US Claims SLAM Lacks Legal Standing—Asserts That Mummy Mask is Illegal Contraband —Discovery Reveals More Information

In the latest round of papers filed in court last week, lawyers for the US Attorney’s Office in St. Louis sought to strike the St. Louis Art Museum’s legal claim in the federal lawsuit involving the mummy mask of Ka-Nefer-Nefer. Federal authorities sought forfeiture of the mask in March after the museum filed for a declaratory judgment in February seeking quiet title to the artifact. Both cases were filed in federal district court in St. Louis.

Federal attorneys, in their July 27 pleading, contend that SLAM’s “claim of ownership is legally impossible, and as such the Mask is effectively contraband in the hands of the Museum.” The government argues that Egypt’s patrimony law, which gives ownership rights of cultural property to the Egyptians, makes it impossible for the SLAM to own the mummy mask. Therefore, SLAM has no legal standing to assert that it can own the mask.

The government’s brief analogizes SLAM’s claim to the mask as similar to asserting ownership over cocaine—one cannot legally claim ownership. Since the mask cannot be owned by the museum, the museum lacks standing to claim ownership, the government argues.

SLAM says that it has standing to be a legal party in the case because it bought the mask and it possesses it.

The government first disputed SLAM’s legal standing in a July 7 motion. Government attorneys filed the pleading following the receipt of interrogatory answers by SLAM. While the museum wrote that it objected to having to answer questions about how it acquired title to the mask or having to identify documents that would support its claim to lawful ownership, SLAM, nevertheless, answered the interrogatories without waving these objections.

The museum supplied the following information:

• It purchased the mummy mask for $499,000 from Phoenix Ancient Art of Geneva, Switzerland around April 3, 1998.

• Phoenix Ancient Art warranted in a purchase and sale agreement that it had title to the mask and could properly transfer title.

• Phoenix provided provenance information to SLAM before the purchase. “According to Phoenix, in or about 1995, it had purchased the Mask from Ms. Zuzi Jelinek, who in or about the early 1960’s, had purchased the Mask from the Kaloterna (or Kaliterna) private collection,” the interrogatory answer relates.

• The museum conducted a provenance investigation to determine if the mask was stolen by contacting INTERPOL, the Missouri Highway Patrol, the Art Loss Register, and the former director of the Museum of Egyptian Antiquities in Cairo, Dr. Mohammed Saleh.

• The museum conducted an investigation through Swiss legal counsel to determine if there were any liens or encumbrances on the mask. No encumbrances were found.

• Swiss legal counsel confirmed Jelinek’s address.

• The museum contacted Dr. Saleh, who advised SLAM to contact another US museum and who did not say that the mask was stolen or “advise the museum against purchasing the Mask.”

SLAM also provided a spreadsheet of 19 documents, which it claims supports the museum’s legal interest in the mummy mask. The documents can be categorized as a purchase agreement, a bill of sale, letters, and emails.

Missing from the documents list is a purchase or sales agreement between Jenilek and Pheonix Ancient Art. SLAM claimed in past court filings that such a transaction would have occurred in 1995. SLAM, nevertheless, includes on the list of documents a 1997 fax from Phoenix that purportedly attaches a letter of provenance from Jenilek.

Also missing from the documents list are shipping papers or import papers describing the mask’s entry into the United States. Import papers generally describe a package’s date of entry, location of entry, country of origin, value, and contents. The court papers suggest that the mummy mask traveled from Switzerland to the United States in 1998, but this information remains unclear. The mask must have been imported into the United States at some time and at a specific point of entry. But the question of whether papers exist documenting the importation of the Egyptian mummy mask, valued at several thousands of dollars, remains unanswered thus far.

