Mental Illness & Criminal Law: Understanding the Problem

October 15, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

It’s hard to over-state the importance the role mental illness plays in criminal law.  There’s little question in my mind it’s far more prevalent people give it credit for.

A recent survey to Texas criminal defense lawyers asked, “What percentage of your clients suffer from some degree of mental illness in your view?” — and the most common answer was between 50% and 75%.

 

What is Mental Illness?

I find many folks – including my clients and their families – struggle with understanding the very concept of having emotional or behavioral problems.

My view is just about everyone wakes up in the morning wanting to be a law abiding citizen.  But many people are driven so far out of their normal range they get in trouble because of things like anxiety, depression, manic states, and on and on.  This is how I define mental illness.

The term “mentally ill” has a much harsher and deeper connotation than what it really means to me.  Many think it only applies to people who hear voices in their heads, talk to themselves, or who must be confined to a straight jacket in a padded room.  In reality, someone going through a really rough patch in their lives can be driven so far by everything going on in their mind – they can often do or say something which hurts another person or gets themselves in a situation they otherwise know is wrong.

Jail

I ask juries what they think of our national mental health system.  They get puzzled – because they can’t really think of what that is.  Then I point out to them the tragic truth — our mental health system is called “jail.”

Jail and mental illness are frequently on a collision course.  We often don’t know someone has cancer until they exhibit physical symptoms.  We often don’t know someone has the flu until they have a fever.  And we often don’t know how much someone is struggling inside until they get into trouble.  It could be assault, theft, drugs, trespassing — the scenarios are endless — but there are very few criminal cases where mental illness doesn’t play a role.

The Enemy of Treatment – the “Tough on Crime” Mindset

Texas is tough on crime.  Many here unfortunately feed into the cops vs. robbers, good guys vs. bad guys dialogue.  Many believe if crime rates are high – we just need to be meaner to people and things will be fine.  Fortunately these voices are fewer and fewer.

Police deal with tons of mental illness on the streets.  Their aim is generally short-term safety for everyone and not necessarily long term treatment.  They also often don’t have the choice but to take someone to jail who has either committed a crime or who poses a danger to others.

I find prosecutors have a tougher time understanding mental illness because they’re somewhat insulated from it.  They talk with the shop-owner who is having a hard time making ends meet but it’s the defense lawyer who deals to the shoplifter describe the sheer degree of anxiety which drove them to do something they knew was wrong as a simple example.

Getting People Help

The million-dollar question is how do we get help to those who need it. That’s an equally difficult problem.  Understanding the problem is the start.

*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 are Getting Theft Warrants for Shoplifting During the COVID Pandemic

October 6, 2020

By Criminal Defense Attorney Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

There are currently a glut of warrants for theft in Collin County from shoplifting cases.

Why?  Because during the beginning of the pandemic, police did not want to take folks to jail for shoplifting.  Police were under marching orders to keep the jail clear and police were like anyone else who didn’t want to ride with a stranger in a car for 20 minutes if they didn’t have to.

You can check Collin County Warrants here.  The warrant page says all warrants may not be visible to the public.  If a warrant is not visible it’s typically because of some organized crime ring where they round up the entire group at once.  Shoplifting theft cases don’t fit this profile.

Why Are They Getting Warrants Months and Months Later?

People are required to go to jail in most criminal cases – even if it’s just to book in then out.  The reason is simple — if criminal court were voluntary, no one would come.  The law doesn’t allow people to be prosecuted in absentia so that means the courts have to have some way to compel you to come.  They make you come to court by holding the threat of jail over your head.

Because they didn’t take someone to jail in the first place in March, April, or May – they now have to do it in September or October.

 

How are They Doing This?

Police are asking judges to sign arrest warrants based on probable cause affidavits.  All a probable cause affidavit lays out is the “probable cause” for the charge.  The judge then signs the warrant which allows police to arrest a person.  Criminal charges come later in this scenario.

Another way arrest warrants are triggered is where the District Attorney’s office files the actual criminal charges.

Are They Going to Come and Get Me if I Have a Shoplifting Warrant?

Legally they can but they might not.  They may not have the resources to resolve this glut of cases and they may just be satisfied for folks to either turn themselves in or for the warrant to sit dormant until someone gets pulled over at some point in the future.

A person with an active arrest warrant should always do their best to promptly resolve the warrant by turning themselves in, however.  Not only is it required by law but as I tell clients by turning yourself in with a plan to bond – you are in control and can minimize how long you’re in jail.  I tell clients an arrest will happen at the worst and most inconvenient time if they don’t resolve it promptly (like when you’re on a big date or on your way to your kids soccer game).

