December | 2020 | Criminal Defense Lawyer | DWI, Drug, Theft & Assault Charges

Does a Jury Have to Be Unanimous?

December 31, 2020

By Texas Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

A criminal jury must be unanimous to either acquit or convict someone. A jury who cannot agree is known as a “hung” jury which requires the case to be retried.

A notable exception to a jury being required to return a unanimous verdict is in death penalty cases. In those cases, the jury is allowed to return an 11-1 or 10-2 verdict which triggers an automatic life without parole sentence – so any one juror can spare someone’s life.

Judges Don’t Like Hung Juries

A “hung jury” can be very costly to the parties and it also means the court will have basically wasted it’s own time and the time of all the jurors and potential jurors who spent time on the case. So Judges bend-over-backwards to avoid a jury hanging.

Most judges will allow a jury to deliberate for roughly the same amount of time the trial itself took. So if a trial took two days – that’s about the amount of time a Judge will require a jury to deliberate if they can’t reach a verdict.

Often times a jury will write a note to the court saying they are deadlocked. In most instances the Judge will still require the jury to deliberate and the judge can issue what is known in Texas as an “Allen Charge” or a “Dynamite Charge.” The dynamite charge is a polite letter by the judge reminding everyone it’s important to stand by their beliefs and convictions – but also details some of the waste and damage a hung jury does too.

Juries frequently come back with unanimous verdicts after an Allen Charge which is why judges do them.

If after enough time has passed and the jury still keeps trying to communicate the deliberations are hopeless then the Judge will eventually declare a hung jury – technically called a mistrial.

Jury Unanimity Can Actually Be a Complex Topic

Believe it or not the requirement a jury be unanimous can be a legally tricky issue from time to time. It becomes problematic that the jury agree what exactly constituted the crime.

Texas has, within the last 20 years, enacted offenses making it a specific crime for “continuous” behavior. This could be sexual abuse of a child or domestic violence. In those cases the prosecution lists out instance after instance of abuse.

The unanimity requirement can be difficult because the jury doesn’t necessarily have to agree unanimously as to which specific crimes occurred – only that two or more did. This raises arguments that it run afoul of constitutional unanimity requirements.

*Jeremy Rosenthal is 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 Does a Jury Have to Be Unanimous? | Appeals, Assault, crimes against children, sex cases, sex crimes, Sexual Abuse of a Child, sexual assault, Trial Advocacy, Uncategorized | Tagged: criminal lawyer allen, criminal lawyer celina, criminal lawyer daw, criminal lawyer denton, criminal lawyer frisco, criminal lawyer McKinney, criminal lawyer plano, criminal lawyer prosper, hung jury, mistrial, unanimous jury | Permalink
Posted by niftybrady

Domestic Violence Charges – Blog 18: Preparing for Mitigation and Punishment

December 30, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

We attempt to fight all cases on two fronts. We are prepared to fight about guilt/ innocence and we always have to prepare to handle things should we lose.

Preparing for punishment in a trial is like buying car insurance. No one buys it because they’re planning to crash, rather, you buy it because it’s the prudent thing to do and the law requires it. The law requires defense counsel to prepare for a punishment phase of a trial too though we do our best to avoid being in one.

For all the tough talk about taking cases to trial and winning not guilty verdicts – punishment and mitigation cannot be ignored.

Here are my other blogs in this series on defending domestic violence charges.

Mitigation

Mitigation is evidence which tends to explain or lessen the culpability.

I explain to clients people commit acts of domestic violence for one of two reasons. Either they are rotten and no good SOBs who enjoy inflicting pain on people they love — or there are deeper causes, factors, and issues which need to be untangled. In all my years of practice, I don’t know if I’ve met anyone in the first category. The former is a caricature or cartoon figure which prosecutors make my clients out to be — the latter is reality.

As for the deeper causes or roots to these situations — we can and do find them everywhere. They can be anger issues, substance issues, or mental health issues. Perhaps parents or previous partners unintentionally trained them to solve family problems with physical abuse. Maybe their relationship has the dysfunction of reciprocal domestic violence which needs addressing.

To avoid harsh sentencing we must also present a compelling mitigation case to a judge or a jury.

