Failure of a Lawyer to Give Immigration Advice in a Criminal Case

January 9, 2021

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

jeremy@texasdefensefirm.com

Immigration is such a major topic in criminal defense the topic has been given it’s own name:  Crimmigration.

Criminal defense lawyers have a non-delegable duty to advise their clients about immigration consequences.  The point was made clear in the landmark US Supreme Court case Padilla vs. Kentucky, 559 US 356 (2010).  Padilla holds it is ineffective assistance of counsel for a lawyer handling a criminal case not to advise a client about the immigration consequences and dangers which come with the criminal case.  This is because erroneous advice – or not giving advice at all – can lead to a client’s deportation, removal or ineligibility to renew immigration status.  It is not enough for a criminal defense lawyer to tell their client, “your immigration issue is not my problem – I’m just handling your criminal charges.”

I’ve blogged before on the complexity of immigration issues in the criminal context and you can read it here.

Being Aware of Immigration Tripwires in Criminal Cases

Immigration law is it’s own completely different practice of law from criminal law.  I explain to clients that me giving immigration advice in many ways is like a foot doctor giving advice about your shoulders.  Nonetheless, Padilla and the cases which have followed require criminal lawyers to educate themselves in immigration law enough to effectively advise clients about what can and can’t happen because of things like guilty pleas, conditional dismissals, or specific sentences.

Some immigration rules require detailed analysis about facts and issues which are easy for a criminal lawyer to over-look.

For instance, immigration courts have different classifications for drug possession than Texas criminal courts.  The Texas criminal courts have their own scales for charging drug possession cases which don’t necessarily correlate to the federal court’s or immigration court standards.  Many Texas criminal lawyers may just skim the amount ultimately weighed just to make sure it comports with Texas law – but the lawyer must also beware the tripwire of the immigration consequences if applicable too.

Being Extremely Cautious in Decisions Which Affect Immigration

I tend to be extremely cautious when dealing with immigration issues and complications.  It’s because immigration has been and will probably always will be a white-hot legislative topics in the federal government.  Just because the law says pleading guilty offense x in 2021 is fine doesn’t mean the laws can’t change in 2026 and take a completely different view of what we did 5 years before.

What Happens When My Lawyer Gives Me Bad Immigration Advice?

It’s common for our office to get phone calls when someone has taken a plea deal of some sort and then they get detained, removed, or are not allowed to renew their citizenship status.  It’s often the first time the client had any inkling there would be a collateral immigration problem connected with their criminal case.

When a lawyer doesn’t give immigration advice either because it scares them or they just didn’t spot the issue at all – or if a lawyer gives bad immigration advice it can be “ineffective assistance of counsel.”  Ineffective assistance of counsel in an immigration setting means the lawyer didn’t give proper advice and as a result – the client’s decision was rendered “involuntary.”  An involuntary decision – usually to plead guilty or no contest – is nullified in the event there was ineffective assistance.

Ineffective assistance of counsel can be addressed through different legal mechanisms such as a “Motion for New Trial” or a “Writ of Habeas Corpus.”

Ask Your Lawyer About Immigration Consequences

If you have any questions in a criminal case setting about immigration consequences – ask your lawyer.  It’s your criminal defense lawyer’s job to properly advise you about immigration consequences.  Often times it may take a joint session between criminal and immigration lawyers working together to make sure the client fully understands.

*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.

 

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My Lawyer is Not Fighting For Me….

January 7, 2021

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Your lawyer is fighting for you.  At least I hope they are.

What Your Lawyers Job Is – and Isn’t

A lawyer has a duty to zealously advocate for their client.  A lawyer cannot, though, just go bananas for the sake of going bananas.  Lawyers have other duties which often compete with their duty to zealously advocate for their client.

Here is a relevant passage in the Preamble Texas Disciplinary Rules of Professional Conduct:

2. As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others. As intermediary between clients, a lawyer seeks to reconcile their divergent interests as an advisor and, to a limited extent, as a spokesperson for each client. A lawyer acts as evaluator by examining a client’s affairs and reporting about them to the client or to others.

Note zealous advocacy is sandwiched between other roles of the attorney.  The lawyer also has to give the client an informed understanding of their rights and obligations.  The lawyer must seek advantageous results consistent with the honest dealing with others.

Fighting for and advocating for a client is only a fraction of the lawyer’s job.  Much of the lawyers role is informing, educating, and advising clients.  Also, much of a lawyers job hinges on ethical obligations to judges and other lawyers… our system wouldn’t work if everyone got to go berserk.

A lawyer’s job isn’t to tell you everything you want to hear, either.  Many times folks will understandably want to shoot the messenger.

Giving Your Lawyer the Benefit of the Doubt

I’ve had many clients over the years who like seeing or thinking I’m being aggressive.  But not every situation calls for aggressiveness…. and just because the client thinks I’m not being assertive, zealous, or aggressive doesn’t mean I’m not either.

Often folks looking to switch lawyers will visit with me – and I always make an effort to try and see the situation their lawyer’s way.  That lawyer usually knows much more about the case than I do to that point and it’s arrogant of me to think otherwise.

