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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What does the Term “Forensic” mean?

November 7, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Forensics are when normal scientific principals are utilized for courtroom purposes – normally in a criminal context.  The applications can be fairly broad as far as scientific (and even some non-scientific) disciplines are concerned.

Some Science is Purely for the Courtroom

A textbook example are certain sciences where the science itself is almost solely geared at solving crime.  An example could be blood spatter.  There might be a different application of the science of blood spatter than criminal law – but if there is I don’t know it.  Bite marks would be another example of a discipline which is virtually entirely for the purposes of criminal cases (forensic odontology) and there has been tons of criticism of bite mark evidence.

Some Science Can Either be Forensic or Not

Other examples require the injection of legal or investigative principals into the science.  Examples there could be forensic pathology, toxicology, or psychology.

Pathology is essentially the study of tissue as it relates to disease.  Forensic pathology takes it one step further often to either determine causes of death or in other cases – causes of bruising for assault cases.

Toxicology is the study of toxins and poisons and their effect on the body.  Forensic toxicology, then, applies to specific legal principals such as the ability to drive, a person’s level of impairment, or perhaps a foreign substance which caused a person to die in a homicide case.

Forensic psychology is a unique practice where a psychologist applies mental health principals and diagnoses and applies them to individuals either to reconstruct someone’s thought process during a potential criminal episode, their overall psychological profile, or for mitigation purposes.

“Forensic” Disciplines We Might Not Think About Much

Other examples of forensics which are disciplines and areas of expertise we don’t associate with medicine can be:

  • forensic computer exams
  • forensic accounting
  • forensic engineering

Instances Where the Term “Forensic” is Potentially Misused

Police and children’s advocacy centers utilize what they call a “Forensic Interview” of a child in sexual or physical abuse cases.  It’s basically an open-ended interview of a child where they are asked to describe physical or sexual abuse in a non-leading fashion.  The psychological or scientific underpinnings or basis for the technique has never been made clear to me – at least not in the courtroom by any of the practitioners.  But it makes the interview seem official or important to the jury – which is why they label it that way, I’m sure.

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

 

 

 

 

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Will I Be Arrested if I Shoot an Intruder?

October 22, 2020

By Texas Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Texas law allows you to use “deadly force” in certain circumstances to defend yourself.  One of those circumstances is when an intruder has forcefully and unlawfully entered your home.

Will you be arrested?  Perhaps, but the law may let you out of it if you qualify.

 

What is Deadly Force?

“Deadly force” means force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury.  Tex.Pen.C. 9.01(3).

When Can I Use Deadly Force to Protect My Home?

Tex.Pen.C. 9.32 discusses the defense of use of deadly force and in relevant part says this:

(a) A person is justified in using deadly force against another:

(1) if the actor would be justified in using force against the other under Section 9.31; and

(2) when and to the degree the actor reasonably believes the deadly force is immediately necessary:

….(B) to prevent the other’s imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

(b) The actor’s belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor:

(1) knew or had reason to believe that the person against whom the deadly force was used:

(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor’s occupied habitation, vehicle, or place of business or employment;

(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor’s habitation, vehicle, or place of business or employment; or

(C) was committing or attempting to commit an offense described by Subsection (a)(2)(B);

(2) did not provoke the person against whom the force was used; and

(c) A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section.

(d) For purposes of Subsection (a)(2), in determining whether an actor described by Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may not consider whether the actor failed to retreat.

The Statute Translated and Broken Down

In English – if you are in your habitation, vehicle, or place of business AND someone has not only unlawfully entered but did so by using force AND you have done nothing to provoke the person AND you yourself are not committing a crime – then if you shoot the person, you have self defense available to you.  Additionally, you do not have the duty to retreat.

What Does it Mean My Actions are “Presumed to be Reasonable”

Remember – the law could very well go to a jury in any legal case.  The jury decides whether what a person did to defend their home was reasonable.  This law assists them and ‘nudges’ them to tell them it was reasonable.  It also encourages police and prosecutors not to arrest or go forward where cases where this applies.

