Is Sexual Harassment A Crime in Texas?

May 21, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

No.

Sexual harassment whereby one or more employer or co-worker creates a hostile work environment for other workers is civil, not criminal.  This means a person’s remedy is in the courts is through a lawsuit they normally bring themselves.

But there could be over-lap between sexual harassment and actual sex crimes.

Sex crimes are typically committed where there is unwanted touching or exposure.  So crude talk, innuendo, or inappropriate language are not enough to rise to the level of a criminal offense.  However, possible criminal liability can ensue such as indecent exposure, simple assault if there is unwanted non-sexual touching, or even sexual assault.

Can I Be Charged With A Sex Crime Even If I’m Being Sued for Sexual Harassment?

In theory, yes.

I worked at an employment law boutique right out of law school.  I don’t know that I ever saw that happen.  People who sue generally don’t go to the police… and when they do AFTER going to a lawyer first, I suspect the police are a bit leery of a money-grab (not to mention the case has normally gotten much older).

If you’re being prosecuted for a sex crime and are now worried about a sexual harassment claim — that’s normally hard to do too.  Sexual harassment claims have very tight time-lines which could be lost by this point.  If you’re being prosecuted for a sex crime of any time then sexual harassment is a much lesser matter in my book.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the State Bar of Texas.  Nothing in this Article Should be considered legal advice.  For legal advice, please contact an attorney directly.

 

 

 


Our Victory at the Texas Supreme Court Changes Expunction Law

May 16, 2018

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Time to crow a bit.

I won a trial roughly two or three years ago where my client was charged with the felony offense of aggravated assault with a deadly weapon.

After we won, we filed (what we thought) would be a routine petition for expunction clearing my client’s record of the arrest for which my client had been acquitted.  The DA’s Office and The Texas Department of Public Safety opposed our petition because my client had also been arrested for outstanding warrants on an unrelated case which occurred prior to her arrest for the aggravated assault.

The prosecution’s theory was the arrest could not be expunged because the arrest for the underlying warrants made the arrest good under the expunction statute… so she’d have to live with the arrest for the aggravated assault with a deadly weapon on her record forever even though she won her trial.  (This is highly nerdy lawyer stuff — so I’m paraphrasing a touch.)

The prosecution’s idea of the expunction statute before our case had governed their policies and practice statewide — that if you don’t qualify for any small part of this long statute then you’re out of luck.  They argued the record keeping of criminal records for DPS would be too difficult and too sloppy.

After I convinced the trial judge in the case to order the records expunged over the State’s objection (no small task), the State appealed to the 5th Court of Appeals in Dallas and then to the Texas Supreme Court.  Special thanks to Thad Spalding and Morgan McPheeters from the firm of Kelly, Durham & Pittard in Dallas who handled the case after it left the trial court and briefed and argued it from the 5th Court in Dallas to the Texas Supreme Court.

Last week the Texas Supreme Court affirmed our case yet again, making it the law of the land.  Now when someone applies for expunction the test is whether they qualify under the specific provision of the expunction statute and not the statute as a whole.

It punches a hole in the decades-old practice of prosecutors and DPS that the expunction statute was “arrest based.”

You can read the opinion here.

Yeah, it’s nerd stuff.  I know.  But it can be fun to be a nerd sometimes!

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

 


Top 5 Most Common Police Attitudes – #3

May 13, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Today I’m continuing my series on the top 5 police officer attitudes I’ll see when defending cases.  These are police attitudes I see from police officers while on duty.

#3 — CYA

That’s right. Cover your a$$.

One of the psychological pressures on officers is maintaining their livelihood.  They don’t want to lose their job or their pension over any single case.

I see this one mostly in cases where there is an alleged victim involved such as domestic assault, sexual assault or complicated theft schemes to name a few.  A police officer knows an upset accuser (or the accusers parents) can cause them all sorts of headaches with his or her superiors at the station.

For assault/ family violence cases police are worried if they leave a couple warring in their home after a 911 call — one of them could be killed later in the evening.

On sexual abuse cases whether involving adults or children, a police officer is going to have to have a really good explanation to their superiors as to why they told an angry person claiming to be a victim, “no, we don’t believe you.”

Police will often file cases as “grand jury referrals” which is their way of filing a case with the District Attorney’s office while expressing an underlying doubt about the case.  It is a case where they don’t make an arrest prior to grand jury.  It can be seen as unwritten permission to dump a case.  Grand juries may still indict, though.

It sucks to be on the receiving end of a case where you suspect it was filed because the officer was doing CYA work.  It has to be dealt with like anything else.

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

 


The 5 Most Common Police Attitudes – #5

May 9, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Police are people too and there are mountains of research on police psychology.  Being a police officer can obviously be a job where any given day an officer can deal with stress, boredom, and possibly even traumatic experiences.  It can all shape how they interact with the public on a regular basis.

I’d say in the zillions and zillions of cases I’ve seen, police are like an old standard car when they deal with people. (which for younger readers means a car you had to shift on your own).  Police have about five different gears in my book.

This week, I’ll count down the most common police attitudes I see and feel prepared to diagnose in my amateur opinion.  They are in no particular order, but I figure I’ll save the more dramatic ones for the top of list.

So we’ll start with the boring:

5.  Human Scenery Mode

Most of the time you, me, and everyone in an officer’s path is nothing more than human scenery.  Police have much down-time in their job as one might suspect.  Probably the time they spend patrolling their beat, running a radar gun, or walking on foot through a public area is spent with their internal-scanner set to low.  It is rare to see an officer get too worked up about low level interactions such as basic traffic stops.

*Jeremy Rosenthal is board Certified in Criminal Law by the Texas Board of Legal Specialization and is licensed to Practice 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.