How COVID Broke the Criminal Courts – Blog 1 (No Jury Trials)

August 5, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Whether we like it or not the Coronavirus pandemic has been a transformational event – and its impact on the Courts and criminal law practice is no exception.  Some of it will be temporary and some of the transformation will be here to stay.

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Big Picture View of the Criminal Court System

Think of our court system as a pipeline with water going through it.  Cases go in on one end, and are channelled in certain directions to be resolved either by plea, dismissal or trial.  One of the Courts’ central roles is to simply move the cases through the system.

Certainly, the Courts have vital roles in the outcome – but as I explain to clients frequently – the Courtroom has two tables, one Judge and one witness stand.  They can’t weigh in on all 2,500 cases they’re assigned at one time.

The Role of the Jury Trial in the Process

Trial would be like the end of the water line which would typically spit the unused water out and be done with it.  It is the mechanism which closes cases the parties can’t resolve on their own.

But another crucial aspect of a Jury trial is this — parties typically also want to avoid them.  They’re uncertain.  They can be expensive for someone charged with a crime.  They can inflict real pain on a person standing trial or a witness in the trial.  Prosecutors won’t admit this – but they get paid the same whether they’re sitting at their desk or trying a case and many of them don’t want to put in the effort of a trial.  So trials also serve the critical function of pressuring criminal defendant and the prosecutor to come to some sort of agreement short of a trial.

Also there are some cases which simply have to be tried in the criminal world.  Take a Continuous Sexual Abuse of a child case where the Defendant serves 25-years to life with no parole if convicted.  If the Defendant is over 50 years old – there is simply very little reason for them to plead guilty in any event.

Pandemics and Jury Trials Don’t Mix

We can’t have typical jury trials in a pandemic.  It’s not safe and there is really no substitute.  Jury trials via zoom or other platform almost certainly violate rights to face your accusers in open court.  The jury system was also predicated on an assumption the jury can get to the truth by watching witnesses in person.

The System is Temporarily Out of Service

Not only is the mechanism we use to resolve cases not working during the pandemic — more importantly parties aren’t feeling pressured to resolve cases.

Prosecutors are currently making plea offers based on what they think a fair outcome would be for a case based on what they’ve seen as fair results in the past.  But they ignore the Defense has very little incentive — in many circumstances — in pleading guilty.

A Defendant on bond (and the vast majority are) doesn’t have to worry about upsetting a probation officer and going back to jail on a misdemeanor case.  On a felony case where the State thinks 8 years of prison is a fair offer — a defendant on bond is rarely going to sign up for that where the alternative is living a relatively normal life for another year.

Prosecutors and criminal defendants aren’t on the same wavelength with regards to resolving cases and the reason is the pressure-mechanism isn’t working.

Why Don’t Judges Just Try to do Jury Trials Anyway?

Judges could try to force the issue – but they fear making the matter worse by utilizing resources to try a case via Zoom only to have the Court of Appeals making them re-do the trial when the pandemic is over.

The Fix

The system will get back to normal once cases begin going back to jury trials.  When that will be is another issues.  But when jury trials do begin to crank up again — just like a water-pipeline with built-up pressure — you can expect excess pressure there too.

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

 

 


Zoom Jury Trials — “It’s Good Enough” Lowers the Standard in Our Courtrooms

May 19, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Collin County is kicking around the idea of jury trials via Zoom or some other similar platform.  They just tried a virtual jury trial – sort of.  It was a “summary jury trial” which is a practice run typically for wealthier litigants.  The fake jury comes back and tells the parties what they think the outcome should be — and the parties then consider settling.

***What did you say?  Sorry.  Go ahead.***

And not to pick on Zoom.  There are other similar platforms too, but I’ll just collectively refer to them here as Zoom.  Sorry.

Judges organizing and developing the idea get A’s for ingenuity, effort, and passion for their jobs.

But it’s still a terrible idea.  Remember, a jury trial is often the most important day in one or more person’s entire life.  Here are some of the biggest reasons I can think of:

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  1.  Over Simplification of Human Communication

Human communication is complex, intricate and amazingly subtle.

I’ve interviewed thousands of potential jurors  — and I have cross examined hundreds of witnesses.  Many, many jurors cannot give my client a fair trial but would still swear they could.  Many, many witnesses want to make sure I lose and evade questions until they are pinned into answering.  A critical part of my job in the courtroom is to hone in on the most minor of cues from a juror or witness.   An eye dart.  A smirk.  Posture.  Hand position.  Voice tone or inflection… and on and on an on.

***Sorry.  Lost you for a second.***

Zoom and other similar platforms are — at least for now — tone deaf.  These subtleties are either flattened, lost, or are drowned out in 20-people being crammed onto an 18-inch monitor.

