Domestic Violence Charges – Blog 18:  Preparing for Mitigation and Punishment

December 30, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

We attempt to fight all cases on two fronts.  We are prepared to fight about guilt/ innocence and we always have to prepare to handle things should we lose.

Preparing for punishment in a trial is like buying car insurance.  No one buys it because they’re planning to crash, rather, you buy it because it’s the prudent thing to do and the law requires it.  The law requires defense counsel to prepare for a punishment phase of a trial too though we do our best to avoid being in one.

For all the tough talk about taking cases to trial and winning not guilty verdicts – punishment and mitigation cannot be ignored.

Here are my other blogs in this series on defending domestic violence charges.

Mitigation

Mitigation is evidence which tends to explain or lessen the culpability.

I explain to clients people commit acts of domestic violence for one of two reasons.  Either they are rotten and no good SOBs who enjoy inflicting pain on people they love — or there are deeper causes, factors, and issues which need to be untangled.  In all my years of practice, I don’t know if I’ve met anyone in the first category.  The former is a caricature or cartoon figure which prosecutors make my clients out to be — the latter is reality.

As for the deeper causes or roots to these situations — we can and do find them everywhere.  They can be anger issues,  substance issues, or mental health issues.  Perhaps parents or previous partners unintentionally trained them to solve family problems with physical abuse.  Maybe their relationship has the dysfunction of reciprocal domestic violence which needs addressing.

To avoid harsh sentencing we must also present a compelling mitigation case to a judge or a jury.

This Can’t Happen Again

If we are pleading guilty or the jury finds defendant guilty – this is question about which we must be able to assure the jury.  Beyond assuring it doesn’t happen again there are very real victims in domestic violence who need to be allowed to heal in their own way too.

A good mitigation strategy is good for the society, good for the victim and is fair to the defendant in light of all the circumstances.

“Never Lose Punishment”

I have a saying at our office – “never lose punishment.”

Trials are broken into two phases.  The guilt/ innocence phase and if the judge or jury finds defendant guilty then a punishment phase.

We don’t make the facts and each case which walks in the door walks in with different degrees of difficulty.  I’d love to say we can secure acquittals in the guilt/ innocence phase for all – but that’s a tall order.  But we should be able to tell our client’s story in a compelling fashion for the purposes of mitigation if nothing else.

For punishment – the prosecution often has theories and tag lines.  They try to sell the jury on the caricature or cartoon wicked-guy.  We have a human being with a story.  I don’t think we should ever lose punishment.

*Jeremy Rosenthal is 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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Domestic Violence Charges – Blog 17:  Plea Bargaining in Family Assault Cases

December 29, 2020

By DFW Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Only 6% of state criminal cases go to jury trial.  That means 94% are disposed of some other way.  Those could be plea bargains or dismissals.  Some dismissals are by agreement where the defendant takes classes, performs community service and/or completes other tasks and is basically a plea bargain without actually resulting in a plea.

Courtroom lawyers love to talk-tough.  And I’m no exception because I eat nails for breakfast in the morning before dazzling every jury I see.  But what we don’t brag about much are our plea-bargains.  Plea bargaining doesn’t make wonderful fodder for lawyers web pages so you don’t hear lawyers talk about it much.  Again – 94% of cases don’t go to trial so even the lawyers who talk the meanest game in town plea bargain far more cases than they take to trial.  It’s just a fact.

Anyone who has come to see me about their case knows I analytically evaluate every case as if we are preparing for trial.  They teach us in law school to start with the jury charge and go backwards.  And I don’t wear my plea bargains on my sleeve either but candidly it’s where I do some of my best work of getting clients out of really bad jams.

Read here for an index to other domestic violence related blogs.

When Plea Bargaining Makes Sense

Domestic violence is an area where sometimes we simply can’t plead guilty.  It could trigger immigration, professional licensing, or other consequences we cannot accept.  So this is the first question – can the client afford the consequences of a guilty plea in a family violence case?

Pleading guilty or not guilty is always the client’s choice.  Some folks don’t have the stomach for trial.  Trial in a domestic violence case normally takes a day or two but can take a week or more.  I have fun in trial but that’s because I’m not worried about going to jail when it’s over and I’m not worried someone on the jury or someone who just wanders into the open courtroom might know me and post the affair on social media.  I discourage the idea of pleading guilty just to avoid a trial most likely in front of strangers but again – it’s my client’s choice and not mine.

Pleading guilty or no contest may also make sense in cases where I honestly tell my client the odds for an acquittal are long given the specific facts of any cases… and I go through a cost/benefit analysis with my client about the pros and cons of taking the case to trial.

