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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Posted by niftybrady

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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Posted by niftybrady

How Do I Find Out if I Have A Warrant Out For My Arrest?

October 28, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Here is the link to search for warrants in Collin County.  Here is the link for warrants in Dallas County.  Tarrant County wants you to contact the individual municipality where the warrant originated.  Denton County also makes you contact them for warrant info.

There is a database for warrants nation-wide, but unfortunately it’s not public.  Checking for warrants can be a pain-staking process if you suspect you have a warrant for your arrest but aren’t sure.  The counties which make you call them to inquire doubtlessly do it in an effort to draw folks who have a warrant into their spider-web.  My guess is it backfires because many people are too scared to call.

The vast, vast majority of arrest warrants are for mundane purposes such as traffic tickets or probation revocations (I love my readers, but I don’t do traffic tickets – so please don’t call me for those!).  Most warrants simply sit there unless or until someone gets pulled over or has some other type of benign law enforcement contact which results in them being run for warrants.

Can Warrants Be Hidden on Purpose?

Yes.  Law enforcement can issue warrants and have them be sealed.  They might do it if there is an on-going investigation of a conspiracy they don’t want to spoil – and then they arrest everyone at once.  The FBI, DEA and other federal law enforcement agencies do this frequently.  Another reason could be they want to arrest someone in person for whatever reason.

Pocket Warrants

Police can also get an arrest warrant but not enter into the national or local databases.  We might see these in cases like sexual assault or injury to a child.

They keep it in their “pocket” in an effort to arrest and immediately interview a suspect.  Think of it this way — if they have a murder suspect and they get a warrant from a judge — if they enter it into the national database, they risk having someone from another agency arrest the suspect at 3 a.m.  This could give the suspect several hours to “lawyer up” and not participate in an interview or interrogation.  The pocket warrant allows the officer to pick the exact time, place, and manner of arrest.

What Should I Do if I Have a Warrant for My Arrest?

You have to turn yourself in.  Most people don’t like hearing this.  Warrants don’t go away on their own and it’s very rare to be able to get a warrant thrown out before arrest.  Most judges and prosecutors have policies in place they won’t even deal with you unless the warrant is taken care of first.  And here’s what I tell my clients — if they don’t take care of the warrant on their own terms, then the warrant will be executed against them at the worst possible time.  Maybe while they are on a dream date.

*Jeremy Rosenthal is 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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Posted by Jeremy Rosenthal, Esq.

Can Our Own Expert Actually Hurt Us?

October 12, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

The legal system encourages the accused to utilize expert witnesses and professionals to evaluate and advise during the investigation and defense of a case.

A lawyer has a duty to thoroughly investigate a case they are defending and it can be ineffective assistance of counsel not to do so.  But let’s be clear – none of those duties are contingent on whether the lawyer thinks his client to be guilty or innocent.

Experts are Subject to the Attorney Client Privilege

An expert hired by the defense is part of the defense team.  That means what they learn is privileged which makes it safe to learn bad facts the prosecution might not know.

Let’s use an example from a DWI case:

The police draw defendant’s blood, put it in a tube sealed and marked with a number then shipped to a lab where it goes into the mail room where some guy sorted it while he was on his phone then sent it to the analyst who only has 100 other samples to juggle that morning…. and then the result comes back looking much higher than the lawyer thinks it should be.

The lawyer can do a DNA test on the blood to see if they have the right person.  But there is a big worry the DNA will match and defense just actually just found better evidence our own client is guilty than the prosecutor already has?!?

The rules protect this type of investigation and it’s actually possible to have blood retested or tested for DNA without the prosecution’s knowledge.  Also, whatever Defense expert learns is privileged.

In the event the gamble worked – and it’s not Defendant’s blood — Defense expert can then testify about it on the witness stand before the Judge or Jury.  Doing this would waive any privilege the expert had as part of the defense team.

In other words – the bad facts Defense expert learned can be kept secret or made public.  Defense lawyers wouldn’t investigate their cases as thoroughly if they were worried learning bad facts would only assist in convicting their client.

Using an Expert to Evaluate – Not Testify

A good expert is one who is faithful to their discipline – not a particular outcome in any given case.

It is common for me to reach out to an expert and have them do an evaluation of a case only for them to tell me, “Jeremy I don’t think you want me to testify about this case.”

The expert can still assist by giving technical support as to how defense might handle a prosecution witness or by steering defense away from problematic defensive theories.

They Can Still Hurt Us Even if They Testify

Calling an expert witness is always a judgment call.  Because the witness is loyal to their discipline and not the outcome – we have to recognize when Defense calls them to the stand — the privilege is essentially waived.  Everything which went into their evaluation and opinion is discoverable by the prosecution.

This means the prosecution can draw out either harmful facts or data which can be used to undermine our defense.

The question is whether after balancing the harm versus benefit – it still makes sense to call an expert witness.  This is where your lawyer’s experience is crucial.

*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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Posted by niftybrady

Hiring Expert Witnesses for Your Case – What You Should Know

October 11, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Expert witnesses are an important part of trial advocacy.

What is an Expert Witness?

A person with specialized knowledge of a particular is allowed to testify provided they comport with other rules surrounding reliability in both Texas and Federal Courts.

Judges have a detailed legal framework they must follow to determine if a particular expert may testify in a particular case.

Experts can testify in applied scientists such as DNA or blood analysis, areas such as computer forensics, cell phone tower triangulation, and in soft sciences such as therapy or domestic violence, and even in areas such as accounting, plumbing, or as in the movie “My Cousin Vinny,” — independent rear suspension cars made in the 1960’s.

Do I Really Need an Expert Witness?

Follow your lawyer’s recommendations here.

The defense can establish their own trial theory either through their own witnesses and experts or through the prosecution’s witnesses and experts.  Prosecution witnesses and experts are predictably uncooperative with us and some of their experts will easily admit to shortcomings in the state’s case and others won’t.  There is no substitute for the clarity and power a good expert witness can provide on your side.

There are risks to proffering an expert witness in your defense.  A good expert witness should be loyal to their discipline – not necessarily to you winning your case.  This helps them be credible.  But this also means your expert may have to admit to facts which can hurt your case when the prosecutor asks… and sometimes those could be facts and analysis the prosecutor was never aware of in the first place.

Ultimately the complexity of certain issues often dictates.  Trial is teaching the jury a theory.  That can be hard with a state’s expert who sees it as their job to make sure you lose.  A good expert witness on your own side is often necessary.

Why is an Expert Witness Paid?

I don’t work for free and neither do you.  I haven’t met anyone who does.

The fact a defense expert witness is paid and how much are typically good fodder for prosecutors on cross examination.  If you think about the fact they’re paid – it’s actually a good thing.  That is because testifying is their livelihood and for that reason they wouldn’t jeopardize it by saying crazy or quack science when a court reporter allows everyone in the State to know how they testify.

The Court Can Pay For Your Expert

The Court can pay for someone’s expert witness in certain instances — even if the lawyer is retained privately.  The expert must be willing to accept the court’s payments which are typically lower than on the private market and the Court will underwrite and evaluate Defendant’s financial status.

Ask your lawyer about Court assistance for experts if money is tight.

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

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