Can I Change Lawyers in a Criminal Case?

January 11, 2021

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

You can change lawyers in a criminal case but it’s subject to the Judge’s approval.

Most judges readily agree unless it will cause a significant and/or unnecessary delay in the proceedings.  I’ve never seen a judge stop or prevent a substitution early in the proceedings well before the case is set for trial – or even several months before a trial setting.

Judges get annoyed, though, when someone wants to substitute on the eve of trial or with just weeks before.  Judge also get irked when someone tries to substitute lawyers multiple times which the court often sees as a delay tactic.

A Client is Entitled to the Lawyer of Their Choice

The Sixth Amendment to the US Constitution guarantees right to counsel.  In retained or hired cases, it is generally accepted and understood the person gets counsel of their own choosing.  There are limitations, though.  Counsel must be a member of the bar, counsel can refuse representation, and the court can step in if there are other extenuating circumstances (such as if the court detects a serious conflict of interest or the court feels the representation is inadequate).

Why Does the Judge Need to Approve of a Change?

A judge is responsible for managing their cases and their docket and the integrity of the adversary legal system.  When a lawyer files a pleading or a letter of representation – the lawyer is legally and ethically binding themselves to representation in that case through the completion of the case.

A lawyer representing a party in case before a judge is known as an “officer of the court.”   A judge, then, can depend on the lawyer and require the lawyer to be present to represent their client when the Judge says so.  A judge can require a lawyer to handle a case even against that lawyer’s wishes if circumstances demand.

What Are Good Reasons to Change Lawyers?

This is a person-by-person choice.  I get calls all the time who are either upset or worried about their lawyer.  When I do visit with folks in this setting – I always do my best to see the situation from their lawyer’s point-of-view.  They are almost always in a better position to evaluate the case because they’re knee deep in the case and I’m not (yet).

The most common reasons I hear when folks come to me wanting to change from their previous lawyer are lack of communication, concern about qualifications or strategy, and general lack of confidence.  While I really will try to see the case from the viewpoint of the previous lawyer – I always want to make sure I’m not just telling the client what they want to hear.  If their previous lawyer has been doing a great job then I let the client know.  Even if I don’t get hired, I’ve helped the client have more faith in their lawyer.

Ultimately it is about the client’s comfort and confidence in counsel.  It is a bedrock of the lawyer-client relationship.

*Jeremy Rosenthal is 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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Domestic Violence Charges – Blog 15:  Affidavits of Non-Prosecution and What Happens with the “Victim” Doesn’t Want the Case Prosecuted?

December 27, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

jeremy@texasdefensefirm.com

This most common question I get in domestic violence cases is this:  if the victim doesn’t want to prosecute then won’t the case go away?

The answer is the “victim” or “complaining witness” has the legal power of a witness in a criminal proceeding and nothing more.  The prosecuting attorney makes the decision whether to go forward with a family violence charge.  Will the prosecuting attorney go along with the “victim’s” request to dismiss charges?  This is the million-dollar question which is different in every case.

Some District or County Attorney Offices are policy-driven to reject affidavits of non-prosecution and others take them on a case by case basis and will occasionally not pursue assault charges.

District Attorneys, County Attorneys and occasionally city prosecutors who review assault cases and affidavits of non-prosecution are public servants.  In theory, you would think they would be sensitive to pleasing the person they purport to protect.  Again, sometimes they do listen to victims of domestic abuse and sometimes they don’t.

Here is an index to the other blogs on domestic violence in this series.

Affidavits of Non-Prosecution

An affidavit of non-prosecution (“ANP”) is a statement made, typically under oath, where the complaining witness makes a statement to the effect they do not wish the case to proceed.  An ANP has no real legal power and it’s a very common misconception that it does carry with it a requirement the police or prosecutors obey it.

Why Police or Prosecutors Might Not Care About an Affidavit of Non-Prosecution?

I’ve blogged a lot about the Duluth Model in domestic violence and the “cycle of violence” along with the “power and control wheel.”  Those prevailing thoughts in law enforcement hold the abuser is all-powerful and has taken emotional control over the victim.

When many police and/or prosecutors see an ANP from a victim – it only confirms to them these concepts and theories are true.  They think the affidavit of non-prosecution is either forced, coerced, or done out of self-blaming guilt.  I’m sure sometimes they are right.

Also, as I wrote above, some offices are driven by policy of rejecting affidavit’s of non-prosecution.  They may feel self-assured enough that each and every case of domestic abuse allegations are the same — or they may simply be under pressure from third party advocacy groups such as battered women shelters to have such a policy.

