Can I Change Lawyers in a Criminal Case?

January 11, 2021

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

You can change lawyers in a criminal case but it’s subject to the Judge’s approval.

Most judges readily agree unless it will cause a significant and/or unnecessary delay in the proceedings.  I’ve never seen a judge stop or prevent a substitution early in the proceedings well before the case is set for trial – or even several months before a trial setting.

Judges get annoyed, though, when someone wants to substitute on the eve of trial or with just weeks before.  Judge also get irked when someone tries to substitute lawyers multiple times which the court often sees as a delay tactic.

A Client is Entitled to the Lawyer of Their Choice

The Sixth Amendment to the US Constitution guarantees right to counsel.  In retained or hired cases, it is generally accepted and understood the person gets counsel of their own choosing.  There are limitations, though.  Counsel must be a member of the bar, counsel can refuse representation, and the court can step in if there are other extenuating circumstances (such as if the court detects a serious conflict of interest or the court feels the representation is inadequate).

Why Does the Judge Need to Approve of a Change?

A judge is responsible for managing their cases and their docket and the integrity of the adversary legal system.  When a lawyer files a pleading or a letter of representation – the lawyer is legally and ethically binding themselves to representation in that case through the completion of the case.

A lawyer representing a party in case before a judge is known as an “officer of the court.”   A judge, then, can depend on the lawyer and require the lawyer to be present to represent their client when the Judge says so.  A judge can require a lawyer to handle a case even against that lawyer’s wishes if circumstances demand.

What Are Good Reasons to Change Lawyers?

This is a person-by-person choice.  I get calls all the time who are either upset or worried about their lawyer.  When I do visit with folks in this setting – I always do my best to see the situation from their lawyer’s point-of-view.  They are almost always in a better position to evaluate the case because they’re knee deep in the case and I’m not (yet).

The most common reasons I hear when folks come to me wanting to change from their previous lawyer are lack of communication, concern about qualifications or strategy, and general lack of confidence.  While I really will try to see the case from the viewpoint of the previous lawyer – I always want to make sure I’m not just telling the client what they want to hear.  If their previous lawyer has been doing a great job then I let the client know.  Even if I don’t get hired, I’ve helped the client have more faith in their lawyer.

Ultimately it is about the client’s comfort and confidence in counsel.  It is a bedrock of the lawyer-client relationship.

*Jeremy Rosenthal is 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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Can Police Track Your Phone?

January 8, 2021

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

The short answer is yes – but there are ever increasing legal hurdles in law enforcement’s way.  The issue is highly complex, evolving and will continue to evolve as technology changes society.  No page-long blog will do the topic justice but I hope to give you at least a basic legal primer.

The 4th Amendment to the US Constitution is your right to be free from “unreasonable” searches and seizures from your government.  Tracking a person’s phone either in real-time or after the fact has been the subject of intense legal scrutiny for some time now.

Is Tracking Your Phone a Search Within the Meaning of the 4th Amendment?

Courts agree inspecting the contents of your phone, wiretapping a phone call, or affixing a GPS monitor to a persons vehicle are “searches” within the meaning of the 4th amendment.  It’s taken some time for courts establish these norms but they have all one by one been accepted.

Much of what constitutes a “search” hinges on what we consider our own “expectation of privacy.”  We all have a much higher expectation of privacy in our night stand drawer than in our bag we’re bringing on a plane.  So the courts have had to answer the question of where does the smart-phone and the information rank between the two extremes?

The answer is different today than it was in 2005 because of the advances in technology and because of our reliance on smart device technology… and because of both of those things we have different expectations of what is or isn’t private about our phones.

Courts now recognize the contents of our phones today contain work information, banking information, medical information, information about the books we read, the historical figures we admire, who we’re angry with in our family, where we’ve been, where we plan on going in three months or in an hour…  In short we have developed an intense dependency and sense of privacy about our phones and the courts know this to be true.

