The Greatest Misconception About Criminal Law

May 2, 2018

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

We hear and read a lot about “activist judges” or a Judge who re-writes the law from the bench.

Judges make popular targets for groups such as politicians or insurance companies who have a vested interest in stoking the public anger.  

A surprising attitude I’ll read about or see either in the news media or on social network cites is some think Judges make things easier for people charged with crime.  They think Judges somehow “re-write the law” to help guilty people go free or to make things easier for people charged with a crime.

Sadly, if anything is true, it is the opposite.  Judges don’t like crime, they don’t like criminals, and most in Texas campaign on being tough on crime.  And if they’re being creative with the law — they are doing so IN FAVOR of law enforcement, not in favor those accused.

Consider statistics of our State courts of appeal.  They are abysmal when it comes to ruling in favor of those accused.  

Here’s a prime example: A judge who has to legally toss out a case against a sex offender lest they be reversed might look for any excuse they can to save their own skin and keep the offender on the hook.  If they do so, they’ll look to an area on which they think the court of appeals will uphold them.  If the courts of appeals back up the original judge — presto chango- Judges have found a new area to skirt an uncomfortable rule.

We have many wonderful Judges in Texas.  I’m not suggesting otherwise.  And to be fair — the laws often do put judges in extremely uncomfortable spots.  

The US Constitution is a contract between the government and the people designed to protect the people from the government.  It was written keeping in mind the masses will always put individuals in jeopardy to preserve their own safety — and that they’ll use the tools of government to do so. 

The framers knew there would be constant pressure from the people on their own government to keep the people safe even at the risk of individual’s liberty.  But the constitution is often a minimal or bare-bones protection for someone accused of something heinous.  Lawmakers, Judges, and law enforcement all too often rationalize these individuals are lucky to get even minimal protection.  But those are exactly the people who need it the most.

Next time you hear someone say a Judge re-write’s the law from the bench, think twice.  If they say it is re-written to help a criminal defendant — quit listening.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas.  Nothing in this article is intended to be legal advice.  For legal advice about any topic you should contact an attorney directly.


Are Police Going through an Investigation or Just the Arrest Process?

March 12, 2018

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

The dictionary defines “investigate” as, “To carry out a systematic or formal inquiry to discover and examine the facts of (an incident, allegation, etc.) so as to establish the truth.”

Truth, then, is the focus of an investigation.

But virtually always we see the focus of an investigation is a person — not necessarily the truth.  The assumption made by law enforcement is the person who is the focus of the investigation and the truth are one and the same thing.  In other words, many, many “investigations” are flawed from the start.  The result of the investigation is only correct where the assumption is also correct.

And it is further true when you ASSUME you make an ASS of U and ME.

I can’t tell you how many times I’ve seen an “investigation” start with a detective or police officer reaching their conclusion first.  They call a tow truck to haul off someone’s car for DWI before they even ask the driver out of the car.  They offer a complaining witness victim assistance information, sympathy, and promises of action after just moments of hearing one side.  They promise action to someone who lost their savings when they come in blaming someone else for their loss.

Wouldn’t it be more appropriate to call those police actions “the arrest process?” instead of an investigation?  It is often clear the police aren’t interested in the truth — instead they are interested in arresting the person they think is guilty from the outset.  They just know in their heart the truth without researching any of the facts.  What could go wrong doing it that way?

The arrest process looks more like a geometric proof than a search for the truth.  The police are checking to see if there is enough evidence for each and every element and if there is — then bang — case closed and the bad guy is handcuffed.  The problems is many of the facts are rose-colored to the investigator and the standard for probable cause is low.  Instead of putting pieces of a puzzle neatly together, the oddly-shaped pieces are jammed together to make the image already in the officer’s head.

The arrest process might be just fine in certain instances.  I’m sure it often yields fair results. But let’s just not call them what they’re not — investigations focused on the truth.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about this or any topic you should consult an attorney directly.

 


Will I Be Sentenced to Jail Now That I’m Accused of DWI, Theft, Domestic Abuse, Drug Possession…. or Any Crime for that Matter?

February 8, 2018

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

This is probably the no. 1 question on the minds of many who come into my office.  It’s a completely normal question I’d and probably worry about you if you didn’t care.

Obviously I can’t say yes or no unless I hear whats going on first.

Even then I can’t make promises though I can tell someone they’ve got a better chance of winning the lottery or getting struck by lightning than going back to jail after an initial arrest.

By the time most people are pondering this question it is as if a grenade has exploded in their living room.  They or a loved one have gone through an ordeal they never imagined they’d face — going to jail then getting released on bond.

Then you or your loved ones read about sentence ranges for the particular charge and it’s hard not to fixate on the high number at the end of the punishment range to the exclusion of everything else.  It is completely normal to have high anxiety wondering about the end result of the case and not knowing anything about the criminal justice system doesn’t help.

Here’s What I Can Say

The vast majority of people I help worry far too much about something totally unrealistic.  They exaggerate their chances of going to back to jail in their own mind. Totally normal.

Law enforcement trends in most populated cities and suburbs in Texas are to lower inmate population.  People with little or no criminal history simply don’t jam the jails on misdemeanor or low-grade felony offenses these days.  Major emphasis is being placed on identifying other ways to address issues such as mental illness, addiction and even anger issues or conflict resolution other than jail.

And by the way… I’m going to work my hardest to acquit someone or get their case dismissed before we even get to jail questions!

