. I am an expert shot, I am … More 76 yoa, and very concerned about the present lake of Security in our State and Country. God Bless and Prosper you in your efforts, Your friend, Sonny Bivens
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I really appreciated both Chris and John helping with my legal questions and concerns. Both are good guys and I would not hesitate to recommend them.
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Extremely helpful!!! Helping me understand the law.
John T. Floyd is Board Certified in Criminal Law By the Texas Board of Legal Specialization
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