Is Tracking a Phone an “Unreasonable” Search?

Again – what is reasonable changes.  A “reasonable” search at an airport on September 12, 2001 might not have been considered as such on September 10, 2001.  Our more intense reliance and privacy with the phones make them harder and harder for police to justify tracking or searching.

But understand an “unreasonable” search becomes reasonable if law enforcement can legally and procedurally justify attaining whatever it is they’re looking for.  The legal question is just how much justification do they need and whether it requires attaining a warrant?

What Information Can Police Attain About Your Phone & How They Get It

I’m not a technology expert so I don’t know what and how the police can track.  I’m sure if they’re not tracking phones in real time already then at some point I’m sure there will be the capability for them to do that.  Probation departments and supervision departments can require either software or hardware downloads which allows them to track usage – but that’s not the same thing because in those instances the individual knows – and has often agreed – to being tracked.

Phone Dumps and Downloads

The law is more clear in this area – police need a warrant to get into your phone if you don’t consent to it being searched.  What they can get once they get in your phone is a technology question which I don’t have the qualifications to answer… but I’m sure this is an evolving cat and mouse game like everything else in the law/ technology realm.

Records

Police can and often do obtain records from data providers and other third parties such as apps from their private offices.  The mechanisms may vary from State to State but the providers may be able to voluntarily provide records to law enforcement based on the terms and conditions of the usage – or as is more often the case – law enforcement can subpoena the records.  In some instances the federal government requires third parties to report certain activity to the National Center for Missing and Exploited Children.

Also, third parties who may have records the police want such as Facebook or Twitter or some of your other tech giants can be extraordinarily difficult to deal with for both law enforcement and the defense due to nothing more than their sheer size, amount of data they mine, and amount of users they have.  They have legal compliance departments but even Court Orders have the ability to sit in someone’s pile or in-box for who knows how long.

Courts are moving in the direction of requiring warrants to accompany the requests but this is an intensely complex and evolving area of the law.  Many of the third-party companies host apps and aren’t in the United States.  This adds yet another layer of complexity.

Bottom Line

For the police or law enforcement to track your phone after the fact or in real time is currently and will be one of the great battle-lines in courtrooms for the 21st century going forward.  This question is truly the convergence and intersection between radically evolving civil liberties and radically evolving technological capabilities.

Stay tuned.

*Jeremy Rosenthal is 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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Does a Jury Have to Be Unanimous?

December 31, 2020

By Texas Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

A criminal jury must be unanimous to either acquit or convict someone.  A jury who cannot agree is known as a “hung” jury which requires the case to be retried.

A notable exception to a jury being required to return a unanimous verdict is in death penalty cases.  In those cases, the jury is allowed to return an 11-1 or 10-2 verdict which triggers an automatic life without parole sentence – so any one juror can spare someone’s life.

Judges Don’t Like Hung Juries

A “hung jury” can be very costly to the parties and it also means the court will have basically wasted it’s own time and the time of all the jurors and potential jurors who spent time on the case.  So Judges bend-over-backwards to avoid a jury hanging.

Most judges will allow a jury to deliberate for roughly the same amount of time the trial itself took.  So if a trial took two days – that’s about the amount of time a Judge will require a jury to deliberate if they can’t reach a verdict.

Often times a jury will write a note to the court saying they are deadlocked.  In most instances the Judge will still require the jury to deliberate and the judge can issue what is known in Texas as an “Allen Charge” or a “Dynamite Charge.”  The dynamite charge is a polite letter by the judge reminding everyone it’s important to stand by their beliefs and convictions – but also details some of the waste and damage a hung jury does too.

Juries frequently come back with unanimous verdicts after an Allen Charge which is why judges do them.

If after enough time has passed and the jury still keeps trying to communicate the deliberations are hopeless then the Judge will eventually declare a hung jury – technically called a mistrial.