Obscure Texas Law of the Week #1

Texas has plenty of laws on the books that are obscure to the average Texan (including lawyers like me).  In an effort to educate the general public (since ignorance is no defense), I have decided to post one obscure Texas law (from the Texas Penal Code) every week, until I run out of (what I consider) obscure laws.  Here's the first one:

Section 42.13 - Use of Laser Pointers

Under Section 42.13 of the Texas Penal Code, it is a Class C misdemeanor to knowingly point the "light from a laser pointer at a uniformed safety officer, including a peace officer, security guard, firefighter, emergency medical service worker, or other uniformed municipal, state, or federal officer."

So I've never violated this law (to the best of my knowledge), but I am definitely guilty of making the family dog run around in circles chasing a laser light.  Perhaps there is another obscure Texas law that covers that.  We'll find out in the coming weeks.

Fort Bend County Loses the "Scent Lineup" Issue Again

Last year, I posted about a murder case wherein a Fort Bend County dog handler used three bloodhounds to conduct a "scent lineup" to match a suspect's body scent to the scent of certain evidence from the crime scene.  See the post HERE.  In that case, the CCA ruled that the scent evidence was not enough to establish that the suspect had committed the murder.  The CCA did not comment on the admissibility of scent lineup evidence.

Today, the First District Court of Appeals (Houston) issued an opinion in another case involving the Fort Bend County dog handler.  Much like the last case I posted about, the dog handler was used to match a murder suspect's scent with the scent of certain evidence from the crime scene.  This time, however, the scent lineup evidence did not even make it to the trier of fact.  After hearing the views of competing experts, the trial judge ruled that the evidence was inadmissible as unreliable.  Some of the flaws in the dog handler's methodology that the court noted were:

• He carries around his "blind" non-supect scent samples (called foil samples) in ziplock bags;
• His foil samples are old samples, while the scent sample of the suspect is fresh;
• He does not do negative runs where the sample of the suspect is excluded;
• He uses multiple dogs during each test rather than allowing the dogs to work alone; and
• He is mostly self-taught and his methodology is something he created. 

On appeal, the State argued that the trial judge abused his discretion in refusing to admit the evidence.  The First District upheld the trial judge's ruling, holding that it was reasonable for the trial court of conclude that the scent lineup evidence was unreliable.

Now the courts have intervened twice to smack down the Fort Bend County dog handler's "scent lineup" evidence.  The question is: will they keep using the dogs in Fort Bend or will there be three former police bloodhounds on Craigslist by the end of the week?

Smuggling Arrest and the Law Governing African Elephant Ivory

Federal agents seized approximately one ton of elephant ivory smuggled over three years through JFK International Airport in New York. They arrested Philadelphia art dealer Victor Gordon for allegedly committing acts of conspiracy and smuggling and for violating the Lacey Act, which protects wildlife and other natural resources. He is charged with unlawfully importing and selling African elephant ivory. More details and photos of the extensive ivory haul can be found at http://www.blogger.com/www.justice.gov/usao/nye/pr/2011/2011jul26.html and cityroom.blogs.nytimes.com/2011/07/26/art-dealer-charged-with-smuggling-ivory-into-u-s/. Also see http://www.justice.gov/usao/nye/pr/2011/2011jul26.html.

The current charges remind us about the laws governing the trade and possession of African ivory. African ivory is a heavily regulated item because of the protections afforded the African elephant under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and the Endangered Species Act.

The rules governing the possession and trade of African elephant ivory in the United States can be summarized as follows:

- It is illegal to own, sell, or export crafted ivory that was imported into the United States after 1989 and which was less than 100 years old when the crafted ivory came across the US border.

- It is illegal to own, sell, or export uncrafted ivory that was imported into the United States after 1989. The age of the ivory does not matter.

- It is legal to own, sell, or export crafted or uncrafted ivory that was imported into the United States before 1989.

Prosecutor's Top Ten List

One of our regular contributors, a Texas prosecutor, recently took a trip up to New York City. In addition to dodging all the fast-walking yankees on the sidewalks and yellow cabs in the streets, he took in a taping of the Letterman Show. Filled with the Letterman spirit, he created his own Top Ten List and emailed it to me. Some of these come from his experiences when he was first starting out and some are more regular violations that he oberseves. Here they are:

Top 10 things for a defense attorney NOT to say to a prosecutor:

10) How long have you been licensed?

