Defending Allegations of Child Sexual Abuse

October 15, 2015

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

No one anywhere approves of sexual abuse of children and no one anywhere approves of destroying the lives of the innocent.  The clash of these two core values in the courtroom are not for weak or timid lawyers.

The Deck is Stacked Against You

I’ve got bad news.  If you are being questioned about child sexual abuse charges — the police, CPS, or Children’s Advocacy Center very likely think you are a child predator even though they may not tell you directly.

The legislature has given law enforcement more than enough ammunition to destroy the lives of those accused of child sexual abuse.  If you think you are being accused of such charges you must contact an attorney immediately.

What Makes Being Charged with these Crimes So Severe?

Here are some of the obvious:

(1) The Harshness of the Penalties.  Aggravated Sexual Assault of a Child carries a penalty of 5-99 years in prison.  If the victim is under 6, then it is 25-years to life with no parole.  Indecency with a Child can be either 2-10 years of prison or 2-20 years of prison based on the elements. Continual Sexual Abuse of a Child carries a 25-life sentence with no parole.

(2) The Destruction of a Family.  Many sexual abuse cases involve family members or close family friends.  Allegations often cause family members to take sides against one another.  These cases can be contentious as you can guess so it stands to reason many wounds never heal regardless of the outcome.

(3) The Stigma.  The label, stigma and shame of being a sex offender is obvious — if the first two consequences weren’t enough.  Whereas a theft charge, drug charge or even a robbery charge might allow someone to still fit into society as a productive member after their debt is paid — someone labeled as a sex offender has a much bigger (if not impossible) challenge to rebuild their life.

What Your Lawyer Must Be Able to Do

They must show the jury destroying the life of an innocent person is intolerable even if it is being done with the best of intentions.  To accomplish this, your attorney must know the facts of the case better than the prosecutor, understand the law better than the prosecutor, and have a skilled plan of attack.

*Jeremy Rosenthal is an attorney licensed to practice in the State of Texas and he is 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 your case or any situation you should contact an attorney directly.  Contacting the attorney through this blog does not create an attorney-client relationship.  Additionally comments, posts, or communications through this blog are not confidential.


Scientific Evidence of False Memories

July 26, 2013

By Collin County Criminal Defense Attorney Jeremy Rosenthal

www.thecollincountylawyer.com

(972) 369-0577

The New York Times published this article talking about how scientists have been able to create false memories in mice.

Eyewitness testimony has been extremely problematic in criminal cases.  Not only are human’s imperfect in their ability to recollect specific facts and incidents — the problem is compounded because people can convey their poor recollections in a persuasive manner.

*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.


Can I Recant a Police Statement?

June 20, 2012

By Collin County Criminal Defense Attorney Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

Generally speaking a statement made to police in the course of an investigation can be considered by the police, a judge, or a jury for it’s full meaning.  Recanting the statement might call the original statement into question… then again it might not.

Who Made the Statement?

Statements of the Accused

Important in the analysis is who made the statement, what role that person plays in the proceedings, and the timing of the statement or statements.

A statement by an accused is referred to as an admission by a party opponent under Tex.R.Evid. 801(e)(2).  If the statement is relevant to a jury then it’s fully admissible.  The person or person(s) the statement was made to can testify to what was said by the accused or can have a written statement admitted.

Practically speaking, an accused and his or her lawyer would have to explain their reason for recanting such a statement although the burden of proof never shifts to the defendant under any circumstance.  Many judges and jurors would be naturally skeptical — and police tend to believe statements which fit their theory of the case.

Witness Statements

A statement by a witness or an alleged victim is a different and far more complicated matter.  The defendant in a case has the right to confront accusers in open court.  A witness who gives inconsistent statements to police — or attempts to recant a previous statement to police could be impeached or cross examined on the inconsistent statements before a judge or jury.

Suppressions of Statements

An accused’s remedy to have a prior statement nullified is usually a motion to suppress.  This would be in a situation where the original statement was taken illegally in violation of Miranda rights (or in Texas known as Tex.Code.Crim.P. Art. 38.22).  Those provisions do not apply to statements made prior to custodial interrogation (arrest).

Warnings about Inconsistent, Changed, or Recanted Statements to Law Enforcement

Depending on the situation — a person might not have a duty to cooperate with law enforcement.  An accused person, for example, always has the right to remain silent.  If you are cooperating with law enforcement, however, you have the legal duty to do so honestly.  Making inconsistent statements or admitting that previous statements were false could result in a person being prosecuted for criminal offenses of making false statements to law enforcement, obstruction of justice, or even perjury in some circumstances.

If you’re in the situation where you are considering in good faith recanting or amending a statement to law enforcement — you should have an attorney involved to counsel you.