And there is something to be said about accountability of the jurors too.  Jurors deliberate knowing they will have to go back into the courtroom and look me, my client, the prosecutor and in many cases a victim in the eye.  Jurors who share less of an emotional stake in the outcome will give the parties less of their focus and attention.

2.  Too Much is At Stake

For criminal defendants decades may hang in the balance not to mention the tidal wave which hits their families and loved ones which can be practical, financial and certainly emotional.  For victims it is their opportunity to be heard and have the jury see how real and fresh their pain truly is.

Zoom is probably fine for quick interactions and brief hearings.  It’s a great tool to visit with clients both incarcerated and free on bond.  It’s probably fine for motions practice with a Judge, lawyers, and possibly other witnesses during routine hearings too.

But any one of us would feel cheated and angry if we or our loved ones were sitting in jail after a trial where we couldn’t even see the jurors or our accusers in person.  Any victim whose defendant is acquitted will feel the same way too.

***Wait, who is talking?  Sorry!***

This is a jury trial — not a teamwork meeting or happy hour.  Can you imagine deciding something as critical and complex as a sexual assault shaping the lives of countless people without some sort of personal interaction?

3.  If Anyone Cares — It Violates a Bunch of Rights

This is a blog — not an amicus brief or a law review article.  So I apologize if I keep this quick and direct.

***Look at that guy’s cat!  He will knock down that picture on the wall***

Let’s start with the right to confront witnesses under the Sixth Amendment.  Then we’ll go to Due Process under the Fifth and Fourteenth Amendment.  Then let’s talk about the umpteen-million opinions you’ll see about the jurors ability to judge witnesses based on x, y, and z.  Or maybe we just throw those all out because we need to get our docket moving?!?

Make no mistake — Judges are asking the specific question, “Can I get away with this without getting reversed?”  My message to them — be my guest but don’t complain about trying the case when it comes back on appeal.

Bottom Line

Is Zoom “good enough?”  Perhaps in some ways and for some things.  People can talk, listen and see videos and exhibits.  But until the platform is as good as the Jedi Counsel meeting where Yoda can sit in his chair remotely from Kashyyyk and interact – it won’t be the same.

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

 

 

 

 

 


What is a Magistrate’s Emergency Protective Order – And How Do I End It?

May 12, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

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Short Answer:

An Emergency Protective Order (“EPO”) is an ex parte “keep away” order by a magistrate judge normally issued upon an arrest for family violence.  They vary in length and scope.  You are able to modify them but most judges want a “cooling off” period even if both parties want the order to be gone.

Let’s decode some of that legalese — “Ex Parte” means one party or one side is present in court and not the other;

A “Magistrate” is typically not a full-blown judge for the purposes of your case and often have the limited responsibility of setting a bond, signing a warrant, or in these cases — signing emergency protective orders.

In More Depth

An EPO is governed by Article 17.292 of the Texas Code of Criminal Procedure.  The statute is long but fairly concise.  Typically the most daunting condition is the one requiring the accused to stay a certain distance from the accuser and often other immediate family members such as children.  A protective order doesn’t always prohibit communication or contact.  You have to read the fine-print carefully.  If you have any questions it is always best to ask a lawyer.

Violating a Protective Order

It is a criminal offense to violate a protective order.  The Order is legally required to have language explicitly stating this.  Ironically, winning an assault case is often easier than winning an accompanying violation of a protective order charge which might accompany it.

Unintended Hardships and Consequences – For Everyone

While it’s understandable strangers to a couple’s marriage or relationship would want to keep “warring” parties separate for a cooling off period, unintended consequences frequently do more to harm the relationship than good.  Having one person stay in a hotel can be financially draining and often it turns an otherwise efficient household into a single-parent situation with the “victim” bearing excessive challenges and responsibilities without their partner.

Further, not allowing communication also doesn’t allow for easy reconciliation either.

Amending an EPO

An Emergency Protective Order can be amended.  Understandably most magistrates are reluctant to undo or amend a protective order if both parties are not agreed.  The magistrate doesn’t know the parties and only typically knows if things go south and someone is physically hurt after the EPO is modified — they get blamed.  It’s not uncommon for a magistrate to either table or sit on a motion to modify — even if it’s agreed — to allow one or both parties to cool off.

Magistrate Emergency Protective Order FAQs

You can read more about EPOs here.

*Jeremy Rosenthal is Board Certified in Criminal Law and has been designated as a Texas Super Lawyer by Thomson Reuters in 2019.


Five Keys to Defending Assault/ Family Violence Cases

May 1, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Police and prosecutors have built a machine to combat domestic violence.  Their intentions are noble yet often misguided and built on false assumptions and one-size fits all narratives.

Family assault cases are one of the most common cases our office handles.  Every one of them is unique but the more and more we focus on them, the better able we are to know the focal points needed for success.

  1.  “No Compromise” attitude.