9) Who peed in your cheerios this morning?

8) Your case is circumstantial.

7) Is there any way we could get a different prosecutor for this case?

6) You’re in over your head.

5) I’ve seen you in trial and, quite frankly, you suck.

4) Who is your supervisor?

3) Did that suit come from Goodwill?

2) Relax. A dismissal is easy to sign.

and the #1 thing a defense attorney SHOULD NOT to say to a prosecutor...

1) No, I don’t want an offer. I want a letter of apology to my client…

Salem Alshdaifat and his company, Holyland Numismatics

Holyland Numismatics is owned and operated by Salem Alshdaifat, the recently indicted co-defendant charged by a federal grand jury in New York with crimes associated with antiquities smuggling.  Court records indicate that he is a Canadian and Jordanian citizen who holds a US green card.  An indictment is not a finding of guilt.

Alshdaifat’s cached Facebook page indicates that Alshdaifat is the founder and president of the company since 2006. But Holyland Numismatic’s company web site states that the company was “[f]ounded in 2004 in Ontario, Canada, and moved in Michigan 2009, USA.”

Holyland Numismatics is apparently a sole proprietorship run out of Alshdaifat’s residence in Orchard Lake, Michigan. That community, near Detroit, is less than an hour from the Canadian border and less than 5 hours from Toronto.

Oakland County, Michigan records show that Holyland Numismatics registered its assumed business name on July 22, 2009, but discontinued that registration on December 15, 2009. The business owner was listed as Alshdaifat’s spouse, not Alshdaifat himself. But new registration papers filed on December 15, 2009 show Salem Alshdaifat to be the owner of Holyland Numismatics.

Holyland Numismatics’s web site lists a location in West Bloomfield, MI as its mailing address. That address is a Goin’ Postal mailbox store according to an internet search. The business location given by county records is an Orchard Lake, Michigan address, which is Alshdaifat’s residence. This business location is not displayed on the company's web site. Public property records for the Orchard Lake address reveal that it is a home owned in the name of Alshdaifat’s wife. The property appears to have been placed for sale as of June 2, 2011, but criminal court orders require the removal of this property from the real estate market since the house serves as collateral for Alshdaifat’s bail.

Holyland Numismatics’ web site remains active, suggesting that the company is operational. Since Alshdaifat is confined to his home under the terms of his bail and since his home appears to be his place of business, one reasonably can conclude that the business will continue to function as the criminal case against Alshdaifat moves forward.

Bail Set, Lawyers File Appearances in Khouli Antiquities Smuggling Case

A multiple count felony indictment against Moussa "Morris" Khouli, Joseph A. Lewis II, Salem Alshdaifat, and Ayman Ramadan charges the defendants with antiquities smuggling crimes. Three defendants are now actively engaged in their cases that are before the federal court of the Eastern District of New York. Ramadan remains at large.

Khouli has been released on a $250,000 bond. Lewis has been released on a $250,000 personal recognizance bond. Meanwhile, the prosecution and the defense agreed to place Alshdaifat on a $500,000 bond along with conditions that include house arrest, electronic monitoring, and a waiver of extradition from Canada.

Lawyers for the three defendants have filed appearances, including attorney Gerald Shargel for Khouli, the firm of Mintz Levin for Lewis, and attorney Henry Mazurek for Alshdaifat. Khouli’s earlier attorneys have withdrawn from the case. Meanwhile, the United States is represented by Karin Orenstein and Claire Kedeshian.

A June 23 press release shows that this is the second major case Orenstein has been assigned recently. She also serves as the prosecutor in a ten person Oxycodone distribution case.

