Lowering Felony Bond

March 18, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

A felony bond in Collin County, Texas, is set by a magistrate judge in all cases (unlike misdemeanor cases where there may be a schedule of bonds for certain situations).

Previously, I’ve discussed when a person is entitled to a bond and when they’re not.  Today I’ll discuss what to do when the bond which is set is ridiculously high and your loved one is jailed.

Texas Code of Criminal Procedure 17.15 guides the setting of bail and it reads as follows:

“The amount of bail to be required in any case is to be regulated by the court, judge, magistrate or officer taking the bail; they are to be governed in the exercise of this discretion by the Constitution and by the following rules:

1. The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.

2. The power to require bail is not to be so used as to make it an instrument of oppression.

3. The nature of the offense and the circumstances under which it was committed are to be considered.

4. The ability to make bail is to be regarded, and proof may be taken upon this point.

5. The future safety of a victim of the alleged offense and the community shall be considered.”

Sticker Shock

The main problem I generally see with magistrates is the highly subjective nature of the statute.  Some magistrates get what I call “sticker-shock” when they see a person just arrested for a serious felony like aggravated assault, sex offenses, or even DWI 3rd.  They hear and see only the police initial version of the facts and then the judge slaps a $100,000 bond on the Defendant without regard to the person’s income, local family ties, or lack of criminal record.

What Can be Done

After an excessive bond is set an attorney can file a Writ of Habeas Corpus (or a motion for bond reduction – same thing only it’s done after an indictment has been handed down) with the proper court of jurisdiction.  This accomplishes several important things.  First is that it will usually allow a different judge — normally the elected district judge — to begin to exercise control in the case.  Second is it allows a person to trigger an evidentiary hearing where they can (1) learn underlying information about the case from the prosecutor; and (2) present evidence that a lower bond is sufficient to secure the defendant’s appearance in Court.

A Hearing to Lower Bond

Once the lawyer files a motion for a felony bond reduction, it should be set for a hearing with the district judge.  The State is only entitled to reasonable notice for certain serious offenses listed in the code of criminal procedure.

At the hearing the State will generally present as little evidence as possible to avoid giving the defendant additional discovery or allowing the defense a free-crack at one of their witnesses.  There are informal rules, so often the prosecutor may simply let the judge read the offense report.  The defense can put on evidence of the financial capabilities of the defendant and/or his family and show the court the accused isn’t a flight risk nor a risk to the community.

Though it sounds simple, you have to have an experienced criminal defense attorney guide someone through this process.  Criminal defendants can badly mis-judge these proceedings and tend to lose vision of the bigger picture of the case to get out of jail quickly.  Though someone always wants to get out of jail quickly, it has to be weighed against the possibility of giving the prosecutor evidence they can spin against them at a later point in the case.

Depending on the facts the judge can drastically lower the bond in any case or remove difficult restrictions.

*Jeremy Rosenthal is a criminal defense 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.  Communications and posting to blog is not considered privileged nor confidential.  Contacting the attorney through this forum does not constitute an attorney client relationship.


Defending Child Abuse Charges

March 6, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.thecollincountylawyer.com

 

No one wants children to be abused.  We are biologically and sociologically programmed to love, nurture and protect them.  Our natural rush to defend children, though, can bring out the worst in us.

There can be nothing more cruel to a parent already dealing with a severe medical issue with their child  than to have to deal with pestering accusations by unqualified law enforcement or medical personnel.  

Child abuse charges can be extremely difficult to defend regardless of whether the alleged physical injuries are slight or devastating.  Virtually always the evidence is not only circumstantial — but highly subjective and medically complex.

Defending these cases takes time, patience, and a thorough review of complete medical history of the child and sometimes even of the parents to determine whether a child is more susceptible or prone to a particular type of injury.

Where there is little or no evidence of physical injury or abuse, it is just as important for counsel to be aware of the circumstances surrounding the allegations as well as the applicable law.

Defending charges of child abuse isn’t for every lawyer.  Some lawyers have the professionalism, objectivity and courage to get it right and others simply do not.

