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.

 


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.

 


Why Don’t the Police Care About My Rights?

May 1, 2018

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

You have to remember how many police officers think.

Police often think they are the noble ones on high.  They are on “Team Good Guys.”  They protect victims from crime.  They are the ones who bravely run into dangerous situations when everyone runs out.  They stand for truth, justice and the American way.  And many of them sincerely and honestly do.

And many believe in – and completely respect your rights.  As long as they get to win in the end.

What I’m trying to say is Police and to a lesser degree prosecutors and to an even lesser degree Judges can’t turn off their human mind.  They all gravitate to what they believe the equitable or fair outcome should be in every case and they think the law should be written in a way to support THAT outcome.

Naturally, because police never consider themselves in the wrong when they make an arrest, many think the law supports (or should support) the result.

Also, to be fair to police, its not an officer’s job be the legal experts.  They are trained in what they need to know to keep the streets crime free and come home from their shift safely.  I’ve seen many cases where the police misunderstanding of the law actually helps my clients.  Police will let someone go or charge someone with a lesser crime because they’re afraid of over-stepping someone’s rights… even if they’re wrong about what those rights are.

But the bottom line is many officers view your rights as speed bumps when they think you’re guilty of something.  They re-write the laws in their own head to fit it into why another person’s right are inconsequential or haven’t been violated.

In other words, they rationalize.  They’re people just like the rest of us!

*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 this or any other situation you should contact an attorney directly.

 


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.

 


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.

 

 

 


Do Police Lie in Police Reports?

October 17, 2017

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Yes, no and maybe so.

Each police report is its own snowflake.  No two are exactly the same (unless the officer does a bad job with a cut & paste).

When I have my clients look at police reports I typically caution them they will not like what they’re about to see.  This is because many offense reports can be heavily spun to support the officer’s conclusion and read like scathing propaganda when they are the subject of the story.  Police include facts which support their decision to arrest and facts and theories which don’t support their own see the editing room floor.

Police don’t write reports to be malicious but they probably feel that way to us when we read them.  They are simply justifying their decision to arrest.

We also have to understand rarely would a single arrest be important enough for an officer to stake his or her career on.  If they are caught being dishonest — most good agencies won’t have anything to do with them.  They really are trying to do their best.  They just see the world — and the arrest differently.

Fortunately a police report is of limited importance.

Rarely do I come across something in a report which is just an unmitigated whopper.  I have to keep several things in mind when I’m reviewing a police report.

  • My client and I have a different version of events.  This doesn’t make the officer a liar.  He or she just saw the events a different way.
  • It is normal for a police officer to omit facts which don’t support their conclusion.
  • There is a difference between lies and exaggerations.

Exaggeration in Police Reports and the “Halo Effect”

A “Halo Effect” is a cognitive bias about someone or something which causes a person to paint an over-all picture about that thing a certain way.  For instance when an employer does a job review for an employee they like – they might give the employee better marks for individual tasks than they otherwise deserve.  The employee’s “halo” blinds our view of other not-so-perfect traits.

But we’re focused here on the reverse.  The officer’s negative impression of the arrestee paints facts and traits which are negative, not positive.  So it is not uncommon to see on offense report where everything negative fact about a defendant down to dirty fingernails is listed by the officer.  We see a “reverse” halo effect in a police report.

How to Use Police Lies to Your Advantage In A Criminal Case

Today we have more and more use of body-cams, in car videos, and even citizens filming police with their own cell phones.  When the police lie, exaggerate, or omit facts from their police report which don’t support their conclusion — then often time they are caught because the video shows otherwise.

In cases where there is no video, the challenge is different.  A skilled cross-examination can show how surrounding circumstances and logic make their conclusion not so.

The Bottom Line:

Rarely will we ever completely agree with the police officer’s account.  But we have to remember his or her account is only so important.  In showing the jury the truth, we do not have to defeat the officer — we have to show the officer was mistaken/ biased/ exaggerating/ inconsistent or whatever human trait lead him to an imperfect conclusion.  This takes skill.

*Jeremy Rosenthal is licensed in the State of Texas and is Board Certified in Criminal Law.  Nothing in this article should be considered legal advice.  For legal advice about any situation you should 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.