Big Wins for 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

It’s been a fun year and it seems like I was in trial virtually every week — and it’s frequently the case to have more than one judge fighting over where I’m going to be that week!

It’s also hard to pare down some of my favorites from this year to fit into one blog, but here it goes in no particular order:

Victory 1

Charge: DWI

Facts: Defendant was taking someone home who was clearly impaired — likely from illegal drugs.  Defendant became combative with police  after lengthy interrogation and was eventually wrestled to the ground during the arrest.  Defendant was clearly agitated at the police station and was taped ‘flipping off’ the officer standing off camera.

Theory:  Defendant simply wasn’t intoxicated.  Defendant performed well on field sobriety tests and the officer was being manipulative and harassing.  Only when Defendant passed all of the tests did he become agitated with the officer who initiated hostilities.  While off camera, the officer was making faces at Defendant which is why Defendant flipped him off.

Outcome: Not Guilty verdict after approx. 15 minute jury deliberation.

Victory 2

Charge:  Aggravated Assault/ Unlawful Restraint

Facts:   Father and 18-year old son got into a fight at home.  During the fight, the two rolled over a glass table which severely lacerated the 18-year old’s leg.  At the hospital, the doctors called the police who separated the members of the family and interrogated father.  The father, having nothing to hide, told his story to the police and was arrested for aggravated assault and unlawful restraint.

Theory:  Although a ‘victim’ cannot legally consent to aggravated assault, the fighting in question was mutual in nature and the injury wasn’t severe enough to warrant felony charges.

Result:  Case dismissed.

Victory 3

Charge:  Possession of Marijuana

Facts:  Male and female students studying in a room on the side of the house.  Neighbor calls police for noise/ possible drug use complaint.  Officer comes to the side of the house, orders the male (resident of the house) to open the front door of the house… and while already inside of the house intimidates the male to allow a search of his room to which he consents.  Marijuana found in bag belonging to female (Client).

Theory:  The officer’s search of the house was an illegal warrantless search of a home because he ordered the resident to allow him inside.  Additionally, the female had an expectation of privacy in the bedroom and in her purse such that a search of her purse required her consent which was not attained.

Result:  Search found to be illegal and all evidence attained was suppressed.  Not Guilty verdict at trial for female.  Male’s case subsequently dismissed as well — with a gracious thank you from his lawyer!

Victory 4

Charge: DWI

Facts:  Officer arrested defendant after 911 caller notified police of erratic driving.  Client failed field sobriety tests according to officer and was arrested.

Theory:  Officer lied to client to manipulate him into taking field sobriety tests.  Also, the officer himself was unsure due to the length of his own deliberation.  It was an extremely cold night and client was clearly in physical discomfort while taking the field sobriety tests.  Officer admitted lie to the jury and also admitted it was a close case.

Result:  Not Guilty verdict.

Victory 5

Charge:  Aggravated Robbery with a Deadly Weapon

Facts:  Four residents of an apartment were robbed at gunpoint late in the night.  Three intruders knocked on the door and forced their way into the apartment.  The intruders tied up the residents in their separate rooms and rummaged through their belongings stealing cash and various other items.  Client’s fingerprints discovered in the apartment and client was identified in photo-lineup by at least one of the victims.  Client was the only person tried for the offense.

Theory:  The apartment may have been a drug house due to the excessive cash on hand and due to the fact they would expect visitors late in the evening.  The residents also were transient workers of a local restaurant that didn’t know one another very well.  Not all the residents were present in the apartment during the robbery and some didn’t cooperate with police.  Based on those facts, there could be a number of reason’s client’s fingerprints might be in the apartment unbeknownst to the victims testifying.  Additionally, the fingerprints were found on a small, portable cell phone box which had clearly been handled by complete strangers prior to the time they were purchased by the victim.  During trial it was revealed the police agency did not know and was indifferent to recent federal guidelines on conducting photo-lineups.  The identification by the witness revealed to be very shaky on cross-examination.

Result:  Not Guilty on 4 counts of Aggravated Robbery with Deadly Weapon

Victory 6

Charge:  DWI — breath test over 0.08

Facts:  Client pulled over for small traffic infraction.  Client was out with group of friends that had been drinking and was driving them home.  Officer administered field sobriety tests and made determination defendant was intoxicated.

Theory:  Client may have had test score over 0.08, however, the facts in his case from the time he last ate and drank, combined with his height and weight made it possible — if not likely — that his blood was actually below 0.08 at the time he was pulled over.

Result:  Not Guilty verdict

Victory 7

Charge:  Attempted Aggravated Sexual Assault of a Child

Facts:  Accuser made outcry of sexual abuse by her father when she was 3 or 4 years old.  Victim was 16 at the time of the outcry.  Accuser made specific detailed allegations about an incident where she alleges client sexually abused her in her bedroom.  Client had also been charged with a sex crime in the same time vicinity of the outcry.

Theory:  Defense showed the nature of the strained relationship between the accuser and her father.  Defense also showed how the accused’s mother — long since divorced from client — had systematically and thoroughly poisoned the accuser against the father.  Defense showed how through negligent investigation accuser learned the facts of the other sex case investigation.  Finally Defense called expert in memory and family psychology to explain to the jury that the memory of the abuse by the accuser was inconsistent with how children her age remember things.  Children that are 3 or 4 probably cannot recall things chronological order because at that age they probably haven’t learned the concept of time.  The expert also explained to the jury that the constant poisoning of the accuser and the accuser’s knowledge of the other investigation could explain or compound the false memory.

Result:  Not Guilty verdict on Attempted Aggravated Sexual Assault of a Child

Victory 8

Charge:  DWI — 0.19 breath test score

Facts:  Client followed by 911 caller to a gas station.  At the gas station, client exists and goes back into car.  Police arrive and conduct DWI investigation.  Defendant arrested and blows 0.19 at the police station.

Theory:  Client’s intoxication might not have been prior to the time of driving.  There was a long waiting period in between the driving and the police contact where client (unseen by 911 caller) may have been consuming alcohol.  Breath test score not admitted into evidence due to our objection based on law.

Result:  Not Guilty verdict

Victory 9

Charge:  DWI — 0.14 Blood Alcohol Concentration

Facts:  Client was at a wedding on a Saturday night.  While heading home, he had a single car accident.  Client was at the scene when emergency responders and police arrived.  Client admitted to driving vehicle and thought he was somewhere completely different than where he was.  Police conducted field sobriety tests then applied for a blood warrant.  Blood revealed a concentration of 0.14.

Theory:  Blood warrant affidavit was unreliable and therefore should be thrown out along with the blood result.  The other symptoms of confusion and/or intoxication were due to the car accident in question.

Result:  Blood evidence suppressed/ Not Guilty verdict at trial.

Victory 10

Charge: DWI — 0.18 Blood Alcohol Concentration

Facts:  Client was followed by 911 caller who observed car crash.  Police investigate crash and do field sobriety tests on client who has dazed memory, had nausea, no balance, and was sleepy.  Client takes breath test and scores 0.18 blood alcohol level.

Theory:  Breath test score thrown out because of improper procedure.  Evidence shown to jury that client suffered from concussions sustained when playing high school football. All symptoms of facts also consistent with concussions as well as intoxication.

Result:  Hung jury (I normally wouldn’t include this as a victory, but it was a really fun one!)

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice.  Past results are not promises or guarantees of future results.  For legal advice about any situation, you should contact an attorney directly.  Contacting the attorney through this forum does not create an attorney-client relationship.  Communications submitted through this forum are not confidential.

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