A Closer Look at the Case Against Mousa “Morris” Khouli and the Greco-Roman Coffin

A multiple count indictment publicly released last week implicates Mousa “Morris” Khouli and three others (Joseph A. Lewis, II, Salem Alshdaifat, and Ayman Ramadan) in an antiquities smuggling ring. Khouli is charged with conspiracy to smuggle, conspiracy to commit money laundering, smuggling as well as fraudulent importation and transportation (5 counts), and making false statements (2 counts).  Keep in mind that an indictment is simply a process that brings a person before the court. The government must prove its case beyond a reasonable doubt before a person may be found guilty.

Those familiar with the case know by now that Khouli is a New York based antiquities and ancient coin dealer. Because he faces more charges than the other named co-conspirators—-nine criminal counts—-and because federal prosecutors looked to Khouli to provide information two years ago, his case bears some examination.

The 17 page federal grand jury indictment recites that Khouli operated a business called Windsor Antiquities (sic), selling items both from his physical location in Manhattan and on the internet. He is alleged to have illegally imported antiquities and to have sold them to a collector whose home is in Virginia. From the available court documents, the specific item that appears to have begun the investigative probe in to Khouli’s activities is a Greco-Roman coffin.

The recently released indictment and Immigration and Customs Enforcement (ICE) press releases of July 14, 2011 describe that:

• Khouli sold Egyptian antiquities to Pharma Management Corp. CEO and Virginia collector Jospeh Lewis, II. The objects included the Greco-Roman coffin.

• Khouli bought the Egyptian antiquities from Michigan dealer Salem Alshdaifat of Holyland Numismatics and Dubai dealer Ayman Ramadan of Nafertiti (sic) Eastern Sculptures Trading.

• Around October 30, 2008 Khouli made a bank transfer of $10,000 into Ramadan’s bank account in Dubai. Then Ramadan had the Greco-Roman coffin shipped by air from the United Arab Emirates to JFK International Airport in New York, arriving on November 20, 2008.

• The Greco-Roman coffin was seized from Joseph Lewis’ home by federal agents on July 14, 2011.

• HSI special agents seized almost $80,000 and more than 200 smuggled antiquities from Khouli worth approximately $2.5 million. Other seizures from Khouli's store included a variety of antiquities and thousands of ancient coins valued at $1 million.

Additional unsealed court documents shed further light on the facts alleged in the indictment. Writing in a September 4, 2009 affidavit in support of Mousa Khouli’s arrest, an ICE special agent explained how, around November 2008, he discovered that a particular shipment entered JFK airport in New York. The Customs database told the agent that the shipment was described as “Wood Panels, Antiques of Age Exceeding One Hundred Years.” The database also listed the country of origin as the United Arab Emirates. The agent’s suspicions were aroused because "it is extremely unlikely that antique wood panels would originate in the UAE. The soil is almost entirely sandy . . . ,” he wrote.

Based on this information, the special agent met with Khouli on February 10, 2009. “Khouli then showed me five old, painted wood panels. I asked Khouli where the panels were from and he said they were Egyptian. When asked whether he had any merchandise originating in the UAE, Khouli responded that he sometimes imports from the UAE, but that the UAE is not the country of origin for any of his merchandise.”

Khouli signed a statement for the ICE agent that said that the wood panels did not originate from the UAE; they were imported from the UAE. The special agent noted in the affidavit that Khouli violated the law, particularly where fifteen of twenty imports over a five year period were claimed to have originated from the UAE. The ICE agent recited familiar cultural property law, specifically that the entry of cultural property in the United States in contravention of a foreign cultural patrimony law is punishable by the National Stolen Property Act, referencing United States v. Schultz. The agent also stated that lying about the country of origin on customs documents constitutes a material false statement in violation of the federal criminal code, citing United States v. An Antique Platter of Gold.

The court sealed the government’s affidavit and complaint because the case remained under investigation. Even after authorities arrested Khouli on September 8, 2009 the case remained under seal. Khouli apparently appeared for arraignment on October 22, 2009 as “John Doe” at the request of the US Attorney’s Office, according to now publicly available court documents.

