How do I Get the Prosecutor to Drop Assault Charges Against My Spouse?

October 30, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

A domestic violence or family assault charge is essentially a lawsuit between the State of Texas and the accused.  The complaining witness is exactly that — a witness.  Witnesses in a case really have no standing to independently decide whether a prosecution goes forward.

So the short answer to the original question is this:  you can’t make them do anything.

“Pressing Charges”

People assume there is an implied power they have to “press charges” against another person.  Maybe for theft or – as I’m discussing today — assault.  I’m sure some police agencies might use the term with a victim asking them if they want to “press charges” kind of as cop-out (bad pun) of making a hard decision whether to arrest someone they really don’t want to arrest in the first place.  “You don’t want to press charges, do you?”

The term “pressing charges” doesn’t really have any meaning in a courtroom in Texas, though.  If a complaining witness, spouse, or victim uses the term telling the judge or prosecutor they want to “drop charges” or something to this effect, the Court has no power to do anything with this information… and it’s not binding on the prosecutor either.

What the Prosecutor or Police Really Hear when you Tell Them You Want to Drop Charges

Most prosecutors and police are big believers in what is known as the Duluth Model of domestic violence.  This is where we get the term “Cycle of Violence.”

The Duluth Model is a theory which suggests domestic violence follows a pattern.  First there is an explosive outburst followed by apologies and calming down, then with normalcy where everyone ignores the dysfunction followed by rising tensions and then resulting again in an explosive outburst.

Law enforcement is likely to think you’re merely in the clutches of the cycle of violence when you tell them you “don’t want to press charges.”

The Duluth model has some major issues – but this doesn’t mean the authorities aren’t big believers in it.

So Should I NOT Ask the Prosecutor or Police to Drop the Charges if Doing So is Pointless?

This is the part of the blog where I inform you I can’t tell you what to do or what not to do (especially not being your lawyer and also through a one-sized fits all blog and not knowing any specific facts of your case).

There is also nothing wrong with talking to the prosector in these instances either.  They really do want to help you.  They may just see your problem differently than you do.  It’s not inappropriate for you to contact an attorney first if you feel the need.  Your spouse’s lawyer probably shouldn’t be advising you on this topic as it probably constitutes a conflict of interest.

It’s important to be honest with prosecutors or police if you do speak with them after an arrest for domestic abuse or assault has been made where you are consider the victim or complaining witness.

*Jeremy Rosenthal is Board 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 Do I Find Out if I Have A Warrant Out For My Arrest?

October 28, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Here is the link to search for warrants in Collin County.  Here is the link for warrants in Dallas County.  Tarrant County wants you to contact the individual municipality where the warrant originated.  Denton County also makes you contact them for warrant info.

There is a database for warrants nation-wide, but unfortunately it’s not public.  Checking for warrants can be a pain-staking process if you suspect you have a warrant for your arrest but aren’t sure.  The counties which make you call them to inquire doubtlessly do it in an effort to draw folks who have a warrant into their spider-web.  My guess is it backfires because many people are too scared to call.

The vast, vast majority of arrest warrants are for mundane purposes such as traffic tickets or probation revocations (I love my readers, but I don’t do traffic tickets – so please don’t call me for those!).  Most warrants simply sit there unless or until someone gets pulled over or has some other type of benign law enforcement contact which results in them being run for warrants.

Can Warrants Be Hidden on Purpose?

Yes.  Law enforcement can issue warrants and have them be sealed.  They might do it if there is an on-going investigation of a conspiracy they don’t want to spoil – and then they arrest everyone at once.  The FBI, DEA and other federal law enforcement agencies do this frequently.  Another reason could be they want to arrest someone in person for whatever reason.

Pocket Warrants

Police can also get an arrest warrant but not enter into the national or local databases.  We might see these in cases like sexual assault or injury to a child.

They keep it in their “pocket” in an effort to arrest and immediately interview a suspect.  Think of it this way — if they have a murder suspect and they get a warrant from a judge — if they enter it into the national database, they risk having someone from another agency arrest the suspect at 3 a.m.  This could give the suspect several hours to “lawyer up” and not participate in an interview or interrogation.  The pocket warrant allows the officer to pick the exact time, place, and manner of arrest.

