Background Checks

April 12, 2017

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

I get asked about the dreaded background check a lot.  As in every day.

The whole point of criminal defense is (1) keeping my client out of jail; and (2) keeping my client’s record as clean as possible.  It stands to reason this is a huge concern for everyone who comes into my office.

I’m a criminal defense lawyer and I can bore you about the rules of evidence, the Constitution, and what the 5th Court of Appeals in Dallas has been up to all day long.  I’ve picked up a thing or two about criminal background checks along the way so here is some basic info:

Who Keeps Criminal Records?

Criminal records are kept by the Federal Bureau of Investigation (FBI) and the Texas Department of Public Safety (DPS).  The FBI’s database is called the “National Crime Information Center, or “NCIC” for short.  DPS maintains the “TCIC” or the Texas Crime Information Center.  Every time someone is arrested in Texas they get both a TCIC and NCIC tracking number.

TCIC and NCIC records are not public and it’s actually a crime for someone to disseminate it to the public.

Also city and county jails keep records with varying degrees of success as well.  This could show arrests or tickets on a city level which may or may not get reported either to the TCIC, NCIC or online.  Some publish citations directly to the public.

Private companies are allowed to purchase records.  These companies in turn re-format them to make them more user friendly and are the traditional back-ground search companies typically used.

So How Does a Background Search Work?

Police and law enforcement can directly access TCIC and NCIC records when they run a report.  Everyone else has to go through a private company.  Some search engines are more reputable than others.  Again, the private search engines typically purchase records and provide a more user-friendly product to whomever is doing the search.

So generally a lender, employer, or apartment complex first has to have a legal reason and/or authorization to run your background check.   This is under the Gramm-Leach-Bliley Act of 1999.  When logging onto the search engine a user is asked the purpose of the search.  Not to get too bogged down on this point, people can’t run your back-ground just to do it.  They have to have a reason.

Will The Background Search Be Accurate?

It’s a human process so there will be an error rate.  An additional problem is prospective employers, bankers or landlords also tend to not understand what it is they are reading.  Ultimately you have to recognize the world isn’t a fair place.  Bad background searches will happen and even a good result from a criminal case can be mis-read by someone making a hiring decision.

Some Anecdotal Good News

Experience teaches me a few things about background searches.  First, is when someone or their loved one is charged with a crime — there is a feeling every eyeball in the planet is on them.  It is common to feel everyone knows everything about what they are going through.  This is not true.  Additionally, background checks are probably much more rare than you think.  Not everyone is running you every day.

Also my experience is most employers tend to take a ‘wait and see’ attitude when they do learn of something negative on a background report.  They are afraid to take action and really do want to get both sides of the story before they make a decision.  This at least allows the person a chance to explain their side.

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


Will My Employer Find Out if I’m Arrested?

December 2, 2016

By Texas Criminal Defense Attorney Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

I get asked this a lot.  My guess is normally employers don’t find out but information is a hard thing to control.

Will the Police or Courts Notify My Work?

Rarely.  Most State and even Federal courts are inundated with case after case.  Usually your case is nothing special to them and they’ve got their own issues to deal with or worry about and there’s really no reason for them to go out of their way to hurt someone’s ability to make a living.  Plus they understand notifying an employer for any reason is — how should I say politely — “messed up” or “below the belt.”

What Are Situations Where Police or Courts Would Notify My Work?

One way work finds out is in cases where law enforcement really doesn’t like someone they will have them arrested at work.  Maybe they think it’s flashy or they feel entitled to humiliate someone.  This almost never happens on garden variety arrests for assault, DWI,  or theft.

Sometimes a Court could impose work related restrictions as a condition of bond or probation.  That could be related to driving company vehicles in a DWI case, or potentially limiting or monitoring travel in some felony cases.  Some sex cases might involve the accused not being able to work around children until the case is finalized.

Another rare reason might be someone from work could be called as a witness or by an investigator for some reason (assuming the criminal charge isn’t work related to begin with).

Your work could learn about the criminal case too due to absences for Court or because you find yourself in a funk where others around you are wondering what’s been eating at you.

What Will A Background Check Show?

In this information age, you should assume a background check will show your arrest and/or charges.  There is an error rate like with anything else and it’s not 100% your arrest will show up or be accurate.  But it’s best to be honest if you’re asked about an arrest.

Do I Have to Tell My Employer?

Read your company hand-book.

Texas is an at-will state for employment purposes so you can be hired, fired, promoted or demoted for good reasons, bad reasons or no reason at all.  This means you can be fired for not telling your employer if your hand-book says you must.  You can also be fired if you do tell work you were arrested, unfortunately.

My experience is with most charges employers take a “wait and see” attitude.  Many are actually extremely supportive.

