What is Mitigation?

November 8, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

“Mitigation” means making something less severe, serious, or painful.  In criminal law it refers to learning, seeking and providing facts which reduce someone’s potential punishment.

Mitigation is Important in Every Single Case

A big misunderstanding is mitigation and trying to get an acquittal are mutually exclusive – they are not.  People think you somehow admit guilt if you try to take mitigation steps after an arrest such as seeing a mental health professional or entering drug and alcohol treatment.

You can still fight for innocence at the same time you try to explain or lessen the harshness of the possible punishment coming towards defendant.  In fact, we are legally bound to do so and it can constitute ineffective assistance of counsel to ignore mitigation.

A solid mitigation case actually strengthens our ability to fight for an acquittal.  This is because we are less concerned about severe punishment in the event a jury disagrees with us and finds the defendant guilty despite our best efforts.

Mitigation Which Looks Backwards

Mitigation can help explain why the Defendant is in the predicament they are in.  Examples of backward looking mitigation to explain or give context to someone’s actions often include:

  • Mental health or psychological disorders
    • anxiety
    • ADHD
    • Depression
    • Bi-Polar Disorder
    • Psychosis
    • Manic episodes
  • Past sexual abuse of the accused;
  • Past physical abuse of the accused;
  • Past or childhood emotional abuse of the accused;
  • Addiction and history of addiction of the accused.

When Someone Has a Great History

Another form of backwards mitigation is potentially where an accused has never been in trouble at all.  Certainly someone who has been straight as an arrow their entire lives do deserve some credit and lenience in many cases.  The same goes for people who really have their act together and are – for example – in school making straight A’s and helping build houses for homeless people on the weekends.

Mitigation which Looks Forward

Any mitigation must have a forward path to be effective.  Explaining to the judge or jury an accused has been able to explain or identify why they have a particular problem is great.  It lets the jury know the accused isn’t an evil person.  But without a path forward to correct things – a judge or jury might feel they need to incarcerate the person to protect society in the future.

Forward mitigation could include steps taken by the accused after the arrest.  Examples are endless of the types of steps which can be taken to hopefully re-assure folks criminal behavior won’t repeat itself with the accused.  Examples might be;

  • Drug and alcohol treatment
  • psychological treatment
  • Sex offender therapy or treatment
  • Rage or anger management treatment.

Examples of Mitigation in Criminal Cases

  • A classic and easy to understand example are Driving While Intoxicated cases.  I explain to clients everyone at the courthouse including prosecutors, judges and probation officers think (1) someone arrested for DWI is not only guilty – but they’ve probably gotten away with it 100 times we don’t know about; and (2) all people arrested for drunk driving are alcoholics.  Those assumptions may be completely fair or unfair – but those are the attitudes we will have to over-come in a case whether we like it or not.

If we can convince the courthouse types not only did the defendant get screwed by being arrested in the first place – but also he’s perfectly fine to drive – it only strengthen’s our overall hand.

Bottom Line on Both Forward and Backward Mitigation

A criminal defense lawyer cannot assume they are just going to win every case no matter how confident we are we will ultimately win.  The Courts have held repeatedly to ignore mitigation is ineffective assistance of counsel.  Mitigation also helps us strengthen our hand and ability to fight the case on multiple fronts – not just sympathy or correcting certain behavior.

*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.

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Podcast: Family Law Talk with Lawyer Brook Fulks

November 3, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

On my weekly podcast which I’m calling, “The Lawyer Show,” we had a good talk about family law and divorce cases a few weeks ago with a good friend of mine and an excellent lawyer Brook Fulks.  We talk a lot about the intersection of family law and criminal law as our cases do over-lap in domestic violence issues and issues about sexual and child abuse.

I hope you find the discussion interesting!

 

*Jeremy Rosenthal is board 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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Netflix American Murder: The Family Next Door and 21st Century Courtroom Storytelling

October 24, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

What a horrific, tragic, and deranged murder!

Trying to compartmentalize and separate the legal aspects of Netflix “American Murder: The Family Next Door” from the human aspects is difficult to do – but it’s exactly what we do as criminal defense lawyers.

I’m writing because I’m very impressed with how Netflix was able to tell the story through all the text messages, home and police videos, and social media.  It’s really a view into what 21st century crime investigation and courtroom story telling can look like.

This story in particular is nothing short of soul-crushing and everyone is happy Shannan Watts, her children and her family got the justice they deserved and Chris Watts is behind bars for the rest of his life.  But 21st century evidence such as cell phone texts, videos, social media including police advances in body-camera evidence are revolutionary ways to prove innocence too.