Jury Unanimity Can Actually Be a Complex Topic

Believe it or not the requirement a jury be unanimous can be a legally tricky issue from time to time.  It becomes problematic that the jury agree what exactly constituted the crime.

Texas has, within the last 20 years, enacted offenses making it a specific crime for “continuous” behavior.  This could be sexual abuse of a child or domestic violence.  In those cases the prosecution lists out instance after instance of abuse.

The unanimity requirement can be difficult because the jury doesn’t necessarily have to agree unanimously as to which specific crimes occurred – only that two or more did.  This raises arguments that it run afoul of constitutional unanimity requirements.

*Jeremy Rosenthal is 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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Sexual Abuse Charges – Blog 18: Empowering the Jury to Stop an Injustice

December 9, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

jeremy@texasdefensefirm.com

Injustice is possible in sexual abuse claims.  It can come in the form of a wrongful conviction or a horrifically cruel prison sentence.  I ask potential jurors if there is anything worse at all someone can be accused of or convicted of than child sexual abuse – and they almost always agree this is the worst.

Even worse – in defending these charges its not uncommon for mothers, fathers, spouses (and etc.) of the accused to plead with me to explain why does it seem like they’ve taken all of their loved one’s rights away… why have the police and prosecutors treated this as guilty until proven innocent?

“Because”, I explain, “they think he’s a child molester.”

Getting the jury to care enough to render a Not Guilty verdict or in some instances to give a fair punishment is my last installment on my series of sexual abuse blogs.

Getting the Jury to Take Accountability for their Verdict

The Milgram Experiment

There is a famous and notorious experiment which I think can be all too similar to a jury trial called the Milgram experiment.

The actual test subject who volunteers is told to read questions to a person over the radio who is in another room and can’t be seen.  When the person answers incorrectly, the volunteer is told to administer a shock in increasing doses to that person.

A “doctor” sits with the volunteer and repeatedly assures them the other person is just fine, also volunteered, was evaluated for being able to withstand the shocks, and further they consented to the full experiment.  The shocks increase to the point where the unseen person relays they are in excruciating pain and eventually tells the volunteer to stop.

The Milgram experiment’s goal is to see whether the volunteer actually does stop or if they administer the cruel shock even when the other person begs them to stop.  The experiment is now considered unethical as it’s too mean to put someone in the volunteers situation.

Dr. Stanley Milgram was a professor at Yale.  He concocted this experiment in the wake of the Nuremberg trials where Nazi after Nazi used the defense that they were just following orders.

In the Milgram experiment the volunteers would repeatedly want to stop administering the shock but would look back at the Doctor, the “authority figure,” who would tell the volunteer it was okay to ignore the other person’s plea for mercy.  The volunteer felt okay administering the shock because they divested themselves of accountability – if the other person was being hurt it was the doctors fault and not their own, right?

How Can a Jury Be Like the Volunteers in the Milgram Experiment?

There are plenty of opportunities for a juror to blame anyone and everyone else in the process for a bad result.

A juror is a volunteer or a stranger to the legal proceedings.  They are there for one week of their lives and have absolutely no connection to the parties and can go about their lives when they are done.  They do not have to live with the consequences of their verdict except for perhaps their conscience.

There are 12 jurors on a panel and no single one is responsible for the actions of the other 11.

And the biggest similarity — the courtroom is jam packed with authority figures who are telling the jurors they have thoroughly vetted the case and they wouldn’t be pushing charges with such harsh consequences unless they were true.

Fast-forward fifteen years to when the juror is reading the morning paper and sees they wrongly convicted the defendant.  The juror can blame everyone else for defendant’s plight.  This was the fault of the police, of the prosecutor, the Judge – but not mine.  Everyone else should have stopped this injustice first.  I was just doing what everyone else told me was the right thing to do.

Wrong.

The Single Hardest Thing For Me to Accomplish

Through a trial, I can point out challenges which make jurors question the state’s case.  I might even be able to persuade them my client is innocent or even that if my client is guilty – the prosecution’s punishment is far too cruel and stiff.

