How Police “Trick” Themselves

November 15, 2017

By Criminal Defense Attorney Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

I’m a huge fan of both Malcom Gladwell and Michael Lewis.  They are best selling authors.  Lewis’ famous works include “Moneyball”, “The Big Short”, and “The Blind Side”.  Gladwell wrote “Outliers”, “The Tipping Point”, and “Blink” to name a few.

Both authors focus often on how the human mind tricks itself when it comes to important decision making.  For example, Lewis’ discusses in a recent book, “The Undoing Project”, how the Houston Rockets General Manager really dislikes meeting potential players.  He worries he will like them too much and this will cause him to give players a chance who have statistically proven they have limited abilities to pass, rebound or shoot.  Further, he forbids coaches and scouts to compare prospective players to past players.  The Houston GM believes each player is unique and convincing yourself a new player is like “Clyde Drexler” for example, is a great way to trick yourself into a bad decision.

Gladwell discusses “thin slicing” in his book, “Blink.”  Thin slicing refers to our ability to take small bits of information and create full pictures from them.  Sometimes the thin slicing serves us well and other times it takes us in a completely wrong direction.

How Police Trick Themselves

We like to think of a good cop just like a trusty hound-dog.  We want to think there is a sixth sense they possess which allows them super-human abilities to see through people, read minds, and become one with the universe just for a few moments every day to protect the good from the evil.  Except intuitively we know this can’t be true.

One of the very first people I defended after leaving the DA’s office had been accused of stealing air conditioning equipment.  He had plenty of tattoos and a long rap sheet.  He had no idea why he was in custody.

“Sure, sure” I thought.  “They told me there would be people like you I’d have to defend…  Crooks who were so dishonest if they told you it was daytime I’d still have to go outside to check.”

Then I saw the evidence.  A detective was told by a homeowner they saw a silhouetted man after dark from about 100 yards away messing with an AC unit.  The next morning the unit was gone.  A few weeks later, my client was selling the same unit from his store (matched with a serial number) nearly 150 miles away!

“Huh,” I thought…. “you actually didn’t steal the thing and you really don’t know why they dragged you up here for this!”

Now, maybe I’m the fool for believing it wasn’t him who stole it… and he was probably guilty of at least buying an AC unit he should have known was red-hot and trying to re-sell it for a profit.  But there was a better than even chance he was innocent in my mind.

So how did the cops blow it?  (Fast forward — he was soon exonerated and released).

They were tricked by his rap sheet, by his appearance, and just enough evidence against him which didn’t pass the smell test.  They wanted to believe he was guilty.  Their brains worked like mine did.

Circular Logic

One of the concepts I try to get juries to understand is how often law enforcement will use circular logic in their investigation and the prosecution will use circular logic in the presentation of their case.

Circular logic is like this:  The defendant is guilty so x must be true, y must be true and z must be true…. therefore the defendant is guilty.

A real world example could be a domestic abuse case.  Police believe defendant beats his wife regularly.  This explains why the spouse doesn’t want to prosecute.  He knows how to hit her so that it won’t bruise much and if it does it is covered by clothing, and why the police have to come out to the house regularly…. therefore Defendant beats his wife regularly.

It all makes sense and there is nothing complicated to investigate.  We’ve seen this 1,000 times, right?  What I see is how we got there with thin-slicing and reaching a snap decision which completely altered our thinking.  We bought into the pre-existing narrative we all want to believe.

Now, maybe the truth is it is the wife who has uncontrollable substance abuse problems and often attacks the husband or the kids.  When he defends himself he might leave defensive bruises on her arms.  Maybe she calls the police on him 3 times a year in her opioid or drunken rages then immediately gets remorseful the next morning.  Who knows?

Deconstructing the Thinking Errors

Trying a case to a jury or judge while deconstructing these thinking errors is a challenge. Police and prosecutors are highly polished at presenting their case.  In their defense, they sincerely believe their narrative is correct and obviously in many instances it is.

There are parallels between the Houston Rockets GM’s identification of classic mental pitfalls and common mind-traps law enforcement encounter.

We know this happens when someone is exonerated after years and years in incarceration.  It shouldn’t take DNA to tell us.  It requires listening, keeping an open mind, and being mentally disciplined.

*Jeremy Rosenthal is an attorney licensed in Texas and is Board Certified in Criminal Law.  Nothing in this article is intended to be legal advice.  For legal advice about any situation you should contact an attorney directly.


Criminal Law in Small Counties

November 8, 2017

By Collin County Criminal Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Most criminal defense lawyers will tell you the smaller the county, the harsher they are.

