Court-Run Mental Health Programs

November 17, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

I’ve blogged extensively about mental health and how it intersects with criminal law.  The over-lap can’t be understated.  You can watch a podcast I’ve done on the topic here.

Some of the good news is many criminal law judges, probation departments and even prosecutors have gotten on-board with gearing to include mental heath treatment as well as their normal repertoire.  It never hurts to ask your lawyer or your loved one’s lawyer what the available options are.

I can’t tell you how many mothers, fathers, spouses and other loved-ones of my clients have told me their main goal in a case is to simply get them help.  But the criminal justice system – and the adversarial process wasn’t naturally built to accomplish tasks like mental health treatment.  There are pros and actually cons to Court-Run mental health programs folks should be aware of.

Advantages of Court-Run Mental Health Programs

On the plus side, these court-run programs are designed for the indigent or near indigent.  So cost which often dictates far more than it should is hopefully all but eliminated.

The county (or whatever governmental sub-division you’re dealing with) has access to more infrastructure and services than a private entity might be able to have.

The court also has a “captive” audience meaning the individual has no real choice but to participate.  Anyone who has a loved one who is either so disturbed or oblivious to their mental health disorder that they refuse treatment knows how valuable this can be.

Disadvantages

For me as a criminal defense lawyer – I’m always focused on what happens to the client in 10 or 20 years based on what we do today.  Here are some important questions I ask about any government program:

  • Will this program require my client to be convicted as a price of admission?
  • Can I get this off my client’s record in addition to getting the treatment (often known as mental health diversion)?
  • Do I actually trust the county’s ability to do what they say they can do to help?
  • Am I just signing someone up for the county to be “in their hair” for years to come?
  • Are there better private alternatives which are viable options?

The Bottom Line on Court-Run Mental Illness Programs

Make no mistake – it’s fabulous to see courts simply move in this direction.  Judges and probation officers paying attention to these crucial aspects and triggers for criminal cases is a great thing – and you know people are really starting to get the importance of mental health when the prosecutors even get involved.

But going into a mental health program run by a judge or probation department is still – and probably always will be – a “look before you leap” situation.  There are always many factors to consider.

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

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Can the Police Track Your Phone?

November 16, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Yes, police can track your phone.

Smart phones, car infotainment systems, and computers have absolutely revolutionized criminal investigation and criminal law.

While these forensic practices are very cutting edge and revolutionary – they are still somewhat impractical depending on the case.  Legally there are obstacles for law enforcement too – but those are typically overcome.

The intersection between liberty and technology is always evolving and it always will.  Courts recognize people have privacy interests in our phones, cars and computers for which we increasingly rely – but the more advanced the technology – the more tempting and simple it is for law enforcement to attain.

For example, cell tower triangulation currently requires not only knowing specific information about the device but also requires getting records from the carrier.  A car infotainment download is very expensive but it can tell law enforcement anything the car has communicated to the driver such as GPS data, lane assist warnings or car door openings.

Tracking cell phones requires lots of work which might include search warrants for records and even fighting with the likes of AT&T or Sprint – but it is possible and can be extremely valuable to police.

I rarely see cell phone tracking in cases such as driving while intoxicated, theft, or even sexual assault.  Cell phone triangulation and tracking are common in homicide cases, kidnapping cases and other high-profile cases.  Also, civil lawsuits might have cell phone tracking evidence because a party is willing to shell out the money to pay for it.

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

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Can the Police Lie To Me?

November 15, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Yes, the police can lie to you during an investigation.

Deception is a legitimate tool of law enforcement.  If you don’t believe me, watch any mafia or gang movie where the police plant someone to infiltrate the group.  I’d call someone with a fake identity who pretends to be someone else a touch on the dishonest side, would’t you?

Let’s be honest – often the ends justify the means.  We all want killers, child molesters, or thieves to be caught and a bit of trickeration is typically tolerable to a point for all of us depending on what the police are digging into.

A key assumption I am making here is the officer or detective’s mind is made up about the case before they attempt to speak to the accused.  Just know this obviously isn’t always the case.  There are many times an officer legitimately isn’t trying to manipulate someone into giving them information and they really are just trying to understand what really happened in a given case.  Then again, the whole reason for this blog today is we’re never 100% that we know the difference.

