Mental Illness & Criminal Law: Mental Health Bonds

October 16, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Texas law does provide an avenue for the mentally ill to get out of jail without having to pay a bond.  Not everyone who suffers from mental illness is entitled to relief under Texas law.  As you might expect, Texas law lags in different areas for various reasons.

 

Mental Health Bonds

 

Tex.Code.Crim.P. 17.032 allows for a mental health bond.  The judge is required to let the person get out of jail for free — i.e. not have to pay a bond amount — provided they comply with the statute.

Here are the qualifications for a Mental Health Bond:

  • They cannot be charged with a violent offense;
  • They cannot have been previously convicted of a violent offense;
  • They must be examined by mental health personnel with the County;
  • The report by the County must conclude –
    • Defendant suffers from mental illness or intellectual disability;
    • Defendant is otherwise legally competent to stand trial;
    • Defendant is recommended to receive mental health treatment or treatment for the intellectual disability;
  • The Judge must also find the county is capable of treatment.

If all of these criterion are met, then the Judge is required to release Defendant.  Typically a treatment plan is implemented which may include in-patient or outpatient services along with a host of other requirements the person must comply with.

Shortcomings of the Mental Health PR Bond Statute

The statute isn’t perfect.  Many counties don’t have the infrastructure or ability to treat the mentally ill – so a person can actually be kept in jail because their county is unable to treat them.

Also, the mental health release provision allows people in a certain “box” or range of mental illness too — if a person is mentally ill, yet not so deteriorated they are legally incompetent for trial — then they qualify for the bond.  If they are too mentally ill, then they don’t qualify.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He is designated as a Texas Super Lawyer by Thomson Reuters.

 

Comments Off on Mental Illness & Criminal Law: Mental Health Bonds | Cannabis, Jail Release, mental illness, Uncategorized | Tagged: , , , , , , | Permalink
Posted by niftybrady

Mental Illness & Criminal Law: Understanding the Problem

October 15, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

It’s hard to over-state the importance the role mental illness plays in criminal law.  There’s little question in my mind it’s far more prevalent people give it credit for.

A recent survey to Texas criminal defense lawyers asked, “What percentage of your clients suffer from some degree of mental illness in your view?” — and the most common answer was between 50% and 75%.

 

What is Mental Illness?

I find many folks – including my clients and their families – struggle with understanding the very concept of having emotional or behavioral problems.

My view is just about everyone wakes up in the morning wanting to be a law abiding citizen.  But many people are driven so far out of their normal range they get in trouble because of things like anxiety, depression, manic states, and on and on.  This is how I define mental illness.

The term “mentally ill” has a much harsher and deeper connotation than what it really means to me.  Many think it only applies to people who hear voices in their heads, talk to themselves, or who must be confined to a straight jacket in a padded room.  In reality, someone going through a really rough patch in their lives can be driven so far by everything going on in their mind – they can often do or say something which hurts another person or gets themselves in a situation they otherwise know is wrong.

Jail

I ask juries what they think of our national mental health system.  They get puzzled – because they can’t really think of what that is.  Then I point out to them the tragic truth — our mental health system is called “jail.”

Jail and mental illness are frequently on a collision course.  We often don’t know someone has cancer until they exhibit physical symptoms.  We often don’t know someone has the flu until they have a fever.  And we often don’t know how much someone is struggling inside until they get into trouble.  It could be assault, theft, drugs, trespassing — the scenarios are endless — but there are very few criminal cases where mental illness doesn’t play a role.

The Enemy of Treatment – the “Tough on Crime” Mindset

Texas is tough on crime.  Many here unfortunately feed into the cops vs. robbers, good guys vs. bad guys dialogue.  Many believe if crime rates are high – we just need to be meaner to people and things will be fine.  Fortunately these voices are fewer and fewer.

Police deal with tons of mental illness on the streets.  Their aim is generally short-term safety for everyone and not necessarily long term treatment.  They also often don’t have the choice but to take someone to jail who has either committed a crime or who poses a danger to others.

I find prosecutors have a tougher time understanding mental illness because they’re somewhat insulated from it.  They talk with the shop-owner who is having a hard time making ends meet but it’s the defense lawyer who deals to the shoplifter describe the sheer degree of anxiety which drove them to do something they knew was wrong as a simple example.

