Sexual Abuse Charges – Blog 1: The 40,000 Foot View

November 22, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

jeremy@texasdefensefirm.com

Few topics get more visceral reactions than the mention of sex crimes and charges – particularly when they involve children.

I explain to jurors this is precisely what makes sexual abuse charges a Petri dish for injustice.  They involve very graphic and horrific abuse, if true.  There are highly emotional victims, witnesses, advocates, lawyers and even jurors trying to hash-out highly subjective claims, evidence, and psychology with life-altering consequences.

This is why sex abuse charges are in many ways the ‘wild west’ of criminal law.

Focusing on the Big Picture First

Today I’m starting a series of blogs about sexual abuse cases.  In condensing everything so it makes sense, I’m finding major gulfs between some of the more technical and legal aspects of sexual abuse cases and the clinical, practical and/or advocacy related issues.

There are common threads, patterns and themes which are common to abuse cases which span different types of legal charges and allegations.

For this reason, I think it makes sense to dedicate a series of blogs to the technical and legal aspects of child sexual abuse and then to discuss some of the over-arching common denominators to all of them and finally how we deal with those from the defense’ point of view.

Breaking it Down Further

In sum – I’m going to break down sex abuse law and advocacy into three main categories so hopefully it makes more sense:

Einstein – or the highly technical or legal aspects of sex abuse law;

Motzart – the highly subjective aspects of the often malleable evidence, psychology, and social aspects of the charges; and

Rocky – how we fight and advocate against the odds.

Blog Topics:

Einstein (What the Books Say)

Motzart (The Subjectivity and Emotion)

Rocky (How We Fight)

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

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Posted by niftybrady

What is Entrapment?

November 18, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Entrapment is a tricky concept. It occurs when law enforcement convinces someone to commit a crime.  It gets confusing because the entrapment must go beyond merely affording someone the opportunity to commit a crime.

The law further says the enticement must be enough to persuade a normal, law abiding citizen with an ordinary resistance to committing a crime.  A good rule of thumb when thinking of entrapment is to see where the original intent of the crime originated – with police or the accused?

Entrapment is a defense to prosecution and Texas Penal Code 8.06 says:

(a) It is a defense to prosecution that the actor engaged in the conduct charged because he was induced to do so by a law enforcement agent using persuasion or other means likely to cause persons to commit the offense. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.

(b) In this section “law enforcement agent” includes personnel of the state and local law enforcement agencies as well as of the United States and any person acting in accordance with instructions from such agents.

Example of Situations Which are Entrapment:

  • A recovering addict is getting addiction treatment.  An undercover police officer meets the addict in the lobby of the counselor.  The undercover asks the addict to provide illegal drugs.  The addict refuses citing his attempt at recovery.  After repeated attempts to convince the addict, the addict gives in and attains and delivers drugs to the undercover officer.  See Sherman v. United States, 356 U.S. 369 (1958).
  • Undercover officer makes repeated attempts at having defendant provide access to drug dealers and drugs after defendant was reluctant after 12-year relationship. See Torres v. State, 980 S.W.2d 873 (Tex.App. — San Antonio, 1998).

Example of Common Situations Which Are Not Typically Entrapment

  • Person sells drugs to undercover police officer;
  • Persons who seek out and hire a hitman to kill someone;
  • Public servant who is offered a bribe and accept it.

Other Thoughts on Entrapment

Candidly – there is a strong bias against the entrapment defense by judges and juries.  Entrapment is more of an academic argument for that reason – and typically the most a court can do in a case of entrapment is give the jury an instruction they can acquit an accused on that basis.  So even if the person meets the legal pre-requisites of entrapment a jury still might not buy it.  Most people think the government conduct would have to be so outrageous as to strongly over-shadow the crime committed.

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

 

 

 

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Can the Police Lie To Me?

November 15, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Yes, the police can lie to you during an investigation.

Deception is a legitimate tool of law enforcement.  If you don’t believe me, watch any mafia or gang movie where the police plant someone to infiltrate the group.  I’d call someone with a fake identity who pretends to be someone else a touch on the dishonest side, would’t you?

Let’s be honest – often the ends justify the means.  We all want killers, child molesters, or thieves to be caught and a bit of trickeration is typically tolerable to a point for all of us depending on what the police are digging into.