How Netflix Told the Story

I was fascinated by how Netflix was able to tell the story – not through talking heads or narration – but just by showing us the text messages, then showing us police body-cam videos, sprinkling in home movies, showing us social media posts and comments, and on and on.  Isn’t it amazing how our technology and ways of communicating can tell our stories this way?

Cell Phone Evidence

I lecture on the topic of cell phone evidence in the courtroom and have written about it as well.  It’s not nearly as easy to do as Netflix made it look.  We were able to see victim Shannan Watts’ texts to her family and friends as well as to Chris.

Notably absent in my mind were Chris’ texts to anyone other than Shannan — and this tells me they weren’t able to get into his phone.

Police Body-Cam Evidence

I can’t understate what an amazing, wonderful tool police body-cameras are.  In the American Murder: The Family Next Door, we got to see Chris Watts’ charade with our own eyes when the police initially came over to his house to locate Shannan the day after the killing.  We got to see Chris Watts face, demeanor, and mannerisms — the smallest details.

In the past – we’d have gotten a police officer’s recollection from the witness stand and potentially some of the other people there too.  Their testimony would be almost always be shaded and slanted for no other reasons they are humans with a particular perspective.  If this case had turned into a trial – they’d have had to have testified anyway… but the point I’m trying to make is the body-cameras cut through all of that.  We see what we see.

The law has often pushed police towards recording interviews and statements.  Texas has a statute (Tex.Code.Crim.P. 38.22) which requires custodial interrogations to be recorded.  It protects both the police and the accused from an unfair spinning or characterization of how the interview actually went.

Unfortunately, in the past it has been a law enforcement tactic for a police officer to “forget” their recording device before an interview – so they can spin the interview how they’d like in court later.  Police agencies who require bod-cams basically put an end to it.

And as a side note – sometimes the police forget to turn off the body cameras and we get to see the water-cooler talk about the case and we hear weaknesses about the cases we’d never hear in a courtroom from the police.

Social Media Evidence

It’s difficult to know what, if any, artistic license Netflix took in this arena.  They presented several home videos as if they were social media posts.  Perhaps they were and perhaps that was just how they presented them. What they did use was effective in telling the story.

Legally this would be far more complicated to use in a courtroom than in a documentary.  There are issues with what we call “authentication” and it could involve having to deal directly with social media mega-giants who often treat both prosecutors and defense lawyers like fleas they shake off when they get annoyed with us.

Police Interviews and Polygraph

This was the part of the Chris Watts story which is more old-school and presented nothing new. Bringing in a suspect for a polygraph is a very common investigative tactic.  The polygraph itself is inadmissible in court and as lawyers we’re always very leery of who is conducting the polygraph… because they’re all based on the questions and the questions can be slanted in certain directions.

When Police do a polygraph they almost always want to do a follow-up interview.  They think the person will fail the polygraph, and just like a linebacker wants to crush the quarterback after the ball is snapped — the police want to get a confession right after someone takes the polygraph (even if the results are inconclusive or if they accuse the person of using “countermeasures” or trying to game the test).

It worked for the police like a charm against Chris Watts.  They even used  the age old, “are you a monster or just some guy who made a mistake” line on him — which is a question we hear all the time in cases like sexual assault, child abuse, or domestic violence.  If the suspect chooses, “I just made a mistake” then the police have their confession.

The police also pretended to know more about Chris’ life than they actually knew at the time.  I don’t recall anything they’d seen at the time of his interview which suggested they would know he was having an affair – but when he admitted to it, they represented to him they knew this all along.  It’s a part of the Reid method of interrogation (that’s another topic).

Overall I found the show — again horrific and tragic — yet fascinating from a lawyer’s perspective.  The Chris Watts murder may be a high-budget and high profile outlier in how the story was able to be told… but during the 21st century, I’m pretty certain we’ll be using text messages, home videos and police body-cams to tell much more complete stories for other types of cases too.

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

 

 

 

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Will I Be Arrested if I Shoot an Intruder?

October 22, 2020

By Texas Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Texas law allows you to use “deadly force” in certain circumstances to defend yourself.  One of those circumstances is when an intruder has forcefully and unlawfully entered your home.

Will you be arrested?  Perhaps, but the law may let you out of it if you qualify.

 

What is Deadly Force?

“Deadly force” means force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury.  Tex.Pen.C. 9.01(3).

When Can I Use Deadly Force to Protect My Home?

