Your Right to a Speedy Trial – and The Effect of the COVID Pandemic

October 8, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

This could probably be a full blown law review article but I’ll stick to good blogging etiquette – long enough to cover the basics and short enough to keep interest.

These days I sound like a broken record with my clients.  “We’re not able to have your jury trial yet.  We need to reset your case again.  Sorry.”

Many of my clients don’t want a speedy trial and many are happy to put off their prosecution indefinitely.  Everyone is different and their circumstances are different so I can see it both ways.  The Constitution guarantees a right to a speedy trial for no other reason that it takes away a possible prosecutorial ploy to ruin someone’s life by just maintaining a cloud of suspicion over a person without ever having to prove their case.

I find courts and prosecutors still struggle with their own understanding of what a speedy trial is or isn’t.  Unfortunately my experience is Courts and prosecutors generally don’t take speedy trial issues very seriously and only see it as an arbitrary escape hatch for a criminal to avoid responsibility.  Our challenge is to show the Court why the Constitution means what it says and says what it means about speedy trials in every case.

How Speedy Trial Works under the Law

The cornerstone case for speedy trial for both State and Federal purposes is called Barker v. Wingo.  That case weighs four separate factors in determining whether there has been a violation of someone’s rights to a speedy trial.

The Barker v. Wingo Factors (Quickly)

The Court Weighs:

  1.  The length of the delay;
  2.  The reason for the delay;
  3.  The time and manner in which Defendant asserted their right;
  4.  The degree of prejudice Defendant has suffered because of the delay.

Prejudice suffered can be anywhere from the natural stress and anxiety which comes from being criminally prosecuted to things which more directly impact the case such as witnesses being more difficult to find or memories about an event fading.

Another big factor is the reason for the delay.  Courts typically try and calculate who is at fault for how much of the delay.  In Barker v. Wingo, the accused was a co-defendant in a homicide.  The prosecution wanted to convict the other person first so they sought 13 or 14 continuances on Barker’s case for strategy reasons.

COVID Delays

We won’t know how the Courts will construe speedy trial delays under Barker for the purposes of the pandemic.  I don’t think they can blame the defense, obviously, for the delay – but the question is whether the Courts will attribute the delays to the government because of of public safety?  Could courts turn around and try to blame Defendant for asserting rights such as the right to confront witnesses in person – or not having a judge trial instead of a jury trial?  It’s hard to know.

Stay Tuned

In 2021 and almost certainly beyond – we are looking to have a major backlog of court cases which will need to be resolved.  Courts have often been dismissive of speedy trial issues but the issue may have a resurgence.

What Lawyers Should be Doing Now

There is really no reason a lawyer shouldn’t file a speedy trial demand in each of their cases set for trial during the pandemic.  Those speedy trial demands can always be waived, but it helps establish the third prong – that the defense is trying to assert their right early in the process.

*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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Posted by niftybrady

Can I Carry a Firearm if I’m Traveling Through Texas?

October 7, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Yes, but there are do’s and don’ts.

The Texas statute for unlawful carry of a handgun is under Penal Code 46.02.  That provision makes it an offense to “intentionally, knowingly, or recklessly” carry on or about your person a handgun.

The statute is worded in a very confusing manner — but the law specifically allows possession of a firearm on “the person’s own premises or premises under the person’s control.”  Tex.Pen.C. 46.02(2)(A).

And to answer the original question – the law also allows possession “inside of or directly en route to a motor vehicle or watercraft that is owned by the person or under the person’s control.”  Tex.Pen.C. 46.02(2)(B).

Translation – you can have it in the car.

Limitations to Carrying a Handgun Through Texas

The handgun cannot be in plain view unless you are licensed to carry a handgun in Texas. Tex.Pen.C. 46.02(a-1)(1).

While the law allows you to have it in your vehicle – the law doesn’t allow you to carry it outside the vehicle.  You probably can’t bring it to the park benches where you and your family are eating lunch as an example – and you can’t bring it inside places like gas stations or other businesses which, in all likelihood, prohibit weapons.

You can’t be engaged in criminal activity.  Though this one seems obvious, we do see a number of cases where there is a DWI along with an unlawful carry case (or UCW as they are typically called here).  Speeding and other traffic offenses are omitted, though.

And it goes without saying you can’t otherwise be prohibited from carrying for whatever reason.

This Law Has A History of Changes

When I was a prosecutor – the law made it illegal to have a handgun “on or about” your person.  The law then provided “traveling” was a defense to UCW but that was confusing too.  That just meant you’d be arrested and you could argue to a judge or jury you were “traveling.”