A key assumption I am making here is the officer or detective’s mind is made up about the case before they attempt to speak to the accused.  Just know this obviously isn’t always the case.  There are many times an officer legitimately isn’t trying to manipulate someone into giving them information and they really are just trying to understand what really happened in a given case.  Then again, the whole reason for this blog today is we’re never 100% that we know the difference.

Lawyers cannot lie ethically whether in court or not.  I’m not aware of any similar ethical requirement of police or law enforcement.  They cannot commit perjury, obviously — but when they deal with a citizen under investigation they are not under oath.

How Common is it for Police to Lie During an Investigation?

Very common.  And to be fair to police, lies come in all different shapes and forms and rarely are they complete fabrications like infiltrating the mob.  Some can be exaggerations, lying by not telling a suspect the complete truth about what the police know, or telling a suspect half-truths to try and get them to open up and confess.

Many agencies employ the Reid Method of Interrogation – a controversial tactic with psychological underpinnings designed to manipulate an accused into confession.

Everyday Examples of Police Techniques

During a DWI arrest – the officer may say something like “I’d like to have you do some tests to see if you’re okay to drive.”  It’s pretty disingenuous when the cop has already called the tow-truck to have the person arrested.  In this instance the officer is leaving the false impression the person can somehow avoid the arrest if they perform well enough or are cooperative.  But police are trained to get all the evidence of the intoxication on video tape – and this is exactly what they are doing in this example.

During a Sexual Assault Investigation – a detective might often pretend to know facts they don’t.  Or a detective might do the opposite – pretend not to know anything but in reality know many of the answers to the questions being asked.  Like the Driving While Intoxication situation – the officer may give the false impression the suspect can talk their way out of an arrest when in reality the detective has already secured an arrest warrant.

Bluffing or “Hot Boxing”– Police bluff and threaten certain consequences they can’t follow through on knowing they are dealing with someone who doesn’t know the difference.  Another term I call “hot boxing” is where an officer puts on a high-pressure push to get a person to comply with an interview or make statements.

Vagueness as a Weapon – An extremely common thing I see is a police officer or detective simply being vague with a suspect.  “If you don’t tell me your side of the story, I can’t help you” or “I just want to hear your side the story.”  As you can see there are no real promises here and it implies no decisions have been made.  But that’s not always true.

There is No Substitute for Experience and “Feel”

The fact is if you’re facing a situation where the police want to question you – and you’re concerned they’re being less than 100% honest with you then you really need a lawyer in your corner.

Police have a much more difficult time manipulating or/ working an experienced lawyer – and most don’t even try.  But one thing an experienced lawyer can have with an investigating law enforcement agent is an honest conversation.  And that’s a good thing.

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

 

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Posted by niftybrady

Why Children Have to Testify in Sexual Abuse Cases

November 13, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Children must often testify in open court to satisfy the U.S. Constitution’s confrontation clause in the 6th Amendment.  The 6th Amendment has been repeatedly held to require a defendant be allowed to cross-examine their accuser in open court.

Other examples of the confrontation clause would be the arresting officer in a DWI arrest having to take the witness stand, a battered spouse having to take the witness stand in a prosecution against their abuser, or an eyewitness to a crime like robbery.

Emotional Trauma Versus Principals of Justice

Many folks feel like having to put the child on the witness stand is just an arbitrary rule with long-term emotional damage as a consequence from the trauma of having to testify.  Unfortunately they are often correct about the emotional trauma – I have spoken with many adults who had to take the witness stands as children and it is normally reported as an awful experience.

While I can’t make anyone feel much better about impact of the rule on the child – perhaps I can at least speak to the gravity of what the rules try to accomplish.

Why the Right to Cross Examine is Critical to Our System of Justice

My favorite quote about the right to confront is by Henry Wigmore, “Cross examination is, beyond a doubt, the greatest single engine for the discovery of truth.”  I couldn’t agree more.

While “cross examination” seems harsh understanding we’re talking about children – it really just means the difference between asking closed ended questions and open ended questions.

Consider in a sexual assault of a child case – the police, detectives and children’s advocates only ask the child “what happened next…..? and then what happened….? and what happened after that?”  It is probably a decent way not to suggest facts and details to the child, but doesn’t really scrutinize anything either.  It sort of assumes it all to be true without pressing any of the weak points of the story.