Tex.Pen.C. 9.32 discusses the defense of use of deadly force and in relevant part says this:

(a) A person is justified in using deadly force against another:

(1) if the actor would be justified in using force against the other under Section 9.31; and

(2) when and to the degree the actor reasonably believes the deadly force is immediately necessary:

….(B) to prevent the other’s imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

(b) The actor’s belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor:

(1) knew or had reason to believe that the person against whom the deadly force was used:

(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor’s occupied habitation, vehicle, or place of business or employment;

(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor’s habitation, vehicle, or place of business or employment; or

(C) was committing or attempting to commit an offense described by Subsection (a)(2)(B);

(2) did not provoke the person against whom the force was used; and

(c) A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section.

(d) For purposes of Subsection (a)(2), in determining whether an actor described by Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may not consider whether the actor failed to retreat.

The Statute Translated and Broken Down

In English – if you are in your habitation, vehicle, or place of business AND someone has not only unlawfully entered but did so by using force AND you have done nothing to provoke the person AND you yourself are not committing a crime – then if you shoot the person, you have self defense available to you.  Additionally, you do not have the duty to retreat.

What Does it Mean My Actions are “Presumed to be Reasonable”

Remember – the law could very well go to a jury in any legal case.  The jury decides whether what a person did to defend their home was reasonable.  This law assists them and ‘nudges’ them to tell them it was reasonable.  It also encourages police and prosecutors not to arrest or go forward where cases where this applies.

Why Does the Intruder Have to Use Force to Break In for Me to Be Able to Shoot Him?

This prohibits situations where someone is invited over, an argument ensues, and then the person doesn’t leave despite being told to do so.  In that instance, the person’s entry into the home would be unlawful yet not forceful.

What Does it Mean I Can’t Be Committing a Crime?

This is a confusing part of the statute.  Remember, this law is designed to protect the homeowner who wakes up at 3 in the morning to find a burglar in their home or who comes home for lunch to find their door kicked in and someone rummaging through their possessions.

The law isn’t designed to protect someone running a drug house or prostitution ring.  Also, the law had to have a touch of flex too because it covers car-jacking situations – and not bar fights which turn into fights in a car.

But if you Recklessly Shoot a Third Person…

If you use deadly force and in doing so harm or kill a different – innocent – person, then the self defense protections are unavailable to you.

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

 

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Mental Illness & Criminal Law: Understanding the Problem

October 15, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

It’s hard to over-state the importance the role mental illness plays in criminal law.  There’s little question in my mind it’s far more prevalent people give it credit for.

A recent survey to Texas criminal defense lawyers asked, “What percentage of your clients suffer from some degree of mental illness in your view?” — and the most common answer was between 50% and 75%.

 

What is Mental Illness?

I find many folks – including my clients and their families – struggle with understanding the very concept of having emotional or behavioral problems.

My view is just about everyone wakes up in the morning wanting to be a law abiding citizen.  But many people are driven so far out of their normal range they get in trouble because of things like anxiety, depression, manic states, and on and on.  This is how I define mental illness.

The term “mentally ill” has a much harsher and deeper connotation than what it really means to me.  Many think it only applies to people who hear voices in their heads, talk to themselves, or who must be confined to a straight jacket in a padded room.  In reality, someone going through a really rough patch in their lives can be driven so far by everything going on in their mind – they can often do or say something which hurts another person or gets themselves in a situation they otherwise know is wrong.

Jail

I ask juries what they think of our national mental health system.  They get puzzled – because they can’t really think of what that is.  Then I point out to them the tragic truth — our mental health system is called “jail.”

Jail and mental illness are frequently on a collision course.  We often don’t know someone has cancer until they exhibit physical symptoms.  We often don’t know someone has the flu until they have a fever.  And we often don’t know how much someone is struggling inside until they get into trouble.  It could be assault, theft, drugs, trespassing — the scenarios are endless — but there are very few criminal cases where mental illness doesn’t play a role.

The Enemy of Treatment – the “Tough on Crime” Mindset

Texas is tough on crime.  Many here unfortunately feed into the cops vs. robbers, good guys vs. bad guys dialogue.  Many believe if crime rates are high – we just need to be meaner to people and things will be fine.  Fortunately these voices are fewer and fewer.

Police deal with tons of mental illness on the streets.  Their aim is generally short-term safety for everyone and not necessarily long term treatment.  They also often don’t have the choice but to take someone to jail who has either committed a crime or who poses a danger to others.

I find prosecutors have a tougher time understanding mental illness because they’re somewhat insulated from it.  They talk with the shop-owner who is having a hard time making ends meet but it’s the defense lawyer who deals to the shoplifter describe the sheer degree of anxiety which drove them to do something they knew was wrong as a simple example.

Getting People Help

The million-dollar question is how do we get help to those who need it. That’s an equally difficult problem.  Understanding the problem is the start.

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

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