Domestic Violence Charges – Blog 17:  Plea Bargaining in Family Assault Cases

December 29, 2020

By DFW Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Only 6% of state criminal cases go to jury trial.  That means 94% are disposed of some other way.  Those could be plea bargains or dismissals.  Some dismissals are by agreement where the defendant takes classes, performs community service and/or completes other tasks and is basically a plea bargain without actually resulting in a plea.

Courtroom lawyers love to talk-tough.  And I’m no exception because I eat nails for breakfast in the morning before dazzling every jury I see.  But what we don’t brag about much are our plea-bargains.  Plea bargaining doesn’t make wonderful fodder for lawyers web pages so you don’t hear lawyers talk about it much.  Again – 94% of cases don’t go to trial so even the lawyers who talk the meanest game in town plea bargain far more cases than they take to trial.  It’s just a fact.

Anyone who has come to see me about their case knows I analytically evaluate every case as if we are preparing for trial.  They teach us in law school to start with the jury charge and go backwards.  And I don’t wear my plea bargains on my sleeve either but candidly it’s where I do some of my best work of getting clients out of really bad jams.

Read here for an index to other domestic violence related blogs.

When Plea Bargaining Makes Sense

Domestic violence is an area where sometimes we simply can’t plead guilty.  It could trigger immigration, professional licensing, or other consequences we cannot accept.  So this is the first question – can the client afford the consequences of a guilty plea in a family violence case?

Pleading guilty or not guilty is always the client’s choice.  Some folks don’t have the stomach for trial.  Trial in a domestic violence case normally takes a day or two but can take a week or more.  I have fun in trial but that’s because I’m not worried about going to jail when it’s over and I’m not worried someone on the jury or someone who just wanders into the open courtroom might know me and post the affair on social media.  I discourage the idea of pleading guilty just to avoid a trial most likely in front of strangers but again – it’s my client’s choice and not mine.

Pleading guilty or no contest may also make sense in cases where I honestly tell my client the odds for an acquittal are long given the specific facts of any cases… and I go through a cost/benefit analysis with my client about the pros and cons of taking the case to trial.

Important Factors in Getting a Favorable Plea Bargain

When someone is pleading guilty or no contest (there is no legal difference which matters in criminal law) – they are accepting responsibility.  It’s important for folks to remember this.  If someone is going to take responsibility for the charges against them – then I always advise clients to do so sincerely, earnestly and whole-heartedly.

Beyond this if someone is going to take responsibility they also take on the onus of not only promising not to do it again but taking the affirmative actions necessary to make sure and guarantee it doesn’t happen again.  This may include accepting anger management, marriage counseling, or a batterer’s intervention program.

Often substance abuse and/or psychological disorders need to be addressed as part of the underlying causes.  So a person may need to accept evaluations along with follow-up recommendations.

If someone is willing to face their decisions and demons to make sure a domestic assault doesn’t happen again then it obviously bodes well for plea bargaining.

Ultimately plea bargaining is far more common than taking a case to trial though many of my colleagues pretend otherwise to the public and to one another.  It never hurts to have a good strategy of an exit-ramp in a case which can often be a plea bargain my client finds acceptable.

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


Domestic Violence Charges – Blog 13: The Duluth Model and Reciprocal Intimate Partner Violence

December 24, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

“The Duluth Model” is the current prevailing theory of domestic violence by law enforcement in the United States.

Its origins are from Duluth, Minnesota and was based on a treatment program run by Ellen Pence, a self proclaimed activist.

The “Cycle of Violence”, “Power and Control Wheel”, and “Batterers Intervention Program” are some of the staples of the Duluth Model in action.

You can read other blogs and the index to my continuing series on defending domestic violence cases here.

