What is Mitigation?

November 8, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

“Mitigation” means making something less severe, serious, or painful.  In criminal law it refers to learning, seeking and providing facts which reduce someone’s potential punishment.

Mitigation is Important in Every Single Case

A big misunderstanding is mitigation and trying to get an acquittal are mutually exclusive – they are not.  People think you somehow admit guilt if you try to take mitigation steps after an arrest such as seeing a mental health professional or entering drug and alcohol treatment.

You can still fight for innocence at the same time you try to explain or lessen the harshness of the possible punishment coming towards defendant.  In fact, we are legally bound to do so and it can constitute ineffective assistance of counsel to ignore mitigation.

A solid mitigation case actually strengthens our ability to fight for an acquittal.  This is because we are less concerned about severe punishment in the event a jury disagrees with us and finds the defendant guilty despite our best efforts.

Mitigation Which Looks Backwards

Mitigation can help explain why the Defendant is in the predicament they are in.  Examples of backward looking mitigation to explain or give context to someone’s actions often include:

  • Mental health or psychological disorders
    • anxiety
    • ADHD
    • Depression
    • Bi-Polar Disorder
    • Psychosis
    • Manic episodes
  • Past sexual abuse of the accused;
  • Past physical abuse of the accused;
  • Past or childhood emotional abuse of the accused;
  • Addiction and history of addiction of the accused.

When Someone Has a Great History

Another form of backwards mitigation is potentially where an accused has never been in trouble at all.  Certainly someone who has been straight as an arrow their entire lives do deserve some credit and lenience in many cases.  The same goes for people who really have their act together and are – for example – in school making straight A’s and helping build houses for homeless people on the weekends.

Mitigation which Looks Forward

Any mitigation must have a forward path to be effective.  Explaining to the judge or jury an accused has been able to explain or identify why they have a particular problem is great.  It lets the jury know the accused isn’t an evil person.  But without a path forward to correct things – a judge or jury might feel they need to incarcerate the person to protect society in the future.

Forward mitigation could include steps taken by the accused after the arrest.  Examples are endless of the types of steps which can be taken to hopefully re-assure folks criminal behavior won’t repeat itself with the accused.  Examples might be;

  • Drug and alcohol treatment
  • psychological treatment
  • Sex offender therapy or treatment
  • Rage or anger management treatment.

Examples of Mitigation in Criminal Cases

  • A classic and easy to understand example are Driving While Intoxicated cases.  I explain to clients everyone at the courthouse including prosecutors, judges and probation officers think (1) someone arrested for DWI is not only guilty – but they’ve probably gotten away with it 100 times we don’t know about; and (2) all people arrested for drunk driving are alcoholics.  Those assumptions may be completely fair or unfair – but those are the attitudes we will have to over-come in a case whether we like it or not.

If we can convince the courthouse types not only did the defendant get screwed by being arrested in the first place – but also he’s perfectly fine to drive – it only strengthen’s our overall hand.

Bottom Line on Both Forward and Backward Mitigation

A criminal defense lawyer cannot assume they are just going to win every case no matter how confident we are we will ultimately win.  The Courts have held repeatedly to ignore mitigation is ineffective assistance of counsel.  Mitigation also helps us strengthen our hand and ability to fight the case on multiple fronts – not just sympathy or correcting certain behavior.

*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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Posted by niftybrady

Is it a Crime to Have a Positive Drug Test?

October 21, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

It’s not a crime in Texas to fail a drug test or urine analysis (“UA”).  Possession of any illegal drug such as marijuana, cocaine, or any other controlled substance without a prescription is defined as “actual care, custody, control or management.”  Tex.Pen.C. 1.07(39).  Failing a UA does not demonstrate this as backward as it may sound.

Texas courts apply what is known as the Corpus Delecti rule.  Corpus Delecti is latin for “body of the crime.”  The prosecution in every case must prove a crime was committed.  An out of court confession, in and of itself, is never enough to sustain a conviction.

