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SUPREME COURT PUNTS ON “ACTUAL INNOCENCE” ISSUE, AGAIN
Presenting Independent Claims of Actual Innocence Almost Impossible in Texas
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
What does “actual innocence” actually mean? It means quite simply that an innocent person has been wrongfully convicted for a crime that he/she did not commit. It is a subject-matter we have devoted significant attention to in recent years, given that 302 persons have been exonerated through DNA evidence since 1989. This past year alone we posted three articles trying to tackle and pin down this issue which stalks our criminal justice system like an Ebola virus. Why the continued interest?
A state prisoner who has been wrongfully convicted, and who has had his wrongful conviction upheld on direct appeal, and who has exhausted all of his state post-conviction remedies, has one last opportunity to establish his/her innocence in a court of law: an application for a writ of habeas corpus in federal court. That is not a friendly venue for state prisoners, even for those wrongfully convicted for a crime they did not commit. All applications for federal habeas relief by state prisoners are governed by the Rules Governing Section 2254 Cases. This means federal courtsmayconsider a state prisoner’s claim of unlawful custody only if his/her conviction was obtained in violation of the Constitution, laws, or treaties of the United States.
State prisoners first face the daunting task of surmounting the federal rule, under 2254(e) (1), that all state court decisions upholding a conviction are presumed to be correct. Then he/she must show, under 2254(d), that any state court decision addressing a federal constitutional claim is either “contrary to” or “an unreasonable application” of a “clearly established” U.S. Supreme Court “precedent.” Now, if these procedural obstacles are not intimidating enough, try to get a grip on this muddy pig: a state prisoner does not enjoy the right to present a “free-standing” claim of actual innocence in federal habeas proceedings; he must support the innocence claim with an “independent” constitutional violation. The Supreme Court, in Herrera v. Collins, qualified this rule somewhat by leaving open the possibility that in a capital case “a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of the defendant unconstitutional.”
But an innocent state prisoner spending the rest of his/her life in prison is not unconstitutional. Innocence alone is not enough. It must be accompanied by a clear showing of a constitutional violation before a federal habeas court will even consider the issue. SinceHerrerawas decided in 1993, the Supreme Court has consistently refused to change this position by recognizing a “free-standing” actual innocence claim: Henry v. Skinner (2011), District Attorney’s Office v. Osborne (2009), In re Troy Anthony Davis (2009), House v. Bell (2006), and Schlup v. Delo (1995).
And this brings us to the recent case of Rosa Jimenez in which the Supreme Court once again refused to resolve the “free-standing” actual innocence issue. The refusal is significant because prominent legal scholars from across the country, as well as, Dallas County District Attorney Craig Watkins and the Mexican government urged the Court to do so in the Jimenez case—a case that case has drawn national and international media attention because of her credible claim of “actual innocence.” The Hispanic caregiver was convicted in 2003 in connection with the tragic death of a 21-month-old child in her care. She was given a 75-year sentence for felony murder and a 90-year sentence for the injury to a child. On direct appeal to the Third District Court of Appeals, sitting in Austin, Jimenez raised several constitutional violations but the thrust of her appeal was that the evidence presented by the State had been insufficient to support the guilty verdict—a backdoor route to an “actual innocence” claim. The facts surrounding this issue are extensive—in fact, too extensive to summarize, either from the State or Jimenez’s perspective, to fully appreciate what occurred in the home of Victoria Gutierrez on January 30, 2003. These facts were comprehensively detailed by the appeals court in its September 2007 decision denying Jimenez’s direct appeal.
For purposes of this article, the case presented to the jury revolved around the death of the toddler who choked on a wad of paper towels while in the care of Jimenez, his baby sitter. The state argued it was the result of intentional child abuse and that the paper towels had been forced down the child’s throat. The defense argued the death as a terrible accident, the result of the child playing with the paper towels. Without any direct evidence supporting either version, the jury was forced to rely upon expert witnesses from both sides, testifying about how such an incident might have occurred.
The difficulty in these kinds of cases is that the guilt/innocence of a defendant is decided exclusively by dueling experts. The fact that the toddler choked to death on a wad of paper towels while in the care of Jimenez does not, standing alone, mean she killed the child. Thus, the burden fell on the State to prove beyond a reasonable doubt that Jimenez forced the wad of paper towel down the child’s throat with the intent to kill or do serious bodily injury. Lacking any convincing physical evidence, first hand eyewitness accounts, or a meaningful confession, the State had to depend upon medical experts to show that it would have extremely difficult, if not impossible, for a two-year-old child to swallow, on its own, such a wad of paper towels, and, thus, permitting the jury to draw a reasonable inference that Jimenez had forced the paper towels down the toddler’s throat.
Jimenez’s denials and her character witnesses alone were not sufficient to overcome the State’s inference of guilt. She had to procure the services of her own medical “expert” to testify that it was possible for the child to have accidentally swallowed the paper towels, hoping his testimony would create sufficient “doubt” in the mind of one or more jurors to preclude a unanimous guilty verdict. She was unable to do that, and with the deference the courts of appeal and the Texas Court of Criminal Appeals pay to jury verdicts, it is not surprising that both courts denied Jimenez’s direct appeal.
