Podcast – Appellate Guru Kyle Therrian

December 25, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Here is a recent podcast with Texas Criminal Defense Lawyer Significant Decision’s Reports publisher — Appellate lawyer Kyle Therrian.

Enjoy!  Or don’t enjoy.  But watch or listen.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of legal specialization.  He is recognized as a super Lawyer by Thomson Reuters.


Domestic Violence Charges – Blog 5:  Affirmative Findings of Family Violence

December 16, 2020

By Texas Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

A major component of what makes domestic or family violence severe criminal charges in Texas are affirmative findings of family violence.  An affirmative finding of family violence (AFFV) is a declaration sought by the prosecution and made by a judge which triggers additional collateral consequences above and beyond a regular assault case.

An AFFV can be made by the Court whether the case was a guilty plea, no contest plea, or whether the accused was found guilty.  They can even apply to fine-only misdemeanor class c charges.

For more reading on other aspects of domestic violence charges you can go here.

Consequences of an Affirmative Finding of Family Violence

Enhancement

A second arrest for domestic violence charges can be elevated from a class a misdemeanor (Up to a year of county jail and up to a $4k fine) to a Third Degree Felony (2 – 10 years in the Texas Department of Corrections and up to $10k fine).

The family member doesn’t have to be the same person.  In fact, a common scenario I see is someone who at times decades before had plead guilty to what they thought was a traffic level offense of getting into a fight with a parent, sibling or spouse to pay the fine and move on.  Then upon the subsequent arrest – they are hammered with a felony charge.

Inability to Non-Disclose Criminal Charges

The affirmative finding bars non-disclosure or hiding the case from the public once the case is over.  Not only this, but a popular argument I’ve seen prosecutors make is they believe the Texas Legislature intended to create a specific class of offender with the AFFV who is not eligible for non-disclosure in any cases at all that person may have been arrested for.

Here’s an example:  A person pleads guilty to domestic violence and gets deferred in the year 2010.  In 2020 they are arrested and plead guilty for DWI and otherwise qualify for non-disclosing the DWI to hide that arrest from public view.  The prosecution can argue (with varying degrees of success