Defending Matt Lauer, Garrison Keillor & Charlie Rose

November 30, 2017

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

Ok, I’m going to take a very unpopular position and defend it to the best of my ability.  It is what I do.  A word of caution — don’t try this at home.  I’m a professional.

Disclaimers and Disclosures

Sexual harassment, sexual abuse, and sexual predators have no business in the work place.  I am blessed to be married to a very strong and independent woman and she and I are doing our best to raise our daughter to be a strong and independent woman.  If I learned someone groped my wife, exposed themselves to her, or made lewd suggestions to her — I’d feel compelled to confront the predator who did so.

I’m privileged to be a partner in the largest criminal defense law firm in Collin County.  We are fortunate to work with women who are intelligent, creative, and crucial to our survival.  If someone at our office groped, exposed themselves, or made a lewd suggestion to them — it would be their last day working here.

The national debate and revelation we’re having is a healthy one about sexual predators in the workplace.  I worked for an employment law ’boutique’ after law school for a cup of coffee, so I know sexual harassment happens and there are pigs who inhabit the workplace who are tough to get rid of.


What I don’t like about this debate is it seems the default to each and every allegation is to believe them.

What is worse to me is when the Matt Lauers, Charlie Roses & Garrison Keillors of the world (or people who support them) speak up to defend against the accusations they are immediately brow-beaten into shame and submission.  I don’t like that at all.

I’ve been in the accusation business long enough to know a one-sided, overly-sanitized and white-washed allegation when I see one.

Here is a New York Times account of one of the Matt Lauer allegations:

“In 2001, the woman said, Mr. Lauer, who is married, asked her to his office to discuss a story during a workday. When she sat down, she said, he locked the door, which he could do by pressing a button while sitting at his desk. (People who worked at NBC said the button was a regular security measure installed for high-profile employees.)

“The woman said Mr. Lauer asked her to unbutton her blouse, which she did. She said the anchor then stepped out from behind his desk, pulled down her pants, bent her over a chair and had intercourse with her. At some point, she said, she passed out with her pants pulled halfway down. She woke up on the floor of his office, and Mr. Lauer had his assistant take her to a nurse.

You can read the whole article here.

Let me get this straight… So little miss muffet sat on her tuffet and along came Matt Lauer who in 2 minutes flat used his celebrity magic and powers over her to sexually assault her thereby satisfying his predatory quota for the morning.  Lock him up!

Experience tells me if Matt Lauer were to walk into my office, I doubt he would say anything close to resembling this story.  I’m guessing I’d probably hear a tale about back and forth flirtation and innuendos culminating with consensual sex in his office.

In fact, Mr. Lauer apologized claiming “enough” of the allegation was true to merit his disgrace.

My operating theory were he to be tried for sexual assault would be this was consensual extra-marital affair.  She got caught cheating on her husband because she passed out (for some reason she won’t explain) and the nurse saw her in a compromising position.  Presto-chango — now it is rape.

Again, who am I to say she’s lying.  I wasn’t there.  But seldom is a true story this one-sided.

Don’t get me wrong — Matt Lauer was in a position of power and had sex with a subordinate in his office.  If I ran NBC, I’d can him whether this was consensual or not.

Charlie Rose

I can’t tell you how disappointed I am in Charlie!  Watching him was like watching a favorite college professor making the worlds most unstable problems seem manageable.

Mr. Rose hasn’t denied some allegations but has taken exception to others.  What is wrong with hearing him out?

Garrison Keillor

Mr. Keillor claims the situation stemmed from him touching a woman’s back where his hand inadvertently went up her blouse.  I don’t know if that one flies, Garrison, but again relative to TV executives running naked through the hallways this one seems a bit mild. Why would we brow beat a man like this and why can’t we hear him out?

What’s My Point?

It is ridiculously unhealthy for us to default to believing every accuser unconditionally.  We construe the accused’s silence as guilt but even worse — when the accused does speak out — he is shouted down as soon as he speaks.  So it sounds like the accused’s choice is to lose or lose worse.  Not too fair.

I’m in a position to defend situations like this on a routine basis.  Fortunately, I do it in a courtroom where I can rely upon rights and tools like the presumption of innocence, an person’s right to remain silent which can’t be held against them, and the burden of proof being upon the state.

We can’t forget the American values and principles from the US Constitution in our everyday lives.  They work!

*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 situation you should consult an attorney directly.

How Police “Trick” Themselves

November 15, 2017

By Criminal Defense Attorney Jeremy Rosenthal

(972) 369-0577

I’m a huge fan of both Malcom Gladwell and Michael Lewis.  They are best selling authors.  Lewis’ famous works include “Moneyball”, “The Big Short”, and “The Blind Side”.  Gladwell wrote “Outliers”, “The Tipping Point”, and “Blink” to name a few.