Obviously I don’t know your employer as well as you do.  So disclosing an arrest is understandably a calculated gamble.

Expunctions and Non-Disclosures

See if you are eligible for an expunction or a non-disclosure when your case is over.  These can eliminate or lessen the amount of public information available about your case.

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

 

 


A Different View on Civil Liberties

August 28, 2016

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

I’ve got a world view which many have a hard time understanding when it comes to rights and it is this:  I don’t need most of them.  At least, I don’t think I do.  Most people I know really don’t need them either.

Though I fight hard for my clients against the powers that be — I’m a conformist at heart. I don’t live on the fringe and by that I mean I don’t say things which get authority figures so angry they’d want to jail me.  My neighbors don’t hate me because of what I drive, how I dress or what goes on at my house (at least I don’t think).  No one hates me because of who my family is or isn’t.

You could give me more rights than everyone else and I still wouldn’t need them.  The right not to stand in line at the hottest night club (I’m not cool enough), the right to the best tickets to NASCAR events (I’m not a fan), or the right to own the first house on the moon (I’m too scared to go and I couldn’t afford it).  These rights are useless to me because I  don’t need them.

On the flip side — you could probably take away many of my rights and though I wouldn’t be happy about it, my life would probably continue uninterrupted.  I’d probably find a way to get along without my right to be free from illegal searches or my right to remain silent.  I’ve never needed to exercise these rights and I do my best to lead my life in a way where I hopefully never will.

The question isn’t whether you, me, or anyone we know values these rights because unfortunately experience teaches me we don’t.  When you tell people their rights will be taken next they normally don’t care.

When someone unpopular or someone who says, does, or is accused of doing something heinous needs their rights — do we deal with them in an honest way as the framers of the constitution intended?  Do we make up the rules as we go along and give them lip service about their civil liberties?

All too often I deal with an establishment that in some small ways rationalizes minimizing someone’s rights.  Simple rights like the presumption of innocence, the right to be free from an inappropriate search, or someone’s right to an affordable bond can be infringed because “look at what you did!”  I wonder if this is what third-world countries might do to someone they don’t like.

Our rights guaranteed by the Constitution aren’t for the popular people, the conformists or the good every-day citizen.  They don’t need them.  They are for the people on the fringes, the unpopular people, and the misunderstood.  People who need meaningful rights most of all are the people we’ve determined in our heart of committed some terrible wrong.  This is what separates America from a third-world-country.

So when I argue about protecting rights to a jury — I don’t tell them to protect someone’s rights because those rights could be taken from them or their family one day… Unfortunately, I’ve come to learn people don’t care about their own rights for the same reason I question whether I need them myself.  Instead, I ask them what a third world country would do with a person like my client… and would we tolerate Americans acting the same way as them?

Can we be like a third-world country?  I suppose if the shoe fits.

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


An Argument I’ll Never Understand

September 11, 2014

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

Here’s something we all hear on occasion… normally when a jury acquits someone who seems to be affluent or maybe just someone that doesn’t appear to be the scum of the earth… you might hear someone complain, “I’m tired of seeing the rich people get off because they can afford a lawyer…”

I’ll just never understand the logic behind that view.

So are we to believe that because the poor and downtrodden can’t afford an adequate defense — affluent people should be subjected to injustice too?

Inherent with this line of faulty logic is the underlying assumption everyone accused of a crime is guilty.  If everyone accused is guilty… then yes… why should the rich people be immune from responsibility just because they have money.

When you take the presumption of guilt out of the equation though… the logic falls flat.

Everyone should have a defense in every case.  Not everyone is guilty.  Even if they are just because the legislature, a prosecutor or even a judge says a certain punishment is fair doesn’t make it so.

Make a mental note next time you hear someone make that comment.  Ask yourself what the world would be like if we didn’t have the ability to dispute accusations or the consequences.  How would you feel if after you were vindicated someone just chalked it up to your economic status?

Doesn’t sound fair, does it?

*Jeremy Rosenthal is an attorney licensed 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.

 


Why Acquittals Normally Don’t Make the News

May 12, 2014

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

The reason is simple.  The vast majority of people charged with crimes generally aren’t in the news to begin with and they want to keep it that way even if they win.

Publishing a win actually defeats the purpose of wiping a record clean with an expunction. Erasing every trace of the arrest everywhere was the goal in the first-place.

Law enforcement, on the other hand, has every reason to make announcements and otherwise publish cases which put them in a positive light.

The result is that in the paper, we tend only to read about the wrong-way drunk driver or meth addicts who say they’re wearing someone else’ pants.

But that’s not reality.