The government charged Khouli in 2009 with smuggling cultural property into the United States. But federal prosecutors wanted Khouli as an informant. A previously sealed prosecution letter to the court dated October 19, 2009 explains: “Khouli has expressed an interest in cooperating proactively against others who deal in stolen cultural property . . . . These crimes are difficult to detect and prove because they are committed by falsifying importation documents and provenances. Khouli’s cooperation is therefore of great value to the government and will not only contribute to the investigation of others who smuggle and deal in stolen cultural property, but will enable the United States government to seize and repatriate stolen cultural property to the countries that own the property under applicable treaties and patrimony laws.”

The prosecution on December 16, 2009 moved to dismiss the criminal case against Khouli, perhaps for the purpose of utilizing Khouli as a cooperating witness but this information is unknown for certain. In May 2011, however, Khouli and the three co-defendants were indicted. The indictment remained under seal until last week. And on July 14, 2011, Khouli posted a $250,000 secured appearance bond.

According to the records of the New York Department of State, Division of Corporations, Khouli’s business was actually known as Windsor Antiques, Inc. Created on September 28, 1995, the public records show that the business dissolved on December 27, 2010. Khouli was listed as the CEO, with an address in New York, NY and a principal office located in Brooklyn. A new company, Palmyra Heratige (sic), Inc., emerged on May 28, 2010 according to the corporation division’s records, listing an address located at the Manhattan Arts and Antiques Center. Khouli is associated with both Windsor Antiques and Palmyra Heratige (sic), Inc.

Although the Palmyra Heratige (sic) web site is down, a Yahoo! search revealed the following cached web autobiography as of July 11, 2011 (http://www.vcoins.com/palmyraheritage/store/info.asp?page=AboutUs):

“I am Morris Khouli. I moved to New York City in 1992 with my family and opened a gallery in New York City in 1995. My father had a gallery in Damascus for 35 Years, and he learned the business from my Grandfather who was in the business as well. I am the third generation in this business. Thanks to my dad, he taught me the business and I learned to love ancient coins and antiquities ever since I was a little boy.

Many collectors and dealers know me since I do a lot of shows in New York, California, Maryland, Florida, Illinois, and the ANA show, wherever it is since 1993. You may visit my gallery in the heart of Manhattan in the beautiful Manhattan Art and Antiques Center. We are open to the public Monday through Friday 10:30 AM to 5:00 PM. Located at 1050 Second Avenue between 55 and 56 streets Gallery Number 16 New York NY 10022 Tel 212-3191077 and fax 212-3191169.

We guarantee all of our items to be authentic and if for any reason you are not happy with the item, you can return it for a full refund. Try us--you will be happy.

Thank you,
Morris Khouli”

Palmyra Heratige (sic) apparently sold various types of antiquities. The Manhattan Art and Antique Center lists a web page for Palmyra Heritage at http://www.the-maac.com/Streamline?p=viewPage.jsp&id=61&gid=123. It displays two ancient coins, an Apulian amphora, a Roman bust, and an Illyrian bronze helmet.

As the case continues through the federal court system some important questions that perhaps may be answered include:

• how the Greco-Roman coffin was originally acquired and who facilitated its acquisition and transfer;

• who packed and transported the coffin to the UAE, how was it done, and which countries did the coffin pass through;

• which foreign government authorities failed to detect the movement of the coffin and why;

• how much money was paid for the coffin and how was the money transferred;

• whether the coffin was conserved or restored and who did the work if it was;

• how the coffin got from JFK airport to Lewis’ home, who packed it, and who transported it;

• why HSI waited two years to seize the Greco-Roman coffin (which is a good decision if it served to further HSI’s investigation, of course); and

• who are the unnamed co-conspirators in this case?

Antiquities Conspirators Charged

This week federal authorities publicly released a sealed indictment charging four men with antiquities trafficking. A federal grand jury in New York alleges that an antiquities trafficking ring conspired to smuggle ancient artifacts from Egypt, engaging in money laundering and false statements in the process.