*Jeremy F. 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 circumstance you should contact an attorney directly.  Contacting the attorney through this forum does not create an attorney-client relationship nor are communications or postings in this forum privileged.


Official Oppression

June 9, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

Texas Penal Code Chapter 39.03 governs official opression which occurs when a public servant acting under the color of office:

“(1)  intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful;

(2)  intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful; or

(3)  intentionally subjects another to sexual harassment.

(b)  For purposes of this section, a public servant acts under color of his office or employment if he acts or purports to act in an official capacity or takes advantage of such actual or purported capacity.”

Official oppression is a Class A misdemeanor punishable up to a $4,000 fine and/or one year of county jail.

Generally speaking this statute keeps public officials accountable in the event they misuse their office.  The difficult part in proving this offense would be to show that the public official knew their conduct to be illegal.  Ignorance of the law is no excuse but having a good faith belief that what you are doing is legal is a different matter.  Official acts of police, judges and prosecutors are given extremely broad leeway so they do carry out their public duties in constant fear of being prosecuted themselves.  The law is subjective and as long as an official has some sort of good-faith belief in the legality of their actions, it would be extremely difficult to prove official oppression.

*Jeremy F. 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 for any situation you should contact an attorney directly.  Contacting the attorney through this forum does not create an attorney-client relationship and communications with regard to this blog are not confidential.


America’s Imprisonment Crisis

April 22, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Today I’m going to share a great piece I saw this morning on CBS Sunday Morning called “Incarceration Nation“.  The stats are stunning.  America jails a higher percentage of it’s population than any other country on the planet.  We account for 5% of the worlds population but 25% of the worlds inmates.  It’s even more puzzling when our national crime rate has dropped by more than 40% over the last 20 years.

The story will make you think twice the next time you hear a politician trying to score cheap points by being “tough on crime.”  The Texas legislature has made a push in recent years to alleviate the burden drug cases cause the system, yet the legislature continues to toughen it’s vice grip on other crimes with harsh mandatory minimum sentences and eliminating parole opportunities.

*Jeremy F. 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.  Contacting the attorney through this blog does not create an attorney-client relationship.  Communications through this blog are not confidential nor privileged.


Why Prosecutors Withhold Evidence

April 10, 2012

By Collin County Criminal Defense Attorney Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

As a criminal defense lawyer my job is to try to understand people without judging.  Trying to understand why a prosecutor might withhold or actually conceal evidence in that way is no different than trying to understand why a person who committed a crime was the situation they found themselves clinically without finding fault.

There have been two clear-cut and higher profile violations (called Brady violations) by Texas prosecutors in the past year which serves as cannon fodder for the debate.  One is from the Morton case in Williamson County which you can read about here, and the other is a more recent debacle in Denton County where two assistants district attorney have been banned by a district judge from practicing in his courtroom.

Put succinctly — prosecutors withhold evidence because (1) some don’t believe people get wrongly accused; (2) some minimize facts which go contrary to the theory of their case; and (3) some assume that as long as they are well intentioned on how they handle a case — they are not violating constitutional rights to discovery.

The Michael Morton Case

Michael Morton was wrongfully convicted of the murder of his wife in the 1980’s.  The prosecutors in that case were alleged to have withheld exculpatory evidence which is the subject of an ongoing investigation.  Even more disturbing, the Williamson County District Attorney’s Office vigilantly fought the testing of a bloody bandana found at the scene from being tested for DNA after Morton was convicted through the Texas appeal process.  Eventually the bandana was tested over the objection of the district attorney — and showed to contain the DNA of the victim and another person accused of similar crimes (not Morton).

The Denton County Case

As reported in the Denton Record-Chronicle, a victim of an aggravated assault with a deadly weapon who was stabbed 9 times repeatedly made the conclusory claim that her husband was the assailant.  In a pre-trial interview with prosecutors, she revealed the basis for her belief was based on recognizing his scent and by seeing the sole of one of his shoes.  The prosecutors failed to disclose this to the Defense lawyer and instead tried to pressure he and his client into a plea deal according to the Record-Chronicle.  The case was dismissed by the judge after he heard the nature of the Brady violation and took the further step of banning the two lawyers from his courtroom.

The Problem

The concept of Brady material is highly subjective regardless of what anyone tells you.  It is reversible error where there is a violation which meets the following criteria: (1) the State failed to disclose evidence, regardless of the prosecution’s good or bad faith; (2) the withheld evidence is favorable to him;  and (3) the evidence is material, that is, there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different.