When You Should Worry About Your Lawyer’s Efforts

First – you should be comfortable with direction of your representation.  If you can’t sleep at night worried sick about your lawyer and nothing they do or say helps then by all means find another lawyer whose representation you’re more at ease with.  Again, though, it’s not your lawyers job to tell you only news you like or that you want to hear.  It’s probably a worse mistake to shop, and shop, and shop for a lawyer until you find someone who magically agrees with everything you say.

Some lawyers can be intimidated by certain cases.  Is your lawyer constantly looking for reasons to back down?  When your lawyer does shy away from a difficult hearing, trial or other proceeding – do they have a detailed reason which makes sense?  In criminal cases – how often does your lawyer go to trial?  If it’s not on a regular basis then maybe that is a red flag.

*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.

 

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Probation Officer Recommendations

January 5, 2021

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Probation officers are often the gatekeepers between their probationers and ultimate freedom.  Probation officers are often asked about recommendations for things like travel, removal of an interlock ignition or deep lung device from a vehicle in DWI cases, or even early release from probation.

When folks visit with me wanting to change something about their probation, it’s very common for them to tell me their probation officer is “not opposed,” or “on board with” or even “recommends” something.

In truth – when I do pick up the phone to ask the probation officer their views I hardly ever get much of anything useful.  I’m usually told the probation department opposes our request to the judge or takes no position on our request to the judge (usually citing department policy).  I can’t remember the last time a probation officer actually told me they supported our motion.

Probation officers also make recommendations for revocations and adjudications.  It’s a bit of a different topic – but remember it is the Judge who ultimately determines what happens in a case, not the probation department.

Probation Officers Don’t Like Making Recommendations

Probation officers work in a bureaucracy. I’ve been in the Army, the District Attorney’s Office, and and have worked alongside government my entire career.  My blog is anything but political but probation departments with their bureaucracies come with some flawed cultures I’ve noticed.

I find there are three cultural problems I’ve seen with probation departments struggle with.  First, there is a climate of fear surrounding decision making.  Personnel are collectively intimidated about sticking their neck-out and making an uncommon or unconventional decision which has any potential at all to backfire.

Second, there is a “default to no” culture at most probation departments.  This means the default answer requests is typically “no.”  The answer is “no” if they don’t understand the request, “no” if they are 50/50 on the request, and especially the answer is “no” if they find a teeny-tiny reason the request could somehow backfire.

Third, if one decision maker is good – then seven are better.  And then they’ll come up with better reasons for saying “no.”

I’m probably jaded, but my view is probation officers simply don’t want to make decisions or recommendations which help their probationers.  They might claim to be in support in closed quarters with no one listening but they often quickly back off any such boldness.  They often claim they are bound not to make recommendations by office policy.  That could be true in some instances but those policies have never limited them from making recommendations against my clients… so I tend to view the policies skeptically.

Often I find a probation officer will claim they are not taking a position – yet they passive/aggressively oppose our requests in open court.  So I never take for granted they are in our corner or neutral on an issue.

I know I’m making many generalizations here.  There are plenty of probation officers I’ve worked with who break this mold and are very forthcoming on their views whether they are helpful or not to my client.

A Probation Officer’s Recommendation Isn’t Everything

It’s okay probation officers if don’t want to make recommendations.  Judges are comfortable making difficult calls granting things the probation department doesn’t like or want.

It’s the Judge who controls terms and conditions of probation – and Judges disagree with probation officers all the time.  Many judges have far more antagonistic relationships with the probation department than you may think.

For these reasons when I’m asked to help someone modify their probation – I just don’t put much stock in what the probation officer reportedly recommends.  If they are in our corner all the better.  But we can still win without it.

*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.

 

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Domestic Violence Charges – Blog 17:  Plea Bargaining in Family Assault Cases

December 29, 2020

By DFW Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Only 6% of state criminal cases go to jury trial.  That means 94% are disposed of some other way.  Those could be plea bargains or dismissals.  Some dismissals are by agreement where the defendant takes classes, performs community service and/or completes other tasks and is basically a plea bargain without actually resulting in a plea.

Courtroom lawyers love to talk-tough.  And I’m no exception because I eat nails for breakfast in the morning before dazzling every jury I see.  But what we don’t brag about much are our plea-bargains.  Plea bargaining doesn’t make wonderful fodder for lawyers web pages so you don’t hear lawyers talk about it much.  Again – 94% of cases don’t go to trial so even the lawyers who talk the meanest game in town plea bargain far more cases than they take to trial.  It’s just a fact.

Anyone who has come to see me about their case knows I analytically evaluate every case as if we are preparing for trial.  They teach us in law school to start with the jury charge and go backwards.  And I don’t wear my plea bargains on my sleeve either but candidly it’s where I do some of my best work of getting clients out of really bad jams.

Read here for an index to other domestic violence related blogs.

When Plea Bargaining Makes Sense

Domestic violence is an area where sometimes we simply can’t plead guilty.  It could trigger immigration, professional licensing, or other consequences we cannot accept.  So this is the first question – can the client afford the consequences of a guilty plea in a family violence case?

