10 Principles of Defending People: (#5 All Eyes are Equal & #4 Know the Enemy)

June 6, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

I’m going over to me what are the top ten principles of defending people.  To recap the list so far:

#5 All Eyes are Equal:

People don’t trust themselves or their own judgment for some reason.  Lawyers included.

Maverick trusted himself.  He hit the brakes and the MIG flew right by.  He had cunning, creativity, and self-assurance to know the maneuver would work.  The fact it hadn’t been done before didn’t bother him.

What I like about Maverick is he didn’t ask anyone’s permission.  He just trusted himself and to a lesser degree wasn’t afraid to fail.  I’m a pretty far cry from Maverick, but I hope I think like he might every now and again.

When I say all eyes are equal what I mean is if a trial theory makes sense to me then chances are it makes sense to the jurors too.  If I think the police and prosecutors are reaching then I ask myself why?  Maybe they’ve been suckered by a doe-eyed accuser in a sexual assault case…  Maybe they’re blinded by my client’s appearance or problems they’ve had in the past… or maybe they’re so trapped in their own narrative, they can’t see they’re in an echo chamber as in some domestic violence cases.

Too often, lawyers will settle into a conventional defense.  They are afraid to think outside of the box.  But by thinking inside the box, they turn themselves into fish in a barrel waiting to be speared.  Remember all eyes — including the lawyers own — are equal.  The big picture makes sense.

Don’t be afraid to tell the jury about the big picture.  Don’t be afraid of hitting the brakes so the MIG can fly right by.

#4 Know the Enemy: 

The key to knowing your opponent in my book is experience, experience, experience.

I remember how I thought as a prosecutor.  It helps me today.  I was advocating for the opposite position which is something lawyers do.  I remember my thought process in trying to prove-up a case.  I remember my areas of emphasis to the jury, the assumptions I’d make in each case, and the points of emphasis to the jurors.  I also remember how effective defense lawyers would attack my case.

Defending cases are wonderful learning experiences too.

Cross examining hundreds of police officers teaches you how to control a sophisticated witness who is often trying intentionally to personally subvert you in front of a jury.  Mountains of experience teaches you how to strike the precise blows you need to inflict with your questioning without picking losing battles, having your message bogged down, or looking like a jerk.

Experience also teaches you the prosecutor’s playbook.  Prosecutors across the state share practices and training (as do defense lawyers) so it’s not uncommon to see the same techniques and arguments in different counties.  An experienced defense lawyer needs to know what is coming and how to neutralize, spoil, or blow-up certain tactics they ought to expect are coming.  It’s no different than a football team watching tape on their upcoming opponent and figuring out how to defend against certain plays or formations.

Knowing the enemy is important — but it can’t be confused with a winning strategy.

*Jeremy Rosenthal is Certified in Criminal Law by the Texas Board of Legal Specialization.  He is Licensed to Practice by the State Bar of Texas.

 

 

 


10 Principles of Defending People: #9 Be Organized

May 31, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

I’m writing a series of blogs describing what I think it takes to be an effective criminal defense lawyer.  Yesterday, I wrote about not being judgmental – a cornerstone of the mindset of a defense lawyer.

Today, I’m writing about another concept:

#9 Be Organized

I have two favorite quotes which go hand in hand about how I like to think I approach my work.

The first quote is, “the harder I work, the luckier I get” from Samual Goldwyn, a producer who founded MGM.  The second is from Jim Turner, a player on the Denver Broncos after they lost the Super Bowl in 1977 to the Dallas Cowboys… he said, “We were thinking about being the Super Bowl Champs and they were thinking about football.”

Many lawyers “think about being Super Bowl Champs” but they don’t mind the details or put in the sweat-equity it takes to win.  They confuse thinking about winning with the work it actually takes to win.

Every case is its own snowflake and some can be extremely complex.  It can be easy to get lost.  The more I practice, the more I appreciate the reality lawyers need a compass to navigate each case which makes sure every detail is addressed.

A good defense lawyer in my view needs a systematic way of approaching each case.  Do you think they make things up as the go along in an operating room?  Do you think a pilot with 323 souls on their commercial jetliner just treats their flight like a drive to the 7-11?  Do you think when NASA is about to launch humans into space with a $1.3 billion dollar project they just wing it?

No way!  They have checklist after checklist.  They have redundant failsafe measures designed to minimize their margin of error.  Why would we be any different when we are charged with protecting our clients lives?

Television and movies teach us bad lessons.  They teach us there are some lawyers can just walk into a courtroom and leave the jury in tears when they just got the case two commercial breaks ago.  I know some pretty darn talented lawyers.  But I don’t know anyone quite that amazing.

The rest of us need to be organized!

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


What is a Felony?

May 29, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

A felony is any crime which carries with it over one year of possible punishment.

This is the law in every state including Texas.  This is because it is the federal law definition and the federal law is supreme.

Below is a list of common felonies.  Don’t hit the panic button just because a charge is categorized as a felony.  Many of these charges carry possible probation even in the event of conviction.