That law was not only confusing but also – as you might predict – otherwise responsible handgun owners would get arrested on routine stops and then they’d have to try and convince a jury the traveling defense applied when they were on their way to the Home Depot instead of Arkansas.

The new statute, while confusing, helps responsible owners avoid that fear and headache.  It basically says “if it’s in your car, then we agree you’re traveling.”

But it’s not a general license to carry any and all places.  That requires special permitting under Subchapter H, Chapter 411 of the Texas Government Code.

*Jeremy Rosenthal is Board Certified in Criminal Law and is designated as a Texas Super Lawyer by Thomson Reuters.

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Police are Getting Theft Warrants for Shoplifting During the COVID Pandemic

October 6, 2020

By Criminal Defense Attorney Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

There are currently a glut of warrants for theft in Collin County from shoplifting cases.

Why?  Because during the beginning of the pandemic, police did not want to take folks to jail for shoplifting.  Police were under marching orders to keep the jail clear and police were like anyone else who didn’t want to ride with a stranger in a car for 20 minutes if they didn’t have to.

You can check Collin County Warrants here.  The warrant page says all warrants may not be visible to the public.  If a warrant is not visible it’s typically because of some organized crime ring where they round up the entire group at once.  Shoplifting theft cases don’t fit this profile.

Why Are They Getting Warrants Months and Months Later?

People are required to go to jail in most criminal cases – even if it’s just to book in then out.  The reason is simple — if criminal court were voluntary, no one would come.  The law doesn’t allow people to be prosecuted in absentia so that means the courts have to have some way to compel you to come.  They make you come to court by holding the threat of jail over your head.

Because they didn’t take someone to jail in the first place in March, April, or May – they now have to do it in September or October.

 

How are They Doing This?

Police are asking judges to sign arrest warrants based on probable cause affidavits.  All a probable cause affidavit lays out is the “probable cause” for the charge.  The judge then signs the warrant which allows police to arrest a person.  Criminal charges come later in this scenario.

Another way arrest warrants are triggered is where the District Attorney’s office files the actual criminal charges.

Are They Going to Come and Get Me if I Have a Shoplifting Warrant?

Legally they can but they might not.  They may not have the resources to resolve this glut of cases and they may just be satisfied for folks to either turn themselves in or for the warrant to sit dormant until someone gets pulled over at some point in the future.

A person with an active arrest warrant should always do their best to promptly resolve the warrant by turning themselves in, however.  Not only is it required by law but as I tell clients by turning yourself in with a plan to bond – you are in control and can minimize how long you’re in jail.  I tell clients an arrest will happen at the worst and most inconvenient time if they don’t resolve it promptly (like when you’re on a big date or on your way to your kids soccer game).

Most warrants like this already have a bond amount set in advance so you might not even have to wait for a judge.  Also, most shoplifting cases don’t particularly carry bond amounts which are extraordinarily high.  There is a good chance you are in and out of jail regardless of your financial condition.

Does This Make My Case Worse?

No.  The prosecutor will ultimately file charges and the vast majority of shoplifting cases are misdemeanors.  They carry a range of options which allow for expunctions or ways to get your record cleared.  I’ve handled so many theft cases I can’t count them all.  I can safely say how the person was apprehended never makes a difference in the case – unless, of course there was a fight or something like that.

There is an excellent chance of getting theft off your record depending on your personal history and the facts of the case through an expunction or non-disclosure.

*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.  Jeremy is a senior partner at Rosenthal, Kalabus & Therrian, PLLC.  www.texasdefensefirm.com.

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Posted by niftybrady

What is Statutory Rape?

October 5, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

Statutory rape is the common term used to describe when a person over the age of consent (in Texas, 17) has sex with a person under the age of consent.  Texas does not call it “Statutory Rape” and here it is just referred to as “Sexual Assault of a Child.”  The penal code expressly states sexual assault of occurs regardless of whether the person knows the age of the minor.  Tex.Pen.C. 22.011 (a)(2).

It is a second degree felony carrying 2-20 years of jail and equally concerning is it carries lifetime sex offender registration.

Strict Liability

Most crimes require what is known as a “mens rea” or mental state.  An easy example of a culpable mental state is intentionally knowing you’re taking someone else’s umbrella when you leave a restaurant.  You’re not committing a crime merely by taking it — but the crime occurs when you intentionally or knowingly take it without the owners consent.

