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 and is licensed by the State Bar 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 Certified in Criminal Law by the Texas Board of Legal Specialization and is licensed by the State Bar of Texas.


10 Principles of Defending People: #9 Be Organized

May 31, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

I’m writing a series of blogs describing what I think it takes to be an effective criminal defense lawyer.  Yesterday, I wrote about not being judgmental – a cornerstone of the mindset of a defense lawyer.

Today, I’m writing about another concept:

#9 Be Organized

I have two favorite quotes which go hand in hand about how I like to think I approach my work.

The first quote is, “the harder I work, the luckier I get” from Samual Goldwyn, a producer who founded MGM.  The second is from Jim Turner, a player on the Denver Broncos after they lost the Super Bowl in 1977 to the Dallas Cowboys… he said, “We were thinking about being the Super Bowl Champs and they were thinking about football.”

Many lawyers “think about being Super Bowl Champs” but they don’t mind the details or put in the sweat-equity it takes to win.  They confuse thinking about winning with the work it actually takes to win.

Every case is its own snowflake and some can be extremely complex.  It can be easy to get lost.  The more I practice, the more I appreciate the reality lawyers need a compass to navigate each case which makes sure every detail is addressed.

A good defense lawyer in my view needs a systematic way of approaching each case.  Do you think they make things up as the go along in an operating room?  Do you think a pilot with 323 souls on their commercial jetliner just treats their flight like a drive to the 7-11?  Do you think when NASA is about to launch humans into space with a $1.3 billion dollar project they just wing it?

No way!  They have checklist after checklist.  They have redundant failsafe measures designed to minimize their margin of error.  Why would we be any different when we are charged with protecting our clients lives?

Television and movies teach us bad lessons.  They teach us there are some lawyers can just walk into a courtroom and leave the jury in tears when they just got the case two commercial breaks ago.  I know some pretty darn talented lawyers.  But I don’t know anyone quite that amazing.

The rest of us need to be organized!

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and is licensed by the State Bar 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 by the Texas Board of Legal Specialization in Criminal Law and is licensed by the State Bar 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 State Bar of Texas.  Nothing in this Article Should be considered legal advice.  For legal advice, please contact an attorney directly.