By Criminal Defense Lawyer Jeremy Rosenthal
Police and prosecutors have built a machine to combat domestic violence. Their intentions are noble yet often misguided and built on false assumptions and one-size fits all narratives.
Family assault cases are one of the most common cases our office handles. Every one of them is unique but the more and more we focus on them, the better able we are to know the focal points needed for success.
- “No Compromise” attitude.
The fact is in domestic violence cases, the harder you work and the less willing you are to compromise — the luckier you’ll be. In family assault cases the prosecution’s case tends to deteriorate when pressed. This doesn’t mean I have to be a jerk to the prosecution — in fact, quite the opposite. I want to be able to offer them a way out – but on my terms. If they don’t want out, then we have to be ready to hammer them at trial. A lawyer’s attitude in these cases is the single most important key to defending these cases.
2. Legal (And not Emotional) Analysis of the State’s Case.
The law surrounding domestic violence and assault cases is complex and intricate. There are enough cases analyzing the Sixth Amendment to the US Constitution’s confrontation clause to fill an entire law school course. There are also multiple defenses to assault which might often apply in any given fact scenario – and your lawyer must also understand in what circumstances the Judge would legally be required to instruct a jury as to those defenses.
Legal analysis is critical because often we know well before the case goes to court the prosecution can’t or is unlikely to win. This gives us the power and leverage to dictate our terms to the State.
One of the main reasons our system provides for lawyers is so we can effectively divorce our legal problems from our emotional ones. By that, I mean these cases require a cold-dispassionate analysis. Just because you might “feel” like you should be at fault doesn’t mean the law says this.
3. Aggressive Factual Investigation
In spousal abuse allegations your lawyer can’t be afraid of the facts. As discussed above, the harder we work, typically the luckier we get. One distinct advantage a criminal defense lawyer has over the prosecution in the vast majority of cases is we typically have a better road map. We know their side of the story in the police report and they either don’t have our side of the story (because of the 5th Amendment right to remain silent) or they know our story but tune it out because they never think they’re wrong. In any event, I feel like we always have a more “powerful flashlight” to find the aspects of the case we know will help us win.
Also, it is key to be aggressive particularly from the outset of the case. Perspectives and accounts tend to change in these cases. By capturing witness’ recollections early, a lawyer can capitalize on changing stories instead of being victimized by them.
4. Knowing the Collateral Consequences of a Domestic Violence Charge
One of the reasons I think it is important to have an attitude of “no compromise” is because family assault cases can be so damaging in ways which aren’t obvious. We call these “collateral consequences.” Direct consequences would be things such as possible jail sentences (up to a year in Class A Misdemeanor assault cases or up to 10 years prison for cases where impeding breath is alleged), fines, and court costs. Collateral consequences are issues such as loss of 2nd Amendment rights to possess firearms, your ability to adopt a child in the future, inability to hide your criminal record from the public and on and on. In truth, even misdemeanor family violence charges can act like “mini-felonies” and there are abundant tripwires.
Many of my client’s want me to waive a magic wand and have the problem go away with the snap of my fingers. It might work like that from time to time but usually not. One of the keys to a good outcome in a domestic violence charge is knowing we have to be prepared for a “marathon” as compared to a “sprint.” If we get lucky sooner — so much the better. But we have to understand the “luck” is normally a function of hard work.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He is recognized as a Texas Super Lawyer by Thomson Reuters for 2019.