The Police Want to Interview Me – Won’t Telling Them “No” Only Upset Them?

November 12, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Declining to be interviewed by the police when you’re under investigation will probably upset them.  But who cares?  What are they going to do in retaliation — accuse you of a crime?  Hint: they’re probably already accusing you of one and you’re the last one in on the secret.

Jails and prisons are full of people who gave statements to police when they were under investigation.

Exercising your 5th Amendment right to remain silent is perfectly legal and if your case ever came down to a trial, the jury would never be informed of the fact that you declined an interview based on an attorney’s advice.

Won’t the Police Drop the Case if they Think I’m Innocent? 

Of course that’s possible and I’m sure it happens.  But just as often the officer has already made up his mind and is only building his case against a suspect by bringing them in for an interview.

Police are not judges.  They do not get involved in disputes to hand the party they think should win a ribbon or prize when the investigation is over.  They investigate crime.  They do that by building a case element by element as defined by the Texas Penal Code.  Often the only way they can make their case is through a statement of the accused.

By declining an interview, a suspect may be denying the police the very ability to even go forward with an arrest warrant or possible criminal charges.  So if the police are upset that a suspect didn’t come in — that is obviously outweighed by the benefits of exercising 5th Amendment rights.

Can’t I Convince them I’m Innocent?

Good luck with that.

Most experienced criminal attorneys will tell you police often make-up their mind very early in an investigation.  We’re all raised thinking that people around us have open minds — but any trial lawyer that deals with juries on a regular basis can tell you how hard (or impossible) it can be to change a juror’s mind once they formulate an opinion.  Think about how, when you debate sports, politics or religion with a person who doesn’t seem very committed to any position — yet will simply not be persuaded by anything you have to say.  If anything, they tend to get more engrained in their position when challenged.  Police reason no differently about cases they’ve made up their mind on.

We are all programmed from the time we’re little to respect authority and submit to the wishes of authority figures.  Police (whether they think of it in these terms or not) absolutely use their authority status to manipulate a person into giving them information they’re not legally entitled to have.  And to be clear — this is good police-work as deception is a legitimate law enforcement tactic.

Police know people will try to convince them of their innocence and they use it to their advantage in getting information.

Won’t Things Be Better if I Take Responsibility if I did Make a Mistake?

Maybe yes and maybe no.  At the very least you should consult a lawyer to hear their thoughts about your case.  Your version of taking responsibility may be a heartfelt apology, restitution, and a promise to change your behavior.  The State of Texas’ version could be to send you to prison for the rest of your life depending on the situation.  Having a lawyer in the mix could at least help you have some degree of control in the situation or even broker favorable terms if you made a mistake and feel strongly about cooperating with law enforcement.

In Federal cases, cooperation through your attorney can help substantially lower your exposure to criminal penalties.

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

Leave a Comment » | Civil Liberties, Computer Crimes, crimes against children, Murder, Police, sex cases, sex crimes, sexual assault, Uncategorized | Permalink
Posted by Jeremy Rosenthal, Esq.

Illegal Searches are More Common Than You Might Think

November 10, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

One of the best weapons in defending many cases is the exclusionary rule.  That rule prevents illegally attained evidence from being used by the prosecution during trial.  The exclusionary rule is the citizens legal protection remedy from illegal police acts.  A motion to suppress evidence is typically the vehicle for the accused to try and trigger the exclusionary rule.

During an illegal search – the police have broken the rules.  Yet the police officers aren’t charged criminally themselves and no one loses their job.  Instead – police learn how do to it correctly the next time.  This is the whole point.

“Illegal” Has a Broad Meaning

Think of the word ‘illegal’ in terms of a penalty during a football game such as ‘illegal procedure.’  The word ‘illegal’ has a much lighter connotation when we know it’s just a 5 yard penalty for a player moving the wrong direction before the snap.

Calling a search or particular police action ‘illegal’ is really no different.  As the accused, you’re merely saying there was a foul committed without regard to wether it was intentional or severe.  But the rules are the rules and everyone has to play by them.

Illegal Searches Are More Common Than You Might Think

The courts are uncomfortable with traffic stops and/or searches based on little more than hunches because those were rightly exposed as profiling. You have to remember civil rights cases from the 1960’s and 1970’s still have a large imprint on search and seizure law.   We can debate about exactly who and why police may be targeting – someone covered in tattoos, teenagers, or as history teaches us – racial minorities.  But profiling is profiling.

The law combats profiling by requiring police to have “articulable facts” to justify traffic stops and continued roadside detentions.  Articulable facts is the difference between saying someone was going 74 in a 60 and “the car was suspicious.”

