How COVID Broke the Courts Blog 3 -(Negotiation)

August 19, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

COVID has altered the way we negotiate cases.

Communication isn’t the same.  At times, the new modes of connection are difficult to overcome.  Rapport, trust, sincerity and the degree of how emphatic a particular plea is just harder to convey if it’s anything other than in-person.

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Prosecutors are funny creatures.  I believe they are driven by decency, a quest for justice and a sense of duty.  I know because I was one and I really enjoyed it and found it fulfilling.

But understanding them and what makes them tick is far more complicated.  Many are younger and being a lawyer for the State is their first job in our profession.  Some of the more experienced ones have still never ventured outside the DA’s office.  Their world is like none-other.  I found it to be eerily similar to an echo chamber at times filled with adulation of citizens and the all-to-often somewhat self-assured notion that we had a monopoly on the truth.  The result is prosecutors often take the guilt of the accused (or proving the guilt of the accused) for granted.

I include this to say their view of cases — and often their firmness in sticking to their point — is often far different than mine.  When I’m negotiating with them for a better plea offer convincing them to simply walk-away and dismiss a case – it takes persuasion.

Knowing what motivates prosecutors is absolutely crucial in criminal defense.  And whether I’m trying to convince a prosecutor a certain case requires cooperation or collaboration — or I’m simply trying to convince them their poker hand is an offsuit 2-7 split — it is far more difficult to do it with short, choppy emails or text messages than it is just to sit and visit with them for a few minutes.

What tends to happen with phone calls or emails is the prosecutor tends to hear the message — perhaps miss some of the intonations I’m trying to convey — and then retreat back into their echo chamber to consider it further.  It shouldn’t come as a surprise it’s a far more difficult sale.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He is a Texas Super Lawyer as designated by Thomson Reuters.

 

 

 


Police Reports: Dishonesty by Omission

June 16, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Here’s Minneapolis PD’s press release from the George Floyd murder:

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Of course, this was before they knew they’d been caught on a camera they didn’t control. It’s fiction.  They left out the part where Officer Chauvin had his knee on Mr. Floyd’s neck.  Or that he had it there for nine minutes.  Nothing to see here, folks.  Move along, right?  Even worse, MPD paints themselves as the heroes of this story.  “Even though we didn’t do anything wrong, we called for an investigation…”

Are the statements actually made in the press release true or false?  Well, I suppose most are actually true.  He did appear to be suffering medical distress.  An ambulance was called (way too late), and no weapons were used assuming you don’t count Officer Chauvin’s knee.

Yet, the press release is a work of fiction because it omits critical and relevant aspects of the truth.

And this is how many, many police reports we review on a regular basis deceive as well.  A DWI report might say things like, “suspect did not know his location, stumbled out of the car, and had red bloodshot eyes” where those things are apparent.  But you’ll never see a report which says, “He knew where he was, exited the vehicle perfectly and his eyes looked normal” even if they are true too.  Fiction.

A common example I give to client’s about why they should exercise the 5th Amendment is this:

  • You:  My friend and I went to the party.  We didn’t see anyone there we really knew.  It was very uncomfortable.  I think we finished about half of a beer each and we decided to leave.
  • Police Report:  Suspect admitted entering the house.

Does the report say anything untrue?  I suppose not.  But its a lie.

The public gets a small taste with this news snippet of the perennial challenge of trying to take police reports at face value.  You just can’t.  Even when reports don’t exaggerate or don’t outright state mis-truths, then can still be extremely dishonest.

Part of the process of defending someone is filling in the gaps which comprise the truth.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He is currently designated as a Texas Super Lawyer by Thomson Reuters.

 


When Police File a Case “At Large”

April 28, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

I’m writing this blog in the middle of the COVID-19 shutdown.  We’re seeing lots of cases handled “at large” these days.

What “At Large” Means in a Criminal Case

The Court has to have some way to make sure people come and face charges, win, lose or draw.  If criminal cases were voluntary, no one would come to court.  That way of securing attendance is the threat of jail.

An arrest is normally the very first legal action taken against a person.  A bond is set and if the bond is paid the person is released.  Formal charges come some time later – but prior to the running of the statute of limitations (2 years on a misdemeanor, 3 years on most felonies).

When a case is filed “at large” the arrest is skipped temporarily.  Once the formal charges are filed either in a misdemeanor or a felony an arrest warrant is triggered.

Why We’re Seeing So Many “At Large” Cases

Police and the Sheriff’s office want to keep the jail as unpopulated as possible during the COVID crisis.  It is law enforcement’s way of deferring an arrest and a jailing until later.

What Happens Next?

If someone has been told a case would be filed “at large,” then there is a good chance the police have or will forward a police report to the District Attorney’s Office.  The District Attorney’s office will review the report — and assuming they view the report as complete — they will typically file formal charges.  In a misdemeanor case it is called an “information” and in a felony the Grand Jury Meets and if they agree — the file what is called an indictment.  Both will trigger the arrest warrant.

If There is an Arrest Warrant Coming, What Do I Do?

It is always the better practice to be in control of the process by monitoring the active warrant filings and ultimately surrender yourself.  Prepare to post bond.  It’s also time to talk with a lawyer about your long term legal defense and how to best address the charges.

