Sexual Abuse Charges – Blog 12: Fist Fights Over Evidence

December 3, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

How do you corroborate your story with a completely he-said/ she-said debate about something which happened 5 years ago?

This is one of the big challenges of sexual abuse prosecution and defense.  Physical evidence such as DNA or other injuries which might be associated sexual abuse can be rare – particularly when an outcry is delayed for months or years.

So it’s often the case each side takes seemingly small or what may seem like insignificant scraps of evidence and do their best to magnify it by 10,000%  to try and corroborate their story.  The ensuing debate in the courtroom over just what the small shred of evidence might mean is what I call “fist fighting over evidence” and it’s the topic of today’s blog in my continuing series on sexual abuse cases.

The Challenge

Most offense reports I read allege something to the effect of the child making the outcry of abuse — and the report goes on to say the specifics of incident x happened “over the summer” or “sometime in March” or “a few months ago” in a certain location (i.e. aunt’s house, friend’s apartment) in a certain room of the home.  The reports then detail the specifics of the abuse if any are given by the child.

So if I’m having a conversation with a client who insists he is innocent – he can never answer the question, “where were you every day last summer and how can we prove that?”  He can never answer the question of “okay, even if you were at aunt’s house sometime in March – how can we prove victim wasn’t there at the same time and/or you and victim weren’t alone?” The task is virtually impossible in most cases.

So if there is any nugget of evidence which tends to show Defendant’s story is the truth – it becomes huge.

The Best Example – Brett Kavanaugh’s Calendar

Without getting into details of cases I defend – probably the clearest example of a “fist fight over evidence” would be Supreme Court Justice Brett Kavanaugh’s calendar which he contended was proof of his innocence against allegations of sexual assault and the US Senate then having a “fist fight” over what the calendar actually proved.

Staying away from the politics of it all – was the calendar proof Mr. Kavanaugh didn’t sexually assault Dr. Ford?  Maybe yes and maybe no – but my point is this is all he had other than his word.

The calendar even got parodied on Saturday Night Live.

Smart Phones – Evidence in a Box

A major difference between 1982 and the 21st century are smart phones.  Today we can tell if someone took the tollroad on a certain day, their GPS location at any given time, or pictures they took… etc.  So today we actually have a lot more potential to strive and attain some small nugget of proof which we hope can corroborate our story.

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

August 5, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

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.

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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.

 

 

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Posted by niftybrady

Police Reports: Dishonesty by Omission

June 16, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Here’s Minneapolis PD’s press release from the George Floyd murder:

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Of course, this was before they knew they’d been caught on a camera they didn’t control. It’s fiction.  They left out the part where Officer Chauvin had his knee on Mr. Floyd’s neck.  Or that he had it there for nine minutes.  Nothing to see here, folks.  Move along, right?  Even worse, MPD paints themselves as the heroes of this story.  “Even though we didn’t do anything wrong, we called for an investigation…”

Are the statements actually made in the press release true or false?  Well, I suppose most are actually true.  He did appear to be suffering medical distress.  An ambulance was called (way too late), and no weapons were used assuming you don’t count Officer Chauvin’s knee.

Yet, the press release is a work of fiction because it omits critical and relevant aspects of the truth.

And this is how many, many police reports we review on a regular basis deceive as well.  A DWI report might say things like, “suspect did not know his location, stumbled out of the car, and had red bloodshot eyes” where those things are apparent.  But you’ll never see a report which says, “He knew where he was, exited the vehicle perfectly and his eyes looked normal” even if they are true too.  Fiction.

A common example I give to client’s about why they should exercise the 5th Amendment is this:

  • You:  My friend and I went to the party.  We didn’t see anyone there we really knew.  It was very uncomfortable.  I think we finished about half of a beer each and we decided to leave.
  • Police Report:  Suspect admitted entering the house.

Does the report say anything untrue?  I suppose not.  But its a lie.

