10 Principles of Defending People: #6 Investigate

June 5, 2018

By Collin County Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Here are the previous articles I’ve written about principles of defending people in this series:

Investigation is critically important in criminal defense and in many ways it is one of the central reasons we’ve been hired.  The chief sustained complaint for ineffective assistance of counsel claims is failure to investigate.

In sum, I’ll use a quote again I just used the other day… “the harder I work, the luckier I get.”  This is squarely the truth in investigating a case.

 

What Constitutes a Thorough Investigation?

It obviously depends on the case.  Not every case is capital murder.  The list of what needs to be done to investigate in some cases can be endless.  Examples of research needing to be done includes (but certainly isn’t limited to):

  • Thorough interviews of witnesses (including your own client);
  • Reviewing the background of witnesses (including your own client) such as criminal history, lack of criminal history, mental health issues, or even school records;
  • visiting the scene of the accusation;
  • inspecting physical evidence in possession of the police;
  • independent lab analysis or confidential re-testing of certain evidence;
  • Hiring an expert witness to assist with complex issues;
  • Reviewing public documents such as previous court records;
  • Investigating cellular data and social media such as text messages, Facebook, Twitter, Instagram, SnapChat, etc.;

Pursuing a Theory

A major difference between a Defense investigation and a police investigation is the theories we pursue.  A Defense investigation shouldn’t be scatter-shot.  It needs to be focused towards a particular theory or theories in a particular case.  Police investigations tend to have theories too… but their theory is almost always that Defendant is guilty.

Why Don’t Some Lawyers Investigate?

There are multiple reasons.  First, is lawyers didn’t go to investigation school, they went to law school.  An investigation is something most lawyers learn by doing which might suck for you if you’ve hired one that’s still learning.

Second, many lawyers are afraid of what they’ll find.  They buy in to their client’s guilt and are worried if they dig up bad facts for their client then they’ll end up making the situation worse for their client.

Final reasons might include their lawyer is too busy, not resourceful enough, or tragically are indifferent.

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

 


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.


What is a Felony?

May 29, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

A felony is any crime which carries with it over one year of possible punishment.

This is the law in every state including Texas.  This is because it is the federal law definition and the federal law is supreme.

Below is a list of common felonies.  Don’t hit the panic button just because a charge is categorized as a felony.  Many of these charges carry possible probation even in the event of conviction.

Examples of common felonies in Texas include:

Drug Charges:

  • Possession of Controlled Substances such as cocaine, heroine, or methamphetamine;
  • Possession of prescription pills by non-prescription holder such as Adderall, or over 28 grams of hydrocodone, oxycontin, or Ambien;
  • Possession of Marijuana over 4 oz.;

Driving While Intoxicated Charges:

  • DWI 3rd or greater;
  • DWI with a Child;
  • Intoxicated Assault;
  • Intoxicated Manslaughter;

Theft Related Charges:

  • Any Theft Over $2,500;
  • Money Laundering;
  • Robbery;
  • Aggravated Robbery;

Assault Charges:

  • Aggravated Assault with a Deadly Weapon;
  • Aggravated Assault;
  • Assault by Impeding Airway;
  • Injury to Child;
  • Injury to Elderly;
  • Kidnapping;
  • Manslaughter;
  • Murder;

Property Crimes

  • Burglary of a Building;
  • Burglary of a Habitation;

Sexual Charges:

  • Sexual Assault
  • Aggravated Sexual Assault
  • Indecency With a Child (by contact or exposure)
  • Sexual Assault of a Child (Statutory Rape)
  • Aggravated Sexual Assault of a Child under 14
  • Aggravated Sexual Assault of a Child under 6
  • Continuous Sexual Assault of Child or Young Children

Obviously this is not an exclusive list but it hopefully give you an idea.

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

 


Is it a Crime to Not Report a Crime?

May 23, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Failure to report a felony is rarely charged — but it is a crime.  What is more commonly charged is failure to report the abuse or neglect of a child.

When we do see these types of charges, it is often because law enforcement suspects far worse but simply can’t prove anything… or it is often a reduced charge the prosecutors and defense lawyers settle on for a plea negotiation.

Texas Law:

Texas Code of Criminal Procedure 38.171 requires the felony to be one which (1) the person observed; (2) it is likely serious bodily injury or death may have occurred; (3) It’s reasonable to think no one else has reported it; and (4) the person can make the report themselves if it doesn’t place them in danger.

— and if this crazy offense does occur, it is a Class A misdemeanor.

Federal Law:

The Federal Law is called Misprision of a Felony.  It is much broader in that there only be “knowledge” of the felony.  A major difference is under Federal law, the accused must take an affirmative step in assisting concealment of the felony… in essence making them an accessory.

Keep a few things in mind about failure to report crimes and they start making sense for why we see them so rarely:

Police Want the Real Offender

They want the perpetrator of the crime someone knows about more than anything else.  If police had to round up and prosecute people who knew they think knew about certain crimes but didn’t report — it would make their work load go crazy.

“Failure to Report” cases are really hard to prove.

How do you go about proving someone “knew” about something…?  You’d almost think they’d have to witness it themselves?

Also consider that someone might have some information a crime was committed — but not enough information to truly assist police.

The statutes take these things into consideration which is why they are so narrow.  The gist of these laws is police want and need help in serious situations… not to round everyone up who knows something.

Law Enforcement Usually Understand’s You’re in a Tough Spot Too

Police are people too and they might understand the witness or person is in a tough spot to do something.  Many crimes take planning and a series of bad decisions.  Witnesses to crimes normally don’t choose to be witnesses and they often have to make decisions on the spot.

I can see police threatening people with this charge to get them to talk about solving the underlying crime… but again, remember the cops want the REAL bad guy more than anything.

Failure to Report Abuse or Neglect of a Child or failure to report Aggravated Sexual Assault of a child is a bit of a different story.  I’ll write about that in another blog.

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

 

 


Is it a Crime to Threaten Someone?

May 22, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

A threat is a crime in Texas under certain circumstances.  I’ll discuss the two most common.

Terroristic Threat

The first offense is labeled by the Penal Code as a “Terroristic Threat“.  It might be a touch aggressively named, but is committed when there is a threat of violence seeking a particular reaction listed under Texas Penal Code 22.07(a)(1).  Examples include trying to put another person in fear of imminent serious bodily injury, trying to interrupt public transportation, or trying to cause a reaction of an Emergency Organization.

Aggravated Assault with a Deadly Weapon

The second is aggravated assault with a deadly weapon.  Aggravated Assault with a Deadly Weapon can be committed several different ways — but for our discussion, it is committed where a person “uses or exhibits” a “deadly weapon” during an assault by threat.

A deadly weapon is legally defined by Texas Penal Code 1.07(a)(17) as a firearm or anything which has a use or intended use that is to inflict serious bodily injury or death.  Prosecutors can get pretty liberal with what is and isn’t a deadly weapon.  In general if someone is threatened with an object like a knife, bat, pipe or something like that — it will be an aggravated assault with a deadly weapon.

What About Freedom of Speech?

Any legal scholar will tell you there is a limitation to every right under the bill of rights.  You cannot run into a theater and yell, “fire!”  In fact, Terroristic Threat is the very crime you’d be committing by doing so.

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