The Importance of Trial Advocacy and Trial Skills

December 29, 2011

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

I don’t write much about trial advocacy because I think most people who happen across my blawg are probably more interested in other nuts & bolts legal topics.  Experience, comfort and skill in the courtroom is extremely important stuff, though.

I can safely say I spend more time honing my trial skills than any other type of other continuing education available.  This is in part because it fascinates me and, frankly, it’s my trade.  I like to think of myself like a basketball player who works every day after practice on nothing but free-throws, dribbling to the left, or shooting threes.

On my bookshelf you’ll find books about jury psychology, cross-examination, and persuasive rhetoric.  I devour jury studies, psychological studies, and other data which I feel help give me an edge in trial.

Trial is the fascinating competition between two (or more) parties trying to re-create an event in the most persuasive way possible.  Preparing for any trial is like composing a tune or in some cases — a symphony.  There are many small components which have to neatly and seamlessly fit together all aimed at not only telling the more persuasive story, but convincing a judge or jury to be motivated to act on your cause.

In all my trial work and through all my experience I have come to one conclusion about successful trial work:

The will to win is the will to prepare.  The harder I work, the luckier I get.

Television and the movies make us think there are a handful of gifted mouthpieces that can magically show up and enchant a jury regardless of the facts.  The most talented actor in the world can’t prepare for a few hours then take the lead in a broadway show.  The most gifted athlete can’t sit on the sofa all week then lead his team to a playoff win.  Why would it be any different for a lawyer born with the gift of gab taking on a trial with little or no preparation where the results truly matter?

Trial advocacy is extremely important in criminal defense.  It never ceases to amaze me how creative and talented many of my colleagues are at trying cases.  At the same time, I’ve watched many trials on the sidelines watching through my fingers at how badly the lawyers have prepared.

Do yourself a favor when you are picking a lawyer for your criminal case — ask them how often they try cases, ask them how much they study trial advocacy, and ask them what they do to prepare for trial.

The answers should be extremely revealing.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this Article is intended to be legal advice.  For advice about any situation you should always contact an attorney.  Contacting the attorney through this forum does not create an attorney-client relationship.  Communications sent through this forum are not confidential.

 


What is a Motion to Suppress?

December 28, 2011

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

A motion to suppress is a challenge to the legality of how evidence was attained.

In Texas and the United States we have what is known as the “exclusionary rule.”  This rule means where a court finds evidence was attained illegally – it cannot be used for any reason against the accused.  The exclusion (or suppression) of evidence often makes it impossible for the prosecution to prove one or more elements of the crime — which means they often lose the entire case based on a successful motion to suppress because they will fail to meet their burden of proof at trial.  Other times, a successful motion to suppress will exclude a damaging admission, confession or other piece of evidence which does not win a case for the defendant but makes the case much more difficult on the prosecution.

What Makes an Arrest or Search Illegal?

It depends on the situation.  In an automobile stop, the stop is normally bad where the driver didn’t commit any offense which allowed the officer to pull them over in the first place.  Searches in automobiles can also be bad where the officer searches a car or individual without consent or probable cause that some crime has been committed within his presence.

Home searches have extremely great protection.  Remember the constitutional basis for the 4th amendment in the first place was to prevent American soldiers from rummaging through people’s houses the same way the British had done prior to the revolution.

Search warrants can be held to be illegal if the application for the warrant was not done properly and fails to establish probable cause.

Also, if the State broke some other law in attaining evidence then the evidence can be suppressed as well.  A common example is where the State doesn’t follow protocol on a breath test or blood draw and can’t use the result at trial.

The situations where searches, arrests, or other types of evidence can be thrown out are countless.  Each is truly it’s own unique snowflake and this discussion barely scratches the surface of suppression.

Does This Mean the Police have Committed a Crime Against Me?

Not really.  It’s more like an ‘illegal procedure’ penalty in football.  It sounds worse than it actually is for the cop.  Most suppression cases arise because the officer was being (1) overly-aggressive; or (2) was just not thinking.

You have to remember a handful of things about police.  First is they profile and target certain people.  The good news is that it is rarely based on race — but it doesn’t make it a whole lot better.  Police tend to target, for example, teenagers/ younger adults, people driving beat-up cars, and frankly — people who look like thugs.

Second, society has glorified police acting on ‘hunches’ even though the law requires the opposite — that if the police are going to act they have to have specific articulable facts which justify their actions.  Not only does the law require there to be ‘articulable fact,’ but study after study shows that an officer’s ‘hunch’ is generally no more reliable than flipping a coin.