The greatest chance for jail in someone’s future for someone coming into my office on most cases is violating terms and conditions of bond or probation.  In other words, they may go back to jail if they use illegal substances, miss court, or drink alcohol when ordered not to do so while waiting for their case to be resolved or after they’ve been put on probation.

The good news here is the person is still in control of whether or not they face future incarceration.  More good news is when people do go to jail on bond or probation violations — the time in jail is measured in days or weeks and not months or years.

I end up telling many people it is unrealistic to worry about future jail.  I don’t mind repeating it 35 times if that is what it takes to take away the feeling a house has landed on you!

Normally my greatest concern is not future jail — it’s keeping your job and keeping your criminal history as clean as possible.  This is a more realistic fear in many, many cases we handle.

When Jail is a Worry

There are times to worry about a jail sentence and not every place in Texas is the same.  Each case is its own snowflake so trends I’ve discussed above may or may not apply to your situation.

The more severe the charge — the more likely it is we can’t safely rule future incarceration out.  Even then we rarely realistically discuss worst-case scenarios.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice you should see an attorney directly.

 

 

 


Divorce and Child Custody Related Criminal Accusations

March 11, 2015

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Divorce brings out the worst in people.  Bitter feelings are fueled by a combination of resentment, betrayal, and/or basic loss of control over what might perceived to be the health and safety of children.

Ex or soon to be ex-spouses are much more brazen about making accusations than most every-day people for a variety of reasons — not the least of which is the fact an ex-spouse also coincidentally has much to gain by making (and following through on) accusations.

Here are some of the most common criminal accusations which tend to stem from divorce and/or custody disputes:

  • Assault
  • Criminal trespass
  • Interference with Child Custody
  • Aggravated Sexual Assault of a Child
  • Indecency with a Child
  • Injury to a Child
  • Terroristic Threat
  • Unauthorized Computer Access

Most people think of criminal charges and accusations as so far fetched that someone would only make such a claim against another if there were at least some degree of truth to the claim.  Accusers going through a divorce or custody dispute, though, have their view of the facts soured by their own emotions, agenda, and self-interested perspective.  Unfortunately accusers can also manipulate or poison their own children’s perspective in these types of cases too.

Law enforcement’s view of these types of claims also varies.  Sometimes an accuser finds a receptive audience who might not understand or is deaf to the dynamic of the underlying divorce or custody proceedings.  Often law enforcement is “stuck” in the middle because while they know claims are being fueled by self-interest — they simply must follow up on certain types of allegations as part of their public duties.

Examining and defending any of these charges means examining the details of the divorce or custody proceedings which are related.  Defense lawyers must show prosecutors, judges and jurors the context of the allegations and what other interested people have to gain by making such allegations.  This can only be done through detailed investigation of all the surrounding facts and circumstances.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any situation you should contact an attorney directly.  Communications through this blog are not confidential.


Interference With Child Custody

July 18, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

As most people know, divorces may unfortunately turn very nasty. On occasion there are collateral criminal problems which can arise from a party’s conduct either prior to or after the court makes custody determinations for the children. While the blame may often seem trumped-up or baseless — being accused of interference with child custody is as serious as a heart attack because it’s a felony accusation in Texas. Also –as with any criminal prosecution –it is important to remember that the charges are no longer between you and your divorcing spouse; it’s between you and the State of Texas.

Texas Penal Code Section 25.03 is titled “Interference With Child Custody,” and that section reads accordingly:

(a) A person commits an offense if the person takes or retains a child younger than 18 years when the person:

(1) knows that the person’s taking or retention violates the express terms of a judgment or order, including a temporary order, of a court disposing of the child’s custody; or

(2) has not been awarded custody of the child by a court of competent jurisdiction, knows that a suit for divorce or a civil suit or application for habeas corpus to dispose of the child’s custody has been filed, and takes the child out of the geographic area of the counties composing the judicial district if the court is a district court or the county if the court is a statutory county court, without the permission of the court and with the intent to deprive the court of authority over the child.

(b) A noncustodial parent commits an offense if, with the intent to interfere with the lawful custody of a child younger than 18 years, the noncustodial parent knowingly entices or persuades the child to leave the custody of the custodial parent, guardian, or person standing in the stead of the custodial parent or guardian of the child.

(c) It is a defense to prosecution under Subsection (a)(2) that the actor returned the child to the geographic area of the counties composing the judicial district if the court is a district court or the county if the court is a statutory county court, within three days after the date of the commission of the offense.

(d) An offense under this section is a state jail felony.

The legal and factual scenarios and defenses are seemingly endless. Take, just as one example, a case prosecuted under 25.03(a)(1)… A prosecution under that section would probably include a complete order from the Divorce Judge which may or may not be written clearly enough to provide a party with sufficient guidance as to what is or is not permitted for times of custody (at least in the context of criminal liability.)

Also, Section (C) provides what is known as a “safe harbor,” where the offense was committed under 25.03(a)(2)… Which is to say that if the violating person returns the child within 3 days to the area or county controlled by the Court they have a defense to prosecution. This is to facilitate the return of children and to a lesser degree (I suspect) because the criminal justice system has a some biases against getting involved in the micromanagement of custody disputes and orders.

If you are being accused of interference with a child custody order, you should involve competent and qualified criminal representation at once. It’s not something to fool with.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For legal advice about any specific situation you should consult an attorney directly.