Lawyers cannot lie ethically whether in court or not.  I’m not aware of any similar ethical requirement of police or law enforcement.  They cannot commit perjury, obviously — but when they deal with a citizen under investigation they are not under oath.

How Common is it for Police to Lie During an Investigation?

Very common.  And to be fair to police, lies come in all different shapes and forms and rarely are they complete fabrications like infiltrating the mob.  Some can be exaggerations, lying by not telling a suspect the complete truth about what the police know, or telling a suspect half-truths to try and get them to open up and confess.

Many agencies employ the Reid Method of Interrogation – a controversial tactic with psychological underpinnings designed to manipulate an accused into confession.

Everyday Examples of Police Techniques

During a DWI arrest – the officer may say something like “I’d like to have you do some tests to see if you’re okay to drive.”  It’s pretty disingenuous when the cop has already called the tow-truck to have the person arrested.  In this instance the officer is leaving the false impression the person can somehow avoid the arrest if they perform well enough or are cooperative.  But police are trained to get all the evidence of the intoxication on video tape – and this is exactly what they are doing in this example.

During a Sexual Assault Investigation – a detective might often pretend to know facts they don’t.  Or a detective might do the opposite – pretend not to know anything but in reality know many of the answers to the questions being asked.  Like the Driving While Intoxication situation – the officer may give the false impression the suspect can talk their way out of an arrest when in reality the detective has already secured an arrest warrant.

Bluffing or “Hot Boxing”– Police bluff and threaten certain consequences they can’t follow through on knowing they are dealing with someone who doesn’t know the difference.  Another term I call “hot boxing” is where an officer puts on a high-pressure push to get a person to comply with an interview or make statements.

Vagueness as a Weapon – An extremely common thing I see is a police officer or detective simply being vague with a suspect.  “If you don’t tell me your side of the story, I can’t help you” or “I just want to hear your side the story.”  As you can see there are no real promises here and it implies no decisions have been made.  But that’s not always true.

There is No Substitute for Experience and “Feel”

The fact is if you’re facing a situation where the police want to question you – and you’re concerned they’re being less than 100% honest with you then you really need a lawyer in your corner.

Police have a much more difficult time manipulating or/ working an experienced lawyer – and most don’t even try.  But one thing an experienced lawyer can have with an investigating law enforcement agent is an honest conversation.  And that’s a good thing.

*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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Assault and Family Violence Punishment Levels in Texas

November 14, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Assault is a result-based charge meaning the severity of the charge is normally commensurate with the degree of the alleged injury.  Assault can range from offensive contact to murder.

The way to think of a result-based charge is the action can be the same but the result is different.  For instance, if I punch another person and they are injured – then it would normally be a class a misdemeanor.  Were I to throw the same punch and hit the same person and they actually died because of the punch – I might be liable for murder.  Same action on my part – far different prosecution.

I’m not discussing affirmative findings of family violence which can also be attached to these types of charges in domestic assault cases.  Those can materially alter and affect the case.  You can read about affirmative findings of family violence here.

Chapter 22 of the Texas Penal Code controls assault related offenses while Chapter 19 controls murder and homicide.  Murder and homicide are obviously more complex so I’ll discuss that in another article.

Offensive or Provocative Contact

  • Class C misdemeanor
    • Punishment is up to $500 fine only;
    • Prosecuted either in municipal court or the Justice of the Peace.

Assault Causing Bodily Injury

  • Class A misdemeanor
    • “Bodily injury” means physical pain, illness, or any impairment of physical condition – Texas Penal Code 1.07(8);
    • Punishment is up to 1 year of jail and up to $4,000 fine;
    • Prosecuted in a county court at law;
    • A judge or jury can give probation.

Enhanced Family Violence

  • 3rd Degree Felony
    • Occurs when a domestic assault is alleged with a prior affirmative finding of family violence;
    • Punishment level is between 2 and 10 years TDC and fine not to exceed $10,000;
    • Prosecuted in a District Court;
    • A judge or jury can give probation depending on defendant’s criminal history.

