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.

 

 

 


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

June 1, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.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.


Textbook Video From an Illegal Search

January 24, 2014

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Today I’m posting a video created by a guy driving home from a Star Trek convention with a buddy who was stopped by a police officer for an alleged minor traffic offense.  He and his friend spend the better part of an hour being harassed, manipulated and badgered by the officer.  It’s a textbook example of when an unsuspecting fly gets tangled in the web of a nasty spider and can’t get away.

You can watch the video here.

As a Criminal Defense Lawyer having dealt with many bad searches, here are a few things I think are important to point out about this stop/ video.

Situations Like This Rarely Come to Light in the First Place

The reason this type of harassment of citizens never really comes to light is because these guys are completely innocent.  They’ve got no reason to ever acquire, watch, or publish this video.  In fact, most people who go through something like this either just want to forget that it ever happened or were so intimidated by the experience that they simply walk away.

Another reason why this situation is seldom exposed is because when an officer does profile correctly and find marijuana, cocaine or methamphetamine — the citizens regard all the singing, dancing, and acting he did to get into the car as “great police work.”  Obviously what is ultimately found, if anything, doesn’t suddenly validate the illegality of the search.

This is an Extreme (but not unheard of) Scenario

This situation is extreme.  It’s very common to see stops for very thin reasons, and very common to see cops play delay games like “the computer is slow today”.  Getting a k-9 to give a false hit (if that’s really what happened) would be highly uncommon, and simply making up a reason altogether for the stop (if that is what really happened) would also be well out-of-bounds.  Police often reach or stretch for reasons to detain someone, but normally it’s based on at least a smidgen of good faith.

Why this Search Was Illegal

Courts have long struggled with these types of police games.  In United States v. Shabazz, 993 F.2d 431 (5th Cir. 1993) citing United States v. Guzman, 864 F.2d 1512, (10th Cir. 1988) the Fifth Circuit stated:

“An officer conducting a routine traffic stop may request a driver’s license and vehicle registration, run a computer check, and issue a citation. When the driver has produced a valid license and proof that he is entitled to operate the car, he must be allowed to proceed on his way, without being subject to further delay by police for additional questioning. In order to justify a temporary detention for questioning, the officer must also have reasonable suspicion of illegal transactions in drugs or of any other serious crime.”

Also, it’s a well known game to wait for the arrival of a K-9 unit in the event the detaining officer suspects drugs.

*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 situation you should contact an attorney directly.  Communications sent through this blog are not confidential, privileged, nor do they create an attorney-client relationship.


An “Illegal Search” is Really More Like an “Illegal Procedure” Penalty in Football

March 3, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.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.

Isn’t it a Bit Much to Say the Police Acted Illegally?

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 Can’t be Very Common, Right?

They’re more common than you think.  You have to remember civil rights cases from the 1960’s and 1970’s still have a large imprint on search and seizure law.  The courts are uncomfortable with traffic stops and/or searches based on little more than hunches because those were rightly exposed as profiling.  Though today’s police may profile teenagers or people who have an alternative appearance – there isn’t much of a difference under the law.  Profiling is profiling.

You also have to remember police in targeting certain groups are often aggressive in their approach.  Police need articulable fact to justify traffic stops and continued roadside detentions.  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 frequently get thrown out triggering the exclusionary rule.

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 and ‘fouled’ the person they arrested.

*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 situation you should contact an attorney directly.  Nothing in this article is intended to be legal advice.  Contacting the attorney through this blog is not privileged and communications are not confidential.

 


What is a Motion to Suppress?

December 28, 2011

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

A motion to suppress is a challenge to the legality of how evidence was attained.

In Texas and the United States we have what is known as the “exclusionary rule.”  This rule means where a court finds evidence was attained illegally – it cannot be used for any reason against the accused.  The exclusion (or suppression) of evidence often makes it impossible for the prosecution to prove one or more elements of the crime — which means they often lose the entire case based on a successful motion to suppress because they will fail to meet their burden of proof at trial.  Other times, a successful motion to suppress will exclude a damaging admission, confession or other piece of evidence which does not win a case for the defendant but makes the case much more difficult on the prosecution.

What Makes an Arrest or Search Illegal?

It depends on the situation.  In an automobile stop, the stop is normally bad where the driver didn’t commit any offense which allowed the officer to pull them over in the first place.  Searches in automobiles can also be bad where the officer searches a car or individual without consent or probable cause that some crime has been committed within his presence.