Having exhausted her direct appeal remedies, Jimenez then sought post-conviction habeas corpus relief under Chapter 11 of the Texas Code of Criminal Procedure. She raised a number of issues but the following two were the primary ones: 1) she was denied due process of law because she had been denied adequate funding to hire experts; and 2) she had been denied effective assistance of counsel because trial counsel had failed to (a) retain qualified experts, (b) make a written request for such experts, and (c) object and request a mistrial and a continuance in response to her own expert’s testimony.
The case was assigned to then-Judge Charlie Baird, who gained national prominence in the Timothy Cole case. Judge Baird conducted an exhaustive evidentiary hearing in December 2010 in the Jimenez case. According to a January 8, 2013Austin Chroniclereport, the hearing featured “a phalanx of top experts” who testified that the Gutierrez child’s choking death “was more likely a tragic accident” than a felony murder. These experts were contrasted by the sole expert who testified for Jimenez at trial and who had a “meltdown on the stand” and who “cursed at prosecutors in the hallway”—behavior used to “discredit him on the stand.” Based on the convincing and compelling testimony given by the experts at the hearing, Judge Baird recommended to the Court of Criminal Appeals that Jimenez was entitled to a new trial. That court, however, rejected Judge Baird’s conclusion, ruling last April that there is no “clear and convincing” evidence to support Jimenez’s claim of innocence.
Jimenez’s attorneys sought certiorari review before the U.S. Supreme Court last summer. And leading legal scholars, like University of Texas law professor Jordan Steiker, saw Jimenez’s case as an excellent opportunity for the Supreme Court to not only recognize but determine what legal standard should be applied in deciding “free-standing” claims of actual innocence. The host of legal scholars and Mexican government notwithstanding, the court once again refused to do so.
But as we pointed out last fall, the Court still has the Floyd Perkins case pending before it in which it could resolve this recurring constitutional dilemma. We’re not optimistic that it will, but at least the opportunity is there—and the Perkins case would be a good one in which to decide the issue.
There is something fundamentally offensive about an innocent state prisoner not being able to present a “free standing” claim of actual innocence. It truly boggles the mind. What is even more offensive is that some prosecutors have argued that a state should have the right to execute an innocent prisoner so long as it can show the prisoner had a procedurally correct trial. How can a trial possibly be considered “fair” or “correct” when there is compelling evidence of innocence?
It has often been said that the law is not perfect. We agree. But there is no excuse for the law being stupid—and by any rational definition, it is stupid to have a federal law that does not recognize “free standing” claims of actual innocence.
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal law by the Texas Board of Legal Specialization
The court’s fact chronology in Jimenez can be found here Jimenez v. State
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I’ve never been one to write reviews but this time I couldn’t pass up the opportunity to say something. I had some serious legal questions I needed answers to concerning Texas laws. … More Being I’m from another state, I found and reached out to Attorney John Floyd for the answers. Mr Floyd listened to to my requests and told me what he need from me and went out of his way to get me the answers. Very polite, straightforward and professional, I can’t thank him enough for all he’s done. Whatever your legal case may be, I wouldn’t hesitate to recommend Mr Floyd.
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John is an amazing person and lawyer who is actually very understanding of how anxious I got and although it was hard to reach him sometimes because of his schedule, but never worry … More he is on top of things. He is very organized, very smart. I had the experience to go through a trial with him, and he always plans ahead well and is actually open and receptive to any ideas and comments I had and he was quick to decide which is right to use at the moment. I really appreciated working with him and Chris. Great lawyers and great people. As I was reminded by John, I am adding that the Jury reached a not guilty decision on the original charge and on a lesser charge in just 25 minutes. It took more time to write the charge and instructions for the jury than it took them to reach a decision.
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Highly recommend John T Floyd law firm, great response time and demeanor.I was researching an on-going criminal case, when I found an informative article written by John Floyd (about … More the perils of expert testimony). I called his office, and was very pleased to receive a timely call back. Not only was Mr. Floyd candid and helpful, but he had the kindest demeanor of any attorney that I've dealt with. I am so glad to have found this firm.
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Although I am not a client, John Floyd contacted me the same day I sent an email requesting advice, answered my questions and even when further to assist with my issue and communicated … More with me the next day. A true credit to his profession and I can only imagine how well he provides services to his actual clients!
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I give Mr. Floyd 10 Stars if they were available so I'm giving him five that's all that's available. The first time I left a message for him it was on a Friday after … More 5 p.m. and within 15 minutes he called me back I told him I needed to buy a lotto ticket because that has never happened. I knew from our chat and him calling me back that he was different from any attorney I've tried to talk to left messages never got called back they didn't even know what I needed and neither did Mr. Floyd but he did call me back. I was very interested in meeting with mr. Floyd about my case because I felt he was very transparent honest and genuine. If you've ever dealt with attorneys they don't have those traits but Mr. Floyd does. He was very honest with me told me what I could and could not do with my case. He is not egotistical he's very compassionate and he actually reads the documents you sent him unbelievable that's never happened. He will be the only lawyer I refer to anyone that needs his expertise. If you're in need of a criminal defense attorney please give John T Floyd a call you will not be disappointed.
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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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John Floyd Law Firm is highly recommended for your legal needs. He and his staff are highly professional in every aspect. Easy and comfortable feeling talking with him, and he understands … More your needs and explains your legal advice in a way you can understand. Enough just cant be said. Thank You Sir.Positive
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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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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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Excellent service and a lawyer that doesn't lie. He does what he says. JW recommends him.
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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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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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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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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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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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