Domestic Violence Charges – Blog 8: Emergency Protective Orders (EPOs)

December 19, 2020

By Texas Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

An unpleasant surprise many men and women get when they are released from jail after an assault/ family violence arrest is an order forbidding them from returning home and/or even talking with their spouse or children.

These orders can cause daunting collateral consequences.  They are financially punishing because it often requires one person stay in a hotel during the duration and they are emotionally taxing because one parent may need support in caring for children and assistance with the household.  Sometimes protective orders have the opposite of their intended effect and inject more stress into a relationship instead of relieving it.

The court order can either be an Emergency Protective Order or it can be a term and condition of bond.  In any event, violating them can and often does land the person back in jail.  Violating a protective order is a criminal offense in itself and is usually harder to win in court than the underlying assault case.

Protective orders and emergency protective orders is an extensive topic in and of itself.  Today in my continuing series of blogs on defending domestic violence cases I’ll be hitting the main highlights.

Emergency Protective Orders

Most emergency orders are sought and applied for by officers in an Ex Parte manner – that is it’s the officer alone asking the judge who is typically also setting bond.  It could be because of department policy or the officer thought the situation merited the couple having a “cooling off” period.  EPOs are mandatory for arrests with charges of serious bodily injury or deadly weapons.

On an administrative note – the EPO does not apply to the person’s attorney who can communicate with a complaint witness.

The governing statute for protective orders is Article 17.292 of the Texas Code of Criminal Procedure.

It is often the case the complaining witness doesn’t want the EPO either.  In this regard the law can be somewhat patronizing.  The complaining witness’ assent is not mandatory.

One of the most embarrassing and humiliating aspects of an EPO is the Court is required to give notice by law to a school of a child of the couple.

Modifying Protective Orders

The legislature requires a hearing for modification of an EPO under 17.292(j).  All affected parties are required to have notice.  Most hearings are somewhat informal.

My experience on modifying protective orders is unless both the accuser and the accused agree – the magistrate won’t modify the order.  Most magistrates also drag their feet because they want a cooling down period between the couple… so even though a person might apply for a modification in the day or two following the arrest – you usually won’t get a hearing for 2 weeks.

Can Protective Orders become Permanent or be Extended?

Yes.  An Ex Parte Emergency Protective Order can be issued for a maximum of 91 days.

In those instances where a prosecutor or complaining witness want to seek a more extended one – the prosecutor can file suit on behalf of the complaining witness and apply for a permanent or extended protective order.

These proceedings are legally more formal and the consequences can be more dire.  If a court makes a finding of domestic violence it can follow the accused forever.

Conditions of Bond Keeping Defendant Away

I mentioned earlier another legal tool keeping someone a certain minimum distance from the complaining witness or preventing communication can be a term and condition of bond.

That means it’s one of the ground-rules laid out by the judge as a condition of release from jail.  Violating a condition of bond means potential re-arrest.  Domestic violence bond violations are the only misdemeanor charge where a judge can hold a person without bond.

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

 

 

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Domestic Violence Charges – Blog 3: What Constitutes a Dating or Household Relationship?

December 14, 2020

By Texas Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

There are two legal components to assault/ family violence cases.  The first I discussed yesterday when I generally outlined what the legal definition of assault was.  The second component is what constitutes a household or dating relationship?

If there is a “household or dating relationship” it triggers an “affirmative finding of family violence” or “AFFV”  This is what separates domestic assaults legally from ordinary assaults.  The AFFV is what gives spousal or domestic abuse the additional severity.

The Legalese of Affirmative Findings of Family Violence

Texas Code of Criminal Procedure Article 42.013 requires a court to make an affirmative finding of family violence if the offense constituted family violence under Texas Family Code. 71.004.

Turning to the definition of 71.004, family violence is defined as:

(1) an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself;
(2) abuse, as that term is defined by Sections 261.001(1)(C), (E), (G), (H), (I), (J), (K), and (M), by a member of a family or household toward a child of the family or household; or
(3) dating violence, as that term is defined by Section 71.0021.
Digging into Tex.Fam.C. 71.0021, it is very clear the relationship includes persons who are currently engaged in a dating relationship as well as from a relationship in the past:
(a) “Dating violence” means an act, other than a defensive measure to protect oneself, by an actor that:
(1) is committed against a victim or applicant for a protective order:
(A) with whom the actor has or has had a dating relationship; or
(B) because of the victim’s or applicant’s marriage to or dating relationship with an individual with whom the actor is or has been in a dating relationship or marriage; and
(2) is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the victim or applicant in fear of imminent physical harm, bodily injury, assault, or sexual assault.
(b) For purposes of this title, “dating relationship” means a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature. The existence of such a relationship shall be determined based on consideration of:
(1) the length of the relationship;
(2) the nature of the relationship; and
(3) the frequency and type of interaction between the persons involved in the relationship.
(c) A casual acquaintanceship or ordinary fraternization in a business or social context does not constitute a “dating relationship” under Subsection (b).
In Plain English
In the vast majority of cases there is no issue as to whether this is domestic violence or not.  But the matter can get cloudy.  What about roommates?  There are no cases reported where a complaining witness is a roommate, but legally the point could be debatable.  Also, the term “family member” can mean adult children who no longer live within the house.  So a fistfight between adult siblings or parents at the family Christmas party could be considered domestic violence.
*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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Sexual Abuse Charges – Blog 18: Empowering the Jury to Stop an Injustice

