Failure of a Lawyer to Give Immigration Advice in a Criminal Case

January 9, 2021

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

jeremy@texasdefensefirm.com

Immigration is such a major topic in criminal defense the topic has been given it’s own name:  Crimmigration.

Criminal defense lawyers have a non-delegable duty to advise their clients about immigration consequences.  The point was made clear in the landmark US Supreme Court case Padilla vs. Kentucky, 559 US 356 (2010).  Padilla holds it is ineffective assistance of counsel for a lawyer handling a criminal case not to advise a client about the immigration consequences and dangers which come with the criminal case.  This is because erroneous advice – or not giving advice at all – can lead to a client’s deportation, removal or ineligibility to renew immigration status.  It is not enough for a criminal defense lawyer to tell their client, “your immigration issue is not my problem – I’m just handling your criminal charges.”

I’ve blogged before on the complexity of immigration issues in the criminal context and you can read it here.

Being Aware of Immigration Tripwires in Criminal Cases

Immigration law is it’s own completely different practice of law from criminal law.  I explain to clients that me giving immigration advice in many ways is like a foot doctor giving advice about your shoulders.  Nonetheless, Padilla and the cases which have followed require criminal lawyers to educate themselves in immigration law enough to effectively advise clients about what can and can’t happen because of things like guilty pleas, conditional dismissals, or specific sentences.

Some immigration rules require detailed analysis about facts and issues which are easy for a criminal lawyer to over-look.

For instance, immigration courts have different classifications for drug possession than Texas criminal courts.  The Texas criminal courts have their own scales for charging drug possession cases which don’t necessarily correlate to the federal court’s or immigration court standards.  Many Texas criminal lawyers may just skim the amount ultimately weighed just to make sure it comports with Texas law – but the lawyer must also beware the tripwire of the immigration consequences if applicable too.

Being Extremely Cautious in Decisions Which Affect Immigration

I tend to be extremely cautious when dealing with immigration issues and complications.  It’s because immigration has been and will probably always will be a white-hot legislative topics in the federal government.  Just because the law says pleading guilty offense x in 2021 is fine doesn’t mean the laws can’t change in 2026 and take a completely different view of what we did 5 years before.

What Happens When My Lawyer Gives Me Bad Immigration Advice?

It’s common for our office to get phone calls when someone has taken a plea deal of some sort and then they get detained, removed, or are not allowed to renew their citizenship status.  It’s often the first time the client had any inkling there would be a collateral immigration problem connected with their criminal case.

When a lawyer doesn’t give immigration advice either because it scares them or they just didn’t spot the issue at all – or if a lawyer gives bad immigration advice it can be “ineffective assistance of counsel.”  Ineffective assistance of counsel in an immigration setting means the lawyer didn’t give proper advice and as a result – the client’s decision was rendered “involuntary.”  An involuntary decision – usually to plead guilty or no contest – is nullified in the event there was ineffective assistance.

Ineffective assistance of counsel can be addressed through different legal mechanisms such as a “Motion for New Trial” or a “Writ of Habeas Corpus.”

Ask Your Lawyer About Immigration Consequences

If you have any questions in a criminal case setting about immigration consequences – ask your lawyer.  It’s your criminal defense lawyer’s job to properly advise you about immigration consequences.  Often times it may take a joint session between criminal and immigration lawyers working together to make sure the client fully understands.

*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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Can Police Track Your Phone?

January 8, 2021

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

The short answer is yes – but there are ever increasing legal hurdles in law enforcement’s way.  The issue is highly complex, evolving and will continue to evolve as technology changes society.  No page-long blog will do the topic justice but I hope to give you at least a basic legal primer.

The 4th Amendment to the US Constitution is your right to be free from “unreasonable” searches and seizures from your government.  Tracking a person’s phone either in real-time or after the fact has been the subject of intense legal scrutiny for some time now.

Is Tracking Your Phone a Search Within the Meaning of the 4th Amendment?

Courts agree inspecting the contents of your phone, wiretapping a phone call, or affixing a GPS monitor to a persons vehicle are “searches” within the meaning of the 4th amendment.  It’s taken some time for courts establish these norms but they have all one by one been accepted.