It’s very common to see extremely thin and subjective reasoning for keeping someone detained at a routine traffic stop – nervousness, the time of day/ night, or even labeling the area of the stop as ‘high crime’ with little or no proof this is the case.  Courts have repeatedly said these types of justifications are akin to multiplying zeros when it comes to articulable facts.  Bad stops can be and frequently are thrown out.

Again, police know they are fighting crime and doing great things by keeping drugs, guns, and drunk drivers off the streets.  They will often push and test the rules for reasons they think are justified.

The end result may be that often they have mis-stepped.

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

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Posted by Jeremy Rosenthal, Esq.

What is Money Laundering?

November 5, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

Money laundering is the safekeeping of illegal proceeds.  People tend to think of it as actually trying to cleanse money by having an elaborate scheme of putting up a fake business front so law enforcement can’t trace illegal proceeds – but in reality it’s much simpler (at least under Texas State Law).

My experience is that rarely is money laundering a stand alone charge.  It is typically either brought along with other – often more serious charges – or it is a charge brought against someone when other charges may be more difficult to prove.

Money Laundering:  Texas vs. Federal Law

Money laundering can be charged in either state or federal court.  State court uses a value ladder to determine the punishment range and the federal sentencing guidelines are also contingent on the amount alleged to be “laundered.”

The federal government has a much more complex definition and categorization of money laundering than Texas does.  You can read the federal statute here.  You can read the state statute here.

Examples of Money Laundering

Example 1:

Let’s say the person is accused of having a business where they advertise widgets on the internet.  People pay online for the widgets, but after they pay – the person just pockets the money and never sends out a widget in return.  It’s obviously theft and/or fraud.  Also the person is committing money laundering by putting the money in his bank account.  You would think the prosecutors would only charge defendant for theft here, and they might.  They also have the option of money laundering too.  Maybe they throw it in for plea bargaining leverage.

Example 2:

Someone is involved in a retail theft ring. They steal from retail stores and re-sell the items.  They take the money they get from the reselling and put it into their bank account.  It’s money laundering even though there are additional steps.

Conspiracies and Party Liability with Money Laundering

Where money laundering can get somewhat gray is in the case of multi-person conspiracies.  The way a conspiracy works under the law – a person doesn’t have to have full knowledge of the entire scheme to be guilty of taking part of the conspiracy.

Tweaking the facts of example #2, let’s say the bank account the money ultimately goes in to is a joint account between spouses – with the other spouse not involved in the ring at all.  This would be an instance where the state or federal government could either charge or threaten that spouse with money laundering – typically in an attempt to get them to spill their guts and cooperate about what they know of the entire illegal operation.

The issue may turn on whether the spouse was willfully ignorant of the scheme or not.  Did they realize the account seemed inflated often for no reason?  Did they check the bank account on a regular basis?  Did the other spouse conceal, hide and do everything possible to control the account?

In any regard – money laundering normally involves a complex factual scenario either in state or federal court.

*Jeremy Rosenthal is board 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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Posted by niftybrady

Netflix American Murder: The Family Next Door and 21st Century Courtroom Storytelling

October 24, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

What a horrific, tragic, and deranged murder!

Trying to compartmentalize and separate the legal aspects of Netflix “American Murder: The Family Next Door” from the human aspects is difficult to do – but it’s exactly what we do as criminal defense lawyers.

I’m writing because I’m very impressed with how Netflix was able to tell the story through all the text messages, home and police videos, and social media.  It’s really a view into what 21st century crime investigation and courtroom story telling can look like.

This story in particular is nothing short of soul-crushing and everyone is happy Shannan Watts, her children and her family got the justice they deserved and Chris Watts is behind bars for the rest of his life.  But 21st century evidence such as cell phone texts, videos, social media including police advances in body-camera evidence are revolutionary ways to prove innocence too.

How Netflix Told the Story

I was fascinated by how Netflix was able to tell the story – not through talking heads or narration – but just by showing us the text messages, then showing us police body-cam videos, sprinkling in home movies, showing us social media posts and comments, and on and on.  Isn’t it amazing how our technology and ways of communicating can tell our stories this way?

Cell Phone Evidence

I lecture on the topic of cell phone evidence in the courtroom and have written about it as well.  It’s not nearly as easy to do as Netflix made it look.  We were able to see victim Shannan Watts’ texts to her family and friends as well as to Chris.

Notably absent in my mind were Chris’ texts to anyone other than Shannan — and this tells me they weren’t able to get into his phone.

Police Body-Cam Evidence

I can’t understate what an amazing, wonderful tool police body-cameras are.  In the American Murder: The Family Next Door, we got to see Chris Watts’ charade with our own eyes when the police initially came over to his house to locate Shannan the day after the killing.  We got to see Chris Watts face, demeanor, and mannerisms — the smallest details.