Getting People Help

The million-dollar question is how do we get help to those who need it. That’s an equally difficult problem.  Understanding the problem is the start.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He is a Texas Super Lawyer as designated by Thomson Reuters.

Comments Off on Mental Illness & Criminal Law: Understanding the Problem | Domestic Violence, Drugs, DWI, mental illness, Police and Prosecutors, Probation Revocation, Robbery, Shoplifting, THC, Uncategorized, White Collar Crime | Tagged: , , , , , | Permalink
Posted by niftybrady

How Should I Answer Questions on a Job Application if I’ve Been Arrested?

October 14, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

It’s heartbreaking for me to hear current clients and folks who’d gone through some rough patches before be extremely excited about a potential job opportunity only to have the opportunity repeatedly crumble at the last minute over and over.

My Approach To Answering “How Should I Answer the Arrest Question”

First – I advise my clients they usually don’t have a duty to answer questions which aren’t asked depending on the job they’re applying for.  Many folks think they get brownie points for disclosing things they might not have to disclose – and in a perfect world this would be true.  My experience is the opposite, though.

It’s really important to read the question being asked, answer that question, and not answer questions which aren’t being asked.  It’s my experience many employers (and their lawyers) sometimes draft imprecise or clunky questions about previous arrests.  These are questions which might allow you to answer the questions honestly yet not require you to disclose your situation.

Remember your potential employer will also probably do a background check on you too.  You don’t want to get ‘too cute’ answering a question about your criminal history only to have the potential employer not hire you anyway.

Expunctions and Non-Disclosures are the best way to solve these problems.  An expunction allows you to deny the entire situation occurred in the vast majority of situations and a non-disclosure hides the affair from the public.

Quick Texas Guide to Background Check Questions

Have I Been Convicted?

Situations where the answer is “No”

  • If you were on deferred adjudication and successfully completed Deferred successfully for a felony or misdemeanor
  • If you are currently on deferred adjudication community supervision for either a felony or a misdemeanor
  • If your case is currently pending and you have yet to enter a plea
  • If you are waiting for your case to go to trial
  • If you went to trial and were found “not guilty”
  • If your case was dismissed for any reason

Situations where the answer is “Yes”

  • If you have ever plead guilty to a Federal offense
  • If you’ve gone to TDC or State Jail
  • If the judge found you guilty even if you were on probation

Have I Been Charged with an Offense?

“Charged” is a tricky word in these contexts.  What concerns me about the wording is I worry some may not agree with my interpretation or might not really understand what this term means.

To me, you are not “charged” with an offense unless or until the prosecuting authority (normally a District Attorney’s Office) files either an information against you in a misdemeanor or an indictment against you in a felony.

But we often hear on television or read in the newspaper someone was “arrested and charged with…..”  That’s usually not an accurate statement because normally the indictment or information follow an arrest weeks or months later.

So I do worry about folks who answer a background check question they have not been “charged” with an offense greater than a traffic ticket but who have been arrested – because the prospective employer might not understand the difference.

Overriding Advice

I always tell my clients – current and former – please call me with any questions about how to answer a specific question.

*Jeremy Rosenthal is board certified in Criminal Law by the Texas Board of Legal Specialization.  He is a Texas Super Lawyer as designated by Thomson Reuters.  Nothing in this article should be considered legal advice.

Comments Off on How Should I Answer Questions on a Job Application if I’ve Been Arrested? | Collateral Consequences of a Criminal Record, Expunction & Non-Disclosure, Uncategorized | Tagged: , , , , , , , | Permalink
Posted by niftybrady

Retesting Blood From a DWI Arrest in Texas

October 13, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

You can retest blood from a Driving While Intoxicated arrest in Texas.

In fact, you can even retest it without the prosecution not knowing the results of the retest.

I’ve been blogging lately on expert witnesses and their role in investigation and assistance on the criminal defense team.  Remember, the law encourages defense lawyers to investigate their case without fear they will uncover unfavorable evidence.

How Does a DWI Blood Retest Work?

The blood is typically kept with the police department who originally made the arrest after it is tested by the Department of Public Safety.  They’re not going to hand over the blood to you or your retesting lab as you might imagine.

A lawyer can file an Ex Parte Motion with the Court.  That means “one party.”  A Criminal Defendant is allowed by law to approach the judge without knowledge of the prosecutor when they need to utilize the power of the court for assistance.