December 9, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

jeremy@texasdefensefirm.com

Injustice is possible in sexual abuse claims.  It can come in the form of a wrongful conviction or a horrifically cruel prison sentence.  I ask potential jurors if there is anything worse at all someone can be accused of or convicted of than child sexual abuse – and they almost always agree this is the worst.

Even worse – in defending these charges its not uncommon for mothers, fathers, spouses (and etc.) of the accused to plead with me to explain why does it seem like they’ve taken all of their loved one’s rights away… why have the police and prosecutors treated this as guilty until proven innocent?

“Because”, I explain, “they think he’s a child molester.”

Getting the jury to care enough to render a Not Guilty verdict or in some instances to give a fair punishment is my last installment on my series of sexual abuse blogs.

Getting the Jury to Take Accountability for their Verdict

The Milgram Experiment

There is a famous and notorious experiment which I think can be all too similar to a jury trial called the Milgram experiment.

The actual test subject who volunteers is told to read questions to a person over the radio who is in another room and can’t be seen.  When the person answers incorrectly, the volunteer is told to administer a shock in increasing doses to that person.

A “doctor” sits with the volunteer and repeatedly assures them the other person is just fine, also volunteered, was evaluated for being able to withstand the shocks, and further they consented to the full experiment.  The shocks increase to the point where the unseen person relays they are in excruciating pain and eventually tells the volunteer to stop.

The Milgram experiment’s goal is to see whether the volunteer actually does stop or if they administer the cruel shock even when the other person begs them to stop.  The experiment is now considered unethical as it’s too mean to put someone in the volunteers situation.

Dr. Stanley Milgram was a professor at Yale.  He concocted this experiment in the wake of the Nuremberg trials where Nazi after Nazi used the defense that they were just following orders.

In the Milgram experiment the volunteers would repeatedly want to stop administering the shock but would look back at the Doctor, the “authority figure,” who would tell the volunteer it was okay to ignore the other person’s plea for mercy.  The volunteer felt okay administering the shock because they divested themselves of accountability – if the other person was being hurt it was the doctors fault and not their own, right?

How Can a Jury Be Like the Volunteers in the Milgram Experiment?

There are plenty of opportunities for a juror to blame anyone and everyone else in the process for a bad result.

A juror is a volunteer or a stranger to the legal proceedings.  They are there for one week of their lives and have absolutely no connection to the parties and can go about their lives when they are done.  They do not have to live with the consequences of their verdict except for perhaps their conscience.

There are 12 jurors on a panel and no single one is responsible for the actions of the other 11.

And the biggest similarity — the courtroom is jam packed with authority figures who are telling the jurors they have thoroughly vetted the case and they wouldn’t be pushing charges with such harsh consequences unless they were true.

Fast-forward fifteen years to when the juror is reading the morning paper and sees they wrongly convicted the defendant.  The juror can blame everyone else for defendant’s plight.  This was the fault of the police, of the prosecutor, the Judge – but not mine.  Everyone else should have stopped this injustice first.  I was just doing what everyone else told me was the right thing to do.

Wrong.

The Single Hardest Thing For Me to Accomplish

Through a trial, I can point out challenges which make jurors question the state’s case.  I might even be able to persuade them my client is innocent or even that if my client is guilty – the prosecution’s punishment is far too cruel and stiff.

But my real job is to undo the Milgram effect.  To get the jurors to know, accept, and understand THEY and THEY ALONE are responsible for their verdict.  They are the volunteers sitting in the chair and THEY must have courage to tell the doctor sitting behind them they will not intentionally cause another person pain and walk away without human accountability.

Empowering the jury to fight an injustice means getting them not only to care about our client’s fight for justice – but to care beyond their one week in our legal system.  If we can convince jurors they are not only just a stake-holder in the outcome of the case but the final and most important stake-holder, then we have a real chance.

*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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Sexual Abuse Charges – Blog 17: Preparing for Punishment and Mitigation

December 8, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Criminal trials are bifurcated.  This means there are two phases.  The first phase is guilt/ innocence and in the event of a guilty verdict then the second phase is a punishment phase.  The punishment phase can be either before a judge or a jury.  The defense is legally and ethically required to prepare for both.  Preparing for punishment is today’s topic on my continuing series of blogs about sexual abuse charges.

Losing or Pleading Guilty on a Sexual Abuse Charge

Many defense lawyers talk like pro wrestlers.  We talk about how tough we are and how we rip the opponent from limb to limb.  But the fact is we come in second place in our profession more than we’d like and plea bargaining is a critical aspect of defense work.