In the past – we’d have gotten a police officer’s recollection from the witness stand and potentially some of the other people there too.  Their testimony would be almost always be shaded and slanted for no other reasons they are humans with a particular perspective.  If this case had turned into a trial – they’d have had to have testified anyway… but the point I’m trying to make is the body-cameras cut through all of that.  We see what we see.

The law has often pushed police towards recording interviews and statements.  Texas has a statute (Tex.Code.Crim.P. 38.22) which requires custodial interrogations to be recorded.  It protects both the police and the accused from an unfair spinning or characterization of how the interview actually went.

Unfortunately, in the past it has been a law enforcement tactic for a police officer to “forget” their recording device before an interview – so they can spin the interview how they’d like in court later.  Police agencies who require bod-cams basically put an end to it.

And as a side note – sometimes the police forget to turn off the body cameras and we get to see the water-cooler talk about the case and we hear weaknesses about the cases we’d never hear in a courtroom from the police.

Social Media Evidence

It’s difficult to know what, if any, artistic license Netflix took in this arena.  They presented several home videos as if they were social media posts.  Perhaps they were and perhaps that was just how they presented them. What they did use was effective in telling the story.

Legally this would be far more complicated to use in a courtroom than in a documentary.  There are issues with what we call “authentication” and it could involve having to deal directly with social media mega-giants who often treat both prosecutors and defense lawyers like fleas they shake off when they get annoyed with us.

Police Interviews and Polygraph

This was the part of the Chris Watts story which is more old-school and presented nothing new. Bringing in a suspect for a polygraph is a very common investigative tactic.  The polygraph itself is inadmissible in court and as lawyers we’re always very leery of who is conducting the polygraph… because they’re all based on the questions and the questions can be slanted in certain directions.

When Police do a polygraph they almost always want to do a follow-up interview.  They think the person will fail the polygraph, and just like a linebacker wants to crush the quarterback after the ball is snapped — the police want to get a confession right after someone takes the polygraph (even if the results are inconclusive or if they accuse the person of using “countermeasures” or trying to game the test).

It worked for the police like a charm against Chris Watts.  They even used  the age old, “are you a monster or just some guy who made a mistake” line on him — which is a question we hear all the time in cases like sexual assault, child abuse, or domestic violence.  If the suspect chooses, “I just made a mistake” then the police have their confession.

The police also pretended to know more about Chris’ life than they actually knew at the time.  I don’t recall anything they’d seen at the time of his interview which suggested they would know he was having an affair – but when he admitted to it, they represented to him they knew this all along.  It’s a part of the Reid method of interrogation (that’s another topic).

Overall I found the show — again horrific and tragic — yet fascinating from a lawyer’s perspective.  The Chris Watts murder may be a high-budget and high profile outlier in how the story was able to be told… but during the 21st century, I’m pretty certain we’ll be using text messages, home videos and police body-cams to tell much more complete stories for other types of cases too.

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

 

 

 

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Posted by niftybrady

What is the Difference Between a Felony and a Misdemeanor?

October 23, 2020

By Criminal Defense Attorney Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

A misdemeanor is any criminal charge which carries a potential jail sentence of a year or less, and a felony is anything which has a potential jail sentence over a year.

What dictates is the punishment range – not the actual punishment itself.

Here’s an example:

  • In Texas we have a classification known as a “State Jail Felony.”  Many street drugs such as cocaine in trace or user amounts fit in this category.
  • State jail felonies carry a possible punishment between 6 months and 2 years confinement.
  • Let’s say a person is sentenced to 6 months of state jail
  • The case is a felony because the punishment range or potential punishment from the outset is over a year.
  • Even if the 6 months is probated and the person never goes to jail – the case is still a felony.

What Does it Mean if a Case is a Felony?

Felonies usually carry with them collateral consequences in addition to the potential increased jail.  States can typically restrict voting and professional licenses to felons as an example.  Many employers ask questions to candidates about felonies.  In Texas, some rights are restored to felons after they are no longer under the Court’s thumb.

The Federal Government’s View

Each state may define a felony or misdemeanor however they’d like – but the federal government in making policy on things like immigration, lending, and firearms makes it clear this is how they define the difference.  The US Constitution also has “the Supremacy Clause” which dictates federal law is superior to state law.

For this reason – the federal government labeling someone a felon can be more severe than the state doing so.  As an example, a felon in Texas is permitted to carry a firearm five years after their sentence is complete.  But because the federal government also regulates firearms and they strictly prohibit felons from owning pistols or handguns ever – the Texas law allowing a felon to possess such a weapon is somewhat meaningless.  You’re still breaking the law.

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

 

 

Comments Off on What is the Difference Between a Felony and a Misdemeanor? | Civil Liberties, Collateral Consequences of a Criminal Record, Drugs, probation | Tagged: , , | Permalink
Posted by niftybrady

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