This Can’t Happen Again

If we are pleading guilty or the jury finds defendant guilty – this is question about which we must be able to assure the jury. Beyond assuring it doesn’t happen again there are very real victims in domestic violence who need to be allowed to heal in their own way too.

A good mitigation strategy is good for the society, good for the victim and is fair to the defendant in light of all the circumstances.

“Never Lose Punishment”

I have a saying at our office – “never lose punishment.”

Trials are broken into two phases. The guilt/ innocence phase and if the judge or jury finds defendant guilty then a punishment phase.

We don’t make the facts and each case which walks in the door walks in with different degrees of difficulty. I’d love to say we can secure acquittals in the guilt/ innocence phase for all – but that’s a tall order. But we should be able to tell our client’s story in a compelling fashion for the purposes of mitigation if nothing else.

For punishment – the prosecution often has theories and tag lines. They try to sell the jury on the caricature or cartoon wicked-guy. We have a human being with a story. I don’t think we should ever lose punishment.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization. He is recognized as a super lawyer by Thomson Reuters.

Domestic Violence Charges – Blog 17: Plea Bargaining in Family Assault Cases

December 29, 2020

By DFW Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Only 6% of state criminal cases go to jury trial. That means 94% are disposed of some other way. Those could be plea bargains or dismissals. Some dismissals are by agreement where the defendant takes classes, performs community service and/or completes other tasks and is basically a plea bargain without actually resulting in a plea.

Courtroom lawyers love to talk-tough. And I’m no exception because I eat nails for breakfast in the morning before dazzling every jury I see. But what we don’t brag about much are our plea-bargains. Plea bargaining doesn’t make wonderful fodder for lawyers web pages so you don’t hear lawyers talk about it much. Again – 94% of cases don’t go to trial so even the lawyers who talk the meanest game in town plea bargain far more cases than they take to trial. It’s just a fact.

Anyone who has come to see me about their case knows I analytically evaluate every case as if we are preparing for trial. They teach us in law school to start with the jury charge and go backwards. And I don’t wear my plea bargains on my sleeve either but candidly it’s where I do some of my best work of getting clients out of really bad jams.

Read here for an index to other domestic violence related blogs.

When Plea Bargaining Makes Sense

Domestic violence is an area where sometimes we simply can’t plead guilty. It could trigger immigration, professional licensing, or other consequences we cannot accept. So this is the first question – can the client afford the consequences of a guilty plea in a family violence case?

Pleading guilty or not guilty is always the client’s choice. Some folks don’t have the stomach for trial. Trial in a domestic violence case normally takes a day or two but can take a week or more. I have fun in trial but that’s because I’m not worried about going to jail when it’s over and I’m not worried someone on the jury or someone who just wanders into the open courtroom might know me and post the affair on social media. I discourage the idea of pleading guilty just to avoid a trial most likely in front of strangers but again – it’s my client’s choice and not mine.

Pleading guilty or no contest may also make sense in cases where I honestly tell my client the odds for an acquittal are long given the specific facts of any cases… and I go through a cost/benefit analysis with my client about the pros and cons of taking the case to trial.

Important Factors in Getting a Favorable Plea Bargain

When someone is pleading guilty or no contest (there is no legal difference which matters in criminal law) – they are accepting responsibility. It’s important for folks to remember this. If someone is going to take responsibility for the charges against them – then I always advise clients to do so sincerely, earnestly and whole-heartedly.

Beyond this if someone is going to take responsibility they also take on the onus of not only promising not to do it again but taking the affirmative actions necessary to make sure and guarantee it doesn’t happen again. This may include accepting anger management, marriage counseling, or a batterer’s intervention program.

Often substance abuse and/or psychological disorders need to be addressed as part of the underlying causes. So a person may need to accept evaluations along with follow-up recommendations.

If someone is willing to face their decisions and demons to make sure a domestic assault doesn’t happen again then it obviously bodes well for plea bargaining.

Ultimately plea bargaining is far more common than taking a case to trial though many of my colleagues pretend otherwise to the public and to one another. It never hurts to have a good strategy of an exit-ramp in a case which can often be a plea bargain my client finds acceptable.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization. He has been designated as a Texas Super Lawyer by Thomson Reuters.

