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.

 

 

 


Our Number is (972) 369-0577. Put it In Your Phone Right Now. Yes, YOU!

June 13, 2017

By Texas Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Put our phone number in your phone right now.  It is (972) 369-0577.

Why do you want a criminal defense lawyer’s number in your phone?  It should be self explanatory but many don’t think they’ll ever need it.  Fair enough.

There are two main reasons.

The First Reason

I recently spoke to several groups of non-lawyers about criminal justice.  They were interested in my topic but not particularly excited or passionate.  Why should they be?  To them criminal cases happen in newspapers or on television and — like advertising — it might affect a few people out there but it doesn’t affect them.

At the most recent lecture, I decided to bring the topic home for a more engaging discussion.  I wanted the audience to know why they all needed our phone numbers in their phone.  And the answer is simple —  You don’t lead a life of crime and you don’t plan on getting arrested…? GREAT!  Me too!

But Rosenthal & Wadas has built a big criminal defense law practice right here in the suburb of McKinney, Texas?  How did we do that…?  Because people’s sons, daughters, aunts, uncles, grandsons, granddaughters, sisters, brothers, friends and co-workers are getting arrested here.  They get arrested for DWI, domestic violence, drug charges, embezzlement, sexual assault and on and on and on.

Now, when a criminal case gets hot — it gets hot.  When the arrest or accusation happens — the case is hot.  We potentially create more value by getting into a case right at the beginning than at any other time.  This is because we can represent someone during an investigation or sometimes just help put the fire of an arrest out so we can begin getting to the bottom of what happened to get the best end result.

Sometimes key legal advice or representation at the inception of a case can make the whole thing go away.  You read that right.

So if you don’t plan on ever getting arrested — great — but put our number in your phone for when you get an unexpected call from a co-worker, friend, or just a non-conformist family member.  People’s friends and loved ones are being arrested every-day right here in Collin County and they’ll often turn to you looking for direction.  I hope it is never your loved one, but why not be prepared?

Our office has a lawyer on call 24/7.

The Second Reason

Putting our number in your phone is free.  (972) 369-0577.

Do it now while you’re thinking about it.

*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 specific situation you should contact a lawyer directly.

 

 


Can I Get Sued Because of A Criminal Case… Or Vice Versa… Can I Be Charged With a Crime because of a Civil Case?

November 30, 2016

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Today I’ll discuss a question I get from time to time in various forms:

  • “Can I also get sued even though I’m being criminally prosecuted?”

… and the same question in reverse,

  • “I’m getting sued right now (or being threatened with a lawsuit)… could they also criminally prosecute me?”

…another common one is,

  • “Can someone threaten me with criminal charges to get me to settle a civil dispute?”

Could Someone Being Criminally Prosecuted also be Sued?

Yes, but it’s very rare and comparing a criminal prosecution to a civil lawsuit is like comparing a knife fight to a pillow fight.  I might be more biased because I handle criminal cases but I tend to think they’re far more serious than civil cases — though civil cases can be thoroughly unpleasant too.

Most crimes where there is an accuser or victim involved can almost certainly trigger civil liability.  Civil causes of action are far easier to bring and are generally easier to prove-up (because they’re just trying to take your money and not your liberty — or so the theory goes).

Probably the most common scenario I see is a car accident case where DWI might be alleged.  Even that is mostly insurance companies duking out who will pay for what.

A criminal prosecution is often a ‘poor-man’s’ lawsuit.  Going to the police and making the prosecutor’s telephone ring off the hook is free.  Paying for your own lawyer to make someone else’s life miserable is a luxury.  Hence the rarity of seeing both a civil and a criminal prosecution.

Ultimately my instinct is defend the criminal case first and worry about civil liability second.  This is because of the severity of criminal prosecution and the punishments are simply not equivalent.

I’m Being Sued (or Threatened with a Lawsuit).  Could this Turn Criminal?

Again, very rarely.

While most crimes involving victims or accusers trigger criminal liability as well — the reverse is not nearly as true.  Civil causes of action are far more problematic to convert to criminal charges.  This is for all sorts of reasons… civil cases are often based in negligence, or misunderstandings, or questions about who pays for an unexpected loss.

Most parties in a civil proceeding have little, if any, interest in pursuing criminal actions.  Generally they just want whatever relief they think they might be entitled to.  That could be things such as money or an injunction of some sort.