A classic and more clear example of corpus delicti is someone who confesses to arson – yet the building the person claims to have burned to the ground is completely unharmed.  Legally, this is indistinguishable from a person failing a drug test to prove a person had “actual care, custody, control or management” of a drug they shouldn’t have had.

You Can Still Be in Trouble for Failing Drug Tests

If you are on bond for a crime – a failed UA is legally sufficient to hold your bond insufficient and have you re-arrested.  It can also be grounds for a motion to revoke probation or a motion to adjudicate.  This is because the formal requirements of the corpus delicti rule are loosened for these proceedings and because typically terms of bond and/or probation are more broad as well to prohibit failing drug tests.

*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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Mental Illness & Criminal Law: Mitigation

October 19, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Mitigation is the single biggest way mental illness impacts court cases.  Mitigation is the act of reducing the severity, seriousness or painfulness of something.  Mental health and mental illness often tell the story of what is really going on in any given situation.  It can show the judge, jury, prosecutor and often the victim the reasons for defendant’s actions.

To recap, this week I’ve covered the major ways mental illness affects criminal cases and what the courts are doing about it:

Mitigation

Texas law and courts have made strides on dealing with people suffering from a difficult mental or emotional disorder.  But as discussed previously, it is very hard to establish the insanity defense in Texas.  To be Not Guilty by Reason of Insanity, a person can have zero appreciation between the difference between right and wrong.

So what about the scores of cases where someone’s mind and judgement are over-powered by anxiety, racing thoughts, or in some instances delusions to the point they act horribly out of character yet they had an inkling what they were doing was wrong?  These are the vast majority of cases and these are the cases where the mental health issues constitute mitigation.

How Do You Establish Someone’s Mental Health Was to Blame?

It often speaks for itself.  Forensic psychologists or psychiatrists can often do evaluations and put a formal diagnosis to help explain the symptoms the person was experiencing.  The mental health professionals can also discuss the appropriate future treatment and progress of the person and show the path forward.

Professionals and experts also helps because many prosecutors, judges, jurors and even victims of the crime can be cynics who accuse someone of malingering or faking mental illness.  The forensic psychologists and/or psychiatrists help debunk this. In reality people malinger less than 5% of the time and even those who do malinger do so because of of different disorders than the one they fake.

The Path Forward

Everyone needs to see the path forward for the accused when it is the mental disorder largely to blame for a criminal situation.  The path may include inpatient or outpatient treatment, medication, and continued supervision.

Often the path forward may require changes to an existing plan which hasn’t worked – or to adjust the aggressiveness of a plan.  Frequently it includes dealing with an addiction which has developed when someone has self-medicated because of their disorder.

Going forward and showing judges, juries, prosecutors and victims the accused can and will control things better in the future requires lots of hard work from not only the defendant – but often their loved ones too.  But anyone reading this post already knows this.

*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 Thompson Reuters.

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What is the Difference Between a Flat Fee and a Retainer When Hiring a Lawyer?

October 10, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefenselawyer.com

(972) 369-0577

This is a common question.

Remember a lawyer is selling their time.  Both a flat fee and retainer are different ways the lawyer sells that time.  These are actually topics of much debate in the legal community and are a bit more complex than meets the eye.

Abraham Lincoln said the legal fee is important because “It lets the client know he’s got a lawyer and the lawyer know he’s got a client.”

Important Reasons Which Go Into a Fee Amount 

A lawyer’s time is not an unlimited resource and some lawyers are justified in charging more for their time than others based on complexity of the matter and that lawyer’s experience.

Also, when a lawyer accepts your case – the lawyer is also limiting themselves because the lawyer now can’t sell time to (1) a different paying client because there are only so many hours in a day or (2) other potential clients he or she cannot legally represent because they would be conflicted from representing by virtue of their representation of you.

Flat Fees

A flat fee sounds a bit more self-explanatory than a retainer but there are still restrictions and issues with lawyers charging flat fees.

