How Smart Phones Have Revolutionized Criminal Law

November 15, 2019

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Smart phones have revolutionized trial practice in the 21st Century.

How?  Because everyone old enough to be charged with a crime carries around a box of evidence with them.  The smart phone can tell who you talk to,  what messages you send to others, where you’ve been, what you’ve bought, and scariest of all — when you combine all these things — they tell others what you’re thinking.

And that’s not just you carrying around this box of evidence — it’s everyone.  I saw a commercial the other day which suggested we have more information about us in our phone than in our entire house!cell-phones-smartphones

So how do we make smart phones work for the defense?  It helps us get to the truth — which is virtually never as one-sided as the prosecution believes.  We can establish alibis, witness bias and witness motive — and that’s just the beginning.

Compulsory Process under the 6th Amendment to the U.S. Constitution allows us to subpoena records and smart phone data either directly from an adverse witness or from third-party providers such as Facebook, Instagram, or SnapChat.

In complicated trials and cases — it always makes sense to make smart phone technology one of the core foundations of an investigation.  We might know we know certain facts in a particular case — and smart or cell phone technology help us turn those facts into concrete instead of risking a swearing match.

*Jeremy Rosenthal is Board Certified by the Texas Board of Legal Specialization and is a licensed attorney in the State of Texas.

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Why Does My Lawyer Keep Continuing My Case?

November 12, 2019

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

It could be taking extra time to prepare.  It could be strategy.  It could be a red flag.

Taking Extra Time to Prepare

Your Lawyer should always obey “the carpenter’s rule.”  Measure twice, cut once.

Some cases are just harder and more complex than others.

A sexual assault at a party with 8 witnesses (each with different accounts) takes some time to prepare.  The prosecutor may be extremely dug in and there could be some complex legal issues as well.

A white-collar securities scheme with 3,400 documents to pour through can be tough too.  Federal drug conspiracies where the lawyer gets a few hundred hours of wire-tap phone calls obviously take a while too.

These are all really valid reasons for delay.

Delay for Strategy

I’ve delayed cases for strategical reasons.  It could be because my client has other pending legal matters which I’d like to get resolved first.  It might be because I’m trying to expunge records in one county and I have to do so before my client’s case goes to trial in another county.  A lawyer could even have a case delayed so their client can stay in the local jail with air conditioning during the summer knowing when the case was over they still had to go back to their prison unit without AC (I’m not saying I’ve done this and I’m not saying I haven’t, either!)

Sometimes it’s the Prosecution’s Fault

Sometimes the State isn’t ready.  They need to do more investigation and/or preparation for their case to go to trial as well and the Judge allows them leeway the same way they allow us leeway.  Lab testing blood in DWI cases and drugs can take months and months.  It’s the speed of government.

When are Repeated Continuances a Red Flag?

Every case is it’s own snowflake.  That said, if you have a relatively common  case such as a DWI, assault, or drug charge and your lawyer is delaying, delaying, and delaying and the reasons don’t make sense — it could be something to become concerned about.

DWI, assault, drug and theft charges are extremely common and we handle lots of them.  We know what we’re looking for to defend the cases and we’re quick to find and ferret-out the important issues.  There are very few legal issues in Driving While Intoxicated cases, for instance, we haven’t seen before or know exactly where to look for the answer.

Many lawyers are simply over-worked.  They use time poorly and “borrow from peter to pay paul” with their time.  They are used to putting out the hottest fire every day — and when that case isn’t your case — you get to wait.  Also many lawyers can get “paralysis by analysis.”  That is they just can’t make a decision and they use delay because they can’t figure things out.

Bottom Line

I should add many clients are okay with a slow pace in which case we accommodate this.  It makes me think of when I was waiting for my bar results.  I had a great time not knowing one way or another for 3 months.  I just don’t like going to court and not accomplishing anything.  I do see lawyers who just pass, and pass, and pass their cases over and over and I don’t get it.  The courts do push lawyers to get cases through… but rarely should it get to that point.

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

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Posted by niftybrady

Complete Texas Law Guide to CBD, Marijuana & THC

October 10, 2019

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Screen Shot 2020-05-15 at 8.21.14 AM

Let’s start with the easy stuff:

CBD Products : (Cannabidiol) are now legal in Texas as long as it contains no more than 0.3% THC (dry weight).  The Governor signed a bill into law effective September 1, 2019 legalizing CBD.

Medical Marijuana:  Legal if you have been diagnosed with parkinson’s, multiple sclerosis (MS), ALS, terminal cancer, and several seizure disorders AND you have a prescription for it.  Also, it cannot be smoked but must be consumed in an oil or inhaler form.

Marijuana:  Still illegal — but here’s all the hubbub:

For Legal Novices: In court the state must prove what is called the “Corpus Delicti” of every crime (Corpus Delicti is latin for ‘body of the crime’).  That means they have to prove a crime was actually committed.  In a murder case – it means they need to prove someone actually died — in a drug case it means someone actually possessed something illegal.  Remember the Dallas fake drug scandal?  It was a big stink because it’s just not a crime to possess sheet rock or gypsum even if you think it’s cocaine, anthrax or weapons grade plutonium.

The new CBD law makes it extremely difficult for law enforcement to know or prove whether the marijuana they arrest someone for has a concentration of 0.3% THC or not.

But Remember:  (1) possession of marijuana is still a crime.  Just because enforcement is difficult and/or problematic for the State doesn’t make it legal; and more importantly (2) This problem is temporary for two reasons —  First, the State may hone-in on an efficient testing system; and second — it’s a good bet the legislature will try to fix this loophole in 2021 which may be in time to meet the statute of limitations for an arrest made in 2019.