*Jeremy Rosenthal is Board Certified by the Texas Board of Legal Specialization.  He was recognized by Thomson Reuters as a Texas Super Lawyer in 2019.


10 Principles of Defending People: (#5 All Eyes are Equal & #4 Know the Enemy)

June 6, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

I’m going over to me what are the top ten principles of defending people.  To recap the list so far:

#5 All Eyes are Equal:

People don’t trust themselves or their own judgment for some reason.  Lawyers included.

Maverick trusted himself.  He hit the brakes and the MIG flew right by.  He had cunning, creativity, and self-assurance to know the maneuver would work.  The fact it hadn’t been done before didn’t bother him.

What I like about Maverick is he didn’t ask anyone’s permission.  He just trusted himself and to a lesser degree wasn’t afraid to fail.  I’m a pretty far cry from Maverick, but I hope I think like he might every now and again.

When I say all eyes are equal what I mean is if a trial theory makes sense to me then chances are it makes sense to the jurors too.  If I think the police and prosecutors are reaching then I ask myself why?  Maybe they’ve been suckered by a doe-eyed accuser in a sexual assault case…  Maybe they’re blinded by my client’s appearance or problems they’ve had in the past… or maybe they’re so trapped in their own narrative, they can’t see they’re in an echo chamber as in some domestic violence cases.

Too often, lawyers will settle into a conventional defense.  They are afraid to think outside of the box.  But by thinking inside the box, they turn themselves into fish in a barrel waiting to be speared.  Remember all eyes — including the lawyers own — are equal.  The big picture makes sense.

Don’t be afraid to tell the jury about the big picture.  Don’t be afraid of hitting the brakes so the MIG can fly right by.

#4 Know the Enemy: 

The key to knowing your opponent in my book is experience, experience, experience.

I remember how I thought as a prosecutor.  It helps me today.  I was advocating for the opposite position which is something lawyers do.  I remember my thought process in trying to prove-up a case.  I remember my areas of emphasis to the jury, the assumptions I’d make in each case, and the points of emphasis to the jurors.  I also remember how effective defense lawyers would attack my case.

Defending cases are wonderful learning experiences too.

Cross examining hundreds of police officers teaches you how to control a sophisticated witness who is often trying intentionally to personally subvert you in front of a jury.  Mountains of experience teaches you how to strike the precise blows you need to inflict with your questioning without picking losing battles, having your message bogged down, or looking like a jerk.

Experience also teaches you the prosecutor’s playbook.  Prosecutors across the state share practices and training (as do defense lawyers) so it’s not uncommon to see the same techniques and arguments in different counties.  An experienced defense lawyer needs to know what is coming and how to neutralize, spoil, or blow-up certain tactics they ought to expect are coming.  It’s no different than a football team watching tape on their upcoming opponent and figuring out how to defend against certain plays or formations.

Knowing the enemy is important — but it can’t be confused with a winning strategy.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas.

 

 

 


Is it a Crime to Not Report a Crime?

May 23, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Failure to report a felony is rarely charged — but it is a crime.  What is more commonly charged is failure to report the abuse or neglect of a child.

When we do see these types of charges, it is often because law enforcement suspects far worse but simply can’t prove anything… or it is often a reduced charge the prosecutors and defense lawyers settle on for a plea negotiation.

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Texas Law:

Texas Code of Criminal Procedure 38.171 requires the felony to be one which (1) the person observed; (2) it is likely serious bodily injury or death may have occurred; (3) It’s reasonable to think no one else has reported it; and (4) the person can make the report themselves if it doesn’t place them in danger.

— and if this crazy offense does occur, it is a Class A misdemeanor.

Federal Law:

The Federal Law is called Misprision of a Felony.  It is much broader in that there only be “knowledge” of the felony.  A major difference is under Federal law, the accused must take an affirmative step in assisting concealment of the felony… in essence making them an accessory.

Keep a few things in mind about failure to report crimes and they start making sense for why we see them so rarely:

Police Want the Real Offender

They want the perpetrator of the crime someone knows about more than anything else.  If police had to round up and prosecute people who knew they think knew about certain crimes but didn’t report — it would make their work load go crazy.

“Failure to Report” cases are really hard to prove.

How do you go about proving someone “knew” about something…?  You’d almost think they’d have to witness it themselves?

Also consider that someone might have some information a crime was committed — but not enough information to truly assist police.

The statutes take these things into consideration which is why they are so narrow.  The gist of these laws is police want and need help in serious situations… not to round everyone up who knows something.

Law Enforcement Usually Understand’s You’re in a Tough Spot Too

Police are people too and they might understand the witness or person is in a tough spot to do something.  Many crimes take planning and a series of bad decisions.  Witnesses to crimes normally don’t choose to be witnesses and they often have to make decisions on the spot.

I can see police threatening people with this charge to get them to talk about solving the underlying crime… but again, remember the cops want the REAL bad guy more than anything.

Failure to Report Abuse or Neglect of a Child or failure to report Aggravated Sexual Assault of a child is a bit of a different story.  I’ll write about that in another blog.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article should be considered legal advice.  For legal advice about any situation you should contact an attorney directly.