Police Reports: Dishonesty by Omission

June 16, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Here’s Minneapolis PD’s press release from the George Floyd murder:

Screen Shot 2020-06-11 at 8.23.03 AM

Of course, this was before they knew they’d been caught on a camera they didn’t control. It’s fiction.  They left out the part where Officer Chauvin had his knee on Mr. Floyd’s neck.  Or that he had it there for nine minutes.  Nothing to see here, folks.  Move along, right?  Even worse, MPD paints themselves as the heroes of this story.  “Even though we didn’t do anything wrong, we called for an investigation…”

Are the statements actually made in the press release true or false?  Well, I suppose most are actually true.  He did appear to be suffering medical distress.  An ambulance was called (way too late), and no weapons were used assuming you don’t count Officer Chauvin’s knee.

Yet, the press release is a work of fiction because it omits critical and relevant aspects of the truth.

And this is how many, many police reports we review on a regular basis deceive as well.  A DWI report might say things like, “suspect did not know his location, stumbled out of the car, and had red bloodshot eyes” where those things are apparent.  But you’ll never see a report which says, “He knew where he was, exited the vehicle perfectly and his eyes looked normal” even if they are true too.  Fiction.

A common example I give to client’s about why they should exercise the 5th Amendment is this:

  • You:  My friend and I went to the party.  We didn’t see anyone there we really knew.  It was very uncomfortable.  I think we finished about half of a beer each and we decided to leave.
  • Police Report:  Suspect admitted entering the house.

Does the report say anything untrue?  I suppose not.  But its a lie.

The public gets a small taste with this news snippet of the perennial challenge of trying to take police reports at face value.  You just can’t.  Even when reports don’t exaggerate or don’t outright state mis-truths, then can still be extremely dishonest.

Part of the process of defending someone is filling in the gaps which comprise the truth.

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

 


Can You Talk on Your Cell Phone While Driving in Texas?

May 5, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Yes, unless you are under 18 years old or are within 6 months of getting your driver’s license, or in a school zone.

Between 90 and 100 cities and municipalities have their own restrictions too which would tighten the law even more.

Here’s What Is Illegal

It’s illegal to “send or receive electronic messages” while driving — so that would include texting while driving, social media, or any way of transmitting a message to another person.

What Type of Crime is it to Text and Drive?

Normally it’s just a traffic offense.  But if the driving is bad enough, it could be charged as reckless driving.  If someone is hurt or injured, it could be prosecuted as an assaultive offense.  If it causes death, it could be prosecuted as criminally negligent homicide or manslaughter.

Our office doesn’t handle simple traffic offenses — but we do handle more severe distracted driving charges.  You can read here about those.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He was designated as a Texas Super Lawyer by Martindale-Hubbell in 2019.

 


When Police File a Case “At Large”

April 28, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

I’m writing this blog in the middle of the COVID-19 shutdown.  We’re seeing lots of cases handled “at large” these days.

What “At Large” Means in a Criminal Case

The Court has to have some way to make sure people come and face charges, win, lose or draw.  If criminal cases were voluntary, no one would come to court.  That way of securing attendance is the threat of jail.

An arrest is normally the very first legal action taken against a person.  A bond is set and if the bond is paid the person is released.  Formal charges come some time later – but prior to the running of the statute of limitations (2 years on a misdemeanor, 3 years on most felonies).

When a case is filed “at large” the arrest is skipped temporarily.  Once the formal charges are filed either in a misdemeanor or a felony an arrest warrant is triggered.

Why We’re Seeing So Many “At Large” Cases

Police and the Sheriff’s office want to keep the jail as unpopulated as possible during the COVID crisis.  It is law enforcement’s way of deferring an arrest and a jailing until later.

What Happens Next?

If someone has been told a case would be filed “at large,” then there is a good chance the police have or will forward a police report to the District Attorney’s Office.  The District Attorney’s office will review the report — and assuming they view the report as complete — they will typically file formal charges.  In a misdemeanor case it is called an “information” and in a felony the Grand Jury Meets and if they agree — the file what is called an indictment.  Both will trigger the arrest warrant.

If There is an Arrest Warrant Coming, What Do I Do?

It is always the better practice to be in control of the process by monitoring the active warrant filings and ultimately surrender yourself.  Prepare to post bond.  It’s also time to talk with a lawyer about your long term legal defense and how to best address the charges.