With the punishments for sexual abuse being as stiff as they are – we always have to keep in mind the possible second phase of the trial.  We have to work just as hard preparing for the possible punishment phase as we do the guilt/innocence phase.

In sexual abuse cases – particularly with child victims – plea bargaining is often not a major component.  This is because the plea offers can be so high that there is either no reason to seriously consider them or if the prosecution wants such a high prison sentence then on our side we may as well go down fighting.  But it never hurts to research, learn and develop mitigating facts either for punishment or on the off-chance we can plea bargain to lower charges.

What is Mitigation?

Mitigation means learning and proving facts which lessen punishment.

Mitigation is a difficult task in a sexual abuse case for a number of reasons.  There is a victim who has suffered horrific abuse which has the potential to emotionally and psychologically scar them for life.  Sex is still — and will always be — a taboo subject for many folks too.  Thus, many folks don’t understand criminal sexual dysfunction and aren’t interested in understanding it.  Another hidden factor is many jurors want to prove to other jurors how tough and intolerant they are of sexual abuse too.

The best mitigating evidence is what I call “three pronged.”  That is it accomplishes the following:

  • It acknowledges the abuse and thus helps the victim heal;
  • It explains underlying causes of the abuse;
  • It provides reason and hope the defendant can conform their behavior in the future.

Examples of Mitigating Facts in a Sexual Abuse Case

A saying I like is “hurt people hurt people.”  Many of the mitigating factors we look for are along those lines.  Examples could include:

  • The defendant was sexually abused themselves;
  • the defendant suffers from some mental deficiency;
  • the defendant suffers from some type of developmental deficiency;
  • the defendant suffers from some type of psychological deficiency;

Another key component of mitigation in sexual abuse cases are evaluations from licensed sex offender professionals which use empirical data to assess the degree of risk and the underlying causes of the dysfunction.  The evaluation can include a prognosis and discuss if any type of treatment will help the accused.

Examples of Mitigation the Prosecution Tears Through

Mitigation and preparation for punishment has to run deep.  There are some cases where the defense parades all of their friends and family to testify what a great person they are and hope it helps to lessen punishment.  I’m not against giving the jury a full picture of the accused’s life but doing a witness parade without something deeper allows the prosecutor to prove-up their narrative the defendant simply has everyone fooled.

Another poorly conceived punishment strategy is to tell the jury they got it wrong in the guilt/ innocence phase.  Don’t get me wrong… there is nothing worse to me than fighting like hell on a case I strongly believe in only to have a jury reject us.  But we only make matters worse by blaming them in a punishment phase.

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

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Sexual Abuse Charges – Blog 16: The Focus of the Defense

December 7, 2020

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Proving innocence in any capacity is hard if not impossible regardless of the case.  To prove this point during jury selection, I’ll often invite a juror to prove they are innocent of not running a stop sign on the way to court.  I shoot down argument after argument (you didn’t get everyone’s license plate at that intersection did you?  You didn’t happen to have a passenger did you?  If you did bring a passenger – of course they’re your family and will lie for you).  Eventually they see it is their word against someone else’s word.  Proving you are innocent of sexual abuse charges really isn’t any easier.

So if the defense can’t prove our client’s innocence – then were should the defense focus?  This is today’s topic on my continuing series on sexual abuse charges.

Playing Offense –  Theories of the Case

The major challenge of any sexual abuse case is why the child’s allegations are not so.    No blog or article dedicated to this topic would fairly do it justice.  But the complexity and difficulty of the topic underscore just how thorough the defense needs to be in evaluating not only the child but the child’s circumstances as well as the circumstances of the adults around the child.

Child and teenage psychology is such a vast ocean you could earn a Ph.D. on the topic and dedicate your entire life to studying, researching, and improving it.  The defense needs to explore different theories of the case based on every bit of evidence they can muster.  An effective defensive theory is more than just conjecture and should be supported by academics.

A misconception about a defense which suggests what a child is saying is untrue is that it is done with malice by either a child or adult hatching a plot to ruin someone’s life.  This binary misconception tends to thrust or flip the burden of proof onto an accused to not only prove they are innocent, but to also show a jury some evil intent by an accuser.

Many defensive theories focus not only on children who make the allegations but on the adults who surround them have a profound effect on what and how their children communicate to them.

Focusing on the adults around the children can reveal whether an outcry was in response to repeated questioning, suggestive questioning, or cross-examination of a child by a hysterical parent or adult.  Focusing on adults around the child, too, can reveal whether a child has been “congratulated for their bravery,” rewarded, or otherwise put on a pedestal with positive attention for saying what adults might want to hear about a ne’er-do-well relative or acquaintance.

These examples, of course, represent just the tip of the iceberg for situations where an outcry has gone awry.  You can read article, after article, after article about the terrible an unjust turns these types of cases can turn based on the hysteria and mismanagement of the adults who handle these cases.

So What Does the Defense Need to Focus On?

Everything.

*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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