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.

Email pic

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:

Screen Shot 2020-06-11 at 8.23.03 AM

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.

 


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

May 19, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.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.


What Constitutes a Win?

February 20, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Winning

From time to time I’m asked what my win-loss record is.  It’s a fair question, I suppose, from someone whose not around defense lawyers all-day every-day.

The question assumes all cases are equal in complexity, difficulty – and all people facing the dilemma of a criminal cases have the same tolerances for risk or life pressures which affect their decisions.  So I like to joke “last year, I made the playoffs.”  It normally gets a chuckle – but the person typically gets the point.

A sexual assault allegation where consent is blurred by alcohol consumption is much different than a bank robbery caught on tape.  Also the pressures facing a pilot arrested for a DWI and the loss of a lucrative livelihood aren’t the same as a college student studying for an MBA who got arrested for marijuana.  My goal is to clear everyone’s record who comes into my office – but not all cases are equal.

It’s unethical for any lawyer to guarantee results.  This makes sense because we are in the profession of quantifying unpredictable variables.  I know what the law says should happen — but unless I’m actually both your lawyer and the judge in a case, I can’t guarantee it will happen.  I know how the prosecutor will likely approach your case — but until I’m both the prosecutor and your lawyer in a case, I can’t guarantee what will happen either.  And then there are juries.  Don’t even get me started with them.

So what constitutes a win is often relative.  Make no mistake — I hate losing and I’ll always do my best to completely clear my client’s record in every case.  Sometimes it can be a really tall mountain.  If it is a bad felony charge we can often get it reduced if winning is too unrealistic.  If we can’t win a case which might result in losing a job or even a career – then we can often get the charges reduced to something my client can live with.  I’m in a tough business.  There are cases which come in my door where a great outcome is simply less time in prison.

The one thing a lawyer can always guarantee is how they treat you and their effort.

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