For the Legally Advanced:  This has created a nightmare in determining probable cause and reasonable suspicion to search a vehicle, seize evidence, and make an arrest.

For a police officer to search a vehicle they must have probable cause they will find evidence of an offense committed in their presence.  The odor of burned marijuana has very commonly been a staple of instant probable cause.  But here’s the question now: since the odor of burned marijuana isn’t necessarily indicative of a criminal offense (because someone could smoke cannabis without the active THC ingredient — or an ingredient of less than 0.3%) then does that vitiate the probable cause as well?

Assuming the odor of burned marijuana no longer supports probable cause (and that is a big assumption) then a search based on the odor of burned marijuana would be illegal and subject to the exclusionary rule.  The exclusionary rule prevents evidence from an illegal search from being used against you in court — aka “fruit of the poisonous tree.”  In other words, you win.

Stay tuned!

*Jeremy Rosenthal is Certified in Criminal Law by the Texas Board of Legal Specialization.  Nothing contained in this article should be considered legal advice.  For legal advice about any situation you should contact an attorney directly.

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10 Principles of Defending People: #1 Put Yourself in Your Client’s Shoes (But Only for a Moment)

June 9, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

Over the past few weeks, I’ve been writing about what I think the top principles are when defending a person in the criminal justice system.

Here are no’s 2 – 10 to recap:

#1 Put Yourself in Your Client’s Shoes

There is much overlap in the principles I’ve suggested in this series.  You can make the argument this principle is really a combination of many of the other principles.

I must always remind myself my client and/or the people who love them often feel:

  • Scared
  • Confused
  • Angry
  • Uncertain
  • Embarrassed
  • Ashamed
  • Singled-Out
  • Hopeless
  • Worried
  • Anxious
  • Alone
  • Different
  • Abused

And even then I’m sure I’m over-simplifying what they must often be going through.  Criminal litigation is bet-the-farm type stuff.  People can lose their freedom and/or livelihood.

Lawyers have to appreciate just how important they are to their client and how much power they have in their client’s matters.  Just having an anxious client see my phone number pop up on their caller ID will ruin some people’s day even if I’m just asking a quick question or giving a small update.

Sometimes the simplicity of the golden rule is directly on target.  How would I, Jeremy Rosenthal, want someone handing the most important matter I could have in my entire life or even decade to conduct themselves?  Prepared… yes.  Organized… yes.  Knowledgable… yes.  Experienced… yes.  And on, and on and on.

Why wouldn’t I do my best to try and be the same way for another human who is experiencing many, if not all, of the emotions discussed above?

But Wait a Second…

There is an extremely important distinction.  I am not my client.

I am often asked by clients or their loved ones, “what would I do if I were in their situation.”  My answer is canned — but true:  “I’m not in your situation.”

I tell them I don’t know what keeps them up at night.  I don’t know what they want to be doing with their life in 10 years.  I don’t know if their great aunt Lucielle would spin in her grave if she knew they didn’t fight charges like the ones they’re facing.

The hard balance for any lawyer is putting themselves in their clients shoes and feeling the gravity of the situation — but remaining the detached expert who can give objective advice.  If I suffered from all of the emotional landmines I outlined above there is no way I could do my job.  I just have to remember they are always there.

Some lawyers do too good of a job putting themselves in their client’s shoes.  They stay there.  It can be problematic because the lawyer gets so wrapped up in the client’s problem — it becomes the lawyer’s problem too.  The lawyer loses objectivity, is less objective in their evaluations, arguments, and representation.

Lawyers need to put themselves in their client’s shoes… at least for a little while.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas.

 

Leave a Comment » | Appeals, Cannabis, Drugs, DWI, Homicide, Uncategorized | Permalink
Posted by Jeremy Rosenthal, Esq.

10 Principles of Defending People: #9 Be Organized

May 31, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

I’m writing a series of blogs describing what I think it takes to be an effective criminal defense lawyer.  Yesterday, I wrote about not being judgmental – a cornerstone of the mindset of a defense lawyer.

Today, I’m writing about another concept:

#9 Be Organized

I have two favorite quotes which go hand in hand about how I like to think I approach my work.

The first quote is, “the harder I work, the luckier I get” from Samual Goldwyn, a producer who founded MGM.  The second is from Jim Turner, a player on the Denver Broncos after they lost the Super Bowl in 1977 to the Dallas Cowboys… he said, “We were thinking about being the Super Bowl Champs and they were thinking about football.”

Many lawyers “think about being Super Bowl Champs” but they don’t mind the details or put in the sweat-equity it takes to win.  They confuse thinking about winning with the work it actually takes to win.

Every case is its own snowflake and some can be extremely complex.  It can be easy to get lost.  The more I practice, the more I appreciate the reality lawyers need a compass to navigate each case which makes sure every detail is addressed.

A good defense lawyer in my view needs a systematic way of approaching each case.  Do you think they make things up as the go along in an operating room?  Do you think a pilot with 323 souls on their commercial jetliner just treats their flight like a drive to the 7-11?  Do you think when NASA is about to launch humans into space with a $1.3 billion dollar project they just wing it?

No way!  They have checklist after checklist.  They have redundant failsafe measures designed to minimize their margin of error.  Why would we be any different when we are charged with protecting our clients lives?

Television and movies teach us bad lessons.  They teach us there are some lawyers can just walk into a courtroom and leave the jury in tears when they just got the case two commercial breaks ago.  I know some pretty darn talented lawyers.  But I don’t know anyone quite that amazing.

The rest of us need to be organized!

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas.

Leave a Comment » | Divorce related crimes, Drugs, DWI, Emergency Protective Orders, Interference with child custody, sex crimes, White Collar Crime | Permalink
Posted by Jeremy Rosenthal, Esq.

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