Examples of common felonies in Texas include:

Drug Charges:

  • Possession of Controlled Substances such as cocaine, heroine, or methamphetamine;
  • Possession of prescription pills by non-prescription holder such as Adderall, or over 28 grams of hydrocodone, oxycontin, or Ambien;
  • Possession of Marijuana over 4 oz.;

Driving While Intoxicated Charges:

  • DWI 3rd or greater;
  • DWI with a Child;
  • Intoxicated Assault;
  • Intoxicated Manslaughter;

Theft Related Charges:

  • Any Theft Over $2,500;
  • Money Laundering;
  • Robbery;
  • Aggravated Robbery;

Assault Charges:

  • Aggravated Assault with a Deadly Weapon;
  • Aggravated Assault;
  • Assault by Impeding Airway;
  • Injury to Child;
  • Injury to Elderly;
  • Kidnapping;
  • Manslaughter;
  • Murder;

Property Crimes

  • Burglary of a Building;
  • Burglary of a Habitation;

Sexual Charges:

  • Sexual Assault
  • Aggravated Sexual Assault
  • Indecency With a Child (by contact or exposure)
  • Sexual Assault of a Child (Statutory Rape)
  • Aggravated Sexual Assault of a Child under 14
  • Aggravated Sexual Assault of a Child under 6
  • Continuous Sexual Assault of Child or Young Children

Obviously this is not an exclusive list but it hopefully give you an idea.

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

 

 


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 5 Most Common Police Attitudes – #4

May 12, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Today, I’m continuing my series on the 5 most common police attitudes which I see case in and case out in the many, many cases I handle as a criminal defense lawyer.  As noted before, these opinions are due to my amateur police psychology.

#4 — Undecided

Police get complaints all day every day about wrongdoing.  They also see things while they are on duty which arouse their suspicion or curiosity.

It goes without saying often times when they approach a particular problem they are undecided about the outcome going into their work.  Normally, the longer a police officer is undecided in their investigation the more objective they will be.

Being undecided about an outcome is an extremely healthy attitude for someone making big decisions about another person’s life.  It causes the officer to investigate in detail and in doing so — to test alternate hypotheses, to review both favorable and unfavorable evidence in a balanced approach, and to understand the weight of their decision.  Obviously at some point an officer is likely to move off the undecided bubble one way or the other with the more information they assess and gather.  What is important is when they are undecided — they are better able to view the evidence neutrally.

I often see police who are extremely conscientious and do their very best to make the important decisions they are charged with making.  An officer should be undecided entering into every investigation undertaken.

But the equation breaks down a bit from here.  Police would have you believe they are undecided when approaching or investigating a case 100% of the time.  My experience is it is more like 20% of the time.

In fairness to police — I usually won’t see cases they don’t file unless I’m brought into the case very early.  The 20% could easily be much higher because I don’t know how many cases are put right in their trash-cans.

What I can say is by my best guestimation of the cases I do see — probably about 80% of the time the officer has a particular preferred outcome going into their investigation of cases they do ultimately file.  This can apply to DWI arrests, sexual assaults, or even white-collar embezzlement schemes.

Police are human too.

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

 


Are Police Going through an Investigation or Just the Arrest Process?

March 12, 2018

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

The dictionary defines “investigate” as, “To carry out a systematic or formal inquiry to discover and examine the facts of (an incident, allegation, etc.) so as to establish the truth.”

Truth, then, is the focus of an investigation.

But virtually always we see the focus of an investigation is a person — not necessarily the truth.  The assumption made by law enforcement is the person who is the focus of the investigation and the truth are one and the same thing.  In other words, many, many “investigations” are flawed from the start.  The result of the investigation is only correct where the assumption is also correct.

And it is further true when you ASSUME you make an ASS of U and ME.

I can’t tell you how many times I’ve seen an “investigation” start with a detective or police officer reaching their conclusion first.  They call a tow truck to haul off someone’s car for DWI before they even ask the driver out of the car.  They offer a complaining witness victim assistance information, sympathy, and promises of action after just moments of hearing one side.  They promise action to someone who lost their savings when they come in blaming someone else for their loss.

Wouldn’t it be more appropriate to call those police actions “the arrest process?” instead of an investigation?  It is often clear the police aren’t interested in the truth — instead they are interested in arresting the person they think is guilty from the outset.  They just know in their heart the truth without researching any of the facts.  What could go wrong doing it that way?

The arrest process looks more like a geometric proof than a search for the truth.  The police are checking to see if there is enough evidence for each and every element and if there is — then bang — case closed and the bad guy is handcuffed.  The problems is many of the facts are rose-colored to the investigator and the standard for probable cause is low.  Instead of putting pieces of a puzzle neatly together, the oddly-shaped pieces are jammed together to make the image already in the officer’s head.

The arrest process might be just fine in certain instances.  I’m sure it often yields fair results. But let’s just not call them what they’re not — investigations focused on the truth.

*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 topic you should consult an attorney directly.