What Should I Do if I Have a Warrant for My Arrest?

You have to turn yourself in.  Most people don’t like hearing this.  Warrants don’t go away on their own and it’s very rare to be able to get a warrant thrown out before arrest.  Most judges and prosecutors have policies in place they won’t even deal with you unless the warrant is taken care of first.  And here’s what I tell my clients — if they don’t take care of the warrant on their own terms, then the warrant will be executed against them at the worst possible time.  Maybe while they are on a dream date.

*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.

 

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Defending Federal Bank Fraud Charges

October 27, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

What is Bank Fraud?

Bank Fraud can be committed a number of different ways.  Because banks are federally regulated – the federal government can typically step in and prosecute if they wish over state authorities.

Some common scenarios where bank fraud is accused are:

  • Utilizing false or sham companies for the purposes of banking;
  • Illegally accessing and breaching bank computer networks;
  • Illegally accessing bank customer data;
  • Identity theft;
  • Taking bank funds through other illegal means;

What is the Punishment for Different Types of Bank Fraud?

Like most federal penalties – there is an extremely broad range of punishment and typically the lynchpin question is how much money is involved.  18 U.S.C. 1344 is the primary bank fraud statute and it provides for punishment up to 30 years of prison and a fine not to exceed $1m.  But what is more important to evaluating the severity of a bank fraud case is the punishment range on the federal sentencing guidelines.  The single biggest factor is the amount of the intended loss to the financial institution.  Other factors include the role the individual had in the scheme, if any.

Additionally, bank fraud cases can also be accompanied by a host of other federal criminal charges such as money laundering and income tax evasion.

Time is Critical

With all federal prosecutions – time is crucial.  There is no substitute in federal cases for having an immediate and open dialogue with federal prosecutors and investigators.  It can be the difference between being alleged to be the center of a conspiracy, an outside player in a conspiracy – or even making sure the government knows you’re not part of a conspiracy at all.

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

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What Are The Federal Sentencing Guidelines

October 25, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

The federal sentencing guideline is an elaborate and detailed chart which are designed to make federal sentencing uniform – or close to it – across the country.

Here is the current sentencing table (November, 2018):

Interpreting The Guidelines

This is the million dollar question.  Literally.  There is an entire manual published by the United States Sentencing Commission (“USSC”) discussing how to interpret the guidelines.  You can visit them here.  Each of the numbers in the center of the chart are the range months in federal prison a person could be sentenced to serve.

Base Offense Level

Very Generally Speaking, the column on the far left is labeled “offense level.”  Every federal offense is given a starting level and this level can be adjusted upwards or downwards based on various factors in the case.

For example, a person typically has their base offense level lessened if they cooperate with the government.  A person normally gets their base level increased if there are aggravating factors for their offense – such as they took a leadership role in a conspiracy.

Criminal History Category

The row at the top of the chart is for criminal history points.  The more trouble the person has been in throughout their life, the higher it can kick the sentence range.

The Guidelines are Advisory – Not Mandatory

The USSC was created by congress as an independent branch of the judiciary in the mid 1980’s.  They conceived of the sentencing guidelines and the guidelines were mandatory for judges to follow until the US Supreme Court ruled the right to trial by jury required the guidelines to be advisory only.  See United States v. Booker, 543 U.S. 220 (2005).

Though advisory, they are still typically followed.  Federal judges can and often do issue “downward departures” from the sentencing ranges for mitigating circumstances.

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

 

 

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Netflix American Murder: The Family Next Door and 21st Century Courtroom Storytelling

October 24, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

What a horrific, tragic, and deranged murder!

Trying to compartmentalize and separate the legal aspects of Netflix “American Murder: The Family Next Door” from the human aspects is difficult to do – but it’s exactly what we do as criminal defense lawyers.

I’m writing because I’m very impressed with how Netflix was able to tell the story through all the text messages, home and police videos, and social media.  It’s really a view into what 21st century crime investigation and courtroom story telling can look like.

This story in particular is nothing short of soul-crushing and everyone is happy Shannan Watts, her children and her family got the justice they deserved and Chris Watts is behind bars for the rest of his life.  But 21st century evidence such as cell phone texts, videos, social media including police advances in body-camera evidence are revolutionary ways to prove innocence too.

How Netflix Told the Story

I was fascinated by how Netflix was able to tell the story – not through talking heads or narration – but just by showing us the text messages, then showing us police body-cam videos, sprinkling in home movies, showing us social media posts and comments, and on and on.  Isn’t it amazing how our technology and ways of communicating can tell our stories this way?

Cell Phone Evidence

I lecture on the topic of cell phone evidence in the courtroom and have written about it as well.  It’s not nearly as easy to do as Netflix made it look.  We were able to see victim Shannan Watts’ texts to her family and friends as well as to Chris.

Notably absent in my mind were Chris’ texts to anyone other than Shannan — and this tells me they weren’t able to get into his phone.

Police Body-Cam Evidence

I can’t understate what an amazing, wonderful tool police body-cameras are.  In the American Murder: The Family Next Door, we got to see Chris Watts’ charade with our own eyes when the police initially came over to his house to locate Shannan the day after the killing.  We got to see Chris Watts face, demeanor, and mannerisms — the smallest details.

In the past – we’d have gotten a police officer’s recollection from the witness stand and potentially some of the other people there too.  Their testimony would be almost always be shaded and slanted for no other reasons they are humans with a particular perspective.  If this case had turned into a trial – they’d have had to have testified anyway… but the point I’m trying to make is the body-cameras cut through all of that.  We see what we see.

The law has often pushed police towards recording interviews and statements.  Texas has a statute (Tex.Code.Crim.P. 38.22) which requires custodial interrogations to be recorded.  It protects both the police and the accused from an unfair spinning or characterization of how the interview actually went.

Unfortunately, in the past it has been a law enforcement tactic for a police officer to “forget” their recording device before an interview – so they can spin the interview how they’d like in court later.  Police agencies who require bod-cams basically put an end to it.

And as a side note – sometimes the police forget to turn off the body cameras and we get to see the water-cooler talk about the case and we hear weaknesses about the cases we’d never hear in a courtroom from the police.

Social Media Evidence

It’s difficult to know what, if any, artistic license Netflix took in this arena.  They presented several home videos as if they were social media posts.  Perhaps they were and perhaps that was just how they presented them. What they did use was effective in telling the story.

Legally this would be far more complicated to use in a courtroom than in a documentary.  There are issues with what we call “authentication” and it could involve having to deal directly with social media mega-giants who often treat both prosecutors and defense lawyers like fleas they shake off when they get annoyed with us.

Police Interviews and Polygraph

This was the part of the Chris Watts story which is more old-school and presented nothing new. Bringing in a suspect for a polygraph is a very common investigative tactic.  The polygraph itself is inadmissible in court and as lawyers we’re always very leery of who is conducting the polygraph… because they’re all based on the questions and the questions can be slanted in certain directions.

When Police do a polygraph they almost always want to do a follow-up interview.  They think the person will fail the polygraph, and just like a linebacker wants to crush the quarterback after the ball is snapped — the police want to get a confession right after someone takes the polygraph (even if the results are inconclusive or if they accuse the person of using “countermeasures” or trying to game the test).

It worked for the police like a charm against Chris Watts.  They even used  the age old, “are you a monster or just some guy who made a mistake” line on him — which is a question we hear all the time in cases like sexual assault, child abuse, or domestic violence.  If the suspect chooses, “I just made a mistake” then the police have their confession.

The police also pretended to know more about Chris’ life than they actually knew at the time.  I don’t recall anything they’d seen at the time of his interview which suggested they would know he was having an affair – but when he admitted to it, they represented to him they knew this all along.  It’s a part of the Reid method of interrogation (that’s another topic).

Overall I found the show — again horrific and tragic — yet fascinating from a lawyer’s perspective.  The Chris Watts murder may be a high-budget and high profile outlier in how the story was able to be told… but during the 21st century, I’m pretty certain we’ll be using text messages, home videos and police body-cams to tell much more complete stories for other types of cases too.

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

 

 

 

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