Also, police are very reluctant to get involved in what they perceive to be a civil dispute.  They have enough to worry about and a complicated civil matter is often an easy “we can’t help you” situation.

Certain cases criminal value are extremely diminished when civil liability is sought first.  Think of a sexual assault case where the accuser first tries to get a settlement or sues the perpetrator before going to the police.  What might have been a solid case is now stained by questions about what could be the accuser’s real motive.

A normal exception would probably be certain white-collar cases where both victims have abundant resources and state or federal investigating agencies are interested due to the sheer amount or volume of a crime in question.  Again, though, keep in mind these are not your garden variety or every-day case.

Can Someone Threaten Criminal Prosecution To Get a Civil Settlement?

No.  That’s blackmail.  Think about it… “Pay me money or a I’ll go to the police.”  Generally lawyers or companies that make these types of threats word them extremely carefully.  They make it clear you are settling civil liability only.  Don’t get me wrong — they’re normally happy to let you think that by settling the civil case — you’re keeping a criminal matter “hush hush.”

While it’s okay to settle civil liability through a private settlement — no private party or entity can threaten criminal action nor waive the State or Government’s right to prosecute.

*Jeremy Rosenthal is licensed to practice law 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 on any situation you should contact an attorney directly.

 

 

 


“My Lawyer Changed His Tune”

October 28, 2016

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

My favorite thing to be able to do in my practice is give great news and if I can’t do that — then at least folks can leave my office with hope and optimism.  Giving great news, giving people hope and a reason to feel optimistic has to be honest, realistic or based in fact or it’s destructive.

I hear “my last lawyer changed his tune” a lot when I talk with people who either are getting a second opinion about their case or from someone (or their family) who had a bad experience in the legal system.

They tell me their lawyer was really excited at the onset of their case about the prospects for getting a case dismissed, acquitted or charges reduced.  At some point later, the lawyer’s attitude and demeanor seemed to change and all the news turns bad.  Instead of gallantly fighting — the lawyer is insisting the client plead guilty.

I’m always disappointed to hear this and it does make me reflect a bit about what really went on.  I do my best to understand not only from the client’s side but also the lawyer’s side.

Here are some of the reasons this is a recurring problem in my view:

The Lawyer is Afraid of the Courtroom or is Risk Averse

Some lawyers are simply intimidated by the prosecution, by juries, or even by certain judges.  They give you a very rosy outlook in the comfortable confines of their conference room, but when the lights get bright or when the prosecutor begins to gnash their teeth —  they wilt.

Other lawyers are afraid of risks.  Trial is to lawyers what surgery is to doctors.  Some always err on the side of playing it safe.

Risk is a part of the practice of law, in my view.  Often my clients are less risk averse than I am and other times they want to take risks I try to talk them out of!  There are times when a lawyer has to firmly let the client know the risk must be taken.  Some lawyers can’t do that.

The Lawyer is Inexperienced

Inexperienced lawyers make a handful of mistakes.  First, they fail to see the downside to a case when it walks in the door.  When they hear the facts of what happen — they often see great issues but their lack of experience may fail to see how certain issues tend to collapse or be more difficult to handle than they originally thought.  They also lack the experience to foresee other developments which might change their outlook on the case.

Some lawyers really do get excited about your case but their mis-evaluation of it causes them to change course which is difficult to understand and can be confounding to the client.

The Lawyer Fails to Set Proper Expectations

Some lawyers do see the pitfalls in your case but over-promise in hopes of getting business.  This invariably backfires because when the case does become difficult, the lawyer is forced to retreat from their earlier optimism without any real reason.

The experienced lawyer knows hard truths up front equal a satisfied client at the end of the case.  My hope is my client understands that I’ll fight as hard as I can for them regardless of whether my outlook is rosy or bleak at the onset.

 

Sometimes the Case Really Does Change for the Worse

Every case is it’s own snowflake… unique and distinguishable from anything and everything else.  The more and more cases I handle, the less unpredictable developments happen.  But unpredictable developments do happen even in the most common types of cases.  New and unforeseen facts can arise about an existing case or things unknown to me about my client’s past can crop up and present a bigger hurdle than originally considered, or sometimes just a change in prosecutor can throw things for a loop.

