10 Principles of Defending People (#8 Be Optimistic & #7 Inoculation)

June 1, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Today I’ve got two principles to share and they can be summed up the cliche, “Hope for the best but be prepared for the worst.”

I’m summing up what I feel are the 10 most important principles a criminal defense lawyer should follow in their practice in this series.  You can read about my previous posts so far on the topic here:

#8 Be Optimistic

You won’t find much doom and gloom on my blog.  I’m sure there’s plenty of anger, grand-standing and self-ritcheosness… but hopefully not much fear-mongering.

People often shake as they’re walking into my office.  A big part of it is because they’ve been on the internet or gotten legal advice from their best friend growing up.  They think I’m going to confirm their fears about having body and appendages severed by the prosecution.

I have yet to come across a case in the zillions I’ve evaluated where there isn’t some hope, some ray of sunshine, or something to be optimistic about.  Granted, these things are relative and  if there weren’t legitimate reasons for concern — no one would come and see me at all.

But people crave optimism from professionals they deal with.  There is nothing wrong with being optimistic and letting folks know where the sunlight is.

#7  Inoculate People For Bad News

Again, today’s topic is a ying and yang concept.  While there is nothing wrong with being optimistic — people also don’t come to a lawyer to be lied to.

Bad news is unfortunately part of the job.  It’s important to discuss unpleasant possibilities for many reasons.  What is also important is putting them into context and letting someone know how realistic certain outcomes may or may-not be.

I find it is important to discuss possible bad news before it happens.  This way the lawyer and client can come up with a plan for avoiding the possible bad result and time to come up with another plan should the bad result come to fruition.  This gives the client and/or their family a sense of some control and allows time for them to wrap their mind around things.

I call the concept inoculation.  It is like eating vegetables.  It’s no fun to eat veggies at the table but it’s very healthy in the long run.  Discussing possible bad outcomes in a constructive way yields long term dividends.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas.


Our Victory at the Texas Supreme Court Changes Expunction Law

May 16, 2018

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Time to crow a bit.

I won a trial roughly two or three years ago where my client was charged with the felony offense of aggravated assault with a deadly weapon.

After we won, we filed (what we thought) would be a routine petition for expunction clearing my client’s record of the arrest for which my client had been acquitted.  The DA’s Office and The Texas Department of Public Safety opposed our petition because my client had also been arrested for outstanding warrants on an unrelated case which occurred prior to her arrest for the aggravated assault.

The prosecution’s theory was the arrest could not be expunged because the arrest for the underlying warrants made the arrest good under the expunction statute… so she’d have to live with the arrest for the aggravated assault with a deadly weapon on her record forever even though she won her trial.  (This is highly nerdy lawyer stuff — so I’m paraphrasing a touch.)

The prosecution’s idea of the expunction statute before our case had governed their policies and practice statewide — that if you don’t qualify for any small part of this long statute then you’re out of luck.  They argued the record keeping of criminal records for DPS would be too difficult and too sloppy.

After I convinced the trial judge in the case to order the records expunged over the State’s objection (no small task), the State appealed to the 5th Court of Appeals in Dallas and then to the Texas Supreme Court.  Special thanks to Thad Spalding and Morgan McPheeters from the firm of Kelly, Durham & Pittard in Dallas who handled the case after it left the trial court and briefed and argued it from the 5th Court in Dallas to the Texas Supreme Court.

Last week the Texas Supreme Court affirmed our case yet again, making it the law of the land.  Now when someone applies for expunction the test is whether they qualify under the specific provision of the expunction statute and not the statute as a whole.

It punches a hole in the decades-old practice of prosecutors and DPS that the expunction statute was “arrest based.”

You can read the opinion here.

Yeah, it’s nerd stuff.  I know.  But it can be fun to be a nerd sometimes!

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas.

 


Top 5 Most Common Police Attitudes – #3

May 13, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Today I’m continuing my series on the top 5 police officer attitudes I’ll see when defending cases.  These are police attitudes I see from police officers while on duty.

#3 — CYA

That’s right. Cover your a$$.

One of the psychological pressures on officers is maintaining their livelihood.  They don’t want to lose their job or their pension over any single case.

I see this one mostly in cases where there is an alleged victim involved such as domestic assault, sexual assault or complicated theft schemes to name a few.  A police officer knows an upset accuser (or the accusers parents) can cause them all sorts of headaches with his or her superiors at the station.

For assault/ family violence cases police are worried if they leave a couple warring in their home after a 911 call — one of them could be killed later in the evening.