Pleading guilty or not guilty is always the client’s choice.  Some folks don’t have the stomach for trial.  Trial in a domestic violence case normally takes a day or two but can take a week or more.  I have fun in trial but that’s because I’m not worried about going to jail when it’s over and I’m not worried someone on the jury or someone who just wanders into the open courtroom might know me and post the affair on social media.  I discourage the idea of pleading guilty just to avoid a trial most likely in front of strangers but again – it’s my client’s choice and not mine.

Pleading guilty or no contest may also make sense in cases where I honestly tell my client the odds for an acquittal are long given the specific facts of any cases… and I go through a cost/benefit analysis with my client about the pros and cons of taking the case to trial.

Important Factors in Getting a Favorable Plea Bargain

When someone is pleading guilty or no contest (there is no legal difference which matters in criminal law) – they are accepting responsibility.  It’s important for folks to remember this.  If someone is going to take responsibility for the charges against them – then I always advise clients to do so sincerely, earnestly and whole-heartedly.

Beyond this if someone is going to take responsibility they also take on the onus of not only promising not to do it again but taking the affirmative actions necessary to make sure and guarantee it doesn’t happen again.  This may include accepting anger management, marriage counseling, or a batterer’s intervention program.

Often substance abuse and/or psychological disorders need to be addressed as part of the underlying causes.  So a person may need to accept evaluations along with follow-up recommendations.

If someone is willing to face their decisions and demons to make sure a domestic assault doesn’t happen again then it obviously bodes well for plea bargaining.

Ultimately plea bargaining is far more common than taking a case to trial though many of my colleagues pretend otherwise to the public and to one another.  It never hurts to have a good strategy of an exit-ramp in a case which can often be a plea bargain my client finds acceptable.

*Jeremy Rosenthal is 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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What is Mitigation?

November 8, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

“Mitigation” means making something less severe, serious, or painful.  In criminal law it refers to learning, seeking and providing facts which reduce someone’s potential punishment.

Mitigation is Important in Every Single Case

A big misunderstanding is mitigation and trying to get an acquittal are mutually exclusive – they are not.  People think you somehow admit guilt if you try to take mitigation steps after an arrest such as seeing a mental health professional or entering drug and alcohol treatment.

You can still fight for innocence at the same time you try to explain or lessen the harshness of the possible punishment coming towards defendant.  In fact, we are legally bound to do so and it can constitute ineffective assistance of counsel to ignore mitigation.

A solid mitigation case actually strengthens our ability to fight for an acquittal.  This is because we are less concerned about severe punishment in the event a jury disagrees with us and finds the defendant guilty despite our best efforts.

Mitigation Which Looks Backwards

Mitigation can help explain why the Defendant is in the predicament they are in.  Examples of backward looking mitigation to explain or give context to someone’s actions often include:

  • Mental health or psychological disorders
    • anxiety
    • ADHD
    • Depression
    • Bi-Polar Disorder
    • Psychosis
    • Manic episodes
  • Past sexual abuse of the accused;
  • Past physical abuse of the accused;
  • Past or childhood emotional abuse of the accused;
  • Addiction and history of addiction of the accused.

When Someone Has a Great History

Another form of backwards mitigation is potentially where an accused has never been in trouble at all.  Certainly someone who has been straight as an arrow their entire lives do deserve some credit and lenience in many cases.  The same goes for people who really have their act together and are – for example – in school making straight A’s and helping build houses for homeless people on the weekends.

Mitigation which Looks Forward

Any mitigation must have a forward path to be effective.  Explaining to the judge or jury an accused has been able to explain or identify why they have a particular problem is great.  It lets the jury know the accused isn’t an evil person.  But without a path forward to correct things – a judge or jury might feel they need to incarcerate the person to protect society in the future.

Forward mitigation could include steps taken by the accused after the arrest.  Examples are endless of the types of steps which can be taken to hopefully re-assure folks criminal behavior won’t repeat itself with the accused.  Examples might be;

  • Drug and alcohol treatment
  • psychological treatment
  • Sex offender therapy or treatment
  • Rage or anger management treatment.

Examples of Mitigation in Criminal Cases

  • A classic and easy to understand example are Driving While Intoxicated cases.  I explain to clients everyone at the courthouse including prosecutors, judges and probation officers think (1) someone arrested for DWI is not only guilty – but they’ve probably gotten away with it 100 times we don’t know about; and (2) all people arrested for drunk driving are alcoholics.  Those assumptions may be completely fair or unfair – but those are the attitudes we will have to over-come in a case whether we like it or not.

If we can convince the courthouse types not only did the defendant get screwed by being arrested in the first place – but also he’s perfectly fine to drive – it only strengthen’s our overall hand.

Bottom Line on Both Forward and Backward Mitigation

A criminal defense lawyer cannot assume they are just going to win every case no matter how confident we are we will ultimately win.  The Courts have held repeatedly to ignore mitigation is ineffective assistance of counsel.  Mitigation also helps us strengthen our hand and ability to fight the case on multiple fronts – not just sympathy or correcting certain behavior.

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

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