10 Principles of Defending People: #6 Investigate

June 5, 2018

By Collin County Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Here are the previous articles I’ve written about principles of defending people in this series:

Investigation is critically important in criminal defense and in many ways it is one of the central reasons we’ve been hired.  The chief sustained complaint for ineffective assistance of counsel claims is failure to investigate.

In sum, I’ll use a quote again I just used the other day… “the harder I work, the luckier I get.”  This is squarely the truth in investigating a case.

 

What Constitutes a Thorough Investigation?

It obviously depends on the case.  Not every case is capital murder.  The list of what needs to be done to investigate in some cases can be endless.  Examples of research needing to be done includes (but certainly isn’t limited to):

  • Thorough interviews of witnesses (including your own client);
  • Reviewing the background of witnesses (including your own client) such as criminal history, lack of criminal history, mental health issues, or even school records;
  • visiting the scene of the accusation;
  • inspecting physical evidence in possession of the police;
  • independent lab analysis or confidential re-testing of certain evidence;
  • Hiring an expert witness to assist with complex issues;
  • Reviewing public documents such as previous court records;
  • Investigating cellular data and social media such as text messages, Facebook, Twitter, Instagram, SnapChat, etc.;

Pursuing a Theory

A major difference between a Defense investigation and a police investigation is the theories we pursue.  A Defense investigation shouldn’t be scatter-shot.  It needs to be focused towards a particular theory or theories in a particular case.  Police investigations tend to have theories too… but their theory is almost always that Defendant is guilty.

Why Don’t Some Lawyers Investigate?

There are multiple reasons.  First, is lawyers didn’t go to investigation school, they went to law school.  An investigation is something most lawyers learn by doing which might suck for you if you’ve hired one that’s still learning.

Second, many lawyers are afraid of what they’ll find.  They buy in to their client’s guilt and are worried if they dig up bad facts for their client then they’ll end up making the situation worse for their client.

Final reasons might include their lawyer is too busy, not resourceful enough, or tragically are indifferent.

*Jeremy Rosenthal is Board Certified in Criminal Law and is licensed by the State Bar of Texas.

 


10 Principles of Defending People: #10 — You Can’t Be Judgmental

May 30, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

The next few blogs I write will be about what I think it takes to be a successful criminal defense lawyer.  They are traits I hope my clients find in me.

10.  You Can’t be Judgmental

Being judgmental is for everyone else except your lawyer.  This is Square one.  If you can’t get past this then you don’t have much business defending people in my book.  Carrying judgmental thoughts about your client is excess junk we don’t need cluttering our brains while doing the complex task of practicing law.

Understand two things about my job.  First is I don’t know whether my client is really guilty or innocent.  The only way I’d know for certain is if I witnessed things myself — in which case the rules wouldn’t allow me to represent the person anyway.  Second, is beyond helping a person — our role has a far greater good and purpose… but that is a different topic altogether.  You can read about it here or here.

My impression is by the time a person gets to my office, they feel judged by their parents, spouse, children, neighbors, extended family, co-workers, and strangers they see pushing  shopping carts in the dairy section of the super market.  They don’t need it from me too.

Some lawyers simply can’t clear this hurdle.  Its too hard for them.  What they don’t realize is removing judgment from the equation is the first step towards really understanding their client.

Being judgmental causes lawyers to presume guilt and not innocence which is an extremely dangerous mind-set.  Presuming guilt causes a toxic and circular thought process which invariably results in the lawyer dumping the case — and the client — as quickly as they can.

Many people — not just lawyers — feel if someone “gets away” with something the sun will somehow not rise the next morning.  We hate injustice and we hate thinking about it in these terms, but the Earth will still turn on its axis if a guilty person doesn’t get convicted of Drug Possession, DWI, or even murder.

It is somewhat liberating to know how imperfect the world really is when you really reflect.

And oh, by the way… someone who is unsuccessfully prosecuted occasionally gets to enjoy indefinite sleepless nights, permanent damaged relationships such as divorce, and lost employment and opportunity.  They might also enjoy fear of financial ruin, actual financial ruin, or even their name permanently smeared in the newspaper.  Not that any of this should count as punishment.

A person who comes in and says they didn’t commit the crime deserves their version to be thoroughly investigated.  A person who comes in and says they made a terrible mistake deserves having us make every effort they are really understood by prosecutors, a judge or a jury.  I can’t see where my independent opinion of this person or what they might have done fits into any of this?

A good lawyer needs to clear their mind of the excess junk so they can fight for liberty, more accountable government, and to help a person who needs a voice.

*Jeremy Rosenthal is Certified in Criminal Law by the Texas Board of Legal Specialization and is licensed by the State Bar of Texas.

 

 

 

 


How You Clear a DWI from your Record in Texas

May 18, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Until recently the only way to hide a Driving While Intoxicated Arrest from the Public was to win your case or have it dismissed.  Often a tall order.

The Texas Legislature passed & the Governor signed a law in 2017 allowing non-disclosures for DWI cases where the person qualifies after a DWI conviction.  A non-disclosure hides the arrest and court records from the public.  It can still be viewed by many public entities and it shouldn’t be confused with an expunction which is a complete destruction of the arrest records.  But its still pretty good.

Remember you have to file additional documents to expunge or non-disclose records.

There is a big debate amongst lawyers whether this provision is retroactive — that is whether you can clear something which happened prior to September 1, 2017.  Early returns suggest you can.

Here’s how you qualify to non-disclose a DWI:

  • First time offense
  • No car accident in the arrest
  • Blood Alcohol Concentration (BAC) below 0.15
  • Get probation for your DWI
  • Have Interlock Ignition Device on your car for 6 Months of your probation.
  • Wait 2-years from the date your probation ends

The provision was like lightning from a clear-blue sky.  As you can imagine, DWI arrestees have been a punching bag for politicians in Texas for the past 40 years.  Interestingly, there is no requirement you plead guilty — which means you could take your case to trial and if you lose — still qualify for the non-disclosure.  It would give a DWI arrestee two bites at the apple so to speak.

Last two things — (1) if you’ve been charged with DWI in Texas, make sure the record is clear at your plea (or sentencing after trial) that you meet all of these requirements to make it easier down the road.  (2) If you’ve got a DWI from 2017 or before, check to see if you qualify.

*Jeremy Rosenthal is Board Certified by the Texas Board of Legal Specialization and he is licensed to practice by the State Bar of Texas.

 

 


Quick Chart of Texas Sex Offender Registration Crimes

May 17, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Chapter 62 of the Texas Code of Criminal Procedure governs sex offender registration.  Since it reads like any other government code — I’ve listed them in an easier to digest manner and provided links where the law gets really tricky:

Lifetime Registration:

  • Continuous Sexual Abuse of a Young Child Children
  • Aggravated Sexual Assault of a Child
  • Indecency with a child (by contact)
  • Aggravated Sexual Assault
  • Sexual Assault
  • Possession of Child Pornography
  • Promotion of Child Pornography
  • Sexual performance of a child
  • Trafficking offenses in certain circumstances
  • Burglary with intent to commit sex crime
  • Compelling prostitution of a child younger than 18
  • Unlawful restraint of child under 17 when already registering
  • Prohibited sexual conduct (incest)
  • Federal offense or offense from other state which is substantially similar

10 Year Registration

  • Indecency with a child (by exposure)
  • Unlawful restraint of a child under 17
  • Online solicitation of a minor
  • Prostitution (hiring prostitute under 18)
  • Indecent Exposure, 2nd Offense (must be convictions, not deferred)
  • Federal offense or state offense from another state with is substantially similar

*Deferred adjudication will trigger registration unless otherwise listed above.

**Jeremy Rosenthal is Board Certified in Criminal Law in the State of Texas and is licensed to practice in the State of Texas.  For legal advice about any situation you should contact an attorney directly.

 

 

 

 


Top 5 Most Common Police Attitudes – #1

May 15, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

This week I’m counting down some of the top police attitudes I see as a criminal defense lawyer in cases I handle.  Again, these are in no particular order of frequency or importance.

One theme I’ve discussed several times in this series of blogs is how the pressures of law enforcement can pull, push, stretch and bend officers in every different direction.  Police see the ugly underbelly of humanity and it shapes how they view the world.

Today’s attitude is no different.

#1 — Scumbag Mode

Police are at their most disappointing when they are in what I call “scumbag mode.”  It is self explanatory.  They think they’re dealing with a scumbag and they treat the person as such.

What I don’t always see with an officer in scumbag mode is an officer who is downright aggressive.  Instead, many are passive aggressive allowing the suspect to think they are in control.  What the suspect doesn’t know is they are already trapped in a spider’s web.

But we can tell they are in scumbag mode because of how they act or what they say.  Evidence of innocence gets crumpled up and pitched right into the trash can.  They call tow trucks once they go back to their squad cars.  They game plan with other officers about the arrest… then they go right back out to the defendant and pretend he or she can talk their way out of trouble.

Not happening.

The hardest things to get juries to understand about when an officer goes into this mode are three things — first is the degree of often passive-aggressive manipulation; second is their bias causes them to distort evidence against the accused; and finally — jurors don’t want to believe police are manipulative or that they’re not objective.

Now, in fairness… police think this way probably as a survival mechanism.  They see the underbelly of humanity and much of the time — their instinct and hunches are right about dealing with a scumbag more often than they are wrong.

What happens when the police go into “scumbag” mode and they’re not dealing with a scumbag?  They arrest people doing nothing wrong in Starbucks.  What is more likely than a national scandal is police hassling a young person, a non-conformist, or as all too often is the case, a minority for much longer than they’d deal with a soccer-mom from the suburbs.

Next time you see a story about police hassling someone for far too long remember they’re doing it because of their job pressures and because they’ve been triggered to go into their “scumbag” mode.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and is a licensed attorney by the State Bar of Texas.

 


The Greatest Misconception About Criminal Law

May 2, 2018

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

We hear and read a lot about “activist judges” or a Judge who re-writes the law from the bench.

Judges make popular targets for groups such as politicians or insurance companies who have a vested interest in stoking the public anger.  

A surprising attitude I’ll read about or see either in the news media or on social network cites is some think Judges make things easier for people charged with crime.  They think Judges somehow “re-write the law” to help guilty people go free or to make things easier for people charged with a crime.

Sadly, if anything is true, it is the opposite.  Judges don’t like crime, they don’t like criminals, and most in Texas campaign on being tough on crime.  And if they’re being creative with the law — they are doing so IN FAVOR of law enforcement, not in favor those accused.

Consider statistics of our State courts of appeal.  They are abysmal when it comes to ruling in favor of those accused.  

Here’s a prime example: A judge who has to legally toss out a case against a sex offender lest they be reversed might look for any excuse they can to save their own skin and keep the offender on the hook.  If they do so, they’ll look to an area on which they think the court of appeals will uphold them.  If the courts of appeals back up the original judge — presto chango- Judges have found a new area to skirt an uncomfortable rule.

We have many wonderful Judges in Texas.  I’m not suggesting otherwise.  And to be fair — the laws often do put judges in extremely uncomfortable spots.  

The US Constitution is a contract between the government and the people designed to protect the people from the government.  It was written keeping in mind the masses will always put individuals in jeopardy to preserve their own safety — and that they’ll use the tools of government to do so. 

The framers knew there would be constant pressure from the people on their own government to keep the people safe even at the risk of individual’s liberty.  But the constitution is often a minimal or bare-bones protection for someone accused of something heinous.  Lawmakers, Judges, and law enforcement all too often rationalize these individuals are lucky to get even minimal protection.  But those are exactly the people who need it the most.

Next time you hear someone say a Judge re-write’s the law from the bench, think twice.  If they say it is re-written to help a criminal defendant — quit listening.

*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 topic 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.