Your lawyer does have to convince the court the evidence will be handled appropriately and returned without incident.

The Judge, then, orders the police department (or whomever has the blood) to send it directly to your lab.  After the retest is done, the lab is then ordered to send it back to the police department.

What to Expect From a DWI Blood Retest

Blood oxidizes over time.  This means most retests will show less alcohol in the system.  However, retesting is more than a parlor trick.  Studies have been done on how much oxidizing should take place and if a blood retest shows a significantly lower result then the original – it can suggest the original test was done improperly or the blood was mishandled at some unknown point.

Can You Retest to Make Sure it is the Same Person?

Some of my clients fear they mixed up their blood at the lab with someone else.  Anything is possible.  This would require a DNA test.  These can be done too but they are far more expensive.

The Prosecution Won’t Know?

The prosecution could likely discover the police were ordered to ship it to an independent lab. And they can probably guess why.  But they’re not entitled to know the result of the retest unless Defense chooses to disclose it.  Further, the Defense lawyer would not allow the prosecutor or anyone to reference the retest if the case went to a trial.  In most instances when we reveal the blood was retested – it actually comes as a surprise to most prosecutors.

*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.

Comments Off on Retesting Blood From a DWI Arrest in Texas | Drugs, DWI, Uncategorized | Tagged: , , , | Permalink
Posted by niftybrady

Can Our Own Expert Actually Hurt Us?

October 12, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

The legal system encourages the accused to utilize expert witnesses and professionals to evaluate and advise during the investigation and defense of a case.

A lawyer has a duty to thoroughly investigate a case they are defending and it can be ineffective assistance of counsel not to do so.  But let’s be clear – none of those duties are contingent on whether the lawyer thinks his client to be guilty or innocent.

Experts are Subject to the Attorney Client Privilege

An expert hired by the defense is part of the defense team.  That means what they learn is privileged which makes it safe to learn bad facts the prosecution might not know.

Let’s use an example from a DWI case:

The police draw defendant’s blood, put it in a tube sealed and marked with a number then shipped to a lab where it goes into the mail room where some guy sorted it while he was on his phone then sent it to the analyst who only has 100 other samples to juggle that morning…. and then the result comes back looking much higher than the lawyer thinks it should be.

The lawyer can do a DNA test on the blood to see if they have the right person.  But there is a big worry the DNA will match and defense just actually just found better evidence our own client is guilty than the prosecutor already has?!?

The rules protect this type of investigation and it’s actually possible to have blood retested or tested for DNA without the prosecution’s knowledge.  Also, whatever Defense expert learns is privileged.

In the event the gamble worked – and it’s not Defendant’s blood — Defense expert can then testify about it on the witness stand before the Judge or Jury.  Doing this would waive any privilege the expert had as part of the defense team.

In other words – the bad facts Defense expert learned can be kept secret or made public.  Defense lawyers wouldn’t investigate their cases as thoroughly if they were worried learning bad facts would only assist in convicting their client.

Using an Expert to Evaluate – Not Testify

A good expert is one who is faithful to their discipline – not a particular outcome in any given case.

It is common for me to reach out to an expert and have them do an evaluation of a case only for them to tell me, “Jeremy I don’t think you want me to testify about this case.”

The expert can still assist by giving technical support as to how defense might handle a prosecution witness or by steering defense away from problematic defensive theories.

They Can Still Hurt Us Even if They Testify

Calling an expert witness is always a judgment call.  Because the witness is loyal to their discipline and not the outcome – we have to recognize when Defense calls them to the stand — the privilege is essentially waived.  Everything which went into their evaluation and opinion is discoverable by the prosecution.

This means the prosecution can draw out either harmful facts or data which can be used to undermine our defense.

The question is whether after balancing the harm versus benefit – it still makes sense to call an expert witness.  This is where your lawyer’s experience is crucial.

*Jeremy Rosenthal is board certified in Criminal Law by the Texas Board of Legal Specialization.  He is designated as a Texas Super Lawyer by Thomson Reuters.

Comments Off on Can Our Own Expert Actually Hurt Us? | Computer Crimes, crimes against children, sex cases, sex crimes, sex offender registration, sexual assault, THC, Uncategorized | Tagged: , , , | Permalink
Posted by niftybrady

« Previous Entries
Next Entries »