Home searches have extremely great protection.  Remember the constitutional basis for the 4th amendment in the first place was to prevent American soldiers from rummaging through people’s houses the same way the British had done prior to the revolution.

Search warrants can be held to be illegal if the application for the warrant was not done properly and fails to establish probable cause.

Also, if the State broke some other law in attaining evidence then the evidence can be suppressed as well.  A common example is where the State doesn’t follow protocol on a breath test or blood draw and can’t use the result at trial.

The situations where searches, arrests, or other types of evidence can be thrown out are countless.  Each is truly it’s own unique snowflake and this discussion barely scratches the surface of suppression.

Does This Mean the Police have Committed a Crime Against Me?

Not really.  It’s more like an ‘illegal procedure’ penalty in football.  It sounds worse than it actually is for the cop.  Most suppression cases arise because the officer was being (1) overly-aggressive; or (2) was just not thinking.

You have to remember a handful of things about police.  First is they profile and target certain people.  The good news is that it is rarely based on race — but it doesn’t make it a whole lot better.  Police tend to target, for example, teenagers/ younger adults, people driving beat-up cars, and frankly — people who look like thugs.

Second, society has glorified police acting on ‘hunches’ even though the law requires the opposite — that if the police are going to act they have to have specific articulable facts which justify their actions.  Not only does the law require there to be ‘articulable fact,’ but study after study shows that an officer’s ‘hunch’ is generally no more reliable than flipping a coin.

When you combine profiling of someone in a high-target group with an officer acting on ‘hunches’ instead of fact — you tend to get a situation ripe for a motion to suppress.

Examples of How a Motion to Suppress Works

The best way to demonstrate how a motion to suppress works is through practical examples.

Bad Stop Eliminates Entire Case:  

DWI arrest where blood draw ultimately shows defendant had o.15 blood alcohol concentration.  Officer stopped defendant for driving slowly, weaving within lane, and crossing solid white line.  Court held defendant committed no traffic violations because (1) weaving within one’s own lane is not a crime where no lane was crossed; (2) driving slowly does not constitute a crime in and of itself; and (3) Defendant’s car crossed solid white line exiting freeway in response to being pulled over.  The officer’s decision to stop had already been improperly made.

Result:  All facts attained from stop were suppressed.  Therefore State could not prove identity of driver or that driver was intoxicated.  Case dismissed by prosecution.

Bad Search Eliminates a Key Element

Marijuana case where police get a report of a ‘disturbance’ in the middle of the day at an intersection in a high crime neighborhood.  Nature of the ‘disturbance’ unknown but description of participants were given – and description was somewhat common.  Officer stops defendant several blocks away walking on a street (towards the area of the disturbance).  After a brief conversation, the officer begins a pat-down search of the defendant who admits he’s got marijuana in his pocket which is ultimately found.

Court held: (1) the report of a ‘disturbance’ too broad to allow a general search of all people matching the description in the vicinity for all purposes; (2) the encounter between the officer and the accused was originally voluntary but turned into a detention when the officer began to frisk Defendant without permission; (3) by the time Defendant admitted to the drugs, the illegal detention without probable cause had already commenced — therefore the admission and the marijuana themselves were not admissible.

Result:  Not Guilty verdict because no evidence defendant was in possession of marijuana (the corpus dilecti of the crime).

Bad Search Warrant Eliminates Blood Result

Defendant arrested for DWI after car accident.  Officer’s conduct field sobriety tests and determine defendant was intoxicated.  Officers apply for search warrant from a judge on call.  Judge grants the search warrant and the defendant is shown to have a blood alcohol concentration of 0.17 at the time of testing.  Court held that search warrant failed to contain the time of driving and as such, the warrant was insufficient to demonstrate that evidence of a crime would be present in defendant’s blood specimen.

Result:  Defendant stood trial, however, state barred from showing or referring to blood draw or blood result.

In Summary

Motions to suppress are hard to understand.  They can be an over-looked and efficient way to defend cases of all types.  Hopefully after this discussion today you have a bit more understanding.

*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.  Legal advice about any topic should be discussed directly with an attorney.  Contacting the attorney through this forum does not create an attorney-client relationship.  Communications sent through this forum are not confidential.