Can I Change Lawyers in a Criminal Case?

January 11, 2021

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

You can change lawyers in a criminal case but it’s subject to the Judge’s approval.

Most judges readily agree unless it will cause a significant and/or unnecessary delay in the proceedings.  I’ve never seen a judge stop or prevent a substitution early in the proceedings well before the case is set for trial – or even several months before a trial setting.

Judges get annoyed, though, when someone wants to substitute on the eve of trial or with just weeks before.  Judge also get irked when someone tries to substitute lawyers multiple times which the court often sees as a delay tactic.

A Client is Entitled to the Lawyer of Their Choice

The Sixth Amendment to the US Constitution guarantees right to counsel.  In retained or hired cases, it is generally accepted and understood the person gets counsel of their own choosing.  There are limitations, though.  Counsel must be a member of the bar, counsel can refuse representation, and the court can step in if there are other extenuating circumstances (such as if the court detects a serious conflict of interest or the court feels the representation is inadequate).

Why Does the Judge Need to Approve of a Change?

A judge is responsible for managing their cases and their docket and the integrity of the adversary legal system.  When a lawyer files a pleading or a letter of representation – the lawyer is legally and ethically binding themselves to representation in that case through the completion of the case.

A lawyer representing a party in case before a judge is known as an “officer of the court.”   A judge, then, can depend on the lawyer and require the lawyer to be present to represent their client when the Judge says so.  A judge can require a lawyer to handle a case even against that lawyer’s wishes if circumstances demand.

What Are Good Reasons to Change Lawyers?

This is a person-by-person choice.  I get calls all the time who are either upset or worried about their lawyer.  When I do visit with folks in this setting – I always do my best to see the situation from their lawyer’s point-of-view.  They are almost always in a better position to evaluate the case because they’re knee deep in the case and I’m not (yet).

The most common reasons I hear when folks come to me wanting to change from their previous lawyer are lack of communication, concern about qualifications or strategy, and general lack of confidence.  While I really will try to see the case from the viewpoint of the previous lawyer – I always want to make sure I’m not just telling the client what they want to hear.  If their previous lawyer has been doing a great job then I let the client know.  Even if I don’t get hired, I’ve helped the client have more faith in their lawyer.

Ultimately it is about the client’s comfort and confidence in counsel.  It is a bedrock of the lawyer-client relationship.

*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.

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Probation Officer Recommendations

January 5, 2021

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Probation officers are often the gatekeepers between their probationers and ultimate freedom.  Probation officers are often asked about recommendations for things like travel, removal of an interlock ignition or deep lung device from a vehicle in DWI cases, or even early release from probation.

When folks visit with me wanting to change something about their probation, it’s very common for them to tell me their probation officer is “not opposed,” or “on board with” or even “recommends” something.

In truth – when I do pick up the phone to ask the probation officer their views I hardly ever get much of anything useful.  I’m usually told the probation department opposes our request to the judge or takes no position on our request to the judge (usually citing department policy).  I can’t remember the last time a probation officer actually told me they supported our motion.

Probation officers also make recommendations for revocations and adjudications.  It’s a bit of a different topic – but remember it is the Judge who ultimately determines what happens in a case, not the probation department.

Probation Officers Don’t Like Making Recommendations

Probation officers work in a bureaucracy. I’ve been in the Army, the District Attorney’s Office, and and have worked alongside government my entire career.  My blog is anything but political but probation departments with their bureaucracies come with some flawed cultures I’ve noticed.

I find there are three cultural problems I’ve seen with probation departments struggle with.  First, there is a climate of fear surrounding decision making.  Personnel are collectively intimidated about sticking their neck-out and making an uncommon or unconventional decision which has any potential at all to backfire.

Second, there is a “default to no” culture at most probation departments.  This means the default answer requests is typically “no.”  The answer is “no” if they don’t understand the request, “no” if they are 50/50 on the request, and especially the answer is “no” if they find a teeny-tiny reason the request could somehow backfire.

Third, if one decision maker is good – then seven are better.  And then they’ll come up with better reasons for saying “no.”

I’m probably jaded, but my view is probation officers simply don’t want to make decisions or recommendations which help their probationers.  They might claim to be in support in closed quarters with no one listening but they often quickly back off any such boldness.  They often claim they are bound not to make recommendations by office policy.  That could be true in some instances but those policies have never limited them from making recommendations against my clients… so I tend to view the policies skeptically.

Often I find a probation officer will claim they are not taking a position – yet they passive/aggressively oppose our requests in open court.  So I never take for granted they are in our corner or neutral on an issue.

I know I’m making many generalizations here.  There are plenty of probation officers I’ve worked with who break this mold and are very forthcoming on their views whether they are helpful or not to my client.

A Probation Officer’s Recommendation Isn’t Everything

It’s okay probation officers if don’t want to make recommendations.  Judges are comfortable making difficult calls granting things the probation department doesn’t like or want.

It’s the Judge who controls terms and conditions of probation – and Judges disagree with probation officers all the time.  Many judges have far more antagonistic relationships with the probation department than you may think.

For these reasons when I’m asked to help someone modify their probation – I just don’t put much stock in what the probation officer reportedly recommends.  If they are in our corner all the better.  But we can still win without it.

*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.

 

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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.

 

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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.

 

 

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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.

 

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