Mental Illness & Criminal Law: Understanding the Problem

October 15, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

It’s hard to over-state the importance the role mental illness plays in criminal law.  There’s little question in my mind it’s far more prevalent people give it credit for.

A recent survey to Texas criminal defense lawyers asked, “What percentage of your clients suffer from some degree of mental illness in your view?” — and the most common answer was between 50% and 75%.


What is Mental Illness?

I find many folks – including my clients and their families – struggle with understanding the very concept of having emotional or behavioral problems.

My view is just about everyone wakes up in the morning wanting to be a law abiding citizen.  But many people are driven so far out of their normal range they get in trouble because of things like anxiety, depression, manic states, and on and on.  This is how I define mental illness.

The term “mentally ill” has a much harsher and deeper connotation than what it really means to me.  Many think it only applies to people who hear voices in their heads, talk to themselves, or who must be confined to a straight jacket in a padded room.  In reality, someone going through a really rough patch in their lives can be driven so far by everything going on in their mind – they can often do or say something which hurts another person or gets themselves in a situation they otherwise know is wrong.


I ask juries what they think of our national mental health system.  They get puzzled – because they can’t really think of what that is.  Then I point out to them the tragic truth — our mental health system is called “jail.”

Jail and mental illness are frequently on a collision course.  We often don’t know someone has cancer until they exhibit physical symptoms.  We often don’t know someone has the flu until they have a fever.  And we often don’t know how much someone is struggling inside until they get into trouble.  It could be assault, theft, drugs, trespassing — the scenarios are endless — but there are very few criminal cases where mental illness doesn’t play a role.

The Enemy of Treatment – the “Tough on Crime” Mindset

Texas is tough on crime.  Many here unfortunately feed into the cops vs. robbers, good guys vs. bad guys dialogue.  Many believe if crime rates are high – we just need to be meaner to people and things will be fine.  Fortunately these voices are fewer and fewer.

Police deal with tons of mental illness on the streets.  Their aim is generally short-term safety for everyone and not necessarily long term treatment.  They also often don’t have the choice but to take someone to jail who has either committed a crime or who poses a danger to others.

I find prosecutors have a tougher time understanding mental illness because they’re somewhat insulated from it.  They talk with the shop-owner who is having a hard time making ends meet but it’s the defense lawyer who deals to the shoplifter describe the sheer degree of anxiety which drove them to do something they knew was wrong as a simple example.

Getting People Help

The million-dollar question is how do we get help to those who need it. That’s an equally difficult problem.  Understanding the problem is the start.

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

Can Our Own Expert Actually Hurt Us?

October 12, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(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.

Complete Texas Law Guide to CBD, Marijuana & THC

October 10, 2019

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

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Let’s start with the easy stuff:

CBD Products : (Cannabidiol) are now legal in Texas as long as it contains no more than 0.3% THC (dry weight).  The Governor signed a bill into law effective September 1, 2019 legalizing CBD.

Medical Marijuana:  Legal if you have been diagnosed with parkinson’s, multiple sclerosis (MS), ALS, terminal cancer, and several seizure disorders AND you have a prescription for it.  Also, it cannot be smoked but must be consumed in an oil or inhaler form.

Marijuana:  Still illegal — but here’s all the hubbub:

For Legal Novices: In court the state must prove what is called the “Corpus Delicti” of every crime (Corpus Delicti is latin for ‘body of the crime’).  That means they have to prove a crime was actually committed.  In a murder case – it means they need to prove someone actually died — in a drug case it means someone actually possessed something illegal.  Remember the Dallas fake drug scandal?  It was a big stink because it’s just not a crime to possess sheet rock or gypsum even if you think it’s cocaine, anthrax or weapons grade plutonium.

The new CBD law makes it extremely difficult for law enforcement to know or prove whether the marijuana they arrest someone for has a concentration of 0.3% THC or not.

But Remember:  (1) possession of marijuana is still a crime.  Just because enforcement is difficult and/or problematic for the State doesn’t make it legal; and more importantly (2) This problem is temporary for two reasons —  First, the State may hone-in on an efficient testing system; and second — it’s a good bet the legislature will try to fix this loophole in 2021 which may be in time to meet the statute of limitations for an arrest made in 2019.

For the Legally Advanced:  This has created a nightmare in determining probable cause and reasonable suspicion to search a vehicle, seize evidence, and make an arrest.

For a police officer to search a vehicle they must have probable cause they will find evidence of an offense committed in their presence.  The odor of burned marijuana has very commonly been a staple of instant probable cause.  But here’s the question now: since the odor of burned marijuana isn’t necessarily indicative of a criminal offense (because someone could smoke cannabis without the active THC ingredient — or an ingredient of less than 0.3%) then does that vitiate the probable cause as well?

Assuming the odor of burned marijuana no longer supports probable cause (and that is a big assumption) then a search based on the odor of burned marijuana would be illegal and subject to the exclusionary rule.  The exclusionary rule prevents evidence from an illegal search from being used against you in court — aka “fruit of the poisonous tree.”  In other words, you win.

Stay tuned!

*Jeremy Rosenthal is Certified in Criminal Law by the Texas Board of Legal Specialization.  Nothing contained in this article should be considered legal advice.  For legal advice about any situation you should contact an attorney directly.