The New York Times agrees.  They wrote this article last year with an interactive map showing precise data from almost every county in the United States about their incarceration rates… and just as importantly…. their percentage of increase or decrease in the last decade.

The article focuses on Dearborn County, Indiana.  They sentenced a drug addict charged with possession of heroine to 35 years of prison.  You read that correctly.  The collection of small towns by the Ohio river jails more people than San Francisco and Durham COMBINED.

My practice is in Collin County, Texas.  It is the suburbs.  We are the 7th most populous county in Texas and the 63rd biggest county in the country according to Wikipedia on the date of the publication of this blog.  Being a bigger county, I don’t think we remotely resemble Dearborn County, Indiana.

From our Collin County base we see it all.  In addition to Collin, we practice in urban Dallas and Tarrant Counties.  We have neighboring suburban counties to our own in Denton and Rockwall Counties.  From time to time we have the occasion to practice in neighboring rural counties.

I should note there are always exceptions to the rule, and I’ve found practice in some rural areas extremely pleasant and excessively fair.  But bye and large, here’s why I think we often have “tough sledding” in rural counties as proven by the news article.

Eroded Checks and Balances

Our system of justice is supposed to have built-in safeguards in the form of checks and balances.  When those safeguards aren’t working — things go haywire.

Volume

Probably the largest unseen hand in any courthouse is that of volume.  Dallas and Tarrant counties have more cases than they know what to do with.

“Depth Perception” and Experiences

With greater volume the “extremes” are more pronounced… that is the most severe and egregious crimes tend to be much worse and the more borderline or unfair mishandled police investigations or prosecutions are probably extremely bungled and unfair.

With greater volume tends to be greater “depth perception” about how egregious any single case might be to a prosecutor.

A Dallas prosecutor might deal with 10 shoplifting cases before lunch every day.  So an 11th case won’t be earth shattering to them.  The prosecutor, then, also learns some of the common underlying factors of shoplifting such as mental illness or youthful exuberance… and they probably also see collateral effects of petty theft like immigration headaches or loss of college opportunities.  An urban prosecutor might give sweetheart plea offers on the shoplifting cases just to get to a 10 minute lunch break — or so they can focus on a more egregious case they’d rather prosecute more strictly.

A rural prosecutor might have the same shoplifting case but there is potential to be more strict for no other reason than they might not have anything worse to prosecute… thoughtful and sincere as they might be.

Pressure to Move Cases

Prosecutors are under pressure to move cases through the system.  Big counties have more of them.  Of course, it is relative based on personnel… but bigger counties are more over-worked, plain and simple.

Prosecutors who are pressured to move cases will almost always make better plea offers and/ or dismiss borderline cases.

Defense Lawyers

As a criminal defense lawyer, I should be the single biggest safeguard of a defendant’s rights.  I can cross examine, investigate and subpoena.  I can appeal and point people to adversarial remedies.

Police don’t like getting cross examined and they don’t like being investigated themselves.  They don’t like being told they are wrong in closing argument.  This only makes them human.

We are human too.  It is perfectly natural for a defense lawyer to fear retaliation by an angry judge, prosecutor, or police officer who takes exception to something we might do to defend a client.

In Collin County, I have the benefit of knowing that if I upset a police officer while I’m doing my job — there is a good chance I’ll never run into them in public or get pulled over by them randomly.  The same is even true with prosecutors and judges.  Though I’ll obviously see them on a more routine basis — chances are the next time I see them after a heated battle will be a month or two down the road by which time the water is under the bridge.

The bigger the county — the more aggressive the defense lawyers can be.  This is important.  The more aggressive the defense lawyers — the more careful police, prosecutors, and judges are when they do their jobs.

Independence of the Courts and Law Enforcement

It is always troublesome going to a courthouse where you know the police and the prosecutors, and the Judge (and sometimes the defense lawyers too) are drinking coffee together in the morning.

There’s nothing overtly wrong about these relationships — but it is obvious it makes it harder for a defendant to get a fair shake.  Judges, prosecutors, and defense lawyers are people too (a recurring theme) and the friendlier and cozier they are will law enforcement, the harder it is for anyone to tell a police officer “no” on any given case.

In larger counties these relationships tend to be more at “arms length.”  That means there is greater separation — frankly for no other reason than it is impractical for everyone to work out of 3 or 4 offices on the same floor.

Again, there is nothing wrong with prosecutors having a close working relationship with law enforcement to include advising them, assisting them in attaining things like search warrants, or training them on courtroom procedure.  The problem comes when there is virtually no separation and over-fratinization.  Smaller counties struggle with this more probably for no other reason than their community is more tight-knit.

