America’s Imprisonment Crisis

April 22, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(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.

What is a Mistrial?

April 20, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

A mistrial is a declaration the judge makes to immediately halt and end a trial in progress.  Normally a mistrial is declared when a circumstance arises that taints the process beyond repair.  In certain situations, a mistrial can also result in an acquittal of a criminal defendant due to the concept of double jeopardy, but most merely result in the case being reset to a new trial status as if the mistrial had never taken place.

The circumstances which could cause a mistrial are seemingly endless.  More common reasons for mistrials are hung juries (meaning the jury couldn’t decide a case unanimously after a lengthy deliberation), or what is known as a “busted panel” which means after jury selection there were not enough qualified jurors to form a complete jury.  Other common reasons are improper arguments by a party, unexpected or improper comments from a witness, and on some occasions juror misconduct.

A judge has wide discretion to declare a mistrial if there is a “manifest necessity” to declare a mistrial.  Mistrials can be granted sua sponte (the judge declaring the mistrial without either party asking for it), or by either of the parties.

It is legally complex in situations where the Defendant requests a mistrial based on a prosecutor’s conduct during the trial as to whether double-jeopardy will bar retrial.  This is because, as a general rule, courts consider requesting a mistrial as a waiver of double-jeopardy.

The standard today for whether a mistrial requested by the defense should also cause a double-jeopardy bar is from the U.S. Supreme Court case of Oregon v. Kennedy, 456 U.S. 667 (1982) which holds that where the prosecutor baits or goads the defense into requesting a mistrial — then the defendant doesn’t waive double jeopardy by requesting a mistrial.

The easiest way to think about a mistrial triggering a double jeopardy dismissal is like an intentional foul in a basketball game.  One team has the ball and has a clear path to the basket.  In order to prevent an easy basket or layup, the other team fouls.  A prosecutor, thinking they have lost the case, makes a flagrant comment, asks an inappropriate question, or takes some other action to force defendant to request a mistrial so they can have another shot at prosecuting the defendant.  Courts in this situation can end the trial right there and bar the state from re-prosecution (essentially acquitting the accused).

*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.  Posts made to this blog and/or communications sent through this forum are not confidential nor subject to the attorney client privilege.  Contacting the author through this forum does not create an attorney-client relationship.

Defending Intoxicated Assault and Intoxicated Manslaughter

April 12, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

Defending intoxication assault or intoxication manslaughter is heavy lifting for lawyers and not just anyone can do it.

Like any other major criminal case, it requires attention to detail, the ability to compartmentalize the human components of the case, and the ability to thoroughly analyze the mountains of evidence as a baseline.

On top of that — a lawyer must have an advanced background in defending not only severe car accident cases requiring reconstruction; but more importantly defending intoxication charges which involve science ranging from chemistry to physiology, to pharmacology.

Intoxicated assault is governed by Texas Penal Code 49.07 and Intoxicated Manslaughter is under 49.08.  In those cases in Texas, the state must prove that the accused caused the serious bodily injury (intoxicated assault) or the death of a person (intoxicated manslaughter) by reason of that intoxication

The language of those statutes seems very simple but in practice are highly complex.  The statue must show (1) intoxication as defined by Texas Penal Code Chapter 49; (2) and that but for the defendant’s intoxicated state — the injury or accident would not have occurred.  This normally implies that the accident was the fault of the intoxicated driver.

*Jeremy Rosenthal is an attorney licensed in the State of Texas.  Nothing in this article is intended to be legal advice.  For legal advice about any circumstance you should contact an attorney directly.  Communications sent through this forum are not considered privileged or confidential nor do they create an attorney-client relationship.

Why Prosecutors Withhold Evidence

April 10, 2012

By Collin County Criminal Defense Attorney Jeremy Rosenthal

(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.

Video of a Textbook Illegal Search

April 6, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

Today I’m posting a video created by a guy driving home from a Star Trek convention with a buddy who was stopped by a police officer for an alleged minor traffic offense.  He and his friend spend the better part of an hour being harassed, manipulated and badgered by the officer.  It’s a textbook example of when an unsuspecting fly gets tangled in the web of a nasty spider and can’t get away.

You can watch the video here.  

As a Criminal Defense Lawyer having dealt with many bad searches, here are a few things I think are important to point out about this stop/ video.

Situations Like This Rarely Come to Light in the First Place

The reason this type of harassment of citizens never really comes to light is because these guys are completely innocent.  They’ve got no reason to ever acquire, watch, or publish this video.  In fact, most people who go through something like this either just want to forget that it ever happened or were so intimidated by the experience that they simply walk away.

Another reason why this situation is seldom exposed is because when an officer does profile correctly and find marijuana, cocaine or methamphetamine — the citizens regard all the singing, dancing, and acting he did to get into the car as “great police work.”  Obviously what is ultimately found, if anything, doesn’t suddenly validate the illegality of the search.

This is an Extreme (but not unheard of) Scenario

This situation is extreme.  It’s very common to see stops for very thin reasons, and very common to see cops play delay games like “the computer is slow today”.  Getting a k-9 to give a false hit (if that’s really what happened) would be highly uncommon, and simply making up a reason altogether for the stop (if that is what really happened) would also be well out-of-bounds.  Police often reach or stretch for reasons to detain someone, but normally it’s based on at least a smidgen of good faith.

Why this Search Was Illegal

Courts have long struggled with these types of police games.  In United States v. Shabazz, 993 F.2d 431 (5th Cir. 1993) citing United States v. Guzman, 864 F.2d 1512, (10th Cir. 1988) the Fifth Circuit stated:

“An officer conducting a routine traffic stop may request a driver’s license and vehicle registration, run a computer check, and issue a citation. When the driver has produced a valid license and proof that he is entitled to operate the car, he must be allowed to proceed on his way, without being subject to further delay by police for additional questioning. In order to justify a temporary detention for questioning, the officer must also have reasonable suspicion of illegal transactions in drugs or of any other serious crime.”

Also, it’s a well known game to wait for the arrival of a K-9 unit in the event the detaining officer suspects drugs.  

*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.  Communications sent through this blog are not confidential, privileged, nor do they create an attorney-client relationship.