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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Can Police Track Your Phone?

January 8, 2021

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

The short answer is yes – but there are ever increasing legal hurdles in law enforcement’s way.  The issue is highly complex, evolving and will continue to evolve as technology changes society.  No page-long blog will do the topic justice but I hope to give you at least a basic legal primer.

The 4th Amendment to the US Constitution is your right to be free from “unreasonable” searches and seizures from your government.  Tracking a person’s phone either in real-time or after the fact has been the subject of intense legal scrutiny for some time now.

Is Tracking Your Phone a Search Within the Meaning of the 4th Amendment?

Courts agree inspecting the contents of your phone, wiretapping a phone call, or affixing a GPS monitor to a persons vehicle are “searches” within the meaning of the 4th amendment.  It’s taken some time for courts establish these norms but they have all one by one been accepted.

Much of what constitutes a “search” hinges on what we consider our own “expectation of privacy.”  We all have a much higher expectation of privacy in our night stand drawer than in our bag we’re bringing on a plane.  So the courts have had to answer the question of where does the smart-phone and the information rank between the two extremes?

The answer is different today than it was in 2005 because of the advances in technology and because of our reliance on smart device technology… and because of both of those things we have different expectations of what is or isn’t private about our phones.

Courts now recognize the contents of our phones today contain work information, banking information, medical information, information about the books we read, the historical figures we admire, who we’re angry with in our family, where we’ve been, where we plan on going in three months or in an hour…  In short we have developed an intense dependency and sense of privacy about our phones and the courts know this to be true.

Is Tracking a Phone an “Unreasonable” Search?

Again – what is reasonable changes.  A “reasonable” search at an airport on September 12, 2001 might not have been considered as such on September 10, 2001.  Our more intense reliance and privacy with the phones make them harder and harder for police to justify tracking or searching.

But understand an “unreasonable” search becomes reasonable if law enforcement can legally and procedurally justify attaining whatever it is they’re looking for.  The legal question is just how much justification do they need and whether it requires attaining a warrant?

What Information Can Police Attain About Your Phone & How They Get It

I’m not a technology expert so I don’t know what and how the police can track.  I’m sure if they’re not tracking phones in real time already then at some point I’m sure there will be the capability for them to do that.  Probation departments and supervision departments can require either software or hardware downloads which allows them to track usage – but that’s not the same thing because in those instances the individual knows – and has often agreed – to being tracked.

Phone Dumps and Downloads

The law is more clear in this area – police need a warrant to get into your phone if you don’t consent to it being searched.  What they can get once they get in your phone is a technology question which I don’t have the qualifications to answer… but I’m sure this is an evolving cat and mouse game like everything else in the law/ technology realm.

Records

Police can and often do obtain records from data providers and other third parties such as apps from their private offices.  The mechanisms may vary from State to State but the providers may be able to voluntarily provide records to law enforcement based on the terms and conditions of the usage – or as is more often the case – law enforcement can subpoena the records.  In some instances the federal government requires third parties to report certain activity to the National Center for Missing and Exploited Children.

Also, third parties who may have records the police want such as Facebook or Twitter or some of your other tech giants can be extraordinarily difficult to deal with for both law enforcement and the defense due to nothing more than their sheer size, amount of data they mine, and amount of users they have.  They have legal compliance departments but even Court Orders have the ability to sit in someone’s pile or in-box for who knows how long.

Courts are moving in the direction of requiring warrants to accompany the requests but this is an intensely complex and evolving area of the law.  Many of the third-party companies host apps and aren’t in the United States.  This adds yet another layer of complexity.

Bottom Line

For the police or law enforcement to track your phone after the fact or in real time is currently and will be one of the great battle-lines in courtrooms for the 21st century going forward.  This question is truly the convergence and intersection between radically evolving civil liberties and radically evolving technological capabilities.

Stay tuned.

*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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When Being Drunk is a Crime & When it’s a Defense to a Crime

January 2, 2021

By Texas Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

When Being Drunk is a Crime

The rule of thumb with intoxication in Texas is this:  it’s perfectly legal until you’re dangerous.  The threshold changes depending on what you’re doing.

For public intoxication (a fine-only offense) you’re guilty if you’re dangerous to yourself or others just being in public.

For driving while intoxicated it’s if you’re dangerous being behind the wheel of a motor vehicle which weighs a few tons and can go 100 mph.  DWI offenses range from class b misdemeanors (up to 180 days county jail) to 2nd degree felonies for intoxicated manslaughter (2 to 20 years in prison).

When Being Drunk is a Defense to a Crime

Voluntary intoxication is specifically excluded as a defense to a crime in Texas under Tex.Pen.C. 8.04.  Involuntary intoxication may be a defense – but it is extremely rare and difficult to prove.

This topic gets very legally complex very fast – so I’ll do my best to help it make sense.

Intoxication normally goes to undermine the “intent” requirement of most crimes.  If a person is intoxicated, then, they might not have intended to commit whatever crime, right?  The answer would depend on if the person intended to ingest something intoxicating or not — or if they ingested something via fraud or distress rendering the intoxication involuntary.

Adding another layer of confusion is this: not all crimes require intent anyways.  So drunk or not if the person did the criminal act then they are guilty.  Examples would could be statutory rape, selling alcohol to a minor or even speeding.  The prosecution doesn’t have to prove what you intended in those cases – much less whether a person was in their right state of mind.

Probably the easiest way to summarize this is through a few examples:

  • DWI Where drug was unknowingly put into someone’s drink:
    • Not a defense;
    • There is no “intent” requirement in drunk driving cases so even if it were “involuntary” intoxication it wouldn’t matter.
  • Theft where person was impaired due to prescription drugs;
    • Not a defense
    • The intoxication would be considered “voluntary” even if the person didn’t fully understand the impact of the medication or the medication had an unpredictable outcome.
      • The issue is whether the person “voluntarily” ingested the medication.
  • Robbery where a person had a cup of water spiked with an unknown intoxicant;
    • This would be a rare example of involuntary intoxication being a defense;
      • The impairment was caused by fraud;
      • The involuntary impairment negates the intent element required in robbery.

The effect of intoxication in cases can be obvious in most instances and legally complex in others.

*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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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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