The multiple count indictment charges
• collector Joseph A. Lewis, II, president and CEO of Pharma Management Corp. in Virginia.
• Mousa Khouli of Windsor Antiquities in New York,
• Michigan coin dealer Salem Alshdaifat of Holyland Numismatics, and
• dealer Ayman Ramadan of Nefertiti Eastern Sculptures Trading from Dubai.

The indictment alleges, in part, that Lewis illicitly bought Egyptian antiquities, which were illegally imported into the United States through Dubai. The indictment also alleges that the four conspired together and with unidentified “others” in an antiquities smuggling operation.

ICE issued a July 14 press release stating that it "seized Egyptian antiquities to include but are not limited to a Greco-Roman style Egyptian sarcophagus, a unique three-part coffin set belonging to Shesepamuntayesher from the Saite period or 26th Dynasty, approximately 664-552 B.C. In addition to Egyptian antiquities, other Middle Eastern and Asian artifacts along with more than a thousand antique coins have been recovered.”

U.S customs agents executed a search warrant at Lewis' home on July 13 in Chesterfield, VA. The Richmond Times-Dispatch reports that they "recovered the Greco-Roman sarcophagus, the funerary boats and the limestone figures" there. The newspaper also reports that Lewis was convicted of illegal importation of wildlife in 1991, a charge plea bargained down from a felony to a misdemeanor. He reportedly served 30 days in home confinement, paid a $7500 fine, was placed on probation for 5 years, and was sentenced to perform community service

Ramadan remains a fugitive as of this writing.

Meanwhile, no indictments have been handed up thus far that involve the coins or Asian goods.

It should be noted that an indictment is not a finding of guilt.  A criminal defendant is presumed innocent unless the prosecution can prove its case beyond a reasonable doubt in a court of law.

Second Amendment Not Written For Illegal Aliens

The Second Amendment to the United States Constitution provides:

...the right of the people to keep and bear Arms, shall not be infringed.

But who are "the people?"  Does that include everyone, even illegal aliens?  Nope, says the 5th Circuit.

In a recent case, the Appellant argued that his conviction for being an illegal alien in possession of a firearm, in violation of 18 U.S.C. § 922(g)(5) violated the Second Amendment. The court held that “the people” referenced in the Second Amendment does not include aliens illegally in the United States. The court noted that the Constitution does not prohibit Congress from making laws that distinguish between citizens and aliens, and between lawful and illegal aliens, and as a result 18 U.S.C. § 922(g)(5) is constitutional under the Second Amendment.

U.S. v. Portillo-Munoz, (5th Circuit) decided June 13, 2011.  See the full opinion HERE.

Wanna-be Texas Cheerleader's Lawsuit Falls Off the Pyramid

While the 5th Circuit case linked below has nothing to do with criminal law and procedure, it has everything to do with ridiculous Texas shenanigans.  Volokh linked it first.  I found it too good not to note.  Read the case for yourself.  Don't pass up the footnotes.  It is utter greatness.

Sanches v. Carrolton-Farmers Branch ISD (5th Circuit - Civil)

Here a teaser:

Samantha Sanches appeals summary judgment on her claims of sex discrimination and retaliation under 20 U.S.C. § 1681(a) (“title IX”) and 42 U.S.C. § 1983. Reduced to its essentials, this is nothing more than a dispute, fueled by a disgruntled cheerleader mom, over whether her daughter should have made the squad. It is a petty squabble, masquerading as a civil rights matter, that has no place in federal court or any other court.

And it only gets better from there. 

CCA Refuses to Grant New Trial in Capital Case After Medical Examiner Recants Trial Testimony and Trial Court Recommends New Trial

Ex Parte Neal Hampton Robbins – Tex. Crim. App. , June 29, 2011

In 1999, Neal Robbins was convicted of capital murder and sentenced to life in prison for the death of his girlfriend’s 17 month-old child. The cause of death as reported by the medical examiner was asphyxiation by compression. The medical examiner testified to her theory at trial and despite contrary evidence that the compression wounds may have resulted from adult administered CPR, the jury convicted Robbins of capital murder.