The very concept of having a ‘material‘ violation compared to ‘any‘ violation shows the Court has to weigh just how serious a violation must be to over-turn a case.  Prosecuting lawyers, like defense lawyers, are advocates for their position.  Their job (as is mine) is to take evidence and argue it’s meaning to a jury.  It’s not uncommon at all for a criminal defense lawyer and a prosecuting lawyer to take an identical fact and argue it has completely divergent meanings.

A classic example is from a driving while intoxicated case.  When a criminal defendant in a case looks stable on his or her feet can be argued by the defense that the defendant had the normal use of his mental or physical faculties.  The state’s lawyer on the other hand can argue (assuming it’s supported by evidence) that the defendant has a tolerance for alcohol.  Same fact — different ways to argue.

Adding Everything Together

When you add up the ingredients to a Brady violation — it’s easy to see how it happens.  The key is that it is the prosecutor who makes this highly subjective judgment call about whether to report the existence of negative facts and prosecutor (1) simply doesn’t accept the possibility they could be completely wrong about a case; (2) completely minimizes the bad fact in their own mind; and (3) believes that simply because they’re well meaning the mistake doesn’t matter.

Avoiding Brady Violations

The District Attorney for Williamson County, when questioned about why his office fought not to have the bandana tested in the Morton case said, “Do I in hindsight wish we could have done this quickly? The answer is, ‘Yes I do… Do I think I acted in good faith at the time we were litigating these issues? Yes I do.”

This quote is extremely revealing.  It shows at least two and possibly all three of the thinking errors I’ve identified above.  Certainly the Williamson County DA didn’t want the wrong person jailed (he was not responsible for convicting Morton in the first place) but the result is the same regardless of his intent and well meaning nature.

Prosecutors aren’t bad people, evil people, or just competitive cheats.  They’re human and the mistakes.  Withholding evidence due to the mental traps of their job, however, has the same negative results which they themselves would agree is unacceptable.

Avoiding Brady problems start and ends with having prosecuting lawyers who truly realize they, the police, and their investigators do not have a monopoly on truth.  Though they are under no legal duty to presume someone innocent — if they would — then this would cause them to scrutinize evidence which hurts the theories of their cases instead of rationalize and minimize the evidence.

*Jeremy F. 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 matter you should contact an attorney directly.  Communications sent through this forum are not privileged nor do they create an attorney-client relationship.


Will I Make the Police Mad if I Don’t Talk With Them?

February 11, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

Probably.  But you shouldn’t worry about their feelings.

Jails and prisons are full of people who gave statements to police when they were under investigation.

Exercising your 5th Amendment right to remain silent is perfectly legal and if your case ever came down to a trial, the jury would never be informed of the fact that you declined an interview based on an attorney’s advice.

Won’t the Police Drop the Case if they Think I’m Innocent? 

Of course that’s possible and I’m sure that happens.  But just as often the officer has already made up his mind and is only building his case against a suspect by bringing them in for an interview.

Police are not judges.  They do not get involved in disputes to hand the party they think should win a ribbon or prize when the investigation is over.  They investigate crime.  They do that by building a case element by element as defined by the Texas Penal Code.  Often the only way they can make their case is through a statement of the accused.

By declining an interview, a suspect may be denying the police the very ability to even go forward with an arrest warrant or possible criminal charges.  So if the police are upset that a suspect didn’t come in — that is obviously outweighed by the benefits of exercising 5th Amendment rights.

Can’t I Convince them I’m Innocent?

Good luck with that.  Most experienced criminal attorneys will tell you police often make-up their mind very early in an investigation.  People don’t change their mind once they’re made — and police are no different.

Here’s a common scenario I joke about:

Detective:  What happened?

Suspect:  We went into the party for a few minutes.  We didn’t really know anyone there so we left.  It was a bit awkward actually.  I’m not sure we even had a drink while we were there.

Police report conclusion — “Suspect admitted entering the house.”

See what you’re dealing with?

Won’t Things Be Better if I Take Responsibility if I did Make a Mistake?

Maybe yes and maybe no.  At the very least you should consult a lawyer to hear their thoughts about your case.  Your version of taking responsibility may be a heartfelt apology, restitution, and a promise to change your behavior.  The State of Texas’ version could be to send you to prison depending on the situation.  Having a lawyer in the mix could at least help you have some degree of control in the situation or even broker favorable terms if you made a mistake and feel strongly about cooperating with law enforcement.

In Federal cases, cooperation through your attorney can help substantially lower your exposure to criminal penalties.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas and is Board Certified in Criminal Law.  Nothing in this article is intended to be legal advice.  For legal advice about any situation you should contact an attorney directly.  Contacting the attorney through this forum does not create an attorney-client relationship.  Information given to attorney through this forum is not confidential or subject to the attorney-client privilege.