Appeals Courts

An appeal should also be a cross-check on local authority.  Chances are the appeals judge is somewhere else and can lend an outside view to what happened in the trial court.

The problem with appeals courts is when they become rubber-stamps.  In Texas in most instances they only affirm or deny the conviction and the sentence.  Texas judges are elected.  I joke with juries if they ever see one run on a platform of “I’ll be easy on crime” to please let me know so I can go oppose that judge in the next election!

Attitudes Towards Police

Urban counties have bigger problems with citizens trusting police.  Prosecutors in those jurisdictions probably need to choose their battles wisely.  Rural prosecutors can be more aggressive in cases where there may be issues about police conduct because their jurors may simply be less critical of police.

“Napoleon Complex”

I sometimes get the impression rural counties feel like they have something to prove to outsiders.  I acknowledge these may just be my feelings which doesn’t make them proof of anything.  Still, it is an impression hard to shake in some instances.

The Bottom Line

There is clearly an objective and provable difference between rural and urban criminal justice.  The statistics just don’t lie.

If you ask ministers of justice in third-world countries they will all tell you how they are “tough but fair.”  But the only check and balance they have is their conscience.

Our prosecutors and judges consciouses can be the largest check and balance too where our institutional checks and balances become eroded.

I wonder if this is what we’re seeing.

*Jeremy Rosenthal is a board certified Criminal Defense Lawyer in Collin County, Texas.  Nothing in this article is intended to be legal advice.  For legal advice about any situation you should contact an attorney directly.


The Probable Cause Fairy: AKA An Officer’s “Training & Experience”

October 27, 2017

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

It was very early on in my experience with criminal law when I first learned the power of an officer’s “training and experience.”

Much of our legal system is built to prevent profiling of any kind.  Some of those safeguards include both statutes and case law which prevent officers from arresting or even just hassling people based on “hunches.”  Courts have long recognized where there is a hunch, there is a good chance there is profiling.

Courts insist probable cause must be based on what is called articulable fact and then making reasonable deductions from those facts which make it probable a crime is in progress or just occurred.

An example of articulable fact would be “Defendant swerved into the next lane of traffic without signaling.”  The statement is concrete and establishes an objective fact, i.e., the car moved from one lane to the next.  A reasonable deduction would be there is something wrong with the driver.  An officer can and should investigate more.

But the topic is still pretty mushy.

Here’s an example of something which probably isn’t articulable fact: “Defendant took several steps away from his car after I asked him to exit the vehicle.”  This doesn’t really tell us anything, does it?  Can we deduce this person has done something wrong or is trying to get away with something?  It’s hard, huh?

How Police and Prosecutors Convert Hunches into Articulable Facts

They do it through using the magical phrase referring to an officer’s “training and experience.”

So lets change the above example… “Defendant took several steps away from his car after he exited the vehicle.  In my training and experience, people in possession of drugs will often separate themselves from the contraband.”

Really?  Which class was that in the police academy?  How many times, officer, has a defendant taken several steps away from a car because they had drugs… and would you mind trying to remember those cases…. because this sounds like you just made it up?

See how it works?  By inserting “training and experience” into the sentence, SHAZAM — what was once just a hunch is now articulable fact.

In defense of police and prosecutors — I don’t think they really see what they are doing is trying to manipulate the standards.  They may honestly believe police get a ‘hound dog’ sense after being on the streets for their careers…. and maybe they do.  But the bottom line is blurs the line between “articulable fact” and a hunch.  Unfortunately, courts often go along with the fiction.

The Defense Lawyer’s Struggle

Our constant struggle is trying to root out exaggeration and, for lack of a better word, fudge from prosecutors and police which helps them attain probable cause or convince a jury to convict.

Any time I hear that phrase in the courtroom it sets off my spidey sense and it is time to fasten the seat-belts.  But that is just my training and experience!

*Jeremy Rosenthal is Board Certified in Criminal Law in Texas.  Nothing in this article should be considered as legal advice.  For legal advice about any situation contact an attorney directly.

 

 

 


A Small Habit Which Contributes to Convicting the Innocent

October 17, 2017

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

Police agencies have public relations personnel.  Their job is to issue press releases.  Normally the press releases answer relevant questions the public has demand for.

We all want to know about bad crimes which affect our safety or our community.  We need to know if a killer is on the loose or if an elected official is a crook.

But police agencies and their PR people are human.  They are trying to paint the agency, their investigative abilities and their protection of the public in the best light possible.

Look at the DUMB Criminals!

I’m not sure why, but sometimes you get press releases which result in articles like this.  Two people were caught with methamphetamine on a routine traffic stop and one claimed he was wearing pants that weren’t his.  Hardy har har.

