Domestic Violence Charges – Blog 1: Overview and Index

December 12, 2020

By Texas Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

Today I’m starting a series of articles discussing the legal aspects of family assault cases in Texas.  My goal with these blogs – as is my goal with all blogs – is to convey as much accurate information in a user friendly format as I can without overloading the reader.

Domestic violence has been a very hot topic before the COVID-19 pandemic and the issues have only become more exacerbated since the all of the lockdowns, school closings, and sheltering-in-place the pandemic has triggered.  Arrests for domestic and family violence are like a hand-grenade which is rolled into the living room which can threaten to make what is often already a dysfunctional situation worse.

I find domestic assault arrests also to be the most commonly underestimated arrest by folks ensnared in these situations.  I hope to give some of the complexity context in this series too.

DV Cases: A 40,000 Foot View

The most defining aspect of domestic violence cases from a lawyer’s standpoint is the “he said/ she said” nature of the allegations. This sounds simple but we just don’t see this dynamic much in charges such as DWI, theft, or drug possession.  Even crimes against children are somewhat different because in those cases the allegations can be from years past and there are vast differences in the sophistication levels of accusing child and accused adult.

A family assault arrest typically comprises of police showing up to someone’s house after a 911 call to find the folks huffing and puffing, often bleeding, and sometimes impaired.  The police are then asked to restore the peace and unwind, diagnose, then make a judgement call about who in a complicated relationship sometimes spanning decades is an aggressor.  Then the legal system takes hold making the web seemingly unmanageable.

Very few cases also have the level of disagreement between prosecutors and defense lawyers than assault of a family member as well.  Prosecutors and defense lawyers fight over what happened at any particular incident, the very nature of a complex or long relationship and what should be done in terms of long term solutions whether a dating couple remains together or not.  Further domestic violence charges carry additional penalties which up the ante in defending them.

My Blog Series on Assault Against a Family Member

I’ll break this down into several components in this series so they make sense.  First, I’ll cover the technical aspects of the laws and specific charges:

Defenses Common in Family Abuse and Assault Cases:

Common Prosecutorial Views/ Tactics in DV Cases:

Defending Domestic Violence Charges

*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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Illegal Searches are More Common Than You Might Think

December 11, 2020

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

One of the best weapons in defending many cases is the exclusionary rule.  That rule prevents illegally attained evidence from being used by the prosecution during trial.  The exclusionary rule is the citizens legal protection remedy from illegal police acts.

Isn’t it a Bit Much to Say the Police Acted Illegally?

Think of the word ‘illegal’ in terms of a penalty during a football game such as ‘illegal procedure.’  The word ‘illegal’ has a much lighter connotation when we know it’s just a 5 yard penalty for a player moving the wrong direction before the snap.

Calling a search or particular police action ‘illegal’ is really no different.  As the accused, you’re merely saying there was a foul committed without regard to wether it was intentional or severe.  But the rules are the rules and everyone has to play by them.

Motion to Suppress

A motion to suppress the evidence is a request for the judge to trigger the exclusionary rule and render the illegally attained evidence unusable.  The most common legal grounds are the 4th Amendment to the US Constitution prohibiting illegal search and seizure and Texas Code of Criminal Procedure Article 38.23.

Illegal Searches Can’t be Very Common, Right?

They’re more common than you think.  You have to remember civil rights cases from the 1960’s and 1970’s still have a large imprint on search and seizure law.  The courts are uncomfortable with traffic stops and/or searches based on little more than hunches because those were rightly exposed as profiling.  Though today’s police might also include teenagers or people who have an alternative appearance in addition to racial minorities – there isn’t much of a difference under the law.  Profiling is profiling.

Articulable Facts vs. Subjective Opinion

You also have to remember police in targeting certain groups are often aggressive in their approach.  Police need to be able to articulate the facts which justify traffic stops and continued roadside detentions.  As an example a police officer saying he stopped a car because “he just knew they were up to no good” isn’t going to fly.  It’s a hunch and courts don’t like that.

Closer examples might include thin and subjective reasoning for keeping someone detained at a routine traffic stop – nervousness, the time of day/ night, or even labeling the area of the stop as ‘high crime’ with little or no proof.  Courts have repeatedly said these types of justifications are akin to multiplying zeros when it comes to articulable facts.

Articulable facts, on the other hand, might include “the driver was going 58 in a 45.”  Or the driver smelled like alcohol, said he was on his way to Dallas but was driving the opposite way.

So where an officer can plainly, quickly, and obviously explain the probable cause – the better chance they have of keeping a detention legal.  The more they rely on opinion and conjecture – the more problems they might have explaining it later.