Now consider a child telling their parent they feel sick and can’t go to school.  Is the parent just going to ask how the child is feeling and regardless of what the child says accept it all as true?  Probably not.  The parent will probably conduct a bit of an investigation which tests the child’s claims.  Is there a fever?  Don’t you have a test today?  The chicken we had for dinner last night didn’t make anyone else sick?

Perhaps the child’s claims of being sick withstands the cross examination… then again, maybe the story withers.  This is how cross examination with pointed, leading questions can get to the truth.  Open ended questions, on the other hand, provide a stage for someone to make their sales pitch.

Can’t Someone Else Testify in Place of the Child?

Unfortunately not.  Another component of confrontation is cross-examining the actual witness and not a surrogate.

The law recognizes the surrogate simply will not know the details sufficient enough to provide a meaningful cross examination.  Was it light or dark outside?  Was the weather cold or hot?  Who else was in the room?  The surrogate typically won’t know the actual details and cross examining them is not the same as cross examining the accuser.

Separating Fact Versus Fiction About Children Testifying

A common misconception from the parents or legal guardinan of children having to testify is it would be like television or the movies.  That the accused will make threatening faces at the child or try to jump over counsel-table and charge the witness stand.  I’ve never seen or heard of anything like this remotely happening.

The truth is the accused is going through a range of emotions too like fear, uncertainty and who knows what else.

Other Rules about Children Testifying in Texas

Texas rules do allow grown-ups to testify in certain situations about what they child told them.  Those rules are allowed to essentially supplement what the child says and not replace what the child says.

It is also a criminal offense to try and persuade or influence any witness, child included, about their testimony.  It’s obviously a crime, too, to try and convince a witness to ignore a subpoena or not testify.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He is recognized as a Texas Super Lawyer by Thomson Reuters.  Nothing in this article should be considered legal advice.  For legal advice about any situation you should contact a lawyer directly.

 

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Posted by niftybrady

Illegal Searches are More Common Than You Might Think

November 10, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

One of the best weapons in defending many cases is the exclusionary rule.  That rule prevents illegally attained evidence from being used by the prosecution during trial.  The exclusionary rule is the citizens legal protection remedy from illegal police acts.  A motion to suppress evidence is typically the vehicle for the accused to try and trigger the exclusionary rule.

During an illegal search – the police have broken the rules.  Yet the police officers aren’t charged criminally themselves and no one loses their job.  Instead – police learn how do to it correctly the next time.  This is the whole point.

“Illegal” Has a Broad Meaning

Think of the word ‘illegal’ in terms of a penalty during a football game such as ‘illegal procedure.’  The word ‘illegal’ has a much lighter connotation when we know it’s just a 5 yard penalty for a player moving the wrong direction before the snap.

Calling a search or particular police action ‘illegal’ is really no different.  As the accused, you’re merely saying there was a foul committed without regard to wether it was intentional or severe.  But the rules are the rules and everyone has to play by them.

Illegal Searches Are More Common Than You Might Think

The courts are uncomfortable with traffic stops and/or searches based on little more than hunches because those were rightly exposed as profiling. You have to remember civil rights cases from the 1960’s and 1970’s still have a large imprint on search and seizure law.   We can debate about exactly who and why police may be targeting – someone covered in tattoos, teenagers, or as history teaches us – racial minorities.  But profiling is profiling.

The law combats profiling by requiring police to have “articulable facts” to justify traffic stops and continued roadside detentions.  Articulable facts is the difference between saying someone was going 74 in a 60 and “the car was suspicious.”

It’s very common to see extremely thin and subjective reasoning for keeping someone detained at a routine traffic stop – nervousness, the time of day/ night, or even labeling the area of the stop as ‘high crime’ with little or no proof this is the case.  Courts have repeatedly said these types of justifications are akin to multiplying zeros when it comes to articulable facts.  Bad stops can be and frequently are thrown out.

Again, police know they are fighting crime and doing great things by keeping drugs, guns, and drunk drivers off the streets.  They will often push and test the rules for reasons they think are justified.

The end result may be that often they have mis-stepped.

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

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Posted by Jeremy Rosenthal, Esq.

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