I’m assuming this was from a press release.  I don’t know how else a beat reporter would get such specific details from a crime blotter.  Normally this degree of detail would require access to a police report, PR person or press conference.  I don’t blame the reporter for running with it.  They’re just doing their job.

This is what I call a “look at the dumb criminals” release.  I’m not going to lie.  The defense this guy used is amusing.  For about 30 seconds.

Blake Long and his girlfriend aren’t city council members, aren’t celebrities, and aren’t law enforcement officers.  They’re the punchlines and the foil of today’s joke.

What I See in the Article

What I see is two things:  First is a mother and father somewhere with a broken home and with broken hearts because of their adult child’s self-inflicted disease… and second I see readers (jurors) who are being taught to presume anyone sitting at Defendant’s table guilty and not innocent.

The Same System of Justice

The same system of justice is responsible for apprehension and conviction of Blake Long and Michael Morton — wrongly convicted of murder and released after decades of confinement.  Sometimes we need to remind ourselves of this fact.

We like to pretend these two arrests happened in different worlds, on different planets, in different justice systems.  But they didn’t.  They happened in the same one.

So how are they connected?

They display polar opposite concepts in the criminal justice system.  Between the Long arrest and the Morton arrest are tens of thousands of other arrests where guilt and innocence are more blurred.

When we win cases, we don’t typically make a big deal about it in the criminal defense world.  Our clients want anonymity.  They want the thing over.

Do yourself a favor next time you see or hear a “look at the dumb criminals” story and look deeper.

*Jeremy Rosenthal is an attorney licensed in the State of Texas and is Board Certified in Criminal Law.  Nothing in this article is intended to be legal advice.  For legal advice about any situation contact an attorney directly.

 

 


Do Police Lie in Police Reports?

October 17, 2017

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Yes, no and maybe so.

Each police report is its own snowflake.  No two are exactly the same (unless the officer does a bad job with a cut & paste).

When I have my clients look at police reports I typically caution them they will not like what they’re about to see.  This is because many offense reports can be heavily spun to support the officer’s conclusion and read like scathing propaganda when they are the subject of the story.  Police include facts which support their decision to arrest and facts and theories which don’t support their own see the editing room floor.

Police don’t write reports to be malicious but they probably feel that way to us when we read them.  They are simply justifying their decision to arrest.

We also have to understand rarely would a single arrest be important enough for an officer to stake his or her career on.  If they are caught being dishonest — most good agencies won’t have anything to do with them.  They really are trying to do their best.  They just see the world — and the arrest differently.

Fortunately a police report is of limited importance.

Rarely do I come across something in a report which is just an unmitigated whopper.  I have to keep several things in mind when I’m reviewing a police report.

  • My client and I have a different version of events.  This doesn’t make the officer a liar.  He or she just saw the events a different way.
  • It is normal for a police officer to omit facts which don’t support their conclusion.
  • There is a difference between lies and exaggerations.

Exaggeration in Police Reports and the “Halo Effect”

A “Halo Effect” is a cognitive bias about someone or something which causes a person to paint an over-all picture about that thing a certain way.  For instance when an employer does a job review for an employee they like – they might give the employee better marks for individual tasks than they otherwise deserve.  The employee’s “halo” blinds our view of other not-so-perfect traits.

But we’re focused here on the reverse.  The officer’s negative impression of the arrestee paints facts and traits which are negative, not positive.  So it is not uncommon to see on offense report where everything negative fact about a defendant down to dirty fingernails is listed by the officer.  We see a “reverse” halo effect in a police report.

How to Use Police Lies to Your Advantage In A Criminal Case

Today we have more and more use of body-cams, in car videos, and even citizens filming police with their own cell phones.  When the police lie, exaggerate, or omit facts from their police report which don’t support their conclusion — then often time they are caught because the video shows otherwise.

In cases where there is no video, the challenge is different.  A skilled cross-examination can show how surrounding circumstances and logic make their conclusion not so.

The Bottom Line:

Rarely will we ever completely agree with the police officer’s account.  But we have to remember his or her account is only so important.  In showing the jury the truth, we do not have to defeat the officer — we have to show the officer was mistaken/ biased/ exaggerating/ inconsistent or whatever human trait lead him to an imperfect conclusion.  This takes skill.

*Jeremy Rosenthal is licensed in the State of Texas and is Board Certified in Criminal Law.  Nothing in this article should be considered legal advice.  For legal advice about any situation you should contact an attorney directly.

 


Can I Get Off of Probation Early in Texas?

October 3, 2017

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Can I Get Off Probation (Community Supervision) Early?