The advantage of the flat fee is it is clear-cut and caps the client’s potential financial output.  The disadvantage is the client could over-pay if the case is more resolved more quickly than anticipated.

Flat fees must still be justifiable at the end of the day.  Common sense still applies.  Where a client pays a lawyer gobs of money on day one and the client terminates representation on day two – the lawyer simply cannot justify keeping anything other than the amount he’s actually earned, if any.

Retainers

A retainer is money paid to the lawyer which the lawyer sets aside in a trust account.  The money legally remains the client’s property unless or until the lawyer earns it.  Once they earn it, they can then draw it from the account.

If the lawyer does not earn all of the money you deposited in trust then the client is entitled to a refund of the unused retainer.

The upside of a retainer is obvious.  The downside of a retainer is once the retainer has been expended, it typically needs to be refilled.

I compare a retainer to a tank of gas.  Sometimes it takes a half a tank to get to the destination but sometimes it could take 3 tanks.

Is A Flat Fee Better or is a Retainer Better?

It depends on the case in my mind.  You don’t want your lawyer to be paid too much and believe it or not — you really don’t want them to be paid to little either.

In a criminal defense practice there are many cases we handle very routinely where our time is predictable and as the lawyer, we’re willing to take the risk on a flat fee because we know from experience the amount of time we’ll be spending on a certain case falls in within an acceptable range.  Those tend to be misdemeanors like DWI, domestic assault, or theft cases to name a few.

Retainers are a flexible way to handle cases where our time output will be a bit more difficult to predict.  Those would typically be cases like sexual assault, felony drug possession, or white collar charges such as embezzlement or money laundering.  A retainer also assists when we need to pay other client expenses such as investigators or expert witnesses which we’ll need to involve from time to time depending on the case.

The retainer, then, is a good way of making sure the fee is just right on more complex cases where a flat fee may just be far too high or far too low.

*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.

Comments Off on What is the Difference Between a Flat Fee and a Retainer When Hiring a Lawyer? | Appeals, Collateral Consequences of a Criminal Record, Divorce related crimes, Domestic Violence, Drugs, DWI, marijuana, sex cases, sex crimes, sex offender registration, Uncategorized | Tagged: , , , | Permalink
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Lessons From Marijuana Legalization in California

October 9, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

I recently started doing a podcast.  Since I love talking it’s really been a blast.

My guest yesterday was a lawyer in California named Josh Schneiderman.  Josh works for a 450 lawyer firm with offices around the Southwest named Snell & Wilmer.  He represents businesses and companies in California in the cannabis industry.  By all accounts it is a cutting edge practice.

You can watch the podcast here.

Here are some major takeaways from the discussion:

While cannabis is legal in California, it is still prohibited by the Federal Government

This creates major headaches in far reaching areas you might not anticipate.  For example, if you are trying to patent a particular cannabis product – the Federal Government won’t grant you a patent.  Or, if you need a loan from a federally backed lender – you can forget that too.  Or, if you need bankruptcy protection you can’t get that either.  And the list goes on and on.

Some Banks and Credit Unions Will Take Cannabis Money – But it’s a Challenge

If a bank is going to take cannabis money — usually cash — they have a complex scheme of checks and audits they are responsible for to make sure they aren’t taking black market deposits.  That includes in some cases detailed direct analysis of the grower or retailer of the marijuana which larger and more sophisticated banks are unwilling to do.

The Cannabis Industry is Still Largely Based on Cash

Credit card companies are intimidated and scared by some of the regulatory nightmares and possible liability – so many in the legal cannabis supply chain still operate on cash.  That forces others in the chain to do the same.

These observations were the “tip of the iceberg.”  We discussed much much more including the path Texas seems to be on towards potential legalization and the pitfalls along the way.  I hope you’re able to watch.  It was truly a fascinating discussion!

*Jeremy Rosenthal is Board 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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