Important Factors in Getting a Favorable Plea Bargain

When someone is pleading guilty or no contest (there is no legal difference which matters in criminal law) – they are accepting responsibility.  It’s important for folks to remember this.  If someone is going to take responsibility for the charges against them – then I always advise clients to do so sincerely, earnestly and whole-heartedly.

Beyond this if someone is going to take responsibility they also take on the onus of not only promising not to do it again but taking the affirmative actions necessary to make sure and guarantee it doesn’t happen again.  This may include accepting anger management, marriage counseling, or a batterer’s intervention program.

Often substance abuse and/or psychological disorders need to be addressed as part of the underlying causes.  So a person may need to accept evaluations along with follow-up recommendations.

If someone is willing to face their decisions and demons to make sure a domestic assault doesn’t happen again then it obviously bodes well for plea bargaining.

Ultimately plea bargaining is far more common than taking a case to trial though many of my colleagues pretend otherwise to the public and to one another.  It never hurts to have a good strategy of an exit-ramp in a case which can often be a plea bargain my client finds acceptable.

*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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Domestic Violence Charges – Blog 15:  Affidavits of Non-Prosecution and What Happens with the “Victim” Doesn’t Want the Case Prosecuted?

December 27, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

jeremy@texasdefensefirm.com

This most common question I get in domestic violence cases is this:  if the victim doesn’t want to prosecute then won’t the case go away?

The answer is the “victim” or “complaining witness” has the legal power of a witness in a criminal proceeding and nothing more.  The prosecuting attorney makes the decision whether to go forward with a family violence charge.  Will the prosecuting attorney go along with the “victim’s” request to dismiss charges?  This is the million-dollar question which is different in every case.

Some District or County Attorney Offices are policy-driven to reject affidavits of non-prosecution and others take them on a case by case basis and will occasionally not pursue assault charges.

District Attorneys, County Attorneys and occasionally city prosecutors who review assault cases and affidavits of non-prosecution are public servants.  In theory, you would think they would be sensitive to pleasing the person they purport to protect.  Again, sometimes they do listen to victims of domestic abuse and sometimes they don’t.

Here is an index to the other blogs on domestic violence in this series.

Affidavits of Non-Prosecution

An affidavit of non-prosecution (“ANP”) is a statement made, typically under oath, where the complaining witness makes a statement to the effect they do not wish the case to proceed.  An ANP has no real legal power and it’s a very common misconception that it does carry with it a requirement the police or prosecutors obey it.

Why Police or Prosecutors Might Not Care About an Affidavit of Non-Prosecution?

I’ve blogged a lot about the Duluth Model in domestic violence and the “cycle of violence” along with the “power and control wheel.”  Those prevailing thoughts in law enforcement hold the abuser is all-powerful and has taken emotional control over the victim.

When many police and/or prosecutors see an ANP from a victim – it only confirms to them these concepts and theories are true.  They think the affidavit of non-prosecution is either forced, coerced, or done out of self-blaming guilt.  I’m sure sometimes they are right.

Also, as I wrote above, some offices are driven by policy of rejecting affidavit’s of non-prosecution.  They may feel self-assured enough that each and every case of domestic abuse allegations are the same — or they may simply be under pressure from third party advocacy groups such as battered women shelters to have such a policy.

What Happens when the Prosecution Makes one Spouse Testify Against the Other Against Their Will?

This happens.  I’m frequently asked if one spouse can lawfully refuse to testify against the other and the answer is no – assuming that spouse has been lawfully subpoenaed.

The prosecution can cause a subpoena to be issued which is a lawful court order requiring the witness in the case to come to court and testify under oath.  A judge can also compel a witness to testify and answer questions about instances of alleged domestic violence because the marital privilege does not extend to protect one spouse from testifying about the other accused of a crime.

It’s an unusual dynamic because the prosecution is put in a position of cross-examining their own “victim” in a case and in certain cases the complaining witness themselves may be entitled to counsel depending on the specifics of the situation.  You would think a prosecutor would do everything in their power to avoid being in this position but many prosecutors feel they are fulfilling a greater good by conducting a case this way.

The Firewall – The Jury

The good news is if all these things come to pass with the prosecution rejecting an ANP, forcing the case to trial and compelling one spouse to testify against the other — the defendant has the firewall or last resort of having a jury decide the case.

Juries aren’t subject to the DA’s offices policies and they have to be convinced the prosecutors crusade to convict one spouse over the other ones wishes is meritorious — and experience tells me that’s a very hard sell.

Even if the prosecutor doesn’t want to dismiss a case because a complaining witness says so — doesn’t mean the case doesn’t often finish with a two-word “not guilty” verdict.

*Jeremy Rosenthal is 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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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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