10 Principles of Defending People: #6 Investigate

June 5, 2018

By Collin County Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Here are the previous articles I’ve written about principles of defending people in this series:

Investigation is critically important in criminal defense and in many ways it is one of the central reasons we’ve been hired.  The chief sustained complaint for ineffective assistance of counsel claims is failure to investigate.

In sum, I’ll use a quote again I just used the other day… “the harder I work, the luckier I get.”  This is squarely the truth in investigating a case.

 

What Constitutes a Thorough Investigation?

It obviously depends on the case.  Not every case is capital murder.  The list of what needs to be done to investigate in some cases can be endless.  Examples of research needing to be done includes (but certainly isn’t limited to):

  • Thorough interviews of witnesses (including your own client);
  • Reviewing the background of witnesses (including your own client) such as criminal history, lack of criminal history, mental health issues, or even school records;
  • visiting the scene of the accusation;
  • inspecting physical evidence in possession of the police;
  • independent lab analysis or confidential re-testing of certain evidence;
  • Hiring an expert witness to assist with complex issues;
  • Reviewing public documents such as previous court records;
  • Investigating cellular data and social media such as text messages, Facebook, Twitter, Instagram, SnapChat, etc.;

Pursuing a Theory

A major difference between a Defense investigation and a police investigation is the theories we pursue.  A Defense investigation shouldn’t be scatter-shot.  It needs to be focused towards a particular theory or theories in a particular case.  Police investigations tend to have theories too… but their theory is almost always that Defendant is guilty.

Why Don’t Some Lawyers Investigate?

There are multiple reasons.  First, is lawyers didn’t go to investigation school, they went to law school.  An investigation is something most lawyers learn by doing which might suck for you if you’ve hired one that’s still learning.

Second, many lawyers are afraid of what they’ll find.  They buy in to their client’s guilt and are worried if they dig up bad facts for their client then they’ll end up making the situation worse for their client.

Final reasons might include their lawyer is too busy, not resourceful enough, or tragically are indifferent.

*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.


What is a Felony?

May 29, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

A felony is any crime which carries with it over one year of possible punishment.

This is the law in every state including Texas.  This is because it is the federal law definition and the federal law is supreme.

Below is a list of common felonies.  Don’t hit the panic button just because a charge is categorized as a felony.  Many of these charges carry possible probation even in the event of conviction.

Examples of common felonies in Texas include:

Drug Charges:

  • Possession of Controlled Substances such as cocaine, heroine, or methamphetamine;
  • Possession of prescription pills by non-prescription holder such as Adderall, or over 28 grams of hydrocodone, oxycontin, or Ambien;
  • Possession of Marijuana over 4 oz.;

Driving While Intoxicated Charges:

  • DWI 3rd or greater;
  • DWI with a Child;
  • Intoxicated Assault;
  • Intoxicated Manslaughter;

Theft Related Charges:

  • Any Theft Over $2,500;
  • Money Laundering;
  • Robbery;
  • Aggravated Robbery;

Assault Charges:

  • Aggravated Assault with a Deadly Weapon;
  • Aggravated Assault;
  • Assault by Impeding Airway;
  • Injury to Child;
  • Injury to Elderly;
  • Kidnapping;
  • Manslaughter;
  • Murder;

Property Crimes

  • Burglary of a Building;
  • Burglary of a Habitation;

Sexual Charges:

  • Sexual Assault
  • Aggravated Sexual Assault
  • Indecency With a Child (by contact or exposure)
  • Sexual Assault of a Child (Statutory Rape)
  • Aggravated Sexual Assault of a Child under 14
  • Aggravated Sexual Assault of a Child under 6
  • Continuous Sexual Assault of Child or Young Children

Obviously this is not an exclusive list but it hopefully give you an idea.

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

 


Is Sexual Harassment A Crime in Texas?

May 21, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

No.

Sexual harassment whereby one or more employer or co-worker creates a hostile work environment for other workers is civil, not criminal.  This means a person’s remedy is in the courts is through a lawsuit they normally bring themselves.

But there could be over-lap between sexual harassment and actual sex crimes.

Sex crimes are typically committed where there is unwanted touching or exposure.  So crude talk, innuendo, or inappropriate language are not enough to rise to the level of a criminal offense.  However, possible criminal liability can ensue such as indecent exposure, simple assault if there is unwanted non-sexual touching, or even sexual assault.

Can I Be Charged With A Sex Crime Even If I’m Being Sued for Sexual Harassment?

In theory, yes.

I worked at an employment law boutique right out of law school.  I don’t know that I ever saw that happen.  People who sue generally don’t go to the police… and when they do AFTER going to a lawyer first, I suspect the police are a bit leery of a money-grab (not to mention the case has normally gotten much older).

If you’re being prosecuted for a sex crime and are now worried about a sexual harassment claim — that’s normally hard to do too.  Sexual harassment claims have very tight time-lines which could be lost by this point.  If you’re being prosecuted for a sex crime of any time then sexual harassment is a much lesser matter in my book.

*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 Should be considered legal advice.  For legal advice, please contact an attorney directly.

 

 

 


Quick Chart of Texas Sex Offender Registration Crimes

May 17, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Chapter 62 of the Texas Code of Criminal Procedure governs sex offender registration.  Since it reads like any other government code — I’ve listed them in an easier to digest manner and provided links where the law gets really tricky:

Lifetime Registration:

  • Continuous Sexual Abuse of a Young Child Children
  • Aggravated Sexual Assault of a Child
  • Indecency with a child (by contact)
  • Aggravated Sexual Assault
  • Sexual Assault
  • Possession of Child Pornography
  • Promotion of Child Pornography
  • Sexual performance of a child
  • Trafficking offenses in certain circumstances
  • Burglary with intent to commit sex crime
  • Compelling prostitution of a child younger than 18
  • Unlawful restraint of child under 17 when already registering
  • Prohibited sexual conduct (incest)
  • Federal offense or offense from other state which is substantially similar

10 Year Registration

  • Indecency with a child (by exposure)
  • Unlawful restraint of a child under 17
  • Online solicitation of a minor
  • Prostitution (hiring prostitute under 18)
  • Indecent Exposure, 2nd Offense (must be convictions, not deferred)
  • Federal offense or state offense from another state with is substantially similar

*Deferred adjudication will trigger registration unless otherwise listed above.

**Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. For legal advice about any situation you should contact an attorney directly.