When you combine profiling of someone in a high-target group with an officer acting on ‘hunches’ instead of fact — you tend to get a situation ripe for a motion to suppress.

Examples of How a Motion to Suppress Works

The best way to demonstrate how a motion to suppress works is through practical examples.

Bad Stop Eliminates Entire Case:  

DWI arrest where blood draw ultimately shows defendant had o.15 blood alcohol concentration.  Officer stopped defendant for driving slowly, weaving within lane, and crossing solid white line.  Court held defendant committed no traffic violations because (1) weaving within one’s own lane is not a crime where no lane was crossed; (2) driving slowly does not constitute a crime in and of itself; and (3) Defendant’s car crossed solid white line exiting freeway in response to being pulled over.  The officer’s decision to stop had already been improperly made.

Result:  All facts attained from stop were suppressed.  Therefore State could not prove identity of driver or that driver was intoxicated.  Case dismissed by prosecution.

Bad Search Eliminates a Key Element

Marijuana case where police get a report of a ‘disturbance’ in the middle of the day at an intersection in a high crime neighborhood.  Nature of the ‘disturbance’ unknown but description of participants were given – and description was somewhat common.  Officer stops defendant several blocks away walking on a street (towards the area of the disturbance).  After a brief conversation, the officer begins a pat-down search of the defendant who admits he’s got marijuana in his pocket which is ultimately found.

Court held: (1) the report of a ‘disturbance’ too broad to allow a general search of all people matching the description in the vicinity for all purposes; (2) the encounter between the officer and the accused was originally voluntary but turned into a detention when the officer began to frisk Defendant without permission; (3) by the time Defendant admitted to the drugs, the illegal detention without probable cause had already commenced — therefore the admission and the marijuana themselves were not admissible.

Result:  Not Guilty verdict because no evidence defendant was in possession of marijuana (the corpus dilecti of the crime).

Bad Search Warrant Eliminates Blood Result

Defendant arrested for DWI after car accident.  Officer’s conduct field sobriety tests and determine defendant was intoxicated.  Officers apply for search warrant from a judge on call.  Judge grants the search warrant and the defendant is shown to have a blood alcohol concentration of 0.17 at the time of testing.  Court held that search warrant failed to contain the time of driving and as such, the warrant was insufficient to demonstrate that evidence of a crime would be present in defendant’s blood specimen.

Result:  Defendant stood trial, however, state barred from showing or referring to blood draw or blood result.

In Summary

Motions to suppress are hard to understand.  They can be an over-looked and efficient way to defend cases of all types.  Hopefully after this discussion today you have a bit more understanding.

*Jeremy F. 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.  Legal advice about any topic should be discussed directly with an attorney.  Contacting the attorney through this forum does not create an attorney-client relationship.  Communications sent through this forum are not confidential.


What Types of New Cases Will Cause Probation to Get Revoked in Texas?

December 27, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.thecollincountylawyer.com

It’s impossible to answer that question without guessing.

When you’re on probation in Texas, it’s like signing a contract.  You promise to complete lots of tasks (paying fines, doing community services, go to classes, etc.) and you also promise to refrain from certain activities (drug use, getting re-arrested, or not going to certain places are examples).

When you fail to live up the any promise, the prosecutor can file a motion to revoke (I’ll include adjudications as revocations for this blog) under the letter of the law.  It’s guesswork though, because the law doesn’t require them to file a motion to revoke.  In fact if they did file revocations for every violation — many counties would quickly be under water with these revocations.

In Collin County where I mainly practice, the probation officer has the choice to recommend revocation to the prosecuting attorney in any given case.  If the probation officer recommends revocation, it will virtually always be signed-off on by the prosecutor.  They don’t always recommend revocation but it’s a case by case basis.  Because it’s a case by case basis, it’s highly unpredictable.  The probation officer factors in your history with them, the underlying case, and the nature of the violation.  Also your probation officer is human and some have itchier trigger fingers than others.

If you’re reading this blog, chances are you are worried about something in your life triggering a revocation.  Below I’m listing my experiences on what will or won’t cause revocation — understanding that (1) you should take these as educated guesses for reasons I’ve already described; and (2) no lawyer — myself included — would ever advise you to violate your probation in any way whether or not you might face revocation:

New Arrests/ Cases:

One term and condition of probation or deferred which goes on every time is that the defendant “shall not commit an offense against the State of Texas or any other state…” while on probation.  This means that even a parking ticket could trigger revocation.  I’ve never seen that happen… and it is extremely rare to see a class c offense trigger a revocation.  As of the time of writing this blog, I’ve never seen a traffic ticket trigger a revocation.  Arrests for new class b misdemeanors and above obviously tend to trigger revocations more frequently.  If a new arrest triggers a revocation proceeding, always be very clear with your attorney about this — because it makes both your revocation and the new case more legally complex.