What Your Lawyer Should Have Done…

Lawyers can avoid “changing tune” in the middle of the case by setting a realistic tone from the outset.  This is a function of experience of knowing the variables to come in the case and how they typically break, having the discipline to “tell it like it is” to the client up front and temper optimism with appropriate caution, and to show the proper follow-through with risk associated with the case.

I hope this helps anyone in this predicament understand.

*Jeremy Rosenthal is licensed to practice in the State of Texas and is Board Certified in Criminal Law.  Nothing in this article is 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.


How Important Is a Police Report in a Criminal Case?

February 18, 2014

By Collin County Criminal Defense Attorney Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

It depends on who is reading it.

Police reports are used for many different reasons.  Insurance companies use them to evaluate car accidents and both criminal and civil lawyers rely on them to prepare for cases.  In and of themselves, a police report typically isn’t admissible evidence in a court of law so they’re importance is often over-stated.  Prosecutors will generally review a report in deciding whether to pursue charges and what charges to pursue.

Combinations of Fact and Fiction

Most police reports in criminal cases are combinations of both fact and fiction.  While there are probably officers who are deceitful enough to fabricate facts in a report — my guess is not many officers are willing to jeopardize their career for the sake of a single arrest.

Instead police combine objective observations (such as the car was blue, the road was wet, or gun was loaded) with supposition, hyperbole and mild exaggeration.  Police will often take subjective observations and attempt to make them more objective in an effort to support their conclusion.

“In My Training and Experience”

Police officers commonly use the phrase “in my training and experience” both when they testify and when writing police reports.  This is a way of converting subjective supposition into objective fact — and it typically makes the defendant look guiltier.  Sometimes the officer actually has such experience and training and sometimes they don’t.

For instance, police are actually trained to detect marijuana through the distinctive odor.  Perhaps the police academy has ways of re-creating the odor chemically or they actually burn marijuana for training.  Also police in the field frequently encounter people smoking marijuana in parks or in cars so officers have enough exposure to marijuana to know the burnt odor.  When an officer says in his/her report they know the odor of marijuana “through their training and experience” this is generally an accurate statement.

On the other hand are examples where a person is reported to be “nervous.”  An officer might suggest in his report the defendant’s nervous demeanor meant he was in the process of selling drugs because “in (his) training and experience” drug dealers act nervous when they get pulled over.

Another example during a DWI arrest might be where the officer states the defendant leaned on the car for support while being questioned by police.  In the officers “training and experience” this is a clue of intoxication but probably just looks like someone with their butt against the car while being questioned.  Maybe the police academy gives training in these areas backed with scientific studies but probably it’s just something made-up in good faith to substantiate the officer’s opinion.

Who Uses the Police Report?

Prosecutors will review offense reports to see if they have the basic elements of each case covered.  Prosecutors typically don’t scrutinize police reports but in their defense it’s not really their job to do so.

…But I Don’t Agree with the Police Report

Most of my clients find reviewing a police report to be an agitating experience.  Both witnesses and defendants alike report they were mis-quoted or statements they did make were selectively included in the report.  A police report carries no actual legal weight other than it’s ability to persuade a prosecutor to move the case forward.  The time to contest the police report is at trial where the judge and the jury can learn the whole truth about what happened — not just the polished events described by the police.

*Jeremy Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article should be considered legal advice.  For legal advice about any situation you should contact an attorney directly.


Don’t Flip the Burden of Proof on Conspiracy Theorists

November 18, 2013

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

November 18, 2013

The 50th anniversary of the assassination of President Kennedy is this week.

National and local newspapers are commemorating the occasion by publishing articles on the Kennedy family, JFK’s precedency, and above all else — whodunnit conspiracy theories.

CNN’s Thom Patterson  talks with expert Dave Perry (here) and the Dallas Morning News writer Scott K. Parks (here) casts doubt on consipracy theories in favor of the idea Lee Harvey Oswald acted alone in an interview with Vincent Bugliosi.

Vincent Bugliosi

Vincent Bugliosi, author and former famed Charles Manson prosecutor, has written a 1,632-page book on the Kennedy Assassination.  He flatly concludes Lee Harvey Oswald was the lone killer.

In Mr. Bugliosi’s recent interview with the Dallas Morning News he claimed a trial of Oswald would have produced a quick conviction.  He ‘scoffed’ and said about conspiracy theororists, “To show you how non credible the conspiracy theorists are, over the past 50 years they have accused 42 groups, named 82 assassins and a total of 214 people as being involved in the assassination… not one single word or syllable has been leaked out about the existence of a conspiracy.  And the reason is, there is none to leak out.”