What Happens when the Prosecution Makes one Spouse Testify Against the Other Against Their Will?

This happens.  I’m frequently asked if one spouse can lawfully refuse to testify against the other and the answer is no – assuming that spouse has been lawfully subpoenaed.

The prosecution can cause a subpoena to be issued which is a lawful court order requiring the witness in the case to come to court and testify under oath.  A judge can also compel a witness to testify and answer questions about instances of alleged domestic violence because the marital privilege does not extend to protect one spouse from testifying about the other accused of a crime.

It’s an unusual dynamic because the prosecution is put in a position of cross-examining their own “victim” in a case and in certain cases the complaining witness themselves may be entitled to counsel depending on the specifics of the situation.  You would think a prosecutor would do everything in their power to avoid being in this position but many prosecutors feel they are fulfilling a greater good by conducting a case this way.

The Firewall – The Jury

The good news is if all these things come to pass with the prosecution rejecting an ANP, forcing the case to trial and compelling one spouse to testify against the other — the defendant has the firewall or last resort of having a jury decide the case.

Juries aren’t subject to the DA’s offices policies and they have to be convinced the prosecutors crusade to convict one spouse over the other ones wishes is meritorious — and experience tells me that’s a very hard sell.

Even if the prosecutor doesn’t want to dismiss a case because a complaining witness says so — doesn’t mean the case doesn’t often finish with a two-word “not guilty” verdict.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He is recognized as a Super Lawyer by Thomson Reuters.

 

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Domestic Violence Charges – Blog 12:  The Consent Defense (i.e. Mutual Combat)

December 23, 2020

By McKinney Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

Dallas Cowboys at “The Star” in Frisco put on their pads and helmets on a daily basis, go out onto a football field, and routinely intentionally, knowingly or recklessly cause bodily injury to one another.

We all know that’s not assault because when you put the pads on – you’re agreeing to allow another person to inflict pain.  The contact is welcomed.

This is the law school example of the consent defense to assault and it’s my topic today for my continuing series about defending domestic abuse cases.

Police refer to this as “mutual combat” but legally there is no real term for this in Texas.  The law in Texas calls it consent.

The Legal Definition of “Consent”

Use of force against another person isn’t criminal if the other person “effectively consented” or the person reasonably believed the other has “effectively consented.”  The conduct involved must be limited to bodily injury because a person cannot consent, as a matter of law, to aggravated assault (serious bodily injury).

“Effective consent” is defined in the negative.  We know what it’s not… Consent isn’t effective by reason of youth, mental disease or defect or intoxication.  Consent also isn’t effective if it was induced by force, threat or fraud.

So a person can be acquitted of assault — including domestic violence assault — if the jury is instructed on “consent” and the state fails to show beyond a reasonable doubt (1) the complaining witness did not ‘effectively consent’ to the assault and (2) the assault did not cause or threaten to cause serious bodily injury.

How Could this Possibly Apply in a Family Assault Situation?

An example I’ve given to clients countless times is this:  ever see two people stand toe to toe either in a bar or the high school gym?  What are they communicating to one another?  The answer is  BRING IT ON.  If I physically get in another person’s face, stare them down, and dare them to throw a punch at me — my view is I’ve invited physical contact.

And remember – what legally makes domestic assault is the affirmative finding of family violence done by a judge after either a person has plead guilty or a jury has convicted them of assault.  So all the legal defenses to assault are available to a person regardless of gender or family status.

Also many intimate relationships are reciprocally violent.  That is some couples fight one another on a regular basis and both partners are regularly the aggressor, the victim, or it’s indistinguishable.

Given this backdrop – the bar or schoolyard scenario can happen in a living room too.  It’s dysfunctional to be sure… but some couples engage in mutual combat.

Words enough cannot legally trigger self defense.  But words combined with physical manifestations of agreed contact are enough to trigger consent.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He is recognized as a Super Lawyer by Thomson Reuters.

 

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Domestic Violence Charges – Blog 11:  Self-Defense

December 22, 2020

By DFW Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

jeremy@texasdefensefirm.com

Self-defense is the lynchpin of many, many domestic violence cases.

You have the right to defense yourself from an assault in Texas.  The law makes no distinction about gender, age or mental disability in the area of self defense.

Read here for an index of defending domestic violence cases topics.

Texas Law on Self-Defense

Here is Texas Penal Code 9.31(a) which I’ll dissect after you give it a read:

…a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force. The actor’s belief that the force was immediately necessary as described by this subsection is presumed to be reasonable if the actor:

(1) knew or had reason to believe that the person against whom the 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 aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery;

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

(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.

