What is Entrapment?

November 18, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Entrapment is a tricky concept. It occurs when law enforcement convinces someone to commit a crime.  It gets confusing because the entrapment must go beyond merely affording someone the opportunity to commit a crime.

The law further says the enticement must be enough to persuade a normal, law abiding citizen with an ordinary resistance to committing a crime.  A good rule of thumb when thinking of entrapment is to see where the original intent of the crime originated – with police or the accused?

Entrapment is a defense to prosecution and Texas Penal Code 8.06 says:

(a) It is a defense to prosecution that the actor engaged in the conduct charged because he was induced to do so by a law enforcement agent using persuasion or other means likely to cause persons to commit the offense. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.

(b) In this section “law enforcement agent” includes personnel of the state and local law enforcement agencies as well as of the United States and any person acting in accordance with instructions from such agents.

Example of Situations Which are Entrapment:

  • A recovering addict is getting addiction treatment.  An undercover police officer meets the addict in the lobby of the counselor.  The undercover asks the addict to provide illegal drugs.  The addict refuses citing his attempt at recovery.  After repeated attempts to convince the addict, the addict gives in and attains and delivers drugs to the undercover officer.  See Sherman v. United States, 356 U.S. 369 (1958).
  • Undercover officer makes repeated attempts at having defendant provide access to drug dealers and drugs after defendant was reluctant after 12-year relationship. See Torres v. State, 980 S.W.2d 873 (Tex.App. — San Antonio, 1998).

Example of Common Situations Which Are Not Typically Entrapment

  • Person sells drugs to undercover police officer;
  • Persons who seek out and hire a hitman to kill someone;
  • Public servant who is offered a bribe and accept it.

Other Thoughts on Entrapment

Candidly – there is a strong bias against the entrapment defense by judges and juries.  Entrapment is more of an academic argument for that reason – and typically the most a court can do in a case of entrapment is give the jury an instruction they can acquit an accused on that basis.  So even if the person meets the legal pre-requisites of entrapment a jury still might not buy it.  Most people think the government conduct would have to be so outrageous as to strongly over-shadow the crime committed.

*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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Illegal Searches are More Common Than You Might Think

November 10, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

One of the best weapons in defending many cases is the exclusionary rule.  That rule prevents illegally attained evidence from being used by the prosecution during trial.  The exclusionary rule is the citizens legal protection remedy from illegal police acts.  A motion to suppress evidence is typically the vehicle for the accused to try and trigger the exclusionary rule.

During an illegal search – the police have broken the rules.  Yet the police officers aren’t charged criminally themselves and no one loses their job.  Instead – police learn how do to it correctly the next time.  This is the whole point.

“Illegal” Has a Broad Meaning

Think of the word ‘illegal’ in terms of a penalty during a football game such as ‘illegal procedure.’  The word ‘illegal’ has a much lighter connotation when we know it’s just a 5 yard penalty for a player moving the wrong direction before the snap.

Calling a search or particular police action ‘illegal’ is really no different.  As the accused, you’re merely saying there was a foul committed without regard to wether it was intentional or severe.  But the rules are the rules and everyone has to play by them.

Illegal Searches Are More Common Than You Might Think

The courts are uncomfortable with traffic stops and/or searches based on little more than hunches because those were rightly exposed as profiling. You have to remember civil rights cases from the 1960’s and 1970’s still have a large imprint on search and seizure law.   We can debate about exactly who and why police may be targeting – someone covered in tattoos, teenagers, or as history teaches us – racial minorities.  But profiling is profiling.

The law combats profiling by requiring police to have “articulable facts” to justify traffic stops and continued roadside detentions.  Articulable facts is the difference between saying someone was going 74 in a 60 and “the car was suspicious.”

It’s very common to see extremely thin and subjective reasoning for keeping someone detained at a routine traffic stop – nervousness, the time of day/ night, or even labeling the area of the stop as ‘high crime’ with little or no proof this is the case.  Courts have repeatedly said these types of justifications are akin to multiplying zeros when it comes to articulable facts.  Bad stops can be and frequently are thrown out.

Again, police know they are fighting crime and doing great things by keeping drugs, guns, and drunk drivers off the streets.  They will often push and test the rules for reasons they think are justified.