Again, police know they are fighting crime and doing great things by keeping drugs, guns, and drunk drivers off the streets.  They will often push and test the rules for reasons they think are justified.

The end result may be that often they have mis-stepped.

*Jeremy F. 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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Posted by Jeremy Rosenthal, Esq.

Can I Sue the Police After an Arrest?

December 10, 2020

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

I’ll do my best to stay in my lane.  I defend people charged with crime and I don’t sue police but I get this question a lot so I’ll do my best to answer.

I often refer cases where folks are interested in taking legal action out to lawyers who focus more in that area.  But if I don’t think you’ve got much of a case — I can still probably diagnose it and let you know if it’s good time and energy spent on a bad task.

What I can also say is this – if you’re charged with a crime the first priority is always to defeat those charges.  I liken it to playing defense before playing offense.  Pleading guilty or losing a case where you’re trying to sue the police is a great way to spoil that case.

Immunity From Suit

Police, prosecutors and judges have wide-ranging immunity from civil liability and for good reason.  We want them to be able to do their jobs and not constantly worry about getting sued nor put their own personal assets on the line for just doing their job.

There are some limited situations where they are individually liable.  The main one is under 42 U.S.C. 1983.

42 U.S.C. 1983

This federal statute says the following:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congressapplicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

In English – if a government worker as part of their job intentionally deprives someone of a constitutional right or liberty then they can be sued in federal court.  There are law review articles on this statute and it’s the subject of entire law school classes – so I don’t pretend for a moment this blog covers it all.

In short – 1983 claims are typically brought for police brutality and prison litigation but it isn’t exclusively reserved for that.  The standard is pretty difficult because negligence generally isn’t enough to trigger liability.

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

 

 

 

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Sexual Abuse Charges – Blog 18: Empowering the Jury to Stop an Injustice

December 9, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

jeremy@texasdefensefirm.com

Injustice is possible in sexual abuse claims.  It can come in the form of a wrongful conviction or a horrifically cruel prison sentence.  I ask potential jurors if there is anything worse at all someone can be accused of or convicted of than child sexual abuse – and they almost always agree this is the worst.

Even worse – in defending these charges its not uncommon for mothers, fathers, spouses (and etc.) of the accused to plead with me to explain why does it seem like they’ve taken all of their loved one’s rights away… why have the police and prosecutors treated this as guilty until proven innocent?

“Because”, I explain, “they think he’s a child molester.”

Getting the jury to care enough to render a Not Guilty verdict or in some instances to give a fair punishment is my last installment on my series of sexual abuse blogs.

Getting the Jury to Take Accountability for their Verdict

The Milgram Experiment

There is a famous and notorious experiment which I think can be all too similar to a jury trial called the Milgram experiment.

The actual test subject who volunteers is told to read questions to a person over the radio who is in another room and can’t be seen.  When the person answers incorrectly, the volunteer is told to administer a shock in increasing doses to that person.

A “doctor” sits with the volunteer and repeatedly assures them the other person is just fine, also volunteered, was evaluated for being able to withstand the shocks, and further they consented to the full experiment.  The shocks increase to the point where the unseen person relays they are in excruciating pain and eventually tells the volunteer to stop.

The Milgram experiment’s goal is to see whether the volunteer actually does stop or if they administer the cruel shock even when the other person begs them to stop.  The experiment is now considered unethical as it’s too mean to put someone in the volunteers situation.

Dr. Stanley Milgram was a professor at Yale.  He concocted this experiment in the wake of the Nuremberg trials where Nazi after Nazi used the defense that they were just following orders.

In the Milgram experiment the volunteers would repeatedly want to stop administering the shock but would look back at the Doctor, the “authority figure,” who would tell the volunteer it was okay to ignore the other person’s plea for mercy.  The volunteer felt okay administering the shock because they divested themselves of accountability – if the other person was being hurt it was the doctors fault and not their own, right?

How Can a Jury Be Like the Volunteers in the Milgram Experiment?

There are plenty of opportunities for a juror to blame anyone and everyone else in the process for a bad result.

A juror is a volunteer or a stranger to the legal proceedings.  They are there for one week of their lives and have absolutely no connection to the parties and can go about their lives when they are done.  They do not have to live with the consequences of their verdict except for perhaps their conscience.

There are 12 jurors on a panel and no single one is responsible for the actions of the other 11.

And the biggest similarity — the courtroom is jam packed with authority figures who are telling the jurors they have thoroughly vetted the case and they wouldn’t be pushing charges with such harsh consequences unless they were true.