On sexual abuse cases whether involving adults or children, a police officer is going to have to have a really good explanation to their superiors as to why they told an angry person claiming to be a victim, “no, we don’t believe you.”

Police will often file cases as “grand jury referrals” which is their way of filing a case with the District Attorney’s office while expressing an underlying doubt about the case.  It is a case where they don’t make an arrest prior to grand jury.  It can be seen as unwritten permission to dump a case.  Grand juries may still indict, though.

It sucks to be on the receiving end of a case where you suspect it was filed because the officer was doing CYA work.  It has to be dealt with like anything else.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas.


Can I Be Punished Worse if I Appeal My Case?

December 20, 2016

By Texas Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

That isn’t supposed to happen.  It can only happen where there is evidence of misconduct AFTER the case has been appealed.

Public Policy

Think about it.  We want people to appeal cases.  Appealing trials and other rulings (in theory) promotes uniformity of proceedings, sharpens sometimes fuzzy rules, and corrects injustices.  Punishing people for appealing is contrary to betterment of the legal system so it is rightly shunned.

Won’t the Judge or Prosecutor Get Mad?

Possibly.  Everyone in America gets their paper graded.  Appellate Judges grade the trial Judge’s paper and correct them when they’re wrong.  No one likes being told they are wrong and Judges are certainly no exception.  Prosecutors might not like an appeal either because it means more work and in many instances they are being blamed for a trial not being fair.  But you can’t be afraid to hurt feelings and/or making people do their job when your livelihood is at stake.

Can the Judge or Prosecutor Retaliate Against Me for Appealing?

They can try.  When you appeal a case, however, the case goes to a different set of higher judges.  The case is out of the trial judge’s hands.  There is very little the trial judge can do unless the case is reversed and sent back… in which event you won.

If the case is reversed then there is clear guidance from the U.S. Supreme Court and the Texas Appeals Courts that the Judge cannot vindictively retaliate against someone because they were reversed on appeal.  See North Carolina v. Pearce, 395 U.S. 711 (1969) and Johnson v. State, 900 S.W.2d 475 (Tex.App. — Beaumont, 1995).

I’ve heard a prosecutor or two tauntingly invite an appeal so they can get an even higher punishment than was originally assessed over the years.  This just tells me they have never cracked a book to look at the rule.

Some judges will try to strong-arm a defendant out of an appeal through an aggressive appellate bond which has either a high dollar amount or onerous conditions.  This is a bond which suspends the imposition of a sentence while an appeal is pending… the bond DOES NOT have to be paid to appeal the case, however.  The bond only needs to be paid if the Defendant is seeking a delay in the imposition of the sentence.

Appealing a case is an important decision.  Don’t factor stiffer punishment or angering anyone in making your decision, however.

*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 should be considered legal advice.  For advice about any situation you should contact an attorney directly.

 


Texas Criminal Appeal Deadlines Chart

June 3, 2016

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

Here are some basic deadlines for filing criminal appeals in Texas.  As always, please refer to the Texas Rules of Appellate Procedure to resolve any questions.

Basic Appeal of a Final Judgement:

Without Motion for new trial, motion to modify, motion to reinstate, or request for findings of fact and conclusions of law filed:

Notice of appeal:  30 days (filed with the trial court)

Designation of clerk’s record:  30 days (filed with the trial court)

Designation of reporter’s record:  30 days (filed with the trial court with copy to reporter)

With Motion for new trial, motion to modify, motion to reinstate, or request for findings of fact and conclusions of law filed:

Post Judgment Motions: Due 30 days from Judgment (filed with Trial Court)

Request for Findings of Fact and Conclusions of Law:  Due 20 days (filed with Trial Court)

Notice of Appeal:  90 days (filed with Trial Court)

Designation of Clerk’s Record:  90 days (filed with trial court)

Designation of Reporter’s Record: 90 days (filed with Trial Court with Copy to Court Reporter)

All Basic Criminal Appeals Regardless of Motions Filed:

Appellant Brief (Defendant):  Due 30 days from the completion of the record

Appellee Brief (State):  Due 30 days after the Appellant’s brief submitted

Appellant reply Brief:  Due 20 days after Appellee brief submitted

Motion for rehearing:  Due 15 days after disposition

Petition for Discretionary Review:  Last ruling of Court of Appeals +30 days (filed with Court of Criminal Appeals).

 

*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 considered to be legal advice.  For legal advice about any situation contact a lawyer directly.