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 Certified in Criminal Law by the Texas Board of Legal Specialization.  He is Licensed to Practice by the State Bar 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.

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 is licensed by the State Bar of Texas.  Nothing in this article should be considered legal advice.  For legal advice about any situation you should contact an attorney directly.

 

 


Top 5 Most Common Police Attitudes – #1

May 15, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

This week I’m counting down some of the top police attitudes I see as a criminal defense lawyer in cases I handle.  Again, these are in no particular order of frequency or importance.

One theme I’ve discussed several times in this series of blogs is how the pressures of law enforcement can pull, push, stretch and bend officers in every different direction.  Police see the ugly underbelly of humanity and it shapes how they view the world.

Today’s attitude is no different.

#1 — Scumbag Mode

Police are at their most disappointing when they are in what I call “scumbag mode.”  It is self explanatory.  They think they’re dealing with a scumbag and they treat the person as such.

What I don’t always see with an officer in scumbag mode is an officer who is downright aggressive.  Instead, many are passive aggressive allowing the suspect to think they are in control.  What the suspect doesn’t know is they are already trapped in a spider’s web.

But we can tell they are in scumbag mode because of how they act or what they say.  Evidence of innocence gets crumpled up and pitched right into the trash can.  They call tow trucks once they go back to their squad cars.  They game plan with other officers about the arrest… then they go right back out to the defendant and pretend he or she can talk their way out of trouble.

Not happening.

The hardest things to get juries to understand about when an officer goes into this mode are three things — first is the degree of often passive-aggressive manipulation; second is their bias causes them to distort evidence against the accused; and finally — jurors don’t want to believe police are manipulative or that they’re not objective.

Now, in fairness… police think this way probably as a survival mechanism.  They see the underbelly of humanity and much of the time — their instinct and hunches are right about dealing with a scumbag more often than they are wrong.

What happens when the police go into “scumbag” mode and they’re not dealing with a scumbag?  They arrest people doing nothing wrong in Starbucks.  What is more likely than a national scandal is police hassling a young person, a non-conformist, or as all too often is the case, a minority for much longer than they’d deal with a soccer-mom from the suburbs.

Next time you see a story about police hassling someone for far too long remember they’re doing it because of their job pressures and because they’ve been triggered to go into their “scumbag” mode.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and is a licensed attorney by the State Bar of Texas.

 


Top 5 Most Common Police Attitudes – #3

May 13, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Today I’m continuing my series on the top 5 police officer attitudes I’ll see when defending cases.  These are police attitudes I see from police officers while on duty.

#3 — CYA

That’s right. Cover your a$$.

One of the psychological pressures on officers is maintaining their livelihood.  They don’t want to lose their job or their pension over any single case.

I see this one mostly in cases where there is an alleged victim involved such as domestic assault, sexual assault or complicated theft schemes to name a few.  A police officer knows an upset accuser (or the accusers parents) can cause them all sorts of headaches with his or her superiors at the station.

For assault/ family violence cases police are worried if they leave a couple warring in their home after a 911 call — one of them could be killed later in the evening.

On sexual abuse cases whether involving adults or children, a police officer is going to have to have a really good explanation to their superiors as to why they told an angry person claiming to be a victim, “no, we don’t believe you.”

Police will often file cases as “grand jury referrals” which is their way of filing a case with the District Attorney’s office while expressing an underlying doubt about the case.  It is a case where they don’t make an arrest prior to grand jury.  It can be seen as unwritten permission to dump a case.  Grand juries may still indict, though.

It sucks to be on the receiving end of a case where you suspect it was filed because the officer was doing CYA work.  It has to be dealt with like anything else.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and is licensed to practice law in the State of Texas.


The 5 Most Common Police Attitudes – #4

May 12, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Today, I’m continuing my series on the 5 most common police attitudes which I see case in and case out in the many, many cases I handle as a criminal defense lawyer.  As noted before, these opinions are due to my amateur police psychology.

#4 — Undecided

Police get complaints all day every day about wrongdoing.  They also see things while they are on duty which arouse their suspicion or curiosity.

It goes without saying often times when they approach a particular problem they are undecided about the outcome going into their work.  Normally, the longer a police officer is undecided in their investigation the more objective they will be.

Being undecided about an outcome is an extremely healthy attitude for someone making big decisions about another person’s life.  It causes the officer to investigate in detail and in doing so — to test alternate hypotheses, to review both favorable and unfavorable evidence in a balanced approach, and to understand the weight of their decision.  Obviously at some point an officer is likely to move off the undecided bubble one way or the other with the more information they assess and gather.  What is important is when they are undecided — they are better able to view the evidence neutrally.

I often see police who are extremely conscientious and do their very best to make the important decisions they are charged with making.  An officer should be undecided entering into every investigation undertaken.

But the equation breaks down a bit from here.  Police would have you believe they are undecided when approaching or investigating a case 100% of the time.  My experience is it is more like 20% of the time.

In fairness to police — I usually won’t see cases they don’t file unless I’m brought into the case very early.  The 20% could easily be much higher because I don’t know how many cases are put right in their trash-cans.

What I can say is by my best guestimation of the cases I do see — probably about 80% of the time the officer has a particular preferred outcome going into their investigation of cases they do ultimately file.  This can apply to DWI arrests, sexual assaults, or even white-collar embezzlement schemes.

Police are human too.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and is a licensed attorney in the State of Texas.