Falling Behind on Payments, Community Service, or Classes:

If you are 1 community service hour short, fail to take one class, or come $1 short then the State can file a motion to revoke based on the letter of the law.  As I explained above, it rarely happens that way and I truthfully don’t recall ever having seen a case where the probation officer was that nit-picky.  Revocations tend to be filed when people fall behind in a hand-full of these categories and not just one.  Revocations also tend to be filed when the probation office thinks the probationer is completely ignoring probation.  There is an affirmative defense of inability to pay if the only violation is failing to pay monetary fines, court costs or other fees.

Failing Drug Tests

Failed drug tests commonly trigger revocations — but not always.  Many probation officers will try to short-circuit revocations on failed a failed UA (urinary analysis) by trying to box in a probationer with a failed UA, then threatening them with revocation unless they agree to voluntarily extend probation, go to jail for a short period of time, or agree to some other sanction.  Probation officers in these situations frequently make uneducated threats they can’t back up hoping you will just give in.  Talk with a lawyer in these situations.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article should be considered legal advice.  For legal advice on any case, you should contact an attorney directly.  Contacting the attorney through this blog does not create an attorney-client relationship.  Communications sent through this forum are not confidential.


Are Holiday Season Juries More Giving?

December 24, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

The Dallas Morning New published an article this morning discussing whether holiday season juries are more sympathetic than other times of the year which you can read here.

It’s an article about a moderately interesting topic.  The article doesn’t pretend to be scientific  — which is good because no matter what anyone tells you, there is always a large element of junk science to predicting what juries will do.

My question is if a jury is being sympathetic to one party doesn’t this mean they’re being mean to another?  I can see a case to be made for a jury awarding a plaintiff more money from a monolithic insurance company — or a jury giving a criminal defendant the benefit of the doubt against the monolithic state (which they should be doing anyway).

Besides, most Courts really don’t try cases with juries for more than one or two weeks in December, anyway.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice.  For legal advice about any situation you should contact an attorney directly.  Contact the attorney through this forum does not create an attorney-client relationship.  Communications sent through this blog are not confidential.


Associated Press Finds Stunning Inaccuracies on Background Checks

December 22, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

Did you know 90% of employers do background checks since 9/11?  Criminal background searches are now a $2 billion per year industry and due to increased digitalization of court records — mom and pop background check companies are beginning to spring up.  They don’t seem to have the resources or desire to get things right.

And here’s the scary part — most of the leading background check companies wouldn’t even return the AP’s phone calls to discuss how many of their files were inaccurate.  They currently use automated systems which scrub online databases run by governmental entities with flawed formulas that misinterpret information the human eye might spot.  They commonly botch common names and stick the wrong people with criminal charges.  Many are also very poor at updating their information when criminal cases are expunged or non-disclosed.

You can read the article in it’s entirety here.  There are few articles out there that are must-reads.  This is one of them.

From a criminal defense lawyer perspective — fighting to keep someone’s record clean is pointless if some company who doesn’t care about what they report calls you a criminal anyway and costs you a job.

Another main point to take from the AP article is no one will care about making sure your criminal history is clean as much as you will.  Making sure you have a clean history is every bit as important as checking your credit score.

*Jeremy Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice.  For legal advice about any specific situation, you should contact an attorney directly.  Contacting the attorney through this forum does not create an attorney-client relationship.  Communications sent through this blog are not confidential.


Texas Criminal Statutes of Limitation

December 20, 2011

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

Updated October 27, 2016

Texas current criminal statutes of limitation are governed by Texas Code of Criminal Procedure Chapter 12.  The statute of limitation is the deadline for the State to file an information (the charging document in a misdemeanor) or for a grand jury to issue an indictment (in a felony). The prosecution has met the statute where they file the case prior the expiration of the statute — even if they don’t apprehend the defendant prior to the statute.  The delay in apprehending a defendant, though, is a separate issue.