*Jeremy Rosenthal is Board Certified by the Texas Board of Legal Specialization.  He was recognized by Thomson Reuters as a Texas Super Lawyer in 2019.


When Does a Family Assault Become Aggravated Assault with a Deadly Weapon?

April 28, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Most family assault cases come to us with similar facts.  A heated family argument happens, someone calls 911, and the police come out.  After interviewing the often angry, emotional, and sometimes intoxicated people – the police make their best guess as to who is at fault and charges are brought.

Many are shocked to see the charges or the arrest may be for “aggravated assault with a deadly weapon.”

Screen Shot 2020-05-26 at 8.40.22 AM

So what makes it aggravated assault with a deadly weapon?  Usually there is an accusation someone “used or exhibited” a “deadly weapon” in domestic or family assaults which takes them from being misdemeanor assaults to 2nd degree felony charges (Carrying 2 to 20 years in prison and/or a fine not to exceed $10,000).

Using or exhibiting has a broad definition legally as does deadly weapon.  A deadly weapon is defined as:

  1. a firearm; or
  2. anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or
  3. anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.

Even if there was no contact between spouses, if one spouse accuses another of brandishing an object which could cause serious bodily injury or death – then a person can ultimately be charged with aggravated assault with a deadly weapon.

I’ve seen all types of objects alleged to be deadly weapons.  Some are obvious and some leave you scratching your head.  Ash trays, candles, and even hands can be alleged to be deadly weapons.

The allegation can be heart-stopping – but here’s some good news:  The prosecution often sets themselves up for failure by over-charging these cases.  Imagine having jury duty, seeing someone charged with something as heinous sounding as “aggravated assault with a deadly weapon.”  Then you hear they got into an argument with their spouse and the show-stopping accusation is the accused picked up some object while arguing with their spouse and perhaps made some furtive motion which could be interpreted as a threat.  You’d think the accusation is ridiculous too.

There are variations on these facts we see — but there is almost never a good reason to capitulate to charges like these.  The charges can be attacked at the grand jury phase of the case, when it gets to the initial prosecution team — and if necessary at trial.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He was recognized as a Super Lawyer in 2019 by Thomson Reuters.


The 5 Most Common Questions I get as a Criminal Defense Lawyer: #1 “Am I Going to Jail?”

March 12, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Most people vastly over-estimate their jail possibilities.  I spend a good deal of time explaining why things are nearly as bad they may seem.

Our minds tend to link together what I call “the chain of terribles.”  That is we take one terrible result, and infer another logical awful result, and then another and another and another.  But this is almost never realistic.

Let me give you an example — at the time I write this blog, the Coronavirus is exploding across the world.  The NBA just suspended their regular season.  Part of my mind wants to suggest the world economy will crash (the dow is down 20% from a month ago), my law practice will go down the tubes with the economy, there will be widespread disease and then famine, the NBA will never play again, and the survivors of the virus will have to barricade themselves from zombies in makeshift houses.

That is the chain of terribles.  But I’m guessing if you read this even 6 months from now, you’ll see how ridiculous my conclusions were.

The same thing happens when people consider jail.  They’ve typically already been arrested and have bonded out — and they want to know “will it happen again?”  A perfectly understandable and valid question.  Those fears are often fueled by lawyers and their webpages trying to scare you into hiring them.

Jail exposure is obviously on a case-by-case basis which includes tons of variables such as the nature of the charge, mitigating factors, what county is prosecuting the charge, criminal history, the specific prosecutor, judge, etcetera, etcetera, etc…

Understand a handful of factors which, in general, reduce inmate population.

  • Running a jail is money-losing proposition.  It is a hotel where no one pays.  Most counties don’t want to feed you and house you if they don’t have to.
  • Most judges and prosectors believe in rehabilitation.  Very few will stop someone from getting help they need to manage substance issues which frequently contribute.
  • There is a much better understanding of anxiety, depression, and other maladies which can contribute to someone’s predicament.
  • Finally — it’s your lawyers job to effectively tell your story — and everyone typically has a good one.

Bottom line: If you’re like everyone else – then you’ve probably exaggerated your own jail chances.

*Jeremy Rosenthal is an attorney licensed to practice in the State of Texas.  He is Board Certified by the Texas Board of Legal Specialization in Criminal law.  Nothing in this article is intended to be legal advice.