The fact is in domestic violence cases, the harder you work and the less willing you are to compromise — the luckier you’ll be.  In family assault cases the prosecution’s case tends to deteriorate when pressed.  This doesn’t mean I have to be a jerk to the prosecution — in fact, quite the opposite.  I want to be able to offer them a way out – but on my terms.  If they don’t want out, then we have to be ready to hammer them at trial.  A lawyer’s attitude in these cases is the single most important key to defending these cases.

2.  Legal (And not Emotional) Analysis of the State’s Case.

The law surrounding domestic violence and assault cases is complex and intricate.  There are enough cases analyzing the Sixth Amendment to the US Constitution’s confrontation clause to fill an entire law school course.  There are also multiple defenses to assault which might often apply in any given fact scenario – and your lawyer must also understand in what circumstances the Judge would legally be required to instruct a jury as to those defenses.

Legal analysis is critical because often we know well before the case goes to court the prosecution can’t or is unlikely to win.  This gives us the power and leverage to dictate our terms to the State.

One of the main reasons our system provides for lawyers is so we can effectively divorce our legal problems from our emotional ones.  By that, I mean these cases require a cold-dispassionate analysis.  Just because you might “feel” like you should be at fault doesn’t mean the law says this.

3.  Aggressive Factual Investigation

In spousal abuse allegations your lawyer can’t be afraid of the facts.  As discussed above, the harder we work, typically the luckier we get.  One distinct advantage a criminal defense lawyer has over the prosecution in the vast majority of cases is we typically have a better road map.  We know their side of the story in the police report and they either don’t have our side of the story (because of the 5th Amendment right to remain silent) or they know our story but tune it out because they never think they’re wrong.  In any event, I feel like we always have a more “powerful flashlight” to find the aspects of the case we know will help us win.

Also, it is key to be aggressive particularly from the outset of the case.  Perspectives and accounts tend to change in these cases.  By capturing witness’ recollections early, a lawyer can capitalize on changing stories instead of being victimized by them.

4.  Knowing the Collateral Consequences of a Domestic Violence Charge

One of the reasons I think it is important to have an attitude of “no compromise” is because family assault cases can be so damaging in ways which aren’t obvious.  We call these “collateral consequences.”  Direct consequences would be things such as possible jail sentences (up to a year in Class A Misdemeanor assault cases or up to 10 years prison for cases where impeding breath is alleged), fines, and court costs.  Collateral consequences are issues such as loss of 2nd Amendment rights to possess firearms, your ability to adopt a child in the future, inability to hide your criminal record from the public and on and on.  In truth, even misdemeanor family violence charges can act like “mini-felonies” and there are abundant tripwires.

5.  Persistence

Many of my client’s want me to waive a magic wand and have the problem go away with the snap of my fingers.  It might work like that from time to time but usually not.  One of the keys to a good outcome in a domestic violence charge is knowing we have to be prepared for a “marathon” as compared to a “sprint.”  If we get lucky sooner — so much the better.  But we have to understand the “luck” is normally a function of hard work.

*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 for 2019.

 

 


When Does a Family Assault Become Aggravated Assault with a Deadly Weapon?

April 28, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Most family assault cases come to us with similar facts.  A heated family argument happens, someone calls 911, and the police come out.  After interviewing the often angry, emotional, and sometimes intoxicated people – the police make their best guess as to who is at fault and charges are brought.

Many are shocked to see the charges or the arrest may be for “aggravated assault with a deadly weapon.”

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So what makes it aggravated assault with a deadly weapon?  Usually there is an accusation someone “used or exhibited” a “deadly weapon” in domestic or family assaults which takes them from being misdemeanor assaults to 2nd degree felony charges (Carrying 2 to 20 years in prison and/or a fine not to exceed $10,000).

Using or exhibiting has a broad definition legally as does deadly weapon.  A deadly weapon is defined as:

  1. a firearm; or
  2. anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or
  3. anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.

Even if there was no contact between spouses, if one spouse accuses another of brandishing an object which could cause serious bodily injury or death – then a person can ultimately be charged with aggravated assault with a deadly weapon.

I’ve seen all types of objects alleged to be deadly weapons.  Some are obvious and some leave you scratching your head.  Ash trays, candles, and even hands can be alleged to be deadly weapons.

The allegation can be heart-stopping – but here’s some good news:  The prosecution often sets themselves up for failure by over-charging these cases.  Imagine having jury duty, seeing someone charged with something as heinous sounding as “aggravated assault with a deadly weapon.”  Then you hear they got into an argument with their spouse and the show-stopping accusation is the accused picked up some object while arguing with their spouse and perhaps made some furtive motion which could be interpreted as a threat.  You’d think the accusation is ridiculous too.

There are variations on these facts we see — but there is almost never a good reason to capitulate to charges like these.  The charges can be attacked at the grand jury phase of the case, when it gets to the initial prosecution team — and if necessary at trial.

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