*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 situation you should contact an attorney directly.  Contacting the attorney through this blog does not create an attorney client relationship.  Any communications sent through this blog are not confidential in nature nor are they subject to the attorney client privilege.


How Double Jeopardy Works

March 4, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

Double jeopardy comes from the 5th Amendment to the U.S. Constitution which holds in part, “…nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb…”

Double jeopardy can be an extremely complex topic.  The easiest way to think about it is once you are acquitted of a charge, you can’t be prosecuted for the same charge again. The prosecutors who represent the government are like anyone else before the Judge.  They get their day in court — but they don’t get it again and again and again until they win.

What makes the issue so confusing at times are the different concepts behind what constitutes an acquittal for example.  The prosecution may dismiss a case but if they do so before jeopardy is said to “attach” in a particular case (typically when a jury is sworn — or in a trial before a judge — when the trial begins), the prosecution can simply refile the case if they are within their limitations period.

Also many factual circumstances could lend themselves to prosecutions of different offenses.  Crimes have statutory elements which must be proven by the prosecution.  The elements for one crime might be completely different from another crime which arose from the same situation.  Merely because someone was prosecuted and acquitted of one charge doesn’t mean the other charge can’t then be pursued by the state.  Whether subsequent prosecution is precluded by double jeopardy might depend on the over-lapping nature of the elements of given charges.

The vast majority of times double jeopardy issues are simple.  If someone is found not guilty for driving while intoxicated, marijuana possession or assault then virtually always the case is closed.  On occasion double jeopardy issues can arise, though.  When they do it’s best to speak with a lawyer about what the State may or may no do to pursue a particular case.

*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.  For legal advice on any issue you should contact an attorney directly.  Contacting the attorney through this blog does not create an attorney-client relationship.  Communications sent through this blog are not considered privileged or confidential.


An “Illegal Search” is Really More Like an “Illegal Procedure” Penalty in Football

March 3, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

One of the best weapons in defending many cases is the exclusionary rule.  That rule prevents illegally attained evidence from being used by the prosecution during trial.  The exclusionary rule is the citizens legal protection remedy from illegal police acts.

Isn’t it a Bit Much to Say the Police Acted Illegally?

Think of the word ‘illegal’ in terms of a penalty during a football game such as ‘illegal procedure.’  The word ‘illegal’ has a much lighter connotation when we know it’s just a 5 yard penalty for a player moving the wrong direction before the snap.

Calling a search or particular police action ‘illegal’ is really no different.  As the accused, you’re merely saying there was a foul committed without regard to wether it was intentional or severe.  But the rules are the rules and everyone has to play by them.

Illegal Searches Can’t be Very Common, Right?

They’re more common than you think.  You have to remember civil rights cases from the 1960’s and 1970’s still have a large imprint on search and seizure law.  The courts are uncomfortable with traffic stops and/or searches based on little more than hunches because those were rightly exposed as profiling.  Though today’s police may profile teenagers or people who have an alternative appearance – there isn’t much of a difference under the law.  Profiling is profiling.

You also have to remember police in targeting certain groups are often aggressive in their approach.  Police need articulable fact to justify traffic stops and continued roadside detentions.  It’s very common to see extremely thin and subjective reasoning for keeping someone detained at a routine traffic stop – nervousness, the time of day/ night, or even labeling the area of the stop as ‘high crime’ with little or no proof this is the case.  Courts have repeatedly said these types of justifications are akin to multiplying zeros when it comes to articulable facts.  Bad stops frequently get thrown out triggering the exclusionary rule.

Again, police know they are fighting crime and doing great things by keeping drugs, guns, and drunk drivers off the streets.  They will often push and test the rules for reasons they think are justified.

The end result may be that often they have mis-stepped and ‘fouled’ the person they arrested.

*Jeremy F. Rosenthal is an attorney licensed to practice in Texas.  Nothing in this article is intended to be legal advice.  For legal advice about any situation you should contact an attorney directly.  Nothing in this article is intended to be legal advice.  Contacting the attorney through this blog is not privileged and communications are not confidential.