Domestic Violence Charges – Blog 16: Areas of Defense Focus

December 29, 2020

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

jeremy@texasdefensefirm.com

It’s tough to quantify or discuss all possible defenses to all possible cases in one neat blog. There are some cornerstones, though, and areas which any defense lawyer should look for acquittals.

You can read my index to other domestic violence charge blogs here.

A Note on Legal & Factual Sufficiency

It’s obvious I wasn’t watching any given couple’s quarrel which lead to someone getting arrested. I couldn’t be a lawyer in those cases because I’d be a witness. I don’t evaluate cases for what I personally think happened, rather, I evaluate them for what I think a jury may or may not believe.

What I evaluate to prepare for a trial, then, is what we call legal sufficiency and factual sufficiency. Just remember when I discuss possible outcomes below – what I mean to say is “will the evidence be enough to show….”

Legal and factual sufficiency are confusing appellate terms which I’m evaluating for when I hear a case. Maybe I’ll blog about that one day on it’s own if I want to put everyone to sleep… but not today.

What you do need to know about legal and factual sufficiency for the purposes of this blog is this: A judge cannot allow a jury to deliberate at all if the evidence is legally and/or factually insufficient. If the evidence shows the crime was committed by an apple and it’s an orange charged with the offense – then the judge acquits the orange before a jury can deliberate.

If there is Evidence Assault Occurred, Can the Prosecution Get it to a Jury?

The Texas Rules of Evidence dictate what a jury can hear. If a jury isn’t allowed to hear something under the rules – then it could render the evidence insufficient and require acquittal.

Example #1: Complaining witness told a neighbor who told their hairdresser they got choked by their spouse. Can the hairdresser come in and prove-up the assault for the prosecution?

No. The rules of evidence (specifically the hearsay rule) would prevent this testimony.

Example #2: Neighbor routinely sees police coming to the house next door and sees the defendant yelling at children on Halloween. Can the neighbor come to court to prove-up assault because “everyone knows he beats her?”

No. The rules of evidence prohibit speculation of this sort.

The Confrontation Clause

Another topic which could easily take three or four lectures of a law school course in constitutional law is the confrontation clause. Any lawyer defending domestic abuse cases has to be extremely up-to-date on these issues no differently than a physician has to keep up with the latest medical research on studies and pharmaceuticals.

The confrontation clause under the 6th Amendment of the US Constitution normally requires the accuser themselves to come into court and testify to secure a conviction. But this isn’t always the case and the exceptions are constantly changing.

If the Jury Can Hear Evidence of an Assault, Can We Persuade the Jury Otherwise?

If the evidence might be legally and factually sufficient to sustain a conviction then we can’t count on a judge throwing it out before it gets to a jury. In these cases we have to get to work proving the accusers account is incomplete, exaggerated, or otherwise wrong.

This is where a lawyer has to get into the dirt of a case knuckle-deep. Who said what to one another, who was standing where, who was holding what object, who is on what medications, who consumed alcoholic beverages, who has a history of of doing what… etc, etc.

Do we have reason to believe the accuser exaggerates? Do they have a history of exaggerating such claims or bringing false claims? Does the complaining witness have psychological disorders such as manic episodes which might contribute to them giving a falsified account to police?

Are There Any Applicable Defenses?

I’ve blogged about the main defenses to assault – which apply regardless whether the complaining witness is a family member or in a dating relationship or not.

Can we show the jury this was self defense? Who hit first and can we prove it? Did they place the other person in fear of imminent bodily injury? If so – how? What does the physical evidence show?

Did the accuser “consent” to or otherwise invite the assault by their conduct? Did they stand in a doorway and refuse to allow the other to leave? Did they somehow dare the other one to hit them?

Each Case is Unique

Again — every case which comes in is unique. But the good news for defending cases like these is they are rarely cut and dried. The police have the difficult job of showing up to a scene and keeping the peace.

It often results in someone going to jail for no other reason than the police don’t know the couple — they just don’t want to come back later the same evening and pick up a dead body.

The legal system is designed for police to make an arrest with a lower threshold of evidence for exactly this reason — probable cause. We have plenty of time after the fact to put the pieces together and mount an aggressive defense.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization. He is recognized as a Texas Super Lawyer by Thomson Reuters.

Domestic Violence Charges – Blog 15: Affidavits of Non-Prosecution and What Happens with the “Victim” Doesn’t Want the Case Prosecuted?