The end result may be that often they have mis-stepped.

*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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Posted by Jeremy Rosenthal, Esq.

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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Posted by niftybrady

How Do I Find Out if I Have A Warrant Out For My Arrest?

October 28, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Here is the link to search for warrants in Collin County.  Here is the link for warrants in Dallas County.  Tarrant County wants you to contact the individual municipality where the warrant originated.  Denton County also makes you contact them for warrant info.

There is a database for warrants nation-wide, but unfortunately it’s not public.  Checking for warrants can be a pain-staking process if you suspect you have a warrant for your arrest but aren’t sure.  The counties which make you call them to inquire doubtlessly do it in an effort to draw folks who have a warrant into their spider-web.  My guess is it backfires because many people are too scared to call.

The vast, vast majority of arrest warrants are for mundane purposes such as traffic tickets or probation revocations (I love my readers, but I don’t do traffic tickets – so please don’t call me for those!).  Most warrants simply sit there unless or until someone gets pulled over or has some other type of benign law enforcement contact which results in them being run for warrants.

Can Warrants Be Hidden on Purpose?

Yes.  Law enforcement can issue warrants and have them be sealed.  They might do it if there is an on-going investigation of a conspiracy they don’t want to spoil – and then they arrest everyone at once.  The FBI, DEA and other federal law enforcement agencies do this frequently.  Another reason could be they want to arrest someone in person for whatever reason.

Pocket Warrants

Police can also get an arrest warrant but not enter into the national or local databases.  We might see these in cases like sexual assault or injury to a child.

They keep it in their “pocket” in an effort to arrest and immediately interview a suspect.  Think of it this way — if they have a murder suspect and they get a warrant from a judge — if they enter it into the national database, they risk having someone from another agency arrest the suspect at 3 a.m.  This could give the suspect several hours to “lawyer up” and not participate in an interview or interrogation.  The pocket warrant allows the officer to pick the exact time, place, and manner of arrest.

What Should I Do if I Have a Warrant for My Arrest?

You have to turn yourself in.  Most people don’t like hearing this.  Warrants don’t go away on their own and it’s very rare to be able to get a warrant thrown out before arrest.  Most judges and prosecutors have policies in place they won’t even deal with you unless the warrant is taken care of first.  And here’s what I tell my clients — if they don’t take care of the warrant on their own terms, then the warrant will be executed against them at the worst possible time.  Maybe while they are on a dream date.

*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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Posted by Jeremy Rosenthal, Esq.

What is the Difference Between a Felony and a Misdemeanor?

October 23, 2020

By Criminal Defense Attorney Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

A misdemeanor is any criminal charge which carries a potential jail sentence of a year or less, and a felony is anything which has a potential jail sentence over a year.

What dictates is the punishment range – not the actual punishment itself.

Here’s an example:

  • In Texas we have a classification known as a “State Jail Felony.”  Many street drugs such as cocaine in trace or user amounts fit in this category.
  • State jail felonies carry a possible punishment between 6 months and 2 years confinement.
  • Let’s say a person is sentenced to 6 months of state jail
  • The case is a felony because the punishment range or potential punishment from the outset is over a year.
  • Even if the 6 months is probated and the person never goes to jail – the case is still a felony.

What Does it Mean if a Case is a Felony?

Felonies usually carry with them collateral consequences in addition to the potential increased jail.  States can typically restrict voting and professional licenses to felons as an example.  Many employers ask questions to candidates about felonies.  In Texas, some rights are restored to felons after they are no longer under the Court’s thumb.

The Federal Government’s View

Each state may define a felony or misdemeanor however they’d like – but the federal government in making policy on things like immigration, lending, and firearms makes it clear this is how they define the difference.  The US Constitution also has “the Supremacy Clause” which dictates federal law is superior to state law.

For this reason – the federal government labeling someone a felon can be more severe than the state doing so.  As an example, a felon in Texas is permitted to carry a firearm five years after their sentence is complete.  But because the federal government also regulates firearms and they strictly prohibit felons from owning pistols or handguns ever – the Texas law allowing a felon to possess such a weapon is somewhat meaningless.  You’re still breaking the law.

*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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