Zoom Jury Trials — “It’s Good Enough” Lowers the Standard in Our Courtrooms

May 19, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Collin County is kicking around the idea of jury trials via Zoom or some other similar platform.  They just tried a virtual jury trial – sort of.  It was a “summary jury trial” which is a practice run typically for wealthier litigants.  The fake jury comes back and tells the parties what they think the outcome should be — and the parties then consider settling.

***What did you say?  Sorry.  Go ahead.***

And not to pick on Zoom.  There are other similar platforms too, but I’ll just collectively refer to them here as Zoom.  Sorry.

Judges organizing and developing the idea get A’s for ingenuity, effort, and passion for their jobs.

But it’s still a terrible idea.  Remember, a jury trial is often the most important day in one or more person’s entire life.  Here are some of the biggest reasons I can think of:

Screen Shot 2020-05-19 at 9.14.28 AM

  1.  Over Simplification of Human Communication

Human communication is complex, intricate and amazingly subtle.

I’ve interviewed thousands of potential jurors  — and I have cross examined hundreds of witnesses.  Many, many jurors cannot give my client a fair trial but would still swear they could.  Many, many witnesses want to make sure I lose and evade questions until they are pinned into answering.  A critical part of my job in the courtroom is to hone in on the most minor of cues from a juror or witness.   An eye dart.  A smirk.  Posture.  Hand position.  Voice tone or inflection… and on and on an on.

***Sorry.  Lost you for a second.***

Zoom and other similar platforms are — at least for now — tone deaf.  These subtleties are either flattened, lost, or are drowned out in 20-people being crammed onto an 18-inch monitor.

And there is something to be said about accountability of the jurors too.  Jurors deliberate knowing they will have to go back into the courtroom and look me, my client, the prosecutor and in many cases a victim in the eye.  Jurors who share less of an emotional stake in the outcome will give the parties less of their focus and attention.

2.  Too Much is At Stake

For criminal defendants decades may hang in the balance not to mention the tidal wave which hits their families and loved ones which can be practical, financial and certainly emotional.  For victims it is their opportunity to be heard and have the jury see how real and fresh their pain truly is.

Zoom is probably fine for quick interactions and brief hearings.  It’s a great tool to visit with clients both incarcerated and free on bond.  It’s probably fine for motions practice with a Judge, lawyers, and possibly other witnesses during routine hearings too.

But any one of us would feel cheated and angry if we or our loved ones were sitting in jail after a trial where we couldn’t even see the jurors or our accusers in person.  Any victim whose defendant is acquitted will feel the same way too.

***Wait, who is talking?  Sorry!***

This is a jury trial — not a teamwork meeting or happy hour.  Can you imagine deciding something as critical and complex as a sexual assault shaping the lives of countless people without some sort of personal interaction?

3.  If Anyone Cares — It Violates a Bunch of Rights

This is a blog — not an amicus brief or a law review article.  So I apologize if I keep this quick and direct.

***Look at that guy’s cat!  He will knock down that picture on the wall***

Let’s start with the right to confront witnesses under the Sixth Amendment.  Then we’ll go to Due Process under the Fifth and Fourteenth Amendment.  Then let’s talk about the umpteen-million opinions you’ll see about the jurors ability to judge witnesses based on x, y, and z.  Or maybe we just throw those all out because we need to get our docket moving?!?

Make no mistake — Judges are asking the specific question, “Can I get away with this without getting reversed?”  My message to them — be my guest but don’t complain about trying the case when it comes back on appeal.

Bottom Line

Is Zoom “good enough?”  Perhaps in some ways and for some things.  People can talk, listen and see videos and exhibits.  But until the platform is as good as the Jedi Counsel meeting where Yoda can sit in his chair remotely from Kashyyyk and interact – it won’t be the same.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and is designated as a 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.

 

 

 


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 licensed by the Supreme Court of Texas.

 


The Greatest Misconception About Criminal Law

May 2, 2018

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

We hear and read a lot about “activist judges” or a Judge who re-writes the law from the bench.

Judges make popular targets for groups such as politicians or insurance companies who have a vested interest in stoking the public anger.  

A surprising attitude I’ll read about or see either in the news media or on social network cites is some think Judges make things easier for people charged with crime.  They think Judges somehow “re-write the law” to help guilty people go free or to make things easier for people charged with a crime.

Sadly, if anything is true, it is the opposite.  Judges don’t like crime, they don’t like criminals, and most in Texas campaign on being tough on crime.  And if they’re being creative with the law — they are doing so IN FAVOR of law enforcement, not in favor those accused.

Consider statistics of our State courts of appeal.  They are abysmal when it comes to ruling in favor of those accused.  

Here’s a prime example: A judge who has to legally toss out a case against a sex offender lest they be reversed might look for any excuse they can to save their own skin and keep the offender on the hook.  If they do so, they’ll look to an area on which they think the court of appeals will uphold them.  If the courts of appeals back up the original judge — presto chango- Judges have found a new area to skirt an uncomfortable rule.

We have many wonderful Judges in Texas.  I’m not suggesting otherwise.  And to be fair — the laws often do put judges in extremely uncomfortable spots.  

The US Constitution is a contract between the government and the people designed to protect the people from the government.  It was written keeping in mind the masses will always put individuals in jeopardy to preserve their own safety — and that they’ll use the tools of government to do so. 

The framers knew there would be constant pressure from the people on their own government to keep the people safe even at the risk of individual’s liberty.  But the constitution is often a minimal or bare-bones protection for someone accused of something heinous.  Lawmakers, Judges, and law enforcement all too often rationalize these individuals are lucky to get even minimal protection.  But those are exactly the people who need it the most.

Next time you hear someone say a Judge re-write’s the law from the bench, think twice.  If they say it is re-written to help a criminal defendant — quit listening.

*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 is intended to be legal advice.  For legal advice about any topic you should contact an attorney directly.