How COVID Broke The Criminal Courts – Blog 2 (Access to Courts)

August 11, 2020

 By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

One of the things I miss most with the pandemic is not seeing everyone at the Courthouse every day.

Being a defense lawyer is like being an athlete who shows up to the same clubhouse 3 or 4 times every week.  Over the years you have the opportunity to develop social, collegial, and professional relationships with everyone in the building.  You get to know other defense lawyers, prosecutors, judges, court coordinators, bailiffs and even the security guards at the front door.

These relationships are more than just fun.  They are the “WD-40” of courthouse efficiency.  It goes without saying being face to face allows everyone in the building to do their jobs more efficiently.  Not only that, being physically in the courthouse allows me to solve 10 problems a morning instead of just 2 if I’m trying only to work the phone.

Put in its simplest terms — I have a much more challenging time being an active influence for my client when I’m not “in the room where it happens.”

The limited access to prosecutors and court personnel presents two main problems.

Courthouse pictureFirst, is the limited ability to communicate.  In grade school we learn about verbal and non-verbal communication.  The stuff happens to be true.  Advocating for a client in person where the prosecutor or Judge can see and sense the depth and passion of an argument — even an informal one — is far better in person.  Texting, phoning, and even zoom simply isn’t as effective.

The second is simple access to prosecutors and court personnel.  During normal times it is much easier for me to be able to — for example — grab a prosecutor and visit with a Judge quickly about troubleshooting a problem either on the bench or in chambers.  Hurdles to those conversations are far more easy to overcome.  What used to take minutes can now take weeks.

Life will get back to normal.  My hope is that when it does, the ability to communicate with everyone at the courthouse does too.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He is currently designated as a Texas Super Lawyer by Thomson Reuters.

 

 


How COVID Broke the Criminal Courts – Blog 1 (No Jury Trials)

August 5, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Whether we like it or not the Coronavirus pandemic has been a transformational event – and its impact on the Courts and criminal law practice is no exception.  Some of it will be temporary and some of the transformation will be here to stay.

broken-bulb

Big Picture View of the Criminal Court System

Think of our court system as a pipeline with water going through it.  Cases go in on one end, and are channelled in certain directions to be resolved either by plea, dismissal or trial.  One of the Courts’ central roles is to simply move the cases through the system.

Certainly, the Courts have vital roles in the outcome – but as I explain to clients frequently – the Courtroom has two tables, one Judge and one witness stand.  They can’t weigh in on all 2,500 cases they’re assigned at one time.

The Role of the Jury Trial in the Process

Trial would be like the end of the water line which would typically spit the unused water out and be done with it.  It is the mechanism which closes cases the parties can’t resolve on their own.

But another crucial aspect of a Jury trial is this — parties typically also want to avoid them.  They’re uncertain.  They can be expensive for someone charged with a crime.  They can inflict real pain on a person standing trial or a witness in the trial.  Prosecutors won’t admit this – but they get paid the same whether they’re sitting at their desk or trying a case and many of them don’t want to put in the effort of a trial.  So trials also serve the critical function of pressuring criminal defendant and the prosecutor to come to some sort of agreement short of a trial.

Also there are some cases which simply have to be tried in the criminal world.  Take a Continuous Sexual Abuse of a child case where the Defendant serves 25-years to life with no parole if convicted.  If the Defendant is over 50 years old – there is simply very little reason for them to plead guilty in any event.

Pandemics and Jury Trials Don’t Mix

We can’t have typical jury trials in a pandemic.  It’s not safe and there is really no substitute.  Jury trials via zoom or other platform almost certainly violate rights to face your accusers in open court.  The jury system was also predicated on an assumption the jury can get to the truth by watching witnesses in person.

The System is Temporarily Out of Service

Not only is the mechanism we use to resolve cases not working during the pandemic — more importantly parties aren’t feeling pressured to resolve cases.

Prosecutors are currently making plea offers based on what they think a fair outcome would be for a case based on what they’ve seen as fair results in the past.  But they ignore the Defense has very little incentive — in many circumstances — in pleading guilty.

A Defendant on bond (and the vast majority are) doesn’t have to worry about upsetting a probation officer and going back to jail on a misdemeanor case.  On a felony case where the State thinks 8 years of prison is a fair offer — a defendant on bond is rarely going to sign up for that where the alternative is living a relatively normal life for another year.

Prosecutors and criminal defendants aren’t on the same wavelength with regards to resolving cases and the reason is the pressure-mechanism isn’t working.

Why Don’t Judges Just Try to do Jury Trials Anyway?

Judges could try to force the issue – but they fear making the matter worse by utilizing resources to try a case via Zoom only to have the Court of Appeals making them re-do the trial when the pandemic is over.

The Fix

The system will get back to normal once cases begin going back to jury trials.  When that will be is another issues.  But when jury trials do begin to crank up again — just like a water-pipeline with built-up pressure — you can expect excess pressure there too.

*Jeremy Rosenthal is Board Certified by the Texas Board of Legal Specialization in Criminal Law.  He is Currently Recognized as a Texas Super Lawyer by Thomson Reuters.

 

 


What Constitutes a Win?

February 20, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.rbcriminallaw.com

(972) 369-0577

Winning

From time to time I’m asked what my win-loss record is.  It’s a fair question, I suppose, from someone whose not around defense lawyers all-day every-day.

The question assumes all cases are equal in complexity, difficulty – and all people facing the dilemma of a criminal cases have the same tolerances for risk or life pressures which affect their decisions.  So I like to joke “last year, I made the playoffs.”  It normally gets a chuckle – but the person typically gets the point.

A sexual assault allegation where consent is blurred by alcohol consumption is much different than a bank robbery caught on tape.  Also the pressures facing a pilot arrested for a DWI and the loss of a lucrative livelihood aren’t the same as a college student studying for an MBA who got arrested for marijuana.  My goal is to clear everyone’s record who comes into my office – but not all cases are equal.

It’s unethical for any lawyer to guarantee results.  This makes sense because we are in the profession of quantifying unpredictable variables.  I know what the law says should happen — but unless I’m actually both your lawyer and the judge in a case, I can’t guarantee it will happen.  I know how the prosecutor will likely approach your case — but until I’m both the prosecutor and your lawyer in a case, I can’t guarantee what will happen either.  And then there are juries.  Don’t even get me started with them.

So what constitutes a win is often relative.  Make no mistake — I hate losing and I’ll always do my best to completely clear my client’s record in every case.  Sometimes it can be a really tall mountain.  If it is a bad felony charge we can often get it reduced if winning is too unrealistic.  If we can’t win a case which might result in losing a job or even a career – then we can often get the charges reduced to something my client can live with.  I’m in a tough business.  There are cases which come in my door where a great outcome is simply less time in prison.

The one thing a lawyer can always guarantee is how they treat you and their effort.

*Jeremy Rosenthal is an attorney licensed to practice in the State of Texas and is Board Certified in Criminal Law by the Texas Board of Legal Specialization.


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.