Assault by Impeding the Airway or Choking

  • 3rd Degree Felony
    • “Impeding” is impeding the normal breathing or circulation of the blood of the person by applying pressure to the person’s throat or neck or by blocking the person’s nose or mouth;
    • Between 2 and 10 years TDC and fine not to exceed $10,000;
    • Prosecuted by district court;
    • A judge or jury can give probation depending on defendant’s criminal history.

Aggravated Assault

  • 2nd Degree Felony
    • Committed with either “serious bodily injury” or with the “use or exhibit” of a deadly weapon;
    • “Serious bodily injury” means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ – Texas Penal Code 1.07(46);
    • Punishment is between 2 and 20 years TDC with fine not to exceed $10,000;
    • Discuss probation eligibility with your lawyer.

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

 

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Posted by Jeremy Rosenthal, Esq.

Why Children Have to Testify in Sexual Abuse Cases

November 13, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Children must often testify in open court to satisfy the U.S. Constitution’s confrontation clause in the 6th Amendment.  The 6th Amendment has been repeatedly held to require a defendant be allowed to cross-examine their accuser in open court.

Other examples of the confrontation clause would be the arresting officer in a DWI arrest having to take the witness stand, a battered spouse having to take the witness stand in a prosecution against their abuser, or an eyewitness to a crime like robbery.

Emotional Trauma Versus Principals of Justice

Many folks feel like having to put the child on the witness stand is just an arbitrary rule with long-term emotional damage as a consequence from the trauma of having to testify.  Unfortunately they are often correct about the emotional trauma – I have spoken with many adults who had to take the witness stands as children and it is normally reported as an awful experience.

While I can’t make anyone feel much better about impact of the rule on the child – perhaps I can at least speak to the gravity of what the rules try to accomplish.

Why the Right to Cross Examine is Critical to Our System of Justice

My favorite quote about the right to confront is by Henry Wigmore, “Cross examination is, beyond a doubt, the greatest single engine for the discovery of truth.”  I couldn’t agree more.

While “cross examination” seems harsh understanding we’re talking about children – it really just means the difference between asking closed ended questions and open ended questions.

Consider in a sexual assault of a child case – the police, detectives and children’s advocates only ask the child “what happened next…..? and then what happened….? and what happened after that?”  It is probably a decent way not to suggest facts and details to the child, but doesn’t really scrutinize anything either.  It sort of assumes it all to be true without pressing any of the weak points of the story.

Now consider a child telling their parent they feel sick and can’t go to school.  Is the parent just going to ask how the child is feeling and regardless of what the child says accept it all as true?  Probably not.  The parent will probably conduct a bit of an investigation which tests the child’s claims.  Is there a fever?  Don’t you have a test today?  The chicken we had for dinner last night didn’t make anyone else sick?

Perhaps the child’s claims of being sick withstands the cross examination… then again, maybe the story withers.  This is how cross examination with pointed, leading questions can get to the truth.  Open ended questions, on the other hand, provide a stage for someone to make their sales pitch.

Can’t Someone Else Testify in Place of the Child?

Unfortunately not.  Another component of confrontation is cross-examining the actual witness and not a surrogate.

The law recognizes the surrogate simply will not know the details sufficient enough to provide a meaningful cross examination.  Was it light or dark outside?  Was the weather cold or hot?  Who else was in the room?  The surrogate typically won’t know the actual details and cross examining them is not the same as cross examining the accuser.

Separating Fact Versus Fiction About Children Testifying

A common misconception from the parents or legal guardinan of children having to testify is it would be like television or the movies.  That the accused will make threatening faces at the child or try to jump over counsel-table and charge the witness stand.  I’ve never seen or heard of anything like this remotely happening.

The truth is the accused is going through a range of emotions too like fear, uncertainty and who knows what else.

Other Rules about Children Testifying in Texas

Texas rules do allow grown-ups to testify in certain situations about what they child told them.  Those rules are allowed to essentially supplement what the child says and not replace what the child says.

It is also a criminal offense to try and persuade or influence any witness, child included, about their testimony.  It’s obviously a crime, too, to try and convince a witness to ignore a subpoena or not testify.

*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.  Nothing in this article should be considered legal advice.  For legal advice about any situation you should contact a lawyer directly.

 

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Posted by niftybrady

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