But my real job is to undo the Milgram effect.  To get the jurors to know, accept, and understand THEY and THEY ALONE are responsible for their verdict.  They are the volunteers sitting in the chair and THEY must have courage to tell the doctor sitting behind them they will not intentionally cause another person pain and walk away without human accountability.

Empowering the jury to fight an injustice means getting them not only to care about our client’s fight for justice – but to care beyond their one week in our legal system.  If we can convince jurors they are not only just a stake-holder in the outcome of the case but the final and most important stake-holder, then we have a real chance.

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

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Sexual Abuse Charges – Blog 17: Preparing for Punishment and Mitigation

December 8, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Criminal trials are bifurcated.  This means there are two phases.  The first phase is guilt/ innocence and in the event of a guilty verdict then the second phase is a punishment phase.  The punishment phase can be either before a judge or a jury.  The defense is legally and ethically required to prepare for both.  Preparing for punishment is today’s topic on my continuing series of blogs about sexual abuse charges.

Losing or Pleading Guilty on a Sexual Abuse Charge

Many defense lawyers talk like pro wrestlers.  We talk about how tough we are and how we rip the opponent from limb to limb.  But the fact is we come in second place in our profession more than we’d like and plea bargaining is a critical aspect of defense work.

With the punishments for sexual abuse being as stiff as they are – we always have to keep in mind the possible second phase of the trial.  We have to work just as hard preparing for the possible punishment phase as we do the guilt/innocence phase.

In sexual abuse cases – particularly with child victims – plea bargaining is often not a major component.  This is because the plea offers can be so high that there is either no reason to seriously consider them or if the prosecution wants such a high prison sentence then on our side we may as well go down fighting.  But it never hurts to research, learn and develop mitigating facts either for punishment or on the off-chance we can plea bargain to lower charges.

What is Mitigation?

Mitigation means learning and proving facts which lessen punishment.

Mitigation is a difficult task in a sexual abuse case for a number of reasons.  There is a victim who has suffered horrific abuse which has the potential to emotionally and psychologically scar them for life.  Sex is still — and will always be — a taboo subject for many folks too.  Thus, many folks don’t understand criminal sexual dysfunction and aren’t interested in understanding it.  Another hidden factor is many jurors want to prove to other jurors how tough and intolerant they are of sexual abuse too.

The best mitigating evidence is what I call “three pronged.”  That is it accomplishes the following:

  • It acknowledges the abuse and thus helps the victim heal;
  • It explains underlying causes of the abuse;
  • It provides reason and hope the defendant can conform their behavior in the future.

Examples of Mitigating Facts in a Sexual Abuse Case

A saying I like is “hurt people hurt people.”  Many of the mitigating factors we look for are along those lines.  Examples could include:

  • The defendant was sexually abused themselves;
  • the defendant suffers from some mental deficiency;
  • the defendant suffers from some type of developmental deficiency;
  • the defendant suffers from some type of psychological deficiency;

Another key component of mitigation in sexual abuse cases are evaluations from licensed sex offender professionals which use empirical data to assess the degree of risk and the underlying causes of the dysfunction.  The evaluation can include a prognosis and discuss if any type of treatment will help the accused.

Examples of Mitigation the Prosecution Tears Through

Mitigation and preparation for punishment has to run deep.  There are some cases where the defense parades all of their friends and family to testify what a great person they are and hope it helps to lessen punishment.  I’m not against giving the jury a full picture of the accused’s life but doing a witness parade without something deeper allows the prosecutor to prove-up their narrative the defendant simply has everyone fooled.

Another poorly conceived punishment strategy is to tell the jury they got it wrong in the guilt/ innocence phase.  Don’t get me wrong… there is nothing worse to me than fighting like hell on a case I strongly believe in only to have a jury reject us.  But we only make matters worse by blaming them in a punishment phase.

*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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