Returning Calls

October 16, 2019

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

A lawyer has an ethical duty to communicate with their client under Texas Rules o Disciplinary Conduct:

Rule 1.03 says:

(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. 

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Lack of Communication is the Chief Complaint About Lawyers

I wish I had the answer why.  I hate more than anything when someone comes into my office and says another lawyer they’ve worked with seems sharp, competent — but they just don’t return phone calls and the client is left in the dark.  Anyone in a criminal defense lawyer’s office is going through a stressful episode in their life either for themselves or along with a loved one.  The last thing they need is to be left in the dark about crucial aspects of a case.

Communication with Clients

Communication is a two way street and its complications go back, no doubt, to the dawn of mankind.  Every client of mine is different just the same as I’m different than any other lawyer.  Every attorney-client relationship is therefore unique.

Here are some observations:

  • My phone number ringing and flashing on a screen can be the most traumatic 8 -seconds of that client’s month;
  • It can be dicey to call a client while they’re at their place work for obvious reasons;
  • Giving mundane details either bores clients or causes them unnecessary stress;
  • There is certain news or updates which are better done in person due to the time it will take or possible follow-up questions;
  • You want the lawyer explaining to you the intricacies of preserving jury charge error under the standard promulgated by the Almanza case from the Texas Court of Criminal Appeals in 1986 — but the lawyer doesn’t need to be the one who tells you the best exit to take to get to the courthouse.

Many of the points listed above say the same thing — communication for the sake of saying you were communicating isn’t always a great idea.  Rule 1.03(a) & (b) have built in words like the attorney shall keep the client “reasonably informed,” promptly reply to “reasonable requests for information,” and the lawyer shall explain matters to the extent they are “reasonably necessary” for the client to make informed decisions.

Customer Service

We want happy clients who refer us business long after their case is over and they have a friend in need.  That means good customer service and we don’t need some rule to tell us that.

One of our advantages at Rosenthal & Wadas is we have a great office staff who are trained to handle any and every question they are capable of answering.  This accomplishes a number of things:

  • You get the answer to routine questions without having to wait for a lawyer;
  • You never feel like you are bothering us with something you worry might be trivial or simple to us but is important to you;
  • It makes our office staff happier to help, get to know, and be involved with our client care;
  • It allows our lawyers to focus on the intricate and crucial parts of your case.

One of the down-sides is it is common for some people to have built-up such a good rapport with me or one of our other lawyers that they feel less comfortable talking with our office staff — even about basic issues.  That’s fine too and we are happy to accomodate this as well.

How I do It

I do my best to get back to everyone every day.  Email is normally the best though if the answer is too complex I may give you a call back when I can spend the time to do the issue justice.  If I’m in a spot where I can’t get to that question or issue quickly then I’ll ask one of our staff members to help if the question is appropriate.

At our office — we never want to hear a client feel like they aren’t being communicated with.

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


Complete Texas Law Guide to THC, Marijuana & CBD

October 10, 2019

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

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.


Domestic Violence – Reciprocal or Unilateral?

October 2, 2019

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

The overwhelming mentality in family assault prosecution is the violence is always unilateral.  That is, one spouse and one spouse alone is perpetually controlling, manipulative and ultimately physically abusive.  This is the theory of “the cycle of violence.”

I’ve handled hundreds of domestic assault cases and this just isn’t my experience.  The “cycle” is true some times but not nearly as often as most prosecutors believe.  Most cases involve reciprocal violence.

My experience is there is dysfunction which manifests itself by the couple communicating through violence and assaultive actions.  She throws a phone at him one day — he pushes her into a wall the next day.  She gets drunk and hits him with a fist – he punches back.  The person prosecuted might have been the perpetrator that day — but it doesn’t mean the entirety of the relationship circulates around that one person controlling, manipulating and battering the other.  They continually do it to one another.

“The Cycle of Violence”

The theory essentially makes domestic violence unilateral.  One side, and one side alone, is always to blame the for each and every instance of domestic violence — typically the man in a heterosexual relationship.  The theory goes he is controlling, often degrading, manipulative and physically abusive.  This is followed by a honeymoon period of sorrow and remorse but builds back into the explosive rage and violence.

The “Cycle” though, has many blindspots.  For instance there is no consideration of mental health issues or even for basic self defense situations.

