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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Probation Officer Recommendations

January 5, 2021

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Probation officers are often the gatekeepers between their probationers and ultimate freedom.  Probation officers are often asked about recommendations for things like travel, removal of an interlock ignition or deep lung device from a vehicle in DWI cases, or even early release from probation.

When folks visit with me wanting to change something about their probation, it’s very common for them to tell me their probation officer is “not opposed,” or “on board with” or even “recommends” something.

In truth – when I do pick up the phone to ask the probation officer their views I hardly ever get much of anything useful.  I’m usually told the probation department opposes our request to the judge or takes no position on our request to the judge (usually citing department policy).  I can’t remember the last time a probation officer actually told me they supported our motion.

Probation officers also make recommendations for revocations and adjudications.  It’s a bit of a different topic – but remember it is the Judge who ultimately determines what happens in a case, not the probation department.

Probation Officers Don’t Like Making Recommendations

Probation officers work in a bureaucracy. I’ve been in the Army, the District Attorney’s Office, and and have worked alongside government my entire career.  My blog is anything but political but probation departments with their bureaucracies come with some flawed cultures I’ve noticed.

I find there are three cultural problems I’ve seen with probation departments struggle with.  First, there is a climate of fear surrounding decision making.  Personnel are collectively intimidated about sticking their neck-out and making an uncommon or unconventional decision which has any potential at all to backfire.

Second, there is a “default to no” culture at most probation departments.  This means the default answer requests is typically “no.”  The answer is “no” if they don’t understand the request, “no” if they are 50/50 on the request, and especially the answer is “no” if they find a teeny-tiny reason the request could somehow backfire.

Third, if one decision maker is good – then seven are better.  And then they’ll come up with better reasons for saying “no.”

I’m probably jaded, but my view is probation officers simply don’t want to make decisions or recommendations which help their probationers.  They might claim to be in support in closed quarters with no one listening but they often quickly back off any such boldness.  They often claim they are bound not to make recommendations by office policy.  That could be true in some instances but those policies have never limited them from making recommendations against my clients… so I tend to view the policies skeptically.

Often I find a probation officer will claim they are not taking a position – yet they passive/aggressively oppose our requests in open court.  So I never take for granted they are in our corner or neutral on an issue.

I know I’m making many generalizations here.  There are plenty of probation officers I’ve worked with who break this mold and are very forthcoming on their views whether they are helpful or not to my client.

A Probation Officer’s Recommendation Isn’t Everything

It’s okay probation officers if don’t want to make recommendations.  Judges are comfortable making difficult calls granting things the probation department doesn’t like or want.

It’s the Judge who controls terms and conditions of probation – and Judges disagree with probation officers all the time.  Many judges have far more antagonistic relationships with the probation department than you may think.

For these reasons when I’m asked to help someone modify their probation – I just don’t put much stock in what the probation officer reportedly recommends.  If they are in our corner all the better.  But we can still win without it.

*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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Posted by niftybrady

Illegal Searches are More Common Than You Might Think

December 11, 2020

By Collin County 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.

Isn’t it a Bit Much to Say the Police Acted Illegally?

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.

Motion to Suppress

A motion to suppress the evidence is a request for the judge to trigger the exclusionary rule and render the illegally attained evidence unusable.  The most common legal grounds are the 4th Amendment to the US Constitution prohibiting illegal search and seizure and Texas Code of Criminal Procedure Article 38.23.

Illegal Searches Can’t be Very Common, Right?

They’re more common than you think.  You have to remember civil rights cases from the 1960’s and 1970’s still have a large imprint on search and seizure law.  The courts are uncomfortable with traffic stops and/or searches based on little more than hunches because those were rightly exposed as profiling.  Though today’s police might also include teenagers or people who have an alternative appearance in addition to racial minorities – there isn’t much of a difference under the law.  Profiling is profiling.

Articulable Facts vs. Subjective Opinion

You also have to remember police in targeting certain groups are often aggressive in their approach.  Police need to be able to articulate the facts which justify traffic stops and continued roadside detentions.  As an example a police officer saying he stopped a car because “he just knew they were up to no good” isn’t going to fly.  It’s a hunch and courts don’t like that.

Closer examples might include 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.  Courts have repeatedly said these types of justifications are akin to multiplying zeros when it comes to articulable facts.

Articulable facts, on the other hand, might include “the driver was going 58 in a 45.”  Or the driver smelled like alcohol, said he was on his way to Dallas but was driving the opposite way.

So where an officer can plainly, quickly, and obviously explain the probable cause – the better chance they have of keeping a detention legal.  The more they rely on opinion and conjecture – the more problems they might have explaining it later.

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 F. 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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Posted by Jeremy Rosenthal, Esq.

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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Court-Run Mental Health Programs

November 17, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

I’ve blogged extensively about mental health and how it intersects with criminal law.  The over-lap can’t be understated.  You can watch a podcast I’ve done on the topic here.

Some of the good news is many criminal law judges, probation departments and even prosecutors have gotten on-board with gearing to include mental heath treatment as well as their normal repertoire.  It never hurts to ask your lawyer or your loved one’s lawyer what the available options are.

I can’t tell you how many mothers, fathers, spouses and other loved-ones of my clients have told me their main goal in a case is to simply get them help.  But the criminal justice system – and the adversarial process wasn’t naturally built to accomplish tasks like mental health treatment.  There are pros and actually cons to Court-Run mental health programs folks should be aware of.

Advantages of Court-Run Mental Health Programs

On the plus side, these court-run programs are designed for the indigent or near indigent.  So cost which often dictates far more than it should is hopefully all but eliminated.

The county (or whatever governmental sub-division you’re dealing with) has access to more infrastructure and services than a private entity might be able to have.

The court also has a “captive” audience meaning the individual has no real choice but to participate.  Anyone who has a loved one who is either so disturbed or oblivious to their mental health disorder that they refuse treatment knows how valuable this can be.

Disadvantages

For me as a criminal defense lawyer – I’m always focused on what happens to the client in 10 or 20 years based on what we do today.  Here are some important questions I ask about any government program:

  • Will this program require my client to be convicted as a price of admission?
  • Can I get this off my client’s record in addition to getting the treatment (often known as mental health diversion)?
  • Do I actually trust the county’s ability to do what they say they can do to help?
  • Am I just signing someone up for the county to be “in their hair” for years to come?
  • Are there better private alternatives which are viable options?

The Bottom Line on Court-Run Mental Illness Programs

Make no mistake – it’s fabulous to see courts simply move in this direction.  Judges and probation officers paying attention to these crucial aspects and triggers for criminal cases is a great thing – and you know people are really starting to get the importance of mental health when the prosecutors even get involved.

But going into a mental health program run by a judge or probation department is still – and probably always will be – a “look before you leap” situation.  There are always many factors to consider.

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

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