Most warrants like this already have a bond amount set in advance so you might not even have to wait for a judge.  Also, most shoplifting cases don’t particularly carry bond amounts which are extraordinarily high.  There is a good chance you are in and out of jail regardless of your financial condition.

Does This Make My Case Worse?

No.  The prosecutor will ultimately file charges and the vast majority of shoplifting cases are misdemeanors.  They carry a range of options which allow for expunctions or ways to get your record cleared.  I’ve handled so many theft cases I can’t count them all.  I can safely say how the person was apprehended never makes a difference in the case – unless, of course there was a fight or something like that.

There is an excellent chance of getting theft off your record depending on your personal history and the facts of the case through an expunction or non-disclosure.

*Jeremy Rosenthal is board certified in criminal law by the Texas Board of Legal Specialization.  He is recognized as a Super Lawyer by Thomson Reuters.  Jeremy is a senior partner at Rosenthal, Kalabus & Therrian, PLLC.  www.texasdefensefirm.com.


They Got the “Owner” Wrong on the Indictment

October 29, 2019

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

A question I get from time to time in theft cases is the “owner” of the property as alleged by the prosecution is not really the owner at all.  Sometimes it is someone whose name the accused doesn’t recognize at all

So Who Is the Person They’re Saying is the Owner?

It is often a loss prevention officer of the store or often an office holder if the ‘victim’ of the theft is a company or organization of some type.

Tex.Code.Crim.P. 1.07(35) defines an owner as a person who has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor.

When the perpetrator is attaining property in an unauthorized manner — they have no interest in the property therefore any other person even with minimal control of the property can be considered an “owner.”

Does it Really Matter Who the State Lists as the Owner?

Not usually.  Take most shoplifting cases — the “owner” of the property is typically listed as a loss prevention person or in some instances even the store itself.  It often isn’t contested.

But Here’s Where This Issue Can Get Weird:

Let’s say the person listed as the owner of the property in the indictment (or information in a misdemeanor) normally has less interest in the property than the accused.  For instance, the treasurer of an organization is accused of theft and a regular member is listed as the owner (but was perhaps the informant).

In that instance, the prosecution would argue the treasurer was stealing – so therefore they have no interest in the money stolen whereas the regular member has minimal interest — but still more than the stealing treasurer.  But the counter-argument is Treasurer is presumed innocent as a matter of law, so what you get are “chicken & egg” arguments on either side.

Just a legal pit I’ve fallen into several times over the years!

*Jeremy Rosenthal is an Attorney Licensed in Texas.  He is Board Certified in Criminal Law by the Texas Board of Legal Specialization and is a 2019 Super Lawyer as designated by Thomson Reuters.


10 Principles of Defending People: (#5 All Eyes are Equal & #4 Know the Enemy)

June 6, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.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.

 

 

 


10 Principles of Defending People (#8 Be Optimistic & #7 Inoculation)

June 1, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Today I’ve got two principles to share and they can be summed up the cliche, “Hope for the best but be prepared for the worst.”

I’m summing up what I feel are the 10 most important principles a criminal defense lawyer should follow in their practice in this series.  You can read about my previous posts so far on the topic here:

#8 Be Optimistic

You won’t find much doom and gloom on my blog.  I’m sure there’s plenty of anger, grand-standing and self-ritcheosness… but hopefully not much fear-mongering.

People often shake as they’re walking into my office.  A big part of it is because they’ve been on the internet or gotten legal advice from their best friend growing up.  They think I’m going to confirm their fears about having body and appendages severed by the prosecution.

I have yet to come across a case in the zillions I’ve evaluated where there isn’t some hope, some ray of sunshine, or something to be optimistic about.  Granted, these things are relative and  if there weren’t legitimate reasons for concern — no one would come and see me at all.

But people crave optimism from professionals they deal with.  There is nothing wrong with being optimistic and letting folks know where the sunlight is.

#7  Inoculate People For Bad News

Again, today’s topic is a ying and yang concept.  While there is nothing wrong with being optimistic — people also don’t come to a lawyer to be lied to.

Bad news is unfortunately part of the job.  It’s important to discuss unpleasant possibilities for many reasons.  What is also important is putting them into context and letting someone know how realistic certain outcomes may or may-not be.

I find it is important to discuss possible bad news before it happens.  This way the lawyer and client can come up with a plan for avoiding the possible bad result and time to come up with another plan should the bad result come to fruition.  This gives the client and/or their family a sense of some control and allows time for them to wrap their mind around things.

I call the concept inoculation.  It is like eating vegetables.  It’s no fun to eat veggies at the table but it’s very healthy in the long run.  Discussing possible bad outcomes in a constructive way yields long term dividends.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas.