My Lawyer is Not Fighting For Me….

January 7, 2021

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Your lawyer is fighting for you.  At least I hope they are.

What Your Lawyers Job Is – and Isn’t

A lawyer has a duty to zealously advocate for their client.  A lawyer cannot, though, just go bananas for the sake of going bananas.  Lawyers have other duties which often compete with their duty to zealously advocate for their client.

Here is a relevant passage in the Preamble Texas Disciplinary Rules of Professional Conduct:

2. As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others. As intermediary between clients, a lawyer seeks to reconcile their divergent interests as an advisor and, to a limited extent, as a spokesperson for each client. A lawyer acts as evaluator by examining a client’s affairs and reporting about them to the client or to others.

Note zealous advocacy is sandwiched between other roles of the attorney.  The lawyer also has to give the client an informed understanding of their rights and obligations.  The lawyer must seek advantageous results consistent with the honest dealing with others.

Fighting for and advocating for a client is only a fraction of the lawyer’s job.  Much of the lawyers role is informing, educating, and advising clients.  Also, much of a lawyers job hinges on ethical obligations to judges and other lawyers… our system wouldn’t work if everyone got to go berserk.

A lawyer’s job isn’t to tell you everything you want to hear, either.  Many times folks will understandably want to shoot the messenger.

Giving Your Lawyer the Benefit of the Doubt

I’ve had many clients over the years who like seeing or thinking I’m being aggressive.  But not every situation calls for aggressiveness…. and just because the client thinks I’m not being assertive, zealous, or aggressive doesn’t mean I’m not either.

Often folks looking to switch lawyers will visit with me – and I always make an effort to try and see the situation their lawyer’s way.  That lawyer usually knows much more about the case than I do to that point and it’s arrogant of me to think otherwise.

When You Should Worry About Your Lawyer’s Efforts

First – you should be comfortable with direction of your representation.  If you can’t sleep at night worried sick about your lawyer and nothing they do or say helps then by all means find another lawyer whose representation you’re more at ease with.  Again, though, it’s not your lawyers job to tell you only news you like or that you want to hear.  It’s probably a worse mistake to shop, and shop, and shop for a lawyer until you find someone who magically agrees with everything you say.

Some lawyers can be intimidated by certain cases.  Is your lawyer constantly looking for reasons to back down?  When your lawyer does shy away from a difficult hearing, trial or other proceeding – do they have a detailed reason which makes sense?  In criminal cases – how often does your lawyer go to trial?  If it’s not on a regular basis then maybe that is a red flag.

*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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Domestic Violence Charges – Blog 16:  Areas of Defense Focus

December 29, 2020

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

jeremy@texasdefensefirm.com

It’s tough to quantify or discuss all possible defenses to all possible cases in one neat blog.  There are some cornerstones, though, and areas which any defense lawyer should look for acquittals.

You can read my index to other domestic violence charge blogs here.

A Note on Legal & Factual Sufficiency

It’s obvious I wasn’t watching any given couple’s quarrel which lead to someone getting arrested.  I couldn’t be a lawyer in those cases because I’d be a witness.  I don’t evaluate cases for what I personally think happened, rather, I evaluate them for what I think a jury may or may not believe.

What I evaluate to prepare for a trial, then, is what we call legal sufficiency and factual sufficiency.  Just remember when I discuss possible outcomes below – what I mean to say is “will the evidence be enough to show….”

Legal and factual sufficiency are confusing appellate terms which I’m evaluating for when I hear a case.  Maybe I’ll blog about that one day on it’s own if I want to put everyone to sleep… but not today.

What you do need to know about legal and factual sufficiency for the purposes of this blog is this:  A judge cannot allow a jury to deliberate at all if the evidence is legally and/or factually insufficient.  If the evidence shows the crime was committed by an apple and it’s an orange charged with the offense – then the judge acquits the orange before a jury can deliberate.

If there is Evidence Assault Occurred, Can the Prosecution Get it to a Jury?

The Texas Rules of Evidence dictate what a jury can hear.  If a jury isn’t allowed to hear something under the rules – then it could render the evidence insufficient and require acquittal.

Example #1:  Complaining witness told a neighbor who told their hairdresser they got choked by their spouse.  Can the hairdresser come in and prove-up the assault for the prosecution?

  • No.  The rules of evidence (specifically the hearsay rule) would prevent this testimony.

Example #2:  Neighbor routinely sees police coming to the house next door and sees the defendant yelling at children on Halloween.  Can the neighbor come to court to prove-up assault because “everyone knows he beats her?”

  • No.  The rules of evidence prohibit speculation of this sort.

The Confrontation Clause

Another topic which could easily take three or four lectures of a law school course in constitutional law is the confrontation clause.  Any lawyer defending domestic abuse cases has to be extremely up-to-date on these issues no differently than a physician has to keep up with the latest medical research on studies and pharmaceuticals.

The confrontation clause under the 6th Amendment of the US Constitution normally requires the accuser themselves to come into court and testify to secure a conviction.  But this isn’t always the case and the exceptions are constantly changing.

If the Jury Can Hear Evidence of an Assault, Can We Persuade the Jury Otherwise?

If the evidence might be legally and factually sufficient to sustain a conviction then we can’t count on a judge throwing it out before it gets to a jury.  In these cases we have to get to work proving the accusers account is incomplete, exaggerated, or otherwise wrong.

This is where a lawyer has to get into the dirt of a case knuckle-deep.  Who said what to one another, who was standing where, who was holding what object, who is on what medications, who consumed alcoholic beverages, who has a history of of doing what… etc, etc.

Do we have reason to believe the accuser exaggerates?  Do they have a history of exaggerating such claims or bringing false claims?  Does the complaining witness have psychological disorders such as manic episodes which might contribute to them giving a falsified account to police?

Are There Any Applicable Defenses?

I’ve blogged about the main defenses to assault – which apply regardless whether the complaining witness is a family member or in a dating relationship or not.

Can we show the jury this was self defense?  Who hit first and can we prove it?  Did they place the other person in fear of imminent bodily injury?  If so – how?  What does the physical evidence show?

Did the accuser “consent” to or otherwise invite the assault by their conduct?  Did they stand in a doorway and refuse to allow the other to leave?  Did they somehow dare the other one to hit them?

Each Case is Unique

Again — every case which comes in is unique.  But the good news for defending cases like these is they are rarely cut and dried.  The police have the difficult job of showing up to a scene and keeping the peace.

It often results in someone going to jail for no other reason than the police don’t know the couple — they just don’t want to come back later the same evening and pick up a dead body.

The legal system is designed for police to make an arrest with a lower threshold of evidence for exactly this reason — probable cause.  We have plenty of time after the fact to put the pieces together and mount an aggressive defense.

*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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Domestic Violence Charges – Blog 14: Common Prosecution Trial Tactics

December 26, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

In domestic violence trials, prosecutors know typically their case is only as strong as their complaining witness.

You can read other blogs about defending domestic violence charges and an index to the other blogs here.

Most family assault cases will have the prosecution calling to the witness stand the accuser, one or more police officers who were presumably on the scene, and increasingly expert witnesses who are often what we characterize as “blind.”

Exhibits will consist typically of photos taken the evening of the arrest of the complaining witness, the defendant and often of the place the altercation, if any, occurred if there is damage.  We also might see media in the form of 911 calls or body-cameras from police.

Corroboration

Because the accuser is the main witness – the prosecutor obviously attempts to show the jury as much evidence as they can which corroborate that witness’ account.  It could be physical injuries, cuts or scars.  It could also be physical evidence on the scene such as broken items or the location of other evidence or debris from an altercation.

Medical records exist in many cases but not all.  Obviously those are valuable pieces of evidence a to which a prosecutor will point if it fortifies their case.

Often times the corroboration might include statements the accused makes whether or not it is consistent with a true confession.

“The Cycle of Violence” and “Power and Control Wheel”

The cycle of violence and power and control wheel, which I’ve blogged about before, are central tenants of the Duluth Model and are loaded with assumptions and weaknesses.

The cycle is a theory which says domestic abuse goes through cyclical patterns which include assaultive abuse, a honeymoon phase, and then increasing tension followed again by assaultive abuse which is often worse than before.

The power and control wheel describes underlying motivations which include power and control by the abuser

These are generally incorporated into the prosecution’s case in AFV trials.  The prosecution attempts to fit aspects of the cycle and the wheel into the facts of the case.  Sometimes their evidence fits and sometimes it doesn’t.

True Story — I once had a prosecutor argue to a jury that when my client filed for divorce after she’d accused him of assault that it was because he was trying to control her.  I include it because it shows just how far the prosecution might reach and jam any fact they can into the “power and control wheel” whether it fits or not.  You would think filing for divorce would also be evidence of wanting to not be around another person at all (because they just had him falsely arrested for assault) and would be the complete opposite of trying to control them.

“Blind Lumper” Expert Witnesses

The “blind” expert is often a person who either works with law enforcement or as an advocate for domestic violence victims.  They are blind for the reason they usually don’t know any of the facts of a specific case until they hit the witness stand.  They are “lumpers” because academics tend to either “lump” everything into one-size fits all or they tend to “split” and show how one case differs from the rest.

They are then lobbed hypotheticals by the prosecution.  The unshackling result is the blind lumper witness then molds the hypothetical into how it fits the Duluth Model which shows, according to them, defendant is guilty.

