What is a Magistrate’s Order for Emergency Protection?

November 18, 2019

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

These are known as Emergency Protective Orders or EPOs.  They can be extremely disruptive, costly, and exacerbate emotional distress of the entire family on top of the havoc a domestic violence arrest already inflicts.

Texas law allows a police officer making an arrest to ask a magistrate judge for an EPO.  The officer does not need the consent of anyone else including the complaining witness to seek the Order.

Violation of the Order can be a serious misdemeanor as well.  Each Emergency Protective Order is different from the next.  Don’t assume an EPO prohibits or doesn’t prohibit certain activities.

Most of these orders require the accused to stay a certain distance away from the alleged victim and other family members.  They also often prohibit either direct or indirect communication.

Direct communication is typically construed as phone calls, text messages or communications on social media.  Indirect communication is typically where the Defendant has a friend — often a mutual friend – make contact with the complaining witness.  Both are normally violations.

The length of the EPO can vary but for most assault cases in Collin County they may last either 91 or 61 days.

An EPO Can Be Destructive

Following an Emergency Protective Orders can require a person live in a hotel or other temporary accommodations because they are prohibited from going to their residence.  Two months in a hotel means two months of paying double for housing.  Further, where a couple has children, one parent — usually the complaining witness — is saddled with 100% of the childcare for that time as well.  While the goal is to allow a couple time away to that emotions and physical conflict cool it can have the effect of throwing a family further in chaos.

How do I Get My Stuff?

EPOs create immediate logistical headaches.  If you can’t call your spouse or can’t communicate with them through a friend — then how are you supposed to get your clothes, work laptop, or medications?

Most Protective Orders provide for some type of safe harbor within the first 24 hours to get these things arranged.  Read the fine print carefully.  You may be allowed to have a friend or representative get whatever you need quickly.

What to Be Careful about with Emergency Protective Orders

Always make sure you read the details carefully — and if you have any questions at all about the specific provisions of your EPO be sure to ask a lawyer.

Communicating with the protected person while under an EPO can lead to lots of problems.  Frequently it is the victim reaching out to the Defendant — but no matter — the Defendant still commits an offense by engaging in that communication.

What Can A Lawyer Do?

A Lawyer Can Communicate Directly with the Alleged Victim

I’ve yet to see a protective order without language exempting the lawyer from the communication prohibition.  This is because lawyers have legal and ethical duties to investigate their case.  Don’t expect your lawyer to be an on-going courier or go-between, however, your lawyer can assist in coordinating necessary issues in addition to planning towards long-term goals of your case.

A Lawyer Can Help Get the Order Modified

Most judges will modify a protective order so long as everyone is in agreement — usually both spouses or both persons involved in the altercation.  The magistrate may drag their feet or do it slowly so as to allow the parties a colling down period but most magistrates don’t wish to impose the additional hardship an EPO can cause.

 

*Jeremy Rosenthal is Board Certified in Criminal Law and is licensed to practice in the State of Texas.

 


Why Does My Lawyer Keep Continuing My Case?

November 12, 2019

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.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.

 

 

 


10 Principles of Defending People: (#5 All Eyes are Equal & #4 Know the Enemy)

June 6, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

I’m going over to me what are the top ten principles of defending people.  To recap the list so far:

#5 All Eyes are Equal:

People don’t trust themselves or their own judgment for some reason.  Lawyers included.

Maverick trusted himself.  He hit the brakes and the MIG flew right by.  He had cunning, creativity, and self-assurance to know the maneuver would work.  The fact it hadn’t been done before didn’t bother him.

What I like about Maverick is he didn’t ask anyone’s permission.  He just trusted himself and to a lesser degree wasn’t afraid to fail.  I’m a pretty far cry from Maverick, but I hope I think like he might every now and again.

When I say all eyes are equal what I mean is if a trial theory makes sense to me then chances are it makes sense to the jurors too.  If I think the police and prosecutors are reaching then I ask myself why?  Maybe they’ve been suckered by a doe-eyed accuser in a sexual assault case…  Maybe they’re blinded by my client’s appearance or problems they’ve had in the past… or maybe they’re so trapped in their own narrative, they can’t see they’re in an echo chamber as in some domestic violence cases.

Too often, lawyers will settle into a conventional defense.  They are afraid to think outside of the box.  But by thinking inside the box, they turn themselves into fish in a barrel waiting to be speared.  Remember all eyes — including the lawyers own — are equal.  The big picture makes sense.

Don’t be afraid to tell the jury about the big picture.  Don’t be afraid of hitting the brakes so the MIG can fly right by.

#4 Know the Enemy: 

The key to knowing your opponent in my book is experience, experience, experience.

I remember how I thought as a prosecutor.  It helps me today.  I was advocating for the opposite position which is something lawyers do.  I remember my thought process in trying to prove-up a case.  I remember my areas of emphasis to the jury, the assumptions I’d make in each case, and the points of emphasis to the jurors.  I also remember how effective defense lawyers would attack my case.

Defending cases are wonderful learning experiences too.

Cross examining hundreds of police officers teaches you how to control a sophisticated witness who is often trying intentionally to personally subvert you in front of a jury.  Mountains of experience teaches you how to strike the precise blows you need to inflict with your questioning without picking losing battles, having your message bogged down, or looking like a jerk.

Experience also teaches you the prosecutor’s playbook.  Prosecutors across the state share practices and training (as do defense lawyers) so it’s not uncommon to see the same techniques and arguments in different counties.  An experienced defense lawyer needs to know what is coming and how to neutralize, spoil, or blow-up certain tactics they ought to expect are coming.  It’s no different than a football team watching tape on their upcoming opponent and figuring out how to defend against certain plays or formations.

Knowing the enemy is important — but it can’t be confused with a winning strategy.

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

 

 

 


10 Principles of Defending People: #9 Be Organized

May 31, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.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.


Is it a Crime to Threaten Someone?

May 22, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

A threat is a crime in Texas under certain circumstances.  I’ll discuss the two most common.

Terroristic Threat

The first offense is labeled by the Penal Code as a “Terroristic Threat“.  It might be a touch aggressively named, but is committed when there is a threat of violence seeking a particular reaction listed under Texas Penal Code 22.07(a)(1).  Examples include trying to put another person in fear of imminent serious bodily injury, trying to interrupt public transportation, or trying to cause a reaction of an Emergency Organization.

Aggravated Assault with a Deadly Weapon

The second is aggravated assault with a deadly weapon.  Aggravated Assault with a Deadly Weapon can be committed several different ways — but for our discussion, it is committed where a person “uses or exhibits” a “deadly weapon” during an assault by threat.

A deadly weapon is legally defined by Texas Penal Code 1.07(a)(17) as a firearm or anything which has a use or intended use that is to inflict serious bodily injury or death.  Prosecutors can get pretty liberal with what is and isn’t a deadly weapon.  In general if someone is threatened with an object like a knife, bat, pipe or something like that — it will be an aggravated assault with a deadly weapon.

What About Freedom of Speech?

Any legal scholar will tell you there is a limitation to every right under the bill of rights.  You cannot run into a theater and yell, “fire!”  In fact, Terroristic Threat is the very crime you’d be committing by doing so.

*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 constitutes legal advice.  For legal advice about any situation you should contact an attorney directly.