People Giving Legal Advice — That Shouldn’t Be Giving Legal Advice

July 10, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

As even keel as I try to be — nothing gets under my skin more than people giving legal advice that have no business giving legal advice in criminal cases.  Everyone has opinions, their own experiences, and what they believe to be common sense — but I’m not really even talking about that type of stuff.

The “legal advice” I’m talking about is when the very same police officer that arrests you for DWI — also tells you that you need to just talk with the prosecutor to see if you can get a good deal… or when court staff or personnel tell you it might be easier to just talk with the prosecutor rather than get a lawyer… or when a bail bondsman tells you that your case is hopeless and hiring a lawyer is a waste of money.

It unnerves me because these are people that carry a marginal amount of credibility — and because of that people tend to listen to their generally uninformed, narrow, and incomplete analysis of a particular situation — whether it’s drugs, theft, assault or DUI.  Now, in defense of these people — they are probably well meaning in their intentions.  It’s just extremely reckless.  You wouldn’t operate on yourself because they guy at the front desk in the hospital thinks it’s a good idea… and you shouldn’t take legal advice from anyone in the justice system except YOUR lawyer.

Maybe I also get upset because unlike the police officer, court staffer, or any other various know-it-all, I spent many nights in law school up until 1 or 2 a.m. studying about the layer after layer of the law and our legal system.  Unlike them, I’ve spent my entire career since law school dealing with people and learning that their personal situations also have layer after layer.  And unlike them, I get to hand a 42 year-old single mother kleenex across my conference room table when she can’t get a job from a conviction 17 years before when some know-it-all in a position of semi-trust told her she didn’t need a lawyer.

Being a lawyer is a hard job.  Doctors manage imperfect variables which involve the human body.  Lawyers manage imperfect variables which is how the humans which comprise our system of justice will treat any given scenario.  Lawyers are bound by very rigid rules of ethics which make clear that no lawyer can ever guarantee you any result — due in large part to how imperfect and how complicated legal matters can be.

Most police officers, court personnel, and various other people that tend to come into close contact with those accused of a crime are very respectful of the complexity of legal issues and of the Attorney/ Client Privilege and thus are properly deferential.  Other know-it-all’s, though are loaded with bad advice that is only based on their past experiences and training — and none of it is from YOUR perspective or from the perspective of someone that’s dealt with these situations from start to finish.

I’m sure there’s a possibility that some of the things they say might be right 40, 50, or even 60% of the time… And I don’t know about you — but my personal experience is that having 40, 50, or 60% of the right information is a great way to make a very bad and uninformed choice.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any specific situation you should directly consult an attorney.


Texas Legislature Considers DWI Reform

July 9, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 562-7549

The Dallas Morning News Published this article today regarding legislative hearings on DWI cases and enforcement.  The Senate Criminal Justice Committee, comprised of various experts on the matter such as judges as well as victims, met in Austin to discuss possible changes.

In trying to keep my editorializing to a minimum — I will say what was discussed on the panel is an excellent review of the real problems with DWI enforcement.  These are the issues that attorneys fighting Driving While Intoxicated cases see every day.  This is to say that the State’s “when all you have is a hammer — everything becomes a nail” philosophy backfires and creates just as many problems as it solves.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice for any specific case you should consult an attorney directly.


Criminal Trespass

July 8, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 562-7549

Under Texas Penal Code Section 30.05, a Criminal Trespass is committed where a person enters or remains on or in the property of another, including residential land, agricultural land, recreational-vehicle park, building, or aircraft or other vehicle without effective consent and had either notice that the entry was forbidden, or received notice to depart but failed to do so.

Criminal Trespass can be either a Class C, B, or A Misdemeanor depending on how it is alleged to have been committed.  Generally speaking, it’s a Class B.  Here’s the statute itself and you can read the different punishment aspects.

Much like burglary, criminal trespass has many specific definitions and which thereby make the cases somewhat defend-able based on the particulars of each case.

For example, Tex.Pen.C. 30.05(b)(2)(C) states that one particular definition of receiving notice of not being on the premises is “a sign or signs posted on the property or at the entrance to the building, reasonably likely to come to the attention of intruders, indicating that entry is forbidden.”  This legal definition of notice, then, means that the police and State can try and charge someone with criminal trespass even where the person did not have actual notice entry was forbidden.  This can pose extreme difficulties to a prosecutor.

A skilled criminal defense lawyer can defend these cases which may otherwise seem cut and dry from the prosecutions point of view.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any specific set of circumstances you should directly consult an attorney.


Defending Burglary Charges

July 7, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Texas Penal Code Section 30.02(a)(1) governs burglary.  That offense is committed where a person without the effective consent of the owner enters a habitation or a building (or any portion of a building not open to the public) with the intent to commit a felony, theft, or assault.