Yes, except for DWI cases.

What is the Soonest I Can Get Off of Probation?

You are allowed to get off of probation 1/3 of your time in for regular community supervision and the judge can terminate deferred adjudication community supervision at any time.

As a practical consideration probably no judge will allow you to terminate your probation prior to completing all of your requirements such as community service, classes, payment of restitution, etc.

Does My Probation Officer Need to Approve?

Practically speaking — it doesn’t hurt, but legally — no.  The Judge has the final say.  Many probation officers will act as if they are the ‘gatekeeper’ but in reality they are powerless to the extent the judge listens to them (or doesn’t listen to them as the case may be).

Some probation departments have a policy where they make no recommendation whatsoever for fear of recommending someone who ultimately re-offends (thus making them look bad).

How Do I Get Off Probation Early?

You can file a motion for early termination of community supervision or deferred adjudication and request to have a hearing before the judge.  This can be done pro-se or with an attorney.  The benefit of having a lawyer is it can typically be done more efficiently — and if there is any disagreement, the lawyer is in a better position to advocate for your early release.

*Jeremy Rosenthal is an attorney licensed to practice in the State of Texas and is Board Certified in Criminal Law.  Nothing in this article is intended to be legal advice.  For legal advice about any situation you should contact an attorney directly.

 


Buzzed Driving Actually Isn’t Drunk Driving

October 2, 2017

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

There is a new ad campaign from the National Highway and Transportation Safety Administration (“NHTSA”) and the Ad Council trying to curb drunk driving.  The new slogan is “Buzzed Driving is Drunk Driving.”

Its catchy.  Its concise.  I’d say it’s pretty good advertising.

But the problem is its just not true.  At least not in Texas.

Why Buzzed Driving Actually Isn’t Drunk Driving

Texas Penal Code 49.01(2)(A) defines intoxication as;

(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or (B) having an alcohol concentration of 0.08 or more.

I don’t see the word “buzzed” anywhere in there.  I don’t see the word “drunk” either for that matter.  And this brings me to what I call the ‘war of words.’

“The War of Words” in the Courtroom:

The war of words is a common battleground in most DWI trials.  The legislature gave us the clunky words “not having the normal use.”  The problem is many prosecutors I’ve tried Driving While Intoxicated cases against try to re-define it in a way to make it easier to get their conviction.  They’ll either give favorable or inaccurate examples or they will omit parts of the definition which are inconvenient.

As just one example, I’ve heard prosecutors explain to jurors a glass of wine making someone cheek’s red equals intoxication because that person is “no longer normal.”  But the statute doesn’t say, “no longer normal.”  Not troubling?  Consider by this standard anyone who has a drop of alcohol is a drunk driver when the get behind the wheel.

This means YOU are a drunk driver.  Yes, YOU!

The Definition Also has the Word “Use” 

I remind jurors about the word “use” in conjunction with the term normal.  Someone with a bad knee might not have a normal knee… however when driving a car, they can use it well enough to have the “normal use” of the knee for the purposes of operating a motor vehicle.

Someone might have a headache rending them not ‘physically normal’ for the time their head hurts.  But they can still speak, do math or drive a vehicle with their malady.  So I’d say this person, while not normal, has the ‘normal use’ of mental or physical faculties.

The “Two Beer” Game

There is just something about a formal and dark courtroom with a judge in a robe and everyone wearing suits to get us all to forget reality.  When a uniformed police officer begins using lexicon such as calling cars “vehicles” and calling the person he stopped a “suspect,” then calling a bud light an “alcoholic beverage,” it sets the scene for what I like to call “the two beer game.”  That is when we all act like two beers is excessive and irresponsible for drinking prior to driving.

In reality, 2 beers would only legally intoxicate a leprechaun or a 10-year old — neither of whom I’ve ever seen on trial for DWI.

It is important to get the jury out of the “two beer game” mode.  I like to ask jurors why restaurants like Chili’s, On the Border, or Texas Land & Cattle have bars inside and also parking lots… it is because it is not illegal to have alcohol and drive.  It is my way of getting jurors to “snap out” of the indoctrination.

Buzzed Driving

The Buzzed driving slogan is indoctrination and spin.  Decreasing the number of drunks on the road is high-minded work.  It is important.  From that point the slogan is okay.

The Buzzed Driving slogan only hurts those wrongly accused of DWI because their jurors have been lied to about the law.  In other words, it is only a problem when you or your loved one is on trial.  In which case you’re pretty mad about this lie.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  Nothing in this article is intended to be legal advice.  For legal advice about any situation you should contact a lawyer directly.