Much of what constitutes a “search” hinges on what we consider our own “expectation of privacy.”  We all have a much higher expectation of privacy in our night stand drawer than in our bag we’re bringing on a plane.  So the courts have had to answer the question of where does the smart-phone and the information rank between the two extremes?

The answer is different today than it was in 2005 because of the advances in technology and because of our reliance on smart device technology… and because of both of those things we have different expectations of what is or isn’t private about our phones.

Courts now recognize the contents of our phones today contain work information, banking information, medical information, information about the books we read, the historical figures we admire, who we’re angry with in our family, where we’ve been, where we plan on going in three months or in an hour…  In short we have developed an intense dependency and sense of privacy about our phones and the courts know this to be true.

Is Tracking a Phone an “Unreasonable” Search?

Again – what is reasonable changes.  A “reasonable” search at an airport on September 12, 2001 might not have been considered as such on September 10, 2001.  Our more intense reliance and privacy with the phones make them harder and harder for police to justify tracking or searching.

But understand an “unreasonable” search becomes reasonable if law enforcement can legally and procedurally justify attaining whatever it is they’re looking for.  The legal question is just how much justification do they need and whether it requires attaining a warrant?

What Information Can Police Attain About Your Phone & How They Get It

I’m not a technology expert so I don’t know what and how the police can track.  I’m sure if they’re not tracking phones in real time already then at some point I’m sure there will be the capability for them to do that.  Probation departments and supervision departments can require either software or hardware downloads which allows them to track usage – but that’s not the same thing because in those instances the individual knows – and has often agreed – to being tracked.

Phone Dumps and Downloads

The law is more clear in this area – police need a warrant to get into your phone if you don’t consent to it being searched.  What they can get once they get in your phone is a technology question which I don’t have the qualifications to answer… but I’m sure this is an evolving cat and mouse game like everything else in the law/ technology realm.

Records

Police can and often do obtain records from data providers and other third parties such as apps from their private offices.  The mechanisms may vary from State to State but the providers may be able to voluntarily provide records to law enforcement based on the terms and conditions of the usage – or as is more often the case – law enforcement can subpoena the records.  In some instances the federal government requires third parties to report certain activity to the National Center for Missing and Exploited Children.

Also, third parties who may have records the police want such as Facebook or Twitter or some of your other tech giants can be extraordinarily difficult to deal with for both law enforcement and the defense due to nothing more than their sheer size, amount of data they mine, and amount of users they have.  They have legal compliance departments but even Court Orders have the ability to sit in someone’s pile or in-box for who knows how long.

Courts are moving in the direction of requiring warrants to accompany the requests but this is an intensely complex and evolving area of the law.  Many of the third-party companies host apps and aren’t in the United States.  This adds yet another layer of complexity.

Bottom Line

For the police or law enforcement to track your phone after the fact or in real time is currently and will be one of the great battle-lines in courtrooms for the 21st century going forward.  This question is truly the convergence and intersection between radically evolving civil liberties and radically evolving technological capabilities.

Stay tuned.

*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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Can I Sue the Police After an Arrest?

December 10, 2020

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

I’ll do my best to stay in my lane.  I defend people charged with crime and I don’t sue police but I get this question a lot so I’ll do my best to answer.

I often refer cases where folks are interested in taking legal action out to lawyers who focus more in that area.  But if I don’t think you’ve got much of a case — I can still probably diagnose it and let you know if it’s good time and energy spent on a bad task.

What I can also say is this – if you’re charged with a crime the first priority is always to defeat those charges.  I liken it to playing defense before playing offense.  Pleading guilty or losing a case where you’re trying to sue the police is a great way to spoil that case.

Immunity From Suit

Police, prosecutors and judges have wide-ranging immunity from civil liability and for good reason.  We want them to be able to do their jobs and not constantly worry about getting sued nor put their own personal assets on the line for just doing their job.

There are some limited situations where they are individually liable.  The main one is under 42 U.S.C. 1983.

42 U.S.C. 1983

This federal statute says the following:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congressapplicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

In English – if a government worker as part of their job intentionally deprives someone of a constitutional right or liberty then they can be sued in federal court.  There are law review articles on this statute and it’s the subject of entire law school classes – so I don’t pretend for a moment this blog covers it all.

In short – 1983 claims are typically brought for police brutality and prison litigation but it isn’t exclusively reserved for that.  The standard is pretty difficult because negligence generally isn’t enough to trigger liability.

