10 Principles of Defending People: (#5 All Eyes are Equal & #4 Know the Enemy)

June 6, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

I’m going over to me what are the top ten principles of defending people.  To recap the list so far:

#5 All Eyes are Equal:

People don’t trust themselves or their own judgment for some reason.  Lawyers included.

Maverick trusted himself.  He hit the brakes and the MIG flew right by.  He had cunning, creativity, and self-assurance to know the maneuver would work.  The fact it hadn’t been done before didn’t bother him.

What I like about Maverick is he didn’t ask anyone’s permission.  He just trusted himself and to a lesser degree wasn’t afraid to fail.  I’m a pretty far cry from Maverick, but I hope I think like he might every now and again.

When I say all eyes are equal what I mean is if a trial theory makes sense to me then chances are it makes sense to the jurors too.  If I think the police and prosecutors are reaching then I ask myself why?  Maybe they’ve been suckered by a doe-eyed accuser in a sexual assault case…  Maybe they’re blinded by my client’s appearance or problems they’ve had in the past… or maybe they’re so trapped in their own narrative, they can’t see they’re in an echo chamber as in some domestic violence cases.

Too often, lawyers will settle into a conventional defense.  They are afraid to think outside of the box.  But by thinking inside the box, they turn themselves into fish in a barrel waiting to be speared.  Remember all eyes — including the lawyers own — are equal.  The big picture makes sense.

Don’t be afraid to tell the jury about the big picture.  Don’t be afraid of hitting the brakes so the MIG can fly right by.

#4 Know the Enemy: 

The key to knowing your opponent in my book is experience, experience, experience.

I remember how I thought as a prosecutor.  It helps me today.  I was advocating for the opposite position which is something lawyers do.  I remember my thought process in trying to prove-up a case.  I remember my areas of emphasis to the jury, the assumptions I’d make in each case, and the points of emphasis to the jurors.  I also remember how effective defense lawyers would attack my case.

Defending cases are wonderful learning experiences too.

Cross examining hundreds of police officers teaches you how to control a sophisticated witness who is often trying intentionally to personally subvert you in front of a jury.  Mountains of experience teaches you how to strike the precise blows you need to inflict with your questioning without picking losing battles, having your message bogged down, or looking like a jerk.

Experience also teaches you the prosecutor’s playbook.  Prosecutors across the state share practices and training (as do defense lawyers) so it’s not uncommon to see the same techniques and arguments in different counties.  An experienced defense lawyer needs to know what is coming and how to neutralize, spoil, or blow-up certain tactics they ought to expect are coming.  It’s no different than a football team watching tape on their upcoming opponent and figuring out how to defend against certain plays or formations.

Knowing the enemy is important — but it can’t be confused with a winning strategy.

*Jeremy Rosenthal is Certified in Criminal Law by the Texas Board of Legal Specialization.  He is Licensed to Practice by the State Bar of Texas.

 

 

 


Top 5 Most Common Police Attitudes – #3

May 13, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Today I’m continuing my series on the top 5 police officer attitudes I’ll see when defending cases.  These are police attitudes I see from police officers while on duty.

#3 — CYA

That’s right. Cover your a$$.

One of the psychological pressures on officers is maintaining their livelihood.  They don’t want to lose their job or their pension over any single case.

I see this one mostly in cases where there is an alleged victim involved such as domestic assault, sexual assault or complicated theft schemes to name a few.  A police officer knows an upset accuser (or the accusers parents) can cause them all sorts of headaches with his or her superiors at the station.

For assault/ family violence cases police are worried if they leave a couple warring in their home after a 911 call — one of them could be killed later in the evening.

On sexual abuse cases whether involving adults or children, a police officer is going to have to have a really good explanation to their superiors as to why they told an angry person claiming to be a victim, “no, we don’t believe you.”

Police will often file cases as “grand jury referrals” which is their way of filing a case with the District Attorney’s office while expressing an underlying doubt about the case.  It is a case where they don’t make an arrest prior to grand jury.  It can be seen as unwritten permission to dump a case.  Grand juries may still indict, though.

It sucks to be on the receiving end of a case where you suspect it was filed because the officer was doing CYA work.  It has to be dealt with like anything else.

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


Criminal Mischief

July 13, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Criminal Mischief is the essentially Texas’ way of labeling vandalism.  Under Tex.Pen.C. 28.03, a person commits an offense if, without effective consent of the owner, he intentionally or knowingly damages or destroys the tangible property of the owner; intentionally or knowingly tampers with the tangible property of the owner and causes pecuniary loss or substantial inconvenience to the owner or a third person; or intentionally or knowingly makes makings, including inscriptions, slogans, drawings or paintings, on the tangible property of the owner.

The level of offense of a criminal mischief case stems from the amount of damage to be alleged just as in theft cases.  Less than $50 of damage is a Class C misdemeanor; $50 to $500 is a Class B, $500 to $1,500 is a Class A; $1,500 to $20,000 is a State Jail Felony; $20,000 to $100,000 is a 3rd Degree Felony; $100,000 to $200,00o is a 2nd Degree Felony; and $200,000 or greater is a first degree felony.