Burglary is a State Jail Felony if it is committed in a building other than a habitation, and is a 2nd degree felony if it is committed in a habitation.

While the statute may seem very air-tight on the surface, a bit of digging shows there are all sorts of potential legal issues with regards to what is or is not a burglary for any given set of circumstances.

An extremely difficult element for the State to prove in a burglary is identity if the defendant is arrested somewhere other than the place alleged to have been burglarized.  Rules restrict the prosecution’s use of co-conspirator testimony, and photo line-ups of accused people can also be overly suggestive and thrown out.

Another difficult element for the State to prove is often the element of intent to commit a felony, theft or assault.  The prosecution will invariably point to surrounding circumstances such as equipment brought by the accused and what the accused was alleged to have done.  Obviously a skilled criminal defense attorney can demand a jury acquit the accused where the only evidence is of entry into the habitation or building — but no evidence of the further intent.

Other defenses are apparent with just a bit of digging.  For instance the term “effective consent” is given a legal definition under Tex.Pen.C. 1.07(a)(19) and includes not only the owner of the building or habitation, but also a person legally authorized to act for the owner.

The terms “building” and “habitation” are also specifically defined by statute.  A building is any enclosed structure intended for use or occupation as a habitation or for some purpose of trade, manufacture, ornament, or use.  A habitation is a structure or vehicle that is adapted for overnight accommodation of persons.

Sadly, often burglary cases are often part and parcel of drug problems by the accused.  While an aggressive criminal defense lawyer is fighting the legal aspects of the case, part of the attorney’s role as counselor is to make sure that if there are collateral substance issues — that those are non-judgmentally addressed so that punishment can be mitigated if the case gets to a Judge or Jury.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For specific legal advice about any legal matter you should consult an attorney directly.


The Presumption of Innocence

July 5, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 562-7549

The presumption of innocence in the United States stems from the 5th, 6th and 14th Amendments to the Constitution.  See Coffin v. United States, 156 U.S. 432 (1895).

Texas Code of Criminal Procedre Art. 38.03 is called  the “Presumption of Innocence” and states, “All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that he has been arrested, confined, or indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at his trial.”  Also in a criminal trial, the judge and prosecutor have legal duties not to impair the presumption of innocence.  See Tex.Code.Crim.P. Section 2.01 and 2.03.

Despite these seemingly straightforward concepts and what seem to be airtight safeguards — studies have shown that the presumption of innocence is widely ignored and/or misunderstood by jurors.

What is worse is that clever prosecutors manipulate the presumption of innocence during phases of a criminal trial such as jury selection and closing arguments.  The twists, turns, and spin the prosecutors are trained to use is so subtile and seemingly docile — and often they themselves aren’t even aware they are doing it in the first place.  What is so unfortunate is that as the studies to which I’ve linked above suggest — jurors need very little persuasion to either ignore the presumption of innocence or badly misconstrue it.

A common tactic I’ve seen prosecutors use in felony trials such as theft, burglary or the distribution of drugs cases is to suggest to the jury panel that if there is little evidence of guilt in the case — it is merely because the accused is ‘good at being a criminal.’  The prosecutor suggests that their case is weak because it is the criminal defendant “that chose the time, place, and witnesses to the crime.”  In other words the person on trial is a criminal according to the State — whether they can prove it or not.  Clearly that is opposite of the presumption of innocence which suggests no evidence at all means the State hasn’t met their burden of proof and the accused should be acquitted.

Although most prosecutors won’t admit to this — one of the aspects they find the most frustrating about DUI and DWI trials is that the person on trial ACTUALLY GETS the presumption of innocence from jurors with similar backgrounds and experiences as the accused.  As this abstract readily points out — jurors need very little encouragement to allow pre-existing biases and prejudices wipe-away the presumption of innocence with the concept of congruence (which I understand to mean that once the jury learns certain background information of an accused person — such as occupation, age, income level, or race; they then draw negative inferences about the person in general).

With a DUI or DWI trial, the jury can readily identify with the defendant and so there is probably less chance the jury draws negative inferences from the accused’ profile — and the greater chance the accused is actually presumed innocent.

A common tactic used by prosecutors in a driving while intoxicated trial is to ask prospective jurors whether the person on trial “looks like a drunk driver” or “what does a drunk driver look like?”  Of course, the prosecutor readily points out that ANYONE can be a drunk driver (and it’s implied that even though this person looks innocent — they might be a criminal.)  Again, while prosecutors see this as an innocuous question — I see an underhanded swipe at the presumption of innocence.

The bottom line is that when hiring a criminal defense lawyer in Dallas or Collin County, you should select a trial lawyer that not only understands the presumption of innocence, but will fight the State’s underhanded attempts at undermining what is one of the most critical cornerstones of American justice.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice for any specific case you should consult an attorney directly.