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

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Domestic Violence Charges – Blog 13: The Duluth Model and Reciprocal Intimate Partner Violence

December 24, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

“The Duluth Model” is the current prevailing theory of domestic violence by law enforcement in the United States.

Its origins are from Duluth, Minnesota and was based on a treatment program run by Ellen Pence, a self proclaimed activist.

The “Cycle of Violence”, “Power and Control Wheel”, and “Batterers Intervention Program” are some of the staples of the Duluth Model in action.

You can read other blogs and the index to my continuing series on defending domestic violence cases here.

The Cycle of Violence

The Cycle of Violence was developed by Lenore Walker in 1979 based on 120 battered women.  She believed in three phases:

  • Tension Building Phase
  • Acute Explosive Phase
  • Honeymoon Phase

Her theory is an abuser causes the relationship to build tension which makes the victim  “walk on eggshells.”  The acute explosive phase is where the violence and abuse occurs and after this there is a honeymoon phase where the abuser apologizes, promises change, and goes out of their way to re-attract their mate.  This of course gives way again to another tension building phase and so on according “the cycle.”

Assumptions the “Cycle of Violence Makes”

It Assumes Domestic Abuse Within a Relationship is Unilateral

The cycle of violence assumes the abuse is unilateral and not reciprocal.  But studies have shown alarming rates of “Reciprocal Intimate Partner Violence” whereby both intimate partners at times are aggressors and at other times are victims.

It Presumes Guilt

The “Cycle of Violence” seems to have been created as a tool for treatment and therapy – not for the diagnosis of domestic violence.  When using it to attempt to prove guilt – it actually presumes guilt as an underlying assumption.

If you replace the very top assumption with its opposite – Defendant is innocent – then absolutely none of the other phases make logical sense.  But this diagram shows how the echo-chamber logic is circular in the first place.

 

Mental Illness & Substance Abuse Also Cause Domestic Violence

The Duluth Model holds, essentially, manipulation control and power are the root causes for domestic abuse.  But other contributing factor of domestic violence, as anyone who defends these cases on a regular basis will tell you, are anxiety, depression, and other mental illnesses such as psychosis.  Not far behind as contributing factors are substance abuse.

“Evidence Flipping”

Much of the problem with highly subjective echo chamber concepts such as the cycle of violence is the ability for the prosecution to take any evidence whatsoever and flip it into evidence of guilt.

Is buying your spouse flowers a confession?  This is what a prosecutor would argue is the “honeymoon” phase.  If this were true, though, then every florist needs to contact the police every time someone makes a purchase.

Is every instance of tension in a marriage evidence of “the tension building phase?”  If this were true, every marriage counselor would have the police on speed-dial.

Other Criticism of the “Duluth Model”

The Power and Control Wheel

The “Power and Control Wheel” is a similar diagram to the cycle of violence.  It differs in that it purports to describe the methods of power and manipulation the abuser uses to control the victim.

The criticism of the Power and Control wheel over-lap with the criticism of the Cycle of Violence.  It assumes the physical abuse in a relationship is unilateral.  It presumes guilt.  It, too, largely ignores mental illness and substance abuse as underlying factors – and proscribes power as the main motivator between an abuser and the abused.

The Countervailing Theory – Reciprocal Intimate Partner Violence

Reciprocal Intimate Partner Violence, also called mutual violence and/or symmetrical violence holds both intimate partners have been aggressors at times and both have been victims at times.  Again, this directly undercuts the Duluth Model which presumes the abuse to be unilateral or one-way.

Studies have shown “reciprocal” violence to be between 42% and 70% in relationships where there is domestic abuse.  In a 2007 study published in the American Journal of Public Health, concluded roughly half of abusive relationships fit this profile.  The same study shows it was actually women who were thought to be the aggressors 70% of the time, however men inflicted more physical harm to their partners.

If the Duluth Model is Wrong Half of the Time – Then So What?

It’s important because the prosecution can be very heavy handed in the way they attack a case with the Duluth Model.  It includes their potential misconceptions about the reality of the relationship of the couple which can skew and make the potential punishment not only unfair and inequitable – but also not assist the couple with the real underlying dysfunctional issues.

From a defense perspective – it also opens the door to defenses such as self defense and consent when we break the misconceptions the Duluth Model may inject.

*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.

 

Comments Off on Domestic Violence Charges – Blog 13: The Duluth Model and Reciprocal Intimate Partner Violence | Assault, Civil Liberties, Deadly Conduct, Divorce related crimes, Domestic Violence, mental illness, Police and Prosecutors, Self Defense, Trial Advocacy, Uncategorized | Tagged: , , , , , , , , , , , , , | Permalink
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