In 2007, at the urging of one of Robbins’s acquaintances, the original findings of the medical examiner were reviewed by the Harris County Medical Examiner’s Office. The Deputy Chief Medical Examiner disagreed with the findings and the trial testimony of the original medical examiner. The autopsy report was then amended to reflect that the cause and manner of death was “undetermined.” Eventually, the original medical examiner was asked to review her prior findings. In a letter to the district attorney, she stated:

I believe that there are unanswered questions as to why the child died, and I still feel that this is a suspicious death of a young child. Given my review of all the material from the case file and having had more experience in the field of forensic pathology, I now feel that an opinion for a cause and manner of death of "undetermined" is best for this case.

She went on to explain that the bruises she originally equated with asphyxiation by compression could have resulted from aggressive CPR and other efforts to assist the child.

Armed with the recantation of the chief government witness, Robbins filed an application for writ of habeas corpus in June of 2007. The State did not oppose the application and recommended that Robbins be given a new trial “because his due process rights to a fair trial and impartial jury were violated.” In response, the trial court appointed yet another medical to review the evidence and offer an opinion. This time, the chairman of the Department of Pathology at Baylor College of Medicine opined that the original determination of the cause of death, as presented in the capital trial, could not be supported by the evidence.

Not satisfied with this opinion, the trial court ordered one last review by another pathologist. This last and final pathologist stated that it was her opinion that the child’s death was a homicide and that the manner of death was asphyxia by suffocation (a theory not presented at the original trial). After this finding, the State withdrew its recommendation that a new trial be granted, but agreed not to oppose the request for a new trial.

After an evidentiary hearing into the cause of the child’s death, the trial court recommended that the Texas Court of Criminal Appeals grant Robbins’s request for a new trial.

A slim majority (5-4) of the CCA was not equally convinced. Characterizing Robbins’s application as a “bare innocence claim,” the CCA explained that it must “look to see whether there is ‘clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence.’”

The CCA concluded that:

[The original medical examiner] did not entirely repudiate her testimony. Although she can no longer stand by her more definite trial testimony, it remains at least possible that [the child’s] death could have occurred as [the medical examiner] originally testified. Thus, [her] re-evaluation does not void her trial testimony. The jury could have considered [her] “undetermined” opinion and still found Applicant guilty, especially in light of all of the other evidence adduced at trial. Applicant has, therefore, failed to make the requisite showing “by clear and convincing evidence that no reasonable juror would have convicted him in light of” [the medical examiner’s] re-evaluation.

Application for writ of habeas corpus is denied.

Judge Cochran, joined with Judges Womack and Johnson dissented, stating:

I certainly agree [that]…applicant has not established his actual innocence-not even close. But, given the inexperienced trial and habeas judge’s legitimate and serious concerns about the impact of [the medical examiner’s] testimony at trial on the critical and hotly disputed issue of [the child’s] cause of death, I agree that applicant did not receive a fundamentally fair trial based upon reliable scientific evidence (or the honest admission that science cannot resolve the critical issue.)

Judge Alcala also dissented in a separate opinion, stating that she would grant relief because Robbins “was denied due process of law by the State’s use of false testimony to obtain his conviction.”

If only Robbins had been tried in Florida by Casey Anthony’s jury, this entire appeal could have been averted.

CCA Upholds DWI Search Warrant, Overturns Lower Courts

In a recent case, the Texas Court of Criminal Appeals, encourages trial judges to take off the hypertechnical blinders and consider the totality of the circumstances when reviewing the propriety of search warrants and their accompanying affidavits.

State v. Jordan – (29 June 2011) Judge Womack writing for a unanimous court:

An affidavit for a search warrant to search an accused’s blood began with a statement that the officer had “good reason to believe that heretofore, on or about the 6th day of June, 2008, [the suspect] did then and there commit [the offense of DWI.] The affidavit then went on to describe the specific conduct that the suspect exhibited that gave rise to the DWI arrest. However, when describing the conduct, the officer did not state that the conduct also occurred on the 6th of June, 2008. The magistrate issued the warrant and blood was drawn indicating that the suspect had, indeed, driven while intoxicated.