Dave Perry

Dave Perry, a retired insurance claims adjuster living in Dallas is also considered an expert on the Kennedy assassination.  He claims to spend “a couple hundred hours every October and November” researching the issues in the case.  He is consulted regularly by reporters and producers. Though he can’t cast doubt on all theories, people consider him “an anti-conspiracy guy” though the CNN article points out Mr. Perry has a hard time dispelling claims of CIA involvement.

So What’s the Beef with these Guys?

Now let’s get a few things straight.  Mr. Bugliosi & Mr. Perry know ridiculously more about the JFK assassination and the evidence surrounding it than I know (or ever care to know for that matter).  I’ve seen a documentary here and there and, of course, Oliver Stone’s movie JFK.  I did an internship in law school downtown where I had to park behind the grassy knoll and walk across Dealy Plaza every day for about 2 months (which is creepy each and every time you do it).

If I had to put money on it, I’d say the assassination was a plot of some sort but like I said… I’ll readily confess to not knowing as many of the facts as the experts.

Here’s what I can say… marginalizing conspiracy theories and flipping the burden of proof on them is a great way to come to the wrong conclusion about what happened on November 22, 1963.

Flipping the Burden of Proof

One essential aspect about a criminal trial is the burden of proof never-ever shifts to the defense.  This is for several reasons — not the least of which is it’s virtually impossible to prove a negative.  Alternate theories are often possible — but are also always easy to shoot-down by a polished prosecutor.  Just because other theories have evidentiary flaws doesn’t make YOUR theory right.

Take someone on trial for a DWI.  There are only so many ways a person can defend him or herself.  Any evidence produced by an accused would be shredded by a skilled prosecutor.

  • People testifying the accused didn’t have much to drink?  A piece of cake.  Of course those folks will lie to protect their friend.  Or maybe it’s just because those friends were drunk too and not paying attention to how much the accused was drinking.
  • Bar receipts?  That doesn’t mean other people weren’t buying drinks for you.
  • Surveillance cameras from the bar?  Here’s hoping there was one which happened to be aimed at you, turned on, or that you weren’t drinking at home.
  • Your own word?  Everyone knows someone on trial will lie to protect themselves.

Doesn’t it make more sense to scrutinize the police theory instead of concluding your theory is right because no other theory can be proven?  Perhaps a lack of evidence the person is intoxicated may be the best proof someone was okay to drive?

What if We Flipped the Burden of Proof on the Michael Morton Case?

An even better example of why it makes no sense to flip the burden of proof comes from the Michael Morton case.  Michael Morton was freed after decades of confinement for a murder he didn’t commit.  A bloody rag recovered well outside the murder house contained both the DNA of the victim (Morton’s wife) and the perpetrator.

Anyone who insisted on DNA testing of the rag found at a construction site well away from the scene of the crime risked sounding like a lunatic.  

Without DNA, the theory of a complete stranger breaking into the Morton house, murdering Mrs. Morton, then leaving a bloody rag on his way out would be laughed out of most courtrooms.  But that turned out to be what happened, right?

How Perry and Bugliosi Flip the Burden

Both experts in their interviews with CNN and The Dallas Morning News respectively flip the burden on conspiracy theorists as above.

Bugliosi points out:

  • No other weapon has been found that can be linked to the assassination.  Oswald was the buyer of the gun in question.
  • All bulletts recovered were from Oswald’s rifle.
  • No other employee of the Texas Schoolbook Depository was missing after the assassination.

Perry points out:

  • Only hearsay supports allegations the mafia is responsible.
  • The military industrial complex didn’t have motive because Kennedy never threatened to pull out of Vietnam.
  • LBJ theories are baseless because Madeline Brown stated she over-heard incriminating remarks from him the day before the assassination at a party she could not have been in attendance at.

But don’t all these points really do the same thing?  They all flip the burden back on flaws of the evidence of the alternate theories.

None of these things fixes the holes in the lone-shooter case.  And if the lone-shooter case isn’t true, then mustn’t there be a conspiracy of some sort?

If there was a conspiracy, we’ll never know what it was.

.

*Jeremy Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is designed to be legal advice.  For legal advice about any situation you should contact a lawyer directly.