The public gets a small taste with this news snippet of the perennial challenge of trying to take police reports at face value.  You just can’t.  Even when reports don’t exaggerate or don’t outright state mis-truths, then can still be extremely dishonest.

Part of the process of defending someone is filling in the gaps which comprise the truth.

*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.

 

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Vehicular Homicide – Defending Through Technology

April 23, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Technology is our friend in defending a distracted driving death case.

Why is technology our friend?  Because more often than not, it provides us with a 360-degree view of what was going on in everyone’s mind and car at the time of the accident.  Law enforcement and prosecution, on the other hand, tend to see one nugget of technological information.  When they do, they jump to conclusions and blind themselves to anything else.

An Example of Using Technology to Tell the Full Story:

Let’s say Driver 1 and Driver 2 collide causing the death of Driver 2 — and Driver 1 is on trial for Vehicular Manslaughter.

Let’s assume police are able to lawfully get into Driver 1’s phone (a big assumption).  Driver 1 was shown to have sent 3 texts in the 5 minutes before the crash with one text received 15 seconds before the accident.

Police then jump up and down hollering this is conclusive Driver 1 was distracted and caused the death of Driver 2.

But we’re capable knowing a much fuller story than just this.

We can tell based on the car’s infotainment system virtually anything being communicated to Driver 1 from the car.  Was there a hands-free system being used at the time through bluetooth or through a USB cable? Did the car have lane-assist and if so, was the driver in his/her lane?  Did the driver brake and/or moderate their speed?

Many of these things are knowable from both cars in the accident.

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Car “Infotainment” systems can be key evidence in manslaughter and criminally negligent homicide cases.

Investigation and Privilege in Defending Vehicular Death Charges

A common fear is, “what if we dig into the technology and the truth actually hurts us?”

It’s a good question – but remember – your lawyer’s investigation is privileged.  If the investigation unearths bad or harmful information, then the information doesn’t boomerang and hurt the defense.  The public policy behind this is simple — Defense lawyers and defense investigators would never really dig into the truth if they were always afraid of what they might uncover.

Summation

The cornerstone to any good distracted driving homicide case whether it be criminally negligent homicide or manslaughter is being fluid with the technology surrounding the entire case.  The more information, typically the better.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He was designated as a Super Lawyer in 2019 by Thomson Reuters.

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Posted by niftybrady

They Got the “Owner” Wrong on the Indictment

October 29, 2019

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

A question I get from time to time in theft cases is the “owner” of the property as alleged by the prosecution is not really the owner at all.  Sometimes it is someone whose name the accused doesn’t recognize at all

So Who Is the Person They’re Saying is the Owner?

It is often a loss prevention officer of the store or often an office holder if the ‘victim’ of the theft is a company or organization of some type.

Tex.Code.Crim.P. 1.07(35) defines an owner as a person who has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor.

When the perpetrator is attaining property in an unauthorized manner — they have no interest in the property therefore any other person even with minimal control of the property can be considered an “owner.”

Does it Really Matter Who the State Lists as the Owner?

Not usually.  Take most shoplifting cases — the “owner” of the property is typically listed as a loss prevention person or in some instances even the store itself.  It often isn’t contested.

But Here’s Where This Issue Can Get Weird:

Let’s say the person listed as the owner of the property in the indictment (or information in a misdemeanor) normally has less interest in the property than the accused.  For instance, the treasurer of an organization is accused of theft and a regular member is listed as the owner (but was perhaps the informant).

In that instance, the prosecution would argue the treasurer was stealing – so therefore they have no interest in the money stolen whereas the regular member has minimal interest — but still more than the stealing treasurer.  But the counter-argument is Treasurer is presumed innocent as a matter of law, so what you get are “chicken & egg” arguments on either side.

Just a legal pit I’ve fallen into several times over the years!

*Jeremy Rosenthal is an Attorney Licensed in Texas.  He is Board Certified in Criminal Law by the Texas Board of Legal Specialization and is a 2019 Super Lawyer as designated by Thomson Reuters.

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