At trial, the court suppressed the results of the blood test, ruling that the search warrant was deficient as it failed to allege the specific date and time the officer observed the conduct giving rise to the arrest. The 3rd District Court of Appeals (Austin) affirmed. See our prior coverage HERE.

The CCA took the time in its opinion to distinguish prior caselaw on this subject and held:

The observations of driving and intoxication described in the second part of the affidavit were the elements of the offense alleged in the first part of the affidavit (where the time of the offense was alleged). Under the circumstances of this case, it was a reasonable inference that the observations occurred on the same day that the offense was alleged to have occurred. We therefore hold that the Court of Appeals erred in failing to consider the totality of the circumstances contained within the four corners of the affidavit in reviewing the magistrate’s basis for determining probable cause.

The CCA went on to do some “math for lawyers” that was apparently missing at the trial level:

We also find that the magistrate had a substantial basis for determining probable cause despite the failure of the affiant to specify that time of the stop. Because the warrant was issued on June 6th at 3:54 am, less than four hours could have elapsed between the observation of the offense, and the issuance of the warrant.

Calling on the trial court (and the 3rd Court below) to focus on the totality of the affidavit, the CCA remanded the case to the trial court, where, they might just have themselves a DWI trial after all.

A Simple Truth (Revisited)

In September of 2010, the 3rd Court of Appeals (Austin) reversed the sexual assault conviction of Mark Barshaw because the trial court allowed the following testimony of an MHMR expert regarding the truthfulness of mentally retarded individuals:

It's been my experience that folks with mental retardation can be painfully honest, really. I mean, it's like a little kid who looks at somebody and says in the supermarket, 'You're really old,' or, you know, whatever little kids do.

See our prior post HERE.  The State appealed the 3rd Court’s reversal and now, in an opinion released on 29 June 2011, the Texas Court of Criminal Appeals reversed the Court of Appeals.

Apparently troubled by the less-than-thorough harm analysis conducted by the lower court, the CCA explained:

Even in cases in which credibility is paramount, Texas courts have found harmless error when the inadmissible expert testimony was only a small portion of a large amount of evidence presented that the jury could have considered in assessing the victim’s credibility. Upon reviewing the record as a whole, we find that additional evidence exists that should have been considered in the court of appeals’s harm analysis, as is required by [our previous caselaw].

With that, the CCA remanded the case back to the 3rd Court of Appeals to conduct a full harm analysis. A shot across the bow perhaps? I think the odds are heavily in favor of the Court of Appeals changing its mind on this one. We’ll see.

Military Capital Case Unlikely to Result in an Execution (Even in Texas)

On the fringes of Texas criminal law is the notorious case of Major Nidal Hasan, the Army medical officer and American Muslim that killed 13 people during a shooting rampage at Texas’ Fort Hood in 2009.

CNN reports HERE that the Convening Authority (the Army General that forwarded the charges to court-martial) has decided that this will be a capital case. That the death penalty would be on the table was thought by many to be a foregone conclusion. However, unlike Texas capital cases, the likelihood of the death sentence being executed is a longshot in the military system.

As reported by the Court-Martial Appellate blawg CAAFlog,

Under the current military death penalty system, which President Reagan promulgated in January 1984, there have been 52 known capital courts-martial resulting in 16 adjudged death sentences, for a 30.8% death sentencing rate.

Further, a survey of the 10 death sentences that have been adjudged in the military in past 37 years indicates that the reversal rate on appeal of death sentences in the modern military system is 80% (and none of the death sentences were reinstated when resentencing was authorized.)

The most shocking statistic, especially to Texans like me, is that there has not been a military execution under the modern system, ever. And it does not appear that one is imminent for the existing military death row inmates.

The death penalty may be an option for the Hasan jury and it may indeed be the sentence that is handed down, but if history is our guide, Hasan will spend his remaining days at Leavenworth and there will be no execution.