December 27, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

jeremy@texasdefensefirm.com

This most common question I get in domestic violence cases is this: if the victim doesn’t want to prosecute then won’t the case go away?

The answer is the “victim” or “complaining witness” has the legal power of a witness in a criminal proceeding and nothing more. The prosecuting attorney makes the decision whether to go forward with a family violence charge. Will the prosecuting attorney go along with the “victim’s” request to dismiss charges? This is the million-dollar question which is different in every case.

Some District or County Attorney Offices are policy-driven to reject affidavits of non-prosecution and others take them on a case by case basis and will occasionally not pursue assault charges.

District Attorneys, County Attorneys and occasionally city prosecutors who review assault cases and affidavits of non-prosecution are public servants. In theory, you would think they would be sensitive to pleasing the person they purport to protect. Again, sometimes they do listen to victims of domestic abuse and sometimes they don’t.

Here is an index to the other blogs on domestic violence in this series.

Affidavits of Non-Prosecution

An affidavit of non-prosecution (“ANP”) is a statement made, typically under oath, where the complaining witness makes a statement to the effect they do not wish the case to proceed. An ANP has no real legal power and it’s a very common misconception that it does carry with it a requirement the police or prosecutors obey it.

Why Police or Prosecutors Might Not Care About an Affidavit of Non-Prosecution?

I’ve blogged a lot about the Duluth Model in domestic violence and the “cycle of violence” along with the “power and control wheel.” Those prevailing thoughts in law enforcement hold the abuser is all-powerful and has taken emotional control over the victim.

When many police and/or prosecutors see an ANP from a victim – it only confirms to them these concepts and theories are true. They think the affidavit of non-prosecution is either forced, coerced, or done out of self-blaming guilt. I’m sure sometimes they are right.

Also, as I wrote above, some offices are driven by policy of rejecting affidavit’s of non-prosecution. They may feel self-assured enough that each and every case of domestic abuse allegations are the same — or they may simply be under pressure from third party advocacy groups such as battered women shelters to have such a policy.

What Happens when the Prosecution Makes one Spouse Testify Against the Other Against Their Will?

This happens. I’m frequently asked if one spouse can lawfully refuse to testify against the other and the answer is no – assuming that spouse has been lawfully subpoenaed.

The prosecution can cause a subpoena to be issued which is a lawful court order requiring the witness in the case to come to court and testify under oath. A judge can also compel a witness to testify and answer questions about instances of alleged domestic violence because the marital privilege does not extend to protect one spouse from testifying about the other accused of a crime.

It’s an unusual dynamic because the prosecution is put in a position of cross-examining their own “victim” in a case and in certain cases the complaining witness themselves may be entitled to counsel depending on the specifics of the situation. You would think a prosecutor would do everything in their power to avoid being in this position but many prosecutors feel they are fulfilling a greater good by conducting a case this way.

The Firewall – The Jury

The good news is if all these things come to pass with the prosecution rejecting an ANP, forcing the case to trial and compelling one spouse to testify against the other — the defendant has the firewall or last resort of having a jury decide the case.

Juries aren’t subject to the DA’s offices policies and they have to be convinced the prosecutors crusade to convict one spouse over the other ones wishes is meritorious — and experience tells me that’s a very hard sell.

Even if the prosecutor doesn’t want to dismiss a case because a complaining witness says so — doesn’t mean the case doesn’t often finish with a two-word “not guilty” verdict.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization. He is recognized as a Super Lawyer by Thomson Reuters.

Comments Off on Domestic Violence Charges – Blog 15: Affidavits of Non-Prosecution and What Happens with the “Victim” Doesn’t Want the Case Prosecuted? | Assault, Divorce related crimes, Domestic Violence, Emergency Protective Orders, Police, Police and Prosecutors, Self Defense | Tagged: affidavit of non-prosecution, ANP, assault causes bodily injury family member, cycle of violence, power and control wheel | Permalink
Posted by niftybrady

Criminal Defense Lawyer | DWI, Drug, Theft & Assault Charges

Does a Jury Have to Be Unanimous?

Domestic Violence Charges – Blog 18: Preparing for Mitigation and Punishment

The Lawyer

Recent Posts

Contact Us

Past Blawgs