I won two trials last week (Sorry, you knew I had to do some bragging).  Neither case will make the news nor should they.  The fact is people are acquitted every day for countless reasons…

  • The police made up their mind at the beginning of an investigation & wouldn’t let the facts get in the way;
  • Prosecutors chose to believe an accusation from someone which wasn’t substantiated with anything other than emotion;
  • Police played doctor during a DWI arrest rather than let medical professionals determine if a person’s behavior was due to some other factor than pills or alcohol;
  • An officer profiled teenagers out late and in doing so stretched the law a bit too far in making a stop…

…And the reasons for acquittals go on, and on, and on….

The point I’m trying to make is this — what we read in the newspaper and what we see on TV are true stories that leave a skewed impression.  And whats the harm in that?  It causes jurors to be more skeptical of defense theories (and then everyone acts shocked when someone’s been behind bars for 25 years for a crime they didn’t commit).

But the truth, as with most things in life, is somewhere in the middle.

*Jeremy 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.


Textbook Video From an Illegal Search

January 24, 2014

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Today I’m posting a video created by a guy driving home from a Star Trek convention with a buddy who was stopped by a police officer for an alleged minor traffic offense.  He and his friend spend the better part of an hour being harassed, manipulated and badgered by the officer.  It’s a textbook example of when an unsuspecting fly gets tangled in the web of a nasty spider and can’t get away.

You can watch the video here.

As a Criminal Defense Lawyer having dealt with many bad searches, here are a few things I think are important to point out about this stop/ video.

Situations Like This Rarely Come to Light in the First Place

The reason this type of harassment of citizens never really comes to light is because these guys are completely innocent.  They’ve got no reason to ever acquire, watch, or publish this video.  In fact, most people who go through something like this either just want to forget that it ever happened or were so intimidated by the experience that they simply walk away.

Another reason why this situation is seldom exposed is because when an officer does profile correctly and find marijuana, cocaine or methamphetamine — the citizens regard all the singing, dancing, and acting he did to get into the car as “great police work.”  Obviously what is ultimately found, if anything, doesn’t suddenly validate the illegality of the search.

This is an Extreme (but not unheard of) Scenario

This situation is extreme.  It’s very common to see stops for very thin reasons, and very common to see cops play delay games like “the computer is slow today”.  Getting a k-9 to give a false hit (if that’s really what happened) would be highly uncommon, and simply making up a reason altogether for the stop (if that is what really happened) would also be well out-of-bounds.  Police often reach or stretch for reasons to detain someone, but normally it’s based on at least a smidgen of good faith.

Why this Search Was Illegal

Courts have long struggled with these types of police games.  In United States v. Shabazz, 993 F.2d 431 (5th Cir. 1993) citing United States v. Guzman, 864 F.2d 1512, (10th Cir. 1988) the Fifth Circuit stated:

“An officer conducting a routine traffic stop may request a driver’s license and vehicle registration, run a computer check, and issue a citation. When the driver has produced a valid license and proof that he is entitled to operate the car, he must be allowed to proceed on his way, without being subject to further delay by police for additional questioning. In order to justify a temporary detention for questioning, the officer must also have reasonable suspicion of illegal transactions in drugs or of any other serious crime.”

Also, it’s a well known game to wait for the arrival of a K-9 unit in the event the detaining officer suspects drugs.

*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.  Communications sent through this blog are not confidential, privileged, nor do they create an attorney-client relationship.


Why You Have the Right to Remain Silent at Trial

March 24, 2013

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

The Fifth Amendment to the U.S. Constitution provides in relevant part, “(No person)… shall be compelled in any criminal case to be a witness against himself.”

It’s really an amazing right when you think about it.  In America, not only do we have the right to be free of having to “explain yourself” when accused of a crime — taken a step further — you have the right to deny guilt to your grave if you so choose.  Your government can never force you to say you’re guilty regardless of how long they imprison or threaten imprisonment of any person.

The Fifth Amendment in many ways is what separates us from countries with backward senses of justice.

I try to explain this to jurors very simply.  In America, we focus on the evidence from the accusers.  In other countries, they ask loaded questions and then look the accused’s face to confirm the pre-existing belief the person is guilty — a practice consistent with judging witches.

Jurors quickly realize it’s impossible for 3, 4, 6 much less 12 people to agree on the truthfullness of someone accused trying to tell their side of the story.

Some see “crocodile tears” as an act, and others see them as sincere expressions.

Some jurors see confident testimony as rehearsed, while others may see it as convincing.

Some jurors may see someone who shouts his innocence as lying and others may view it as truthful.

Science tells us that not only are polygraphs not even scientifically reliable enough to be admissible in court — and humans are even worse at distinguishing lies from the truth.

The framers of the Constitution knew even back then — this method of accusation was a game.  And an unfair one at that.

*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 this or any other legal topic you should consult an attorney directly.  Communications through this forum are not confidential nor privileged.