Police Reports: Dishonesty by Omission

June 16, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.rbcriminallaw.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.

 


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.


What Constitutes a Win?

February 20, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.rbcriminallaw.com

(972) 369-0577

Winning

From time to time I’m asked what my win-loss record is.  It’s a fair question, I suppose, from someone whose not around defense lawyers all-day every-day.

The question assumes all cases are equal in complexity, difficulty – and all people facing the dilemma of a criminal cases have the same tolerances for risk or life pressures which affect their decisions.  So I like to joke “last year, I made the playoffs.”  It normally gets a chuckle – but the person typically gets the point.

A sexual assault allegation where consent is blurred by alcohol consumption is much different than a bank robbery caught on tape.  Also the pressures facing a pilot arrested for a DWI and the loss of a lucrative livelihood aren’t the same as a college student studying for an MBA who got arrested for marijuana.  My goal is to clear everyone’s record who comes into my office – but not all cases are equal.

It’s unethical for any lawyer to guarantee results.  This makes sense because we are in the profession of quantifying unpredictable variables.  I know what the law says should happen — but unless I’m actually both your lawyer and the judge in a case, I can’t guarantee it will happen.  I know how the prosecutor will likely approach your case — but until I’m both the prosecutor and your lawyer in a case, I can’t guarantee what will happen either.  And then there are juries.  Don’t even get me started with them.

So what constitutes a win is often relative.  Make no mistake — I hate losing and I’ll always do my best to completely clear my client’s record in every case.  Sometimes it can be a really tall mountain.  If it is a bad felony charge we can often get it reduced if winning is too unrealistic.  If we can’t win a case which might result in losing a job or even a career – then we can often get the charges reduced to something my client can live with.  I’m in a tough business.  There are cases which come in my door where a great outcome is simply less time in prison.

The one thing a lawyer can always guarantee is how they treat you and their effort.

*Jeremy Rosenthal is an attorney licensed to practice in the State of Texas and is Board Certified in Criminal Law by the Texas Board of Legal Specialization.


Why Does My Lawyer Keep Continuing My Case?

November 12, 2019

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

It could be taking extra time to prepare.  It could be strategy.  It could be a red flag.

Taking Extra Time to Prepare

Your Lawyer should always obey “the carpenter’s rule.”  Measure twice, cut once.

Some cases are just harder and more complex than others.

A sexual assault at a party with 8 witnesses (each with different accounts) takes some time to prepare.  The prosecutor may be extremely dug in and there could be some complex legal issues as well.

A white-collar securities scheme with 3,400 documents to pour through can be tough too.  Federal drug conspiracies where the lawyer gets a few hundred hours of wire-tap phone calls obviously take a while too.

These are all really valid reasons for delay.

Delay for Strategy

I’ve delayed cases for strategical reasons.  It could be because my client has other pending legal matters which I’d like to get resolved first.  It might be because I’m trying to expunge records in one county and I have to do so before my client’s case goes to trial in another county.  A lawyer could even have a case delayed so their client can stay in the local jail with air conditioning during the summer knowing when the case was over they still had to go back to their prison unit without AC (I’m not saying I’ve done this and I’m not saying I haven’t, either!)

Sometimes it’s the Prosecution’s Fault

Sometimes the State isn’t ready.  They need to do more investigation and/or preparation for their case to go to trial as well and the Judge allows them leeway the same way they allow us leeway.  Lab testing blood in DWI cases and drugs can take months and months.  It’s the speed of government.

When are Repeated Continuances a Red Flag?

Every case is it’s own snowflake.  That said, if you have a relatively common  case such as a DWI, assault, or drug charge and your lawyer is delaying, delaying, and delaying and the reasons don’t make sense — it could be something to become concerned about.

DWI, assault, drug and theft charges are extremely common and we handle lots of them.  We know what we’re looking for to defend the cases and we’re quick to find and ferret-out the important issues.  There are very few legal issues in Driving While Intoxicated cases, for instance, we haven’t seen before or know exactly where to look for the answer.

Many lawyers are simply over-worked.  They use time poorly and “borrow from peter to pay paul” with their time.  They are used to putting out the hottest fire every day — and when that case isn’t your case — you get to wait.  Also many lawyers can get “paralysis by analysis.”  That is they just can’t make a decision and they use delay because they can’t figure things out.

Bottom Line

I should add many clients are okay with a slow pace in which case we accommodate this.  It makes me think of when I was waiting for my bar results.  I had a great time not knowing one way or another for 3 months.  I just don’t like going to court and not accomplishing anything.  I do see lawyers who just pass, and pass, and pass their cases over and over and I don’t get it.  The courts do push lawyers to get cases through… but rarely should it get to that point.

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

 

 

 


Returning Calls

October 16, 2019

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

A lawyer has an ethical duty to communicate with their client under Texas Rules o Disciplinary Conduct:

Rule 1.03 says:

(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. 

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Lack of Communication is the Chief Complaint About Lawyers

I wish I had the answer why.  I hate more than anything when someone comes into my office and says another lawyer they’ve worked with seems sharp, competent — but they just don’t return phone calls and the client is left in the dark.  Anyone in a criminal defense lawyer’s office is going through a stressful episode in their life either for themselves or along with a loved one.  The last thing they need is to be left in the dark about crucial aspects of a case.

Communication with Clients

Communication is a two way street and its complications go back, no doubt, to the dawn of mankind.  Every client of mine is different just the same as I’m different than any other lawyer.  Every attorney-client relationship is therefore unique.

Here are some observations:

  • My phone number ringing and flashing on a screen can be the most traumatic 8 -seconds of that client’s month;
  • It can be dicey to call a client while they’re at their place work for obvious reasons;
  • Giving mundane details either bores clients or causes them unnecessary stress;
  • There is certain news or updates which are better done in person due to the time it will take or possible follow-up questions;
  • You want the lawyer explaining to you the intricacies of preserving jury charge error under the standard promulgated by the Almanza case from the Texas Court of Criminal Appeals in 1986 — but the lawyer doesn’t need to be the one who tells you the best exit to take to get to the courthouse.

Many of the points listed above say the same thing — communication for the sake of saying you were communicating isn’t always a great idea.  Rule 1.03(a) & (b) have built in words like the attorney shall keep the client “reasonably informed,” promptly reply to “reasonable requests for information,” and the lawyer shall explain matters to the extent they are “reasonably necessary” for the client to make informed decisions.

Customer Service

We want happy clients who refer us business long after their case is over and they have a friend in need.  That means good customer service and we don’t need some rule to tell us that.

One of our advantages at Rosenthal & Wadas is we have a great office staff who are trained to handle any and every question they are capable of answering.  This accomplishes a number of things:

  • You get the answer to routine questions without having to wait for a lawyer;
  • You never feel like you are bothering us with something you worry might be trivial or simple to us but is important to you;
  • It makes our office staff happier to help, get to know, and be involved with our client care;
  • It allows our lawyers to focus on the intricate and crucial parts of your case.

One of the down-sides is it is common for some people to have built-up such a good rapport with me or one of our other lawyers that they feel less comfortable talking with our office staff — even about basic issues.  That’s fine too and we are happy to accomodate this as well.

How I do It

I do my best to get back to everyone every day.  Email is normally the best though if the answer is too complex I may give you a call back when I can spend the time to do the issue justice.  If I’m in a spot where I can’t get to that question or issue quickly then I’ll ask one of our staff members to help if the question is appropriate.

At our office — we never want to hear a client feel like they aren’t being communicated with.

*Jeremy Rosenthal is a Licensed Attorney in the State of Texas and is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He was designated as a SuperLawyer by Thomson Reuters in 2019.