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

 

 

 

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What does the Term “Forensic” mean?

November 7, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Forensics are when normal scientific principals are utilized for courtroom purposes – normally in a criminal context.  The applications can be fairly broad as far as scientific (and even some non-scientific) disciplines are concerned.

Some Science is Purely for the Courtroom

A textbook example are certain sciences where the science itself is almost solely geared at solving crime.  An example could be blood spatter.  There might be a different application of the science of blood spatter than criminal law – but if there is I don’t know it.  Bite marks would be another example of a discipline which is virtually entirely for the purposes of criminal cases (forensic odontology) and there has been tons of criticism of bite mark evidence.

Some Science Can Either be Forensic or Not

Other examples require the injection of legal or investigative principals into the science.  Examples there could be forensic pathology, toxicology, or psychology.

Pathology is essentially the study of tissue as it relates to disease.  Forensic pathology takes it one step further often to either determine causes of death or in other cases – causes of bruising for assault cases.

Toxicology is the study of toxins and poisons and their effect on the body.  Forensic toxicology, then, applies to specific legal principals such as the ability to drive, a person’s level of impairment, or perhaps a foreign substance which caused a person to die in a homicide case.

Forensic psychology is a unique practice where a psychologist applies mental health principals and diagnoses and applies them to individuals either to reconstruct someone’s thought process during a potential criminal episode, their overall psychological profile, or for mitigation purposes.

“Forensic” Disciplines We Might Not Think About Much

Other examples of forensics which are disciplines and areas of expertise we don’t associate with medicine can be:

  • forensic computer exams
  • forensic accounting
  • forensic engineering

Instances Where the Term “Forensic” is Potentially Misused

Police and children’s advocacy centers utilize what they call a “Forensic Interview” of a child in sexual or physical abuse cases.  It’s basically an open-ended interview of a child where they are asked to describe physical or sexual abuse in a non-leading fashion.  The psychological or scientific underpinnings or basis for the technique has never been made clear to me – at least not in the courtroom by any of the practitioners.  But it makes the interview seem official or important to the jury – which is why they label it that way, I’m sure.

*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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What is Mortgage Fraud?

November 6, 2020

By Criminal Defense Attorney Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

Mortgage fraud is committed where someone lies to a bank to get a real estate loan.  Mortgage loans are heavily regulated by the US government as evidenced by the mountain of paperwork you do when taking out a mortgage on a house.  Mortgage fraud is prosecuted by the federal government and the controlling statute is 18 U.S.C. Section 225.  The punishment for mortgage fraud can be up to 30 years of prison but as with other federal offenses – the more indicative indicator is the federal sentencing guidelines for any given case. 

Common Types of Mortgage Fraud Schemes:

  • Appraisal fraud – where an appraiser or other party is paid to falsify the value of property to the bank;
  • “Air Loans” – where the borrower basically falsifies everything and pockets the bank’s cash;
  • Occupancy fraud – where the buyer certifies the house is not an investment property but a homestead;
  • “Straw Man” – where a person cannot qualify for a loan (or is barred from receiving a loan) and instead uses another “straw man” to complete the transaction.
  • Underwriting fraud – where phony assets or other falsification occurs when the bank is trying to verify assets.  Examples would be moving chunks of money around to fool a bank into thinking a person has assets when they really don’t.

Any type of falsification you can think of to a bank in the process of a real estate or home loan can probably be characterized as mortgage fraud with the key qualification the mis-representation is “material” in nature.

Conspiracies to Commit Mortgage Fraud

Remember – the federal government is keen on prosecuting what they characterize as conspiracies.  So people such as appraisers, builders, and even the bank employees themselves can be investigated and prosecuted for mortgage fraud if the government thinks they played a role.

Defenses to Mortgage Fraud

Lack of intent – or misrepresentations being a mistake are a main defense to mortgage fraud.  To help show a misrepresentation was an honest mistake and not part of a larger and more sinister plot – the government and potentially a jury need to be shown the broader picture including perhaps forensic accounting of the persons assets and portfolio and the person’s sophistication level when it comes to taking out loans.

As with all federal cases – mitigation and reducing liability also commonly include cooperation with the government if necessary, the amount of the alleged fraud in question, and the scope and degree of the person’s involvement if it is a conspiracy.

*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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