Sexual Assault of a Child is known as a “strict liability offense” which means there is no culpable mental state.  Like speeding, the offense is said to have occurred when the act is done regardless of what the actor intended.  The constitutionality of the strict liability nature of statutory rape has been litigated in Courts over the years.  The courts have cited an “overriding government interest in promoting the health, safety and welfare of it’s citizens” in upholding strict liability offenses.

The Romeo and Juliet Defense in Texas

It is an affirmative defense to sexual assault of a child where the actor was not more than 3 years older than the minor at the time of the intercourse and if the minor was at least 14 or older.  Tex.Pen.C. 22.011(e).  The defense sounds straight-forward but it can be a bit confusing.

In other words a 19 year old could have an affirmative defense to sexual assault of a child if the minor was 16 at the time they had sex provided it was consensual and their birthdays were no more than three years apart.  Or, a person as old as 17 may also have an affirmative defense to statutory rape if the complaining witness was 14 — again — provided their birthdays were no more than 3 years apart and the act was consensual.

The defense would not apply to a 16 year old having sex with a 13 year old, however, by the statute’s very language.  Nor would the defense apply to a person 19.5 years old having intercourse with someone 16 years, 1 month old.

“But I Thought She Was Old Enough”

Many people think it is or should be a defense if the person thought they were having sex with someone of age.  This would be what is known as a “mistake of fact” defense under Texas Law.  The mistake of fact would, in theory, nullify the culpable mental state.  But courts haven’t recognized this defense in Texas.  Again, because it is a strict liability offense – there is technically no mental state to nullify.  So unless the legislature or the Court’s say otherwise, “I thought she was old enough” isn’t a winning argument.

So Is There Any Defense At All When Someone Thought Their Partner Was Old Enough?

A prosecutor has what I call an “over-ride switch” to the Texas Penal Code and the Code of Criminal Procedure.  That is their duty not to necessarily seek a conviction but to see justice is done.

We can absolutely try to convince a prosecutor the facts of a particular case merit the case not being prosecuted.  It could be the older person suffered from some sort of mental deficiency, illness, or shortcoming.  It could be the teenager appeared and represented themselves as older in a particularly egregious manner, or even the teenaged minor used some other type of threat or coercion too.  As I said, every case is unique and it can be a combination of factors.

The prosecutor has the legal duty and responsibility to evaluate each one to see if it merits prosecution… though, it is never favorable to be at a prosecutor’s mercy when lifetime sex offender registration is on the line.

*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 is an “Outcry” of Sexual Abuse?

October 4, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

An “outcry” is the term used to describe generally when a complaining witness – typically a child younger than 17 years old – describes sexual abuse for the first time to a person 18 years or older.

Why an Outcry is Important

Outcries and the circumstances which surround them are critical to sexual assault cases.  Psychologists I’ve worked with on sexual abuse cases have described sexual abuse or molestation as a “rock in the shoe” a victim carries with them all or most of the time.  The victim, psychologists say, are then constantly evaluating and ‘testing’ others around them including grown-ups to see if they can trust that person with the often confusing and very private information.

 

 

When an Outcry Can be Questionable

We expect valid outcries of abuse, then, to be in circumstances where the victim is in a situation of trust, love or safety.  But we often see an outcry in situations where the complaining witness is in trouble with an adult or led by hysterical questioning.  With teens, a questionable outcry may come when parents are cross examining a teen trying to avoid being in trouble – or where a teen might be desperate for attention.

Often times law enforcement and even prosecutors will glaze over problematic outcries.

The Legal Significance of an Outcry

Texas Code of Criminal Procedure 38.072 allows an ‘outcry witness’ to testify in court and repeat the minor’s story they were originally told.  Because outcry is a ‘process’ of the minor opening up – often to different adults – courts generally allow multiple adults to come and repeat the child’s story.  Normally repeating what another person has said to you is deemed hearsay and is inadmissible in court – violating your 6th Amendment right to confront your accuser.

The original outcry witness is allowed to testify but often so are more polished law enforcement professionals too because they also interview a child accuser.

An outcry witness cannot testify in the place of the complaining witness, but instead the prosecution uses outcry witnesses to fortify the complaining witness’ story.  It’s not uncommon for the state’s witness’ to play human polygraph and try to telegraph to the jury they believe the accusers story.

Summation

The prosecution and defense have a very different view of an outcry.  While the prosecution tends to take an outcry at face value and then to exploit rule 38.072 in an effort to retell time and again the allegations before the jury, the defense is focusing on the context and the substance of the outcry itself.  Does it pass the “rock in the shoe” test?

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Posted by niftybrady

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