“Immediately Necessary”

The law requires when someone defends themselves the impending attack on them must be imminent – not some time in the near or distant future.

“Use or Attempted Use of Unlawful Force”

The term unlawful force here is crucial.  Unlawful force can be defined as any unwanted, offensive or provocative contact.

Police, prosecutors and even defense lawyers make the common mistake in assault cases of assuming merely because someone inflicted more damage in an altercation – that person must not have been exercising self defense.

Also, this statute is mainly in the mind of the defendant.  Did the defendant “believe force” was “immediately necessary”?  Even if defendant misread the situation, they could still argue self-defense if in their mind they believed they were defending themselves.

Some common/ potential examples of self defense in domestic abuse cases:

  • Accuser shoves defendant and scratches defendant’s face – defendant pushes back knocking accuser onto the floor;
  • Accuser screaming and poking defendant in the chest (unwanted or provocative contact) – defendant grabs accusers arm causing pain;
  • Accuser is intoxicated and throws a weak punch at defendant – defendant braces the accuser from throwing any more punches and in doing so causes pain in forcing them to the ground;

Reciprocal Intimate Partner Violence

No discussion of self-defense is complete without the mention of a concept known as “reciprocal intimate partner violence” or “RIPV.”  It is a term used by Ph.D’s who have studied domestic violence and believe  much of the dysfunction is reciprocal – meaning both partners have been the aggressors at times and the victims at times.  It’s a concept I’ll discuss at length more during later blogs in this continuing series on domestic violence cases – but it is important to understand mutual combat situations are very common in domestic assault cases.

What Degree of Force is Appropriate?

Self-Defense allows defense within reason and the defense must be proportional.  Someone cannot kill another person for spitting on their face.

When someone is defending themselves from unlawful contact, they can cause bodily injury in response (infliction of pain or discomfort).

When someone is defending themselves from serious bodily injury or death (impairment of a life function or major organ), they can in turn use deadly force. Tex.Pen.C. 9.32.

When Self-Defense Isn’t Allowed

The law does not allow someone to provoke the accuser into committing an assault only to attack them in return.  The law also doesn’t allow someone to defend themselves because of words alone.  A person can also not lawfully make a self defense claim if they are in the commission of a crime greater than a traffic-level offense.

*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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Domestic Violence Charges – Blog 10:  Asserting a Legal Defense to Assault

December 21, 2020

By Texas Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

There is no area in Texas criminal law where understanding how defenses work is more important than in assaultive cases.

The goal of today’s blog in my continuing series on defending domestic violence charges is to provide an analytical framework to help understand how defenses such as self defense, consent, necessity or even insanity fit in to and acquit someone in an assault case.

The Jury Charge

In law school they teach us to plan backwards for trial.  We start with what is known as a jury charge.  The jury charge is the 3, 4 or 10 pages of instructions given to the jury when they deliberate by the judge.

The main goal when you assert a defense in a criminal case is to have the judge instruct the jury that if your defense has enough merit – you win.  A defendant does not have to assert a defense – but if they do – it will not be in the jury charge unless there is evidence supporting the defense.

A jury charge in an assault case where defenses have been proffered can read like a tennis match.  If the prosecution has proven x, but because of the defense you believe y then you shall acquit the defendant.  Without the defense in the jury charge it would simply read “if the prosecution has proven x then you shall convict.”

General Defenses vs. Affirmative Defenses

Here’s the super confusing stuff – and I’ll make it as simple as possible.  Almost all defenses in an assault case will be an affirmative defense.

An affirmative defense relates to excused conduct and a general defense relates to an inability to understand one own actions.

Affirmative Defenses

Affirmative defenses require the defense to prove enough facts to the judge so that he/she puts it into the jury charge at the end of the trial.  Those facts usually admit the crime but offer a reason or justification (such as self defense, consent, or necessity).

If defendant is able to raise the affirmative defense, then the judge instructs the jury that the prosecution must DIS-prove the defense beyond a reasonable doubt.  This is a very high burden for the prosecutor to do.

So for a self defense case – the prosecution in addition to having to prove all of the basic elements of assault were proven beyond a reasonable doubt now has an additional set of elements they must disprove:  that it was self defense.

General Defenses

These typically include insanity, mistake of law, mistake of fact, duress and entrapment.  They all essentially go to “did the defendant know what they were doing was wrong” or in some instances was the defendant’s will simply over-powered.

The defense has the burden to prove in these cases by a preponderance of the evidence their defense is true.  The burden doesn’t shift to the prosecution unlike in affirmative defenses.

So Here’s How this Works:

 

*Jeremy Rosenthal is 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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