The Cycle of Violence

The Cycle of Violence was developed by Lenore Walker in 1979 based on 120 battered women.  She believed in three phases:

  • Tension Building Phase
  • Acute Explosive Phase
  • Honeymoon Phase

Her theory is an abuser causes the relationship to build tension which makes the victim  “walk on eggshells.”  The acute explosive phase is where the violence and abuse occurs and after this there is a honeymoon phase where the abuser apologizes, promises change, and goes out of their way to re-attract their mate.  This of course gives way again to another tension building phase and so on according “the cycle.”

Assumptions the “Cycle of Violence Makes”

It Assumes Domestic Abuse Within a Relationship is Unilateral

The cycle of violence assumes the abuse is unilateral and not reciprocal.  But studies have shown alarming rates of “Reciprocal Intimate Partner Violence” whereby both intimate partners at times are aggressors and at other times are victims.

It Presumes Guilt

The “Cycle of Violence” seems to have been created as a tool for treatment and therapy – not for the diagnosis of domestic violence.  When using it to attempt to prove guilt – it actually presumes guilt as an underlying assumption.

If you replace the very top assumption with its opposite – Defendant is innocent – then absolutely none of the other phases make logical sense.  But this diagram shows how the echo-chamber logic is circular in the first place.

 

Mental Illness & Substance Abuse Also Cause Domestic Violence

The Duluth Model holds, essentially, manipulation control and power are the root causes for domestic abuse.  But other contributing factor of domestic violence, as anyone who defends these cases on a regular basis will tell you, are anxiety, depression, and other mental illnesses such as psychosis.  Not far behind as contributing factors are substance abuse.

“Evidence Flipping”

Much of the problem with highly subjective echo chamber concepts such as the cycle of violence is the ability for the prosecution to take any evidence whatsoever and flip it into evidence of guilt.

Is buying your spouse flowers a confession?  This is what a prosecutor would argue is the “honeymoon” phase.  If this were true, though, then every florist needs to contact the police every time someone makes a purchase.

Is every instance of tension in a marriage evidence of “the tension building phase?”  If this were true, every marriage counselor would have the police on speed-dial.

Other Criticism of the “Duluth Model”

The Power and Control Wheel

The “Power and Control Wheel” is a similar diagram to the cycle of violence.  It differs in that it purports to describe the methods of power and manipulation the abuser uses to control the victim.

The criticism of the Power and Control wheel over-lap with the criticism of the Cycle of Violence.  It assumes the physical abuse in a relationship is unilateral.  It presumes guilt.  It, too, largely ignores mental illness and substance abuse as underlying factors – and proscribes power as the main motivator between an abuser and the abused.

The Countervailing Theory – Reciprocal Intimate Partner Violence

Reciprocal Intimate Partner Violence, also called mutual violence and/or symmetrical violence holds both intimate partners have been aggressors at times and both have been victims at times.  Again, this directly undercuts the Duluth Model which presumes the abuse to be unilateral or one-way.

Studies have shown “reciprocal” violence to be between 42% and 70% in relationships where there is domestic abuse.  In a 2007 study published in the American Journal of Public Health, concluded roughly half of abusive relationships fit this profile.  The same study shows it was actually women who were thought to be the aggressors 70% of the time, however men inflicted more physical harm to their partners.

If the Duluth Model is Wrong Half of the Time – Then So What?

It’s important because the prosecution can be very heavy handed in the way they attack a case with the Duluth Model.  It includes their potential misconceptions about the reality of the relationship of the couple which can skew and make the potential punishment not only unfair and inequitable – but also not assist the couple with the real underlying dysfunctional issues.

From a defense perspective – it also opens the door to defenses such as self defense and consent when we break the misconceptions the Duluth Model may inject.

*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.

 


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.


Podcast: Mental Health

November 9, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

On my weekly podcast a few weeks ago the topic was mental health in criminal law.  My guest was Vanita Parker – one of the lawyers at our firm and the founder of the Mental Health Division of the Dallas County District Attorney’s Office.

We discuss the impacts mental health on the courts – no easy or small topic!

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


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.