Also, the punishment levels can differ if the property tampered with are public communication devices, for public transportation, and for utilities such as water gas and utilities.

Criminal mischief cases can often be very difficult for the prosecution to prove.  Much of the time the culprit is not apprehended at the scene of an offense.  As such, these cases tend to be built on circumstantial evidence and confessions and a skilled criminal defense attorney can be of great value.

If you are contacted by the police investigating a criminal mischief case you should involve an attorney at once!

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas.  He is Board Certified in Criminal Law.  Nothing in this article is intended to be legal advice.  For legal advice about any specific case you should consult an attorney.


Texas Criminal Punishment Levels

June 25, 2010

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

Offense Levels in Texas (updated as of January, 2018):

Class C Misdemeanors:  Punishable by a fine not to exceed $500:

  • Traffic offenses
  • Assault by contact
  • Drug paraphernalia
  • Disorderly conduct (other than firearm related)
  • Theft under $100 (unless theft committed by check)
  • Insufficient funds
  • Minor in possession (MIP)
  • Minor in Consumption

Class B Misdemeanors: Fine not to exceed $2,000 and not more than 180 days confinement in county jail:

  • DWI (72 hours minimum jail; 6 days minimum with open container)
  • Possession of Marijuana (less than 2 oz.)
  • Theft over $100 but less than $750
  • Theft by check (over $20 but less than $500)
  • Criminal mischief over $100 but less than $750 (vandalism)
  • Violation of a protective order
  • Indecent exposure
  • Racing on a public road
  • Prostitution
  • Disorderly Conduct with Firearms (display or discharge)

Class A Misdemeanors:  Fine not to exceed $4,000 and not more than 180 days confinement in county jail:

  • DWI (2nd offense) (minimum 72-hours jail)
  • DWI over 0.15 BAC
  • Possession of marijuana (between 2 oz. and 4 oz.)
  • Possession of dangerous drugs (usually the possession of legal drugs without a valid prescription)
  • Assault causing bodily injury
  • Theft between $750 and $2,500 (whether by check or otherwise)
  • Criminal mischief over $750 but less than $2,500
  • Evading on foot

State Jail Felonies:  Fine not to exceed $10,000 and confinement in state jail institution for no less than 180 days and no more than 2 years.

  • Possession of controlled substance less than 1 gram (typically methamphetamine, cocaine or heroin)
  • Credit card abuse (using another person’s credit card without authorization)
  • Third theft conviction of any amount
  • Theft between $2,500 and $30,000
  • Forgery
  • DWI with a minor under the age of 15 in the vehicle
  • Evading with a vehicle
  • Car Theft (Unauthorized Use of a Motor Vehicle)

Third Degree Felonies:  Fine not to exceed $10,000 and confinement in Texas Department of Corrections for no less than 2 years and no more than 10 years.

  • Possession of controlled substance between 1 and 4 grams;
  • Aggravated assault
  • Assault causing bodily injury (enhanced from prior finding of family violence)
  • Burglary of a building
  • Theft between $30,000 and $150,000
  • DWI (3rd offense)
  • Indecency with a child (by exposure)
  • Solicitation of a minor

Second Degree Felonies: Fine not to exceed $10,000 and confinement in Texas Department of Corrections for no less than 2 years and no more than 20 years:

  • Possession of a controlled substance over 4 grams but less than 200 grams
  • Burglary of a habitation
  • Aggravated assault with a deadly weapon
  • Theft between $150,000 and $300,000
  • Indecency with a child (by contact)
  • Injury to a child
  • Sexual Assault of a Child (Under 17 but not 14)
  • Sexual Assault
  • Attempted murder
  • Intoxicated manslaughter

First Degree Felony:  Fine not to exceed $10,000 and confinement in Texas Department of Corrections for no less than 5 years and no more than 99 years.

  • Murder
  • Possession of a controlled substance over 200 grams
  • Possession of a controlled substance between 4 and 200 grams with intent to distribute
  • Arson
  • Theft over $300,000
  • Aggravated Sexual Assault of a Child
  • Aggravated Sexual Assault of a Child under 6 (25 – Life w/o Parole)
  • Continuous Sexual Abuse of a Child or Young Children (25 – Life w/o Parole)

It should be understood that though many of these offenses carry mandatory minimum jail sentences, virtually every offense other than Murder has provisions whereby sentence may be probated or suspended for community supervision (probation).

Other points:

There are some offenses referred to as “hybrid” offenses which mean they can straddle boundaries of punishment — but for the most part the levels remain fairly consistent.  Some offenses like Driving While Intoxicated raise the minimum punishment level but are still considered to be in that general category.

Also many offenses are subject to what are known as enhancements.  Enhancements are other surrounding factors that can enhance — or increase the base punishment level for certain offenses.  The enhancement can be for something surrounding the transaction (like possession of drugs in a drug free zone), or as is often the case because of prior criminal history.

*Jeremy F. Rosenthal is Board Certified by the Texas Board of Legal Specialization andan licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice.  For legal advice about any specific issue you should consult an attorney directly.