Why Does the Intruder Have to Use Force to Break In for Me to Be Able to Shoot Him?

This prohibits situations where someone is invited over, an argument ensues, and then the person doesn’t leave despite being told to do so.  In that instance, the person’s entry into the home would be unlawful yet not forceful.

What Does it Mean I Can’t Be Committing a Crime?

This is a confusing part of the statute.  Remember, this law is designed to protect the homeowner who wakes up at 3 in the morning to find a burglar in their home or who comes home for lunch to find their door kicked in and someone rummaging through their possessions.

The law isn’t designed to protect someone running a drug house or prostitution ring.  Also, the law had to have a touch of flex too because it covers car-jacking situations – and not bar fights which turn into fights in a car.

But if you Recklessly Shoot a Third Person…

If you use deadly force and in doing so harm or kill a different – innocent – person, then the self defense protections are unavailable to you.

*Jeremy Rosenthal is Board Certified in Criminal Law.  He has been designated as a Texas Super Lawyer by Thomson Reuters.

 

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How Long will my Court Case Last?

January 29, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

It depends on what type of case, where the case occurred and the court to which it is assigned.  Some cases have a tendency to be fast and others are typically slower.  The biggest single factor is typically evidence which must be analyzed such as lab evidence or computer forensics.  Cases without those components have less impediments.

This said, other complex cases obviously drag on a bit too.

Slower Cases:

  • DWI with blood draws
  • Drug Cases other than Marijuana
  • Computer Charges
    • Online Harassment
    • Hacking
    • Possession of Child Pornography
  • Sex Charges
    • Sexual Assault
    • Sexual Assault of a Child
    • Aggravated Sexual Assault of a Child
  • White Collar Theft
    • Embezzlement
    • Money Laundering
  • Engaging in Organized Criminal Activities
  • Crimes against persons which  have complex medical records/ issues

 

Quicker Cases:

  • Assault
    • Assault/ Family Violence
    • Aggravated assault with a deadly weapon
  • Retail Theft
  • Possession of Marijuana
  • DWI without blood testing
  • Criminal Mischief
  • Crimes against persons (without medical records)

 

Just how Quick (or Slow) will a Particular Case Be?

You can expect most Collin County Misdemeanors to last between 6 and 12 months from the date of arrest until a trial/ dismissal/ or plea bargain.  Felonies tend to be more complicated so those usually take longer.

Most of our courts have efficient dockets – meaning the cases move relatively quickly.  Some courts might have a glut of cases for various reasons and by luck-of-the-draw your case may take more time.

Other jurisdictions such as Dallas County simply have more real-world issues to contend with such as insufficient funding, high turn-over with court staff, or inexperienced prosecutors which can compound delays.  It should be no surprise that in general the bigger the county, the slower the case may be.

What Control do We Have in How Fast or Slow a Case Takes?

Some.  We can’t control how long an investigation, grand jury, or prosecutor takes to do their job… but we can control whether or not any delays are because of us.  Some clients want a case to move quickly and others prefer the case take a while for their own reasons.  We can do our best to affect either.

What About My Right to a Speedy Trial?

Analysis for speedy trial is multifaceted and analyzes more than merely calendar time.  Part of the analysis is about the reaons for any delay, whose fault delay may be (the prosecutor, the defense, or in many instances — the Judge).  Another component of the analysis is what degree of harm was suffered by Defense by the delay?  Stress and anxiety are parts — but the loss of evidence (such as a witness moving) could play a role too in speedy trial analysis.

“Tough-on-Crime” Courts have done much in Texas to gnaw away much of Speedy trial rights and privileges… so normally trying to have a case dismissed for lack of speedy trial isn’t typically my first preference.

Bottom Line

You won’t get a really sharp estimate for how long your specific case will take on the internet.  Sorry!  You’ll just have to run that question by a lawyer who is familiar enough with all the players and factors involved.

*Jeremy Rosenthal is an attorney licensed to practice in Texas.  He is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He was Designated as a Super Lawyer by Thomson Reuters in 2019.

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