The “cycle of violence” does have some of merit.  The problem is the degree of belief and trust some prosecutors put in this theory.  What prosecutors don’t know about a couple — they might fill in with conjecture often related to their “cycle” theory.

Here’s an example:  In a assault/ family violence case the complaining witness does not return the prosecutor’s phone calls.  Plugging in the generic ‘cycle of violence,’ many prosecutors assume the reason is because the batterer is in control of ‘victim,’ or that the ‘victim’ wants to help the batterer because she can’t stand up for him/herself.

Reciprocal Domestic Violence

Academic studies support my observations in my practice.  In one study, it shows reciprocal violence is far more common than unilateral — and that it is most commonly the female that is the aggressor.  The idea the male is typically the aggressor has been shown to be stereotypical and false.

Whether you believe spouses beating up one another is reciprocal or not — the truth is we simply don’t know and that all couples develop their own unique mini-culture.

*Jeremy Rosenthal is Certified in Criminal Law by the Texas Board of Legal Specialization.

 

 

 


Too Much Internet Research

September 10, 2019

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

I see it all the time.  Potential client comes in with husband/ wife/ aunt/ uncle/ brother/ cousin — and everyone is shaking like a leaf and looking like they haven’t slept in 2 days.

My diagnosis: too much internet.

The information super-highway is an amazing tool.  I’ve obviously used it to help build my practice.  I find people come in now far more sophisticated about their own legal issues than they did, say, in 2005 when I first opened for business.  That is a wonderful thing.

What isn’t so wonderful is the internet can be very tone-deaf and isn’t as nuanced as any individual case.  People are searching, typically, for comforting information but every case is its own snowflake.  Its the same reason every time when my child coughs – the internet can’t get me a precise diagnosis either.  I can read about extreme cases which scare me out of a good-nights sleep, though.

And much of what you read is downright scary… particularly in a criminal case.  Punishment ranges without any context are scary.  What happened to some dude with the same charge in nowhere county in 2011 is scary.  When some lawyer is trying to scare you into his/ her office by listing the full chain of horrible possibilities — it is scary.

Do enough research to get a general feeling for what you are looking at.  See a lawyer who lets you know they’ve got your situation under control… and then put the internet away.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He has been designated a Super-Lawyer by Martindale.  He is based in McKinney, Texas.


Sexual Assault Definition

October 26, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

Texas law defines sexual assault under Penal Code 22.011 below:

(a) A person commits an offense if:

(1) the person intentionally or knowingly:

(A) causes the penetration of the anus or sexual organ of another person by any means, without that person’s consent;

(B) causes the penetration of the mouth of another person by the sexual organ of the actor, without that person’s consent; or

(C) causes the sexual organ of another person, without that person’s consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor;

The lynchpin of each definition is the lack of consent.  So what is the legal definition of consent?

Consent is defined by Texas Penal Code 1.07(11) as… “assent in fact, whether express or apparent.”  

The code goes on to further discuss “Effective Consent” meaning consent cannot be attained through force, threat, fraud, or mental defect.  Intoxication is a bar to effective consent where the person cannot make reasonable decisions due to the intoxication and the actor is aware of the impairment.  See Tex.Pen.C. 1.07(19).

Obviously youth is another bar to “effective consent,” but that is an extensive topic on it’s own so I won’t talk about it much today.  You can read more about the law on sexual assault of minors here.

So What Exactly is Consent?

Courts have been clear proof of consent cannot be defined through a set of magic words or with any bright line.  The Court’s position on what is or isn’t consent is a bit of a punt.  That is, the Courts are happy to say in most instances it is for the jury to decide whether consent did or did not exist or whether consent was ineffective due to some other circumstance.  In other words — it is in the “zone” where reasonable minds can differ.

The fact the Courts allow consent to be such a subjective concept essentially on a case by case basis is what makes it so terrifying for both the accused and the accuser.  An added layer of terror for the parties in a sexual assault case is many jurors are pre-disposed to automatically identify with one side or the other make a fair trial a real challenge.

Getting a Fair Trial

My primary goal in any case where consent is an issue is to get the best jurors possible for the case.  In a perfect world it would be a group of jurors I know will vote with me from the outset — but more realistically — eliminating the jurors who I believe will simply tune us out from the minute we step into the Courtroom.

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