2 Year Statute of Limitation:

All misdemeanors Including

  • First and Second DWI arrests
  • DWI with greater than 0.15
  • Possession of Marijuana of 4 oz or less
  • Assault causing bodily injury (with or without family violence allegation)
  • Vandalism (Criminal mischief) up to $2,500 damage
  • Theft up to $2,500

3 Year Statute of Limitation Any felony not specifically listed in Texas Code of Criminal Procedure Chapter 12.01 5 Year Statute of Limitation

  • Theft
  • Robbery
  • Kidnapping (unless victim is under 17 years old)
  • Burglary
  • Injury to elderly or disabled individual (if done without intent)
  • Abandonment or endangering a child
  • insurance fraud

7 Year Statue of Limitation

  • Misapplication of fiduciary property or property of a financial institution
  • Securing execution of a document by deception
  • A felony violation of Chapter 162 of the Tax Code
  • False statement obtain property or credit
  • Money laundering
  • Credit or debit card abuse
  • Fraudulent use or possession of identifying information

10 Year Statute of Limitation

  • Theft by executor, guardian or trustee with intent to defraud beneficiary or creditor
  • Theft by public servant of government property
  • Forgery or the uttering, using or passing of forged instruments
  • Injury to an elderly or disabled person (with intent)
  • Sexual Assault (see below for exceptions)
  • Arson

Statutes of Limitations Based on Victim’s Age

10 Years from victim’s 18th birthday

  • Injury to a Child

20 Years from the victim’s 18th birthday 

  • Sexual performance of a child
  • Aggravated Kidnapping (with intent to violate or abuse victim sexually)
  • Burglary (if done with intent to violate or abuse victim sexually)

No Statute of Limitation

  • Murder
  • Manslaughter
  • Aggravated Sexual Assault of a Child
  • Sexual Assault if there is biological matter collected and subjected to forensic DNA testing and the testing results show that the matter does not match the victim or any other person whose identity is readily ascertained.
  • Continuous sexual abuse of child or children
  • Indecency with a child
  • Leaving the scene of an accident if the accident resulted in death

*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 legal issue, you should contact an attorney directly.  Contacting the attorney through this blog does not create an attorney-client relationship.  Communications through this forum are not confidential. Me on Google+


Do I Need a Lawyer for a DUI?

December 16, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

Yes.

In Texas our legislature, law enforcement, and many prosecutors know of only one way to deal with Driving While Intoxicated.  To be as mean as possible.  Even if drunk driving is at record lows, they figure the only way to keep driving the numbers down even further is to get progressively meaner and meaner.  Of course, they can’t actually prove getting meaner actually works.   But you are fighting a harsh, unsympathetic law enforcement machine designed to break your pocket book, label you forever, and in some cases humiliate you in the name of public safety.

Even though a first DWI is a misdemeanor in Texas, it almost acts like a felony in some ways, or as I put it, it’s a misdemeanor on steroids.  There are generally driver’s license suspensions, deep lung devices that can be put on your car which can be humiliating, and thousands of dollars in sur-charges to keep your driver’s license on a 1st DWI arrest.

Texas has progressively harshened their drunk driving laws.  The legislature has addressed intoxication offenses during every single bi-annual session since 1993.  The most recent changes allow for people to be charged with a class A misdemeanor if someone’s blood/alcohol concentration is greater than 0.15 at the time they are tested.

Texas law enforcement agencies have aggressively been pursuing involuntary blood draws of suspects if the increased punishment weren’t enough.  Many agencies in Texas have began introducing “no refusal weekend” policies, which means that if a suspect refuses a breath test, the police merely fax a cookie-cutter warrant to a judge on call.  If the judge signs the warrant, then the person’s blood is taken without their consent.  In the words of Richard Alpert, Assistant District Attorney in Tarrant County and one of the lead intoxication offense prosecutors in the State, “If it bleeds, it pleads.”

So you can see, Texas’ mentality with DWI enforcement is that “you can’t make an omelette without breaking some eggs.”

But you’re not helpless.  Whether you made a mistake by getting behind the wheel, or whether the only mistake you made was running into a manipulative officer having a bad night… you don’t need to let yourself be thrashed, broken, and humiliated.

There are countless ways to defend DWI cases ranging from the legality of the stop in the first place, to the intoxication aspects, and even some of the smaller, over-looked elements to the case.  Even if the case is extremely difficult, the help of counsel can assist you in lifting at least some of the heavier punishments from these laws.

Just because the prosecutors, police, and legislature says it’s justice doesn’t make it so.

*Jeremy F. Rosenthal is an attorney licensed to practice law in the state of Texas. Nothing in this article is intended to be legal advice.  For legal advice regarding any situation you should contact an attorney directly.  Contacting the attorney through this forum does not create an attorney-client relationship.  Communications sent through this blog are not confidential.