Fast-forward fifteen years to when the juror is reading the morning paper and sees they wrongly convicted the defendant.  The juror can blame everyone else for defendant’s plight.  This was the fault of the police, of the prosecutor, the Judge – but not mine.  Everyone else should have stopped this injustice first.  I was just doing what everyone else told me was the right thing to do.

Wrong.

The Single Hardest Thing For Me to Accomplish

Through a trial, I can point out challenges which make jurors question the state’s case.  I might even be able to persuade them my client is innocent or even that if my client is guilty – the prosecution’s punishment is far too cruel and stiff.

But my real job is to undo the Milgram effect.  To get the jurors to know, accept, and understand THEY and THEY ALONE are responsible for their verdict.  They are the volunteers sitting in the chair and THEY must have courage to tell the doctor sitting behind them they will not intentionally cause another person pain and walk away without human accountability.

Empowering the jury to fight an injustice means getting them not only to care about our client’s fight for justice – but to care beyond their one week in our legal system.  If we can convince jurors they are not only just a stake-holder in the outcome of the case but the final and most important stake-holder, then we have a real chance.

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

Comments Off on Sexual Abuse Charges – Blog 18: Empowering the Jury to Stop an Injustice | crimes against children, sex cases, sex crimes, sex offender registration, Sexual Abuse of a Child, sexual assault, Uncategorized | Tagged: , , , , , , , | Permalink
Posted by niftybrady

Sexual Abuse Charges – Blog 17: Preparing for Punishment and Mitigation

December 8, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Criminal trials are bifurcated.  This means there are two phases.  The first phase is guilt/ innocence and in the event of a guilty verdict then the second phase is a punishment phase.  The punishment phase can be either before a judge or a jury.  The defense is legally and ethically required to prepare for both.  Preparing for punishment is today’s topic on my continuing series of blogs about sexual abuse charges.

Losing or Pleading Guilty on a Sexual Abuse Charge

Many defense lawyers talk like pro wrestlers.  We talk about how tough we are and how we rip the opponent from limb to limb.  But the fact is we come in second place in our profession more than we’d like and plea bargaining is a critical aspect of defense work.

With the punishments for sexual abuse being as stiff as they are – we always have to keep in mind the possible second phase of the trial.  We have to work just as hard preparing for the possible punishment phase as we do the guilt/innocence phase.

In sexual abuse cases – particularly with child victims – plea bargaining is often not a major component.  This is because the plea offers can be so high that there is either no reason to seriously consider them or if the prosecution wants such a high prison sentence then on our side we may as well go down fighting.  But it never hurts to research, learn and develop mitigating facts either for punishment or on the off-chance we can plea bargain to lower charges.

What is Mitigation?

Mitigation means learning and proving facts which lessen punishment.

Mitigation is a difficult task in a sexual abuse case for a number of reasons.  There is a victim who has suffered horrific abuse which has the potential to emotionally and psychologically scar them for life.  Sex is still — and will always be — a taboo subject for many folks too.  Thus, many folks don’t understand criminal sexual dysfunction and aren’t interested in understanding it.  Another hidden factor is many jurors want to prove to other jurors how tough and intolerant they are of sexual abuse too.

The best mitigating evidence is what I call “three pronged.”  That is it accomplishes the following:

  • It acknowledges the abuse and thus helps the victim heal;
  • It explains underlying causes of the abuse;
  • It provides reason and hope the defendant can conform their behavior in the future.

Examples of Mitigating Facts in a Sexual Abuse Case

A saying I like is “hurt people hurt people.”  Many of the mitigating factors we look for are along those lines.  Examples could include:

  • The defendant was sexually abused themselves;
  • the defendant suffers from some mental deficiency;
  • the defendant suffers from some type of developmental deficiency;
  • the defendant suffers from some type of psychological deficiency;

Another key component of mitigation in sexual abuse cases are evaluations from licensed sex offender professionals which use empirical data to assess the degree of risk and the underlying causes of the dysfunction.  The evaluation can include a prognosis and discuss if any type of treatment will help the accused.

Examples of Mitigation the Prosecution Tears Through

Mitigation and preparation for punishment has to run deep.  There are some cases where the defense parades all of their friends and family to testify what a great person they are and hope it helps to lessen punishment.  I’m not against giving the jury a full picture of the accused’s life but doing a witness parade without something deeper allows the prosecutor to prove-up their narrative the defendant simply has everyone fooled.

Another poorly conceived punishment strategy is to tell the jury they got it wrong in the guilt/ innocence phase.  Don’t get me wrong… there is nothing worse to me than fighting like hell on a case I strongly believe in only to have a jury reject us.  But we only make matters worse by blaming them in a punishment phase.

*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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