Both authors focus often on how the human mind tricks itself when it comes to important decision making.  For example, Lewis’ discusses in a recent book, “The Undoing Project”, how the Houston Rockets General Manager really dislikes meeting potential players.  He worries he will like them too much and this will cause him to give players a chance who have statistically proven they have limited abilities to pass, rebound or shoot.  Further, he forbids coaches and scouts to compare prospective players to past players.  The Houston GM believes each player is unique and convincing yourself a new player is like “Clyde Drexler” for example, is a great way to trick yourself into a bad decision.

Gladwell discusses “thin slicing” in his book, “Blink.”  Thin slicing refers to our ability to take small bits of information and create full pictures from them.  Sometimes the thin slicing serves us well and other times it takes us in a completely wrong direction.

How Police Trick Themselves

We like to think of a good cop just like a trusty hound-dog.  We want to think there is a sixth sense they possess which allows them super-human abilities to see through people, read minds, and become one with the universe just for a few moments every day to protect the good from the evil.  Except intuitively we know this can’t be true.

One of the very first people I defended after leaving the DA’s office had been accused of stealing air conditioning equipment.  He had plenty of tattoos and a long rap sheet.  He had no idea why he was in custody.

“Sure, sure” I thought.  “They told me there would be people like you I’d have to defend…  Crooks who were so dishonest if they told you it was daytime I’d still have to go outside to check.”

Then I saw the evidence.  A detective was told by a homeowner they saw a silhouetted man after dark from about 100 yards away messing with an AC unit.  The next morning the unit was gone.  A few weeks later, my client was selling the same unit from his store (matched with a serial number) nearly 150 miles away!

“Huh,” I thought…. “you actually didn’t steal the thing and you really don’t know why they dragged you up here for this!”

Now, maybe I’m the fool for believing it wasn’t him who stole it… and he was probably guilty of at least buying an AC unit he should have known was red-hot and trying to re-sell it for a profit.  But there was a better than even chance he was innocent in my mind.

So how did the cops blow it?  (Fast forward — he was soon exonerated and released).

They were tricked by his rap sheet, by his appearance, and just enough evidence against him which didn’t pass the smell test.  They wanted to believe he was guilty.  Their brains worked like mine did.

Circular Logic

One of the concepts I try to get juries to understand is how often law enforcement will use circular logic in their investigation and the prosecution will use circular logic in the presentation of their case.

Circular logic is like this:  The defendant is guilty so x must be true, y must be true and z must be true…. therefore the defendant is guilty.

A real world example could be a domestic abuse case.  Police believe defendant beats his wife regularly.  This explains why the spouse doesn’t want to prosecute.  He knows how to hit her so that it won’t bruise much and if it does it is covered by clothing, and why the police have to come out to the house regularly…. therefore Defendant beats his wife regularly.

It all makes sense and there is nothing complicated to investigate.  We’ve seen this 1,000 times, right?  What I see is how we got there with thin-slicing and reaching a snap decision which completely altered our thinking.  We bought into the pre-existing narrative we all want to believe.

Now, maybe the truth is it is the wife who has uncontrollable substance abuse problems and often attacks the husband or the kids.  When he defends himself he might leave defensive bruises on her arms.  Maybe she calls the police on him 3 times a year in her opioid or drunken rages then immediately gets remorseful the next morning.  Who knows?

Deconstructing the Thinking Errors

Trying a case to a jury or judge while deconstructing these thinking errors is a challenge. Police and prosecutors are highly polished at presenting their case.  In their defense, they sincerely believe their narrative is correct and obviously in many instances it is.

There are parallels between the Houston Rockets GM’s identification of classic mental pitfalls and common mind-traps law enforcement encounter.

We know this happens when someone is exonerated after years and years in incarceration.  It shouldn’t take DNA to tell us.  It requires listening, keeping an open mind, and being mentally disciplined.

*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 situation you should contact an attorney directly.

Criminal Law in Small Counties

November 8, 2017

By Collin County Criminal Lawyer Jeremy Rosenthal

(972) 369-0577

Most criminal defense lawyers will tell you the smaller the county, the harsher they are.

The New York Times agrees.  They wrote this article last year with an interactive map showing precise data from almost every county in the United States about their incarceration rates… and just as importantly…. their percentage of increase or decrease in the last decade.

The article focuses on Dearborn County, Indiana.  They sentenced a drug addict charged with possession of heroine to 35 years of prison.  You read that correctly.  The collection of small towns by the Ohio river jails more people than San Francisco and Durham COMBINED.

My practice is in Collin County, Texas.  It is the suburbs.  We are the 7th most populous county in Texas and the 63rd biggest county in the country according to Wikipedia on the date of the publication of this blog.  Being a bigger county, I don’t think we remotely resemble Dearborn County, Indiana.

From our Collin County base we see it all.  In addition to Collin, we practice in urban Dallas and Tarrant Counties.  We have neighboring suburban counties to our own in Denton and Rockwall Counties.  From time to time we have the occasion to practice in neighboring rural counties.

I should note there are always exceptions to the rule, and I’ve found practice in some rural areas extremely pleasant and excessively fair.  But bye and large, here’s why I think we often have “tough sledding” in rural counties as proven by the news article.

Eroded Checks and Balances

Our system of justice is supposed to have built-in safeguards in the form of checks and balances.  When those safeguards aren’t working — things go haywire.


Probably the largest unseen hand in any courthouse is that of volume.  Dallas and Tarrant counties have more cases than they know what to do with.

“Depth Perception” and Experiences

With greater volume the “extremes” are more pronounced… that is the most severe and egregious crimes tend to be much worse and the more borderline or unfair mishandled police investigations or prosecutions are probably extremely bungled and unfair.

With greater volume tends to be greater “depth perception” about how egregious any single case might be to a prosecutor.

A Dallas prosecutor might deal with 10 shoplifting cases before lunch every day.  So an 11th case won’t be earth shattering to them.  The prosecutor, then, also learns some of the common underlying factors of shoplifting such as mental illness or youthful exuberance… and they probably also see collateral effects of petty theft like immigration headaches or loss of college opportunities.  An urban prosecutor might give sweetheart plea offers on the shoplifting cases just to get to a 10 minute lunch break — or so they can focus on a more egregious case they’d rather prosecute more strictly.

A rural prosecutor might have the same shoplifting case but there is potential to be more strict for no other reason than they might not have anything worse to prosecute… thoughtful and sincere as they might be.

Pressure to Move Cases

Prosecutors are under pressure to move cases through the system.  Big counties have more of them.  Of course, it is relative based on personnel… but bigger counties are more over-worked, plain and simple.

Prosecutors who are pressured to move cases will almost always make better plea offers and/ or dismiss borderline cases.

Defense Lawyers

As a criminal defense lawyer, I should be the single biggest safeguard of a defendant’s rights.  I can cross examine, investigate and subpoena.  I can appeal and point people to adversarial remedies.

Police don’t like getting cross examined and they don’t like being investigated themselves.  They don’t like being told they are wrong in closing argument.  This only makes them human.

We are human too.  It is perfectly natural for a defense lawyer to fear retaliation by an angry judge, prosecutor, or police officer who takes exception to something we might do to defend a client.

In Collin County, I have the benefit of knowing that if I upset a police officer while I’m doing my job — there is a good chance I’ll never run into them in public or get pulled over by them randomly.  The same is even true with prosecutors and judges.  Though I’ll obviously see them on a more routine basis — chances are the next time I see them after a heated battle will be a month or two down the road by which time the water is under the bridge.

The bigger the county — the more aggressive the defense lawyers can be.  This is important.  The more aggressive the defense lawyers — the more careful police, prosecutors, and judges are when they do their jobs.

Independence of the Courts and Law Enforcement

It is always troublesome going to a courthouse where you know the police and the prosecutors, and the Judge (and sometimes the defense lawyers too) are drinking coffee together in the morning.

There’s nothing overtly wrong about these relationships — but it is obvious it makes it harder for a defendant to get a fair shake.  Judges, prosecutors, and defense lawyers are people too (a recurring theme) and the friendlier and cozier they are will law enforcement, the harder it is for anyone to tell a police officer “no” on any given case.

In larger counties these relationships tend to be more at “arms length.”  That means there is greater separation — frankly for no other reason than it is impractical for everyone to work out of 3 or 4 offices on the same floor.

Again, there is nothing wrong with prosecutors having a close working relationship with law enforcement to include advising them, assisting them in attaining things like search warrants, or training them on courtroom procedure.  The problem comes when there is virtually no separation and over-fratinization.  Smaller counties struggle with this more probably for no other reason than their community is more tight-knit.

Appeals Courts

An appeal should also be a cross-check on local authority.  Chances are the appeals judge is somewhere else and can lend an outside view to what happened in the trial court.

The problem with appeals courts is when they become rubber-stamps.  In Texas in most instances they only affirm or deny the conviction and the sentence.  Texas judges are elected.  I joke with juries if they ever see one run on a platform of “I’ll be easy on crime” to please let me know so I can go oppose that judge in the next election!

Attitudes Towards Police

Urban counties have bigger problems with citizens trusting police.  Prosecutors in those jurisdictions probably need to choose their battles wisely.  Rural prosecutors can be more aggressive in cases where there may be issues about police conduct because their jurors may simply be less critical of police.

“Napoleon Complex”

I sometimes get the impression rural counties feel like they have something to prove to outsiders.  I acknowledge these may just be my feelings which doesn’t make them proof of anything.  Still, it is an impression hard to shake in some instances.

The Bottom Line

There is clearly an objective and provable difference between rural and urban criminal justice.  The statistics just don’t lie.

If you ask ministers of justice in third-world countries they will all tell you how they are “tough but fair.”  But the only check and balance they have is their conscience.

Our prosecutors and judges consciouses can be the largest check and balance too where our institutional checks and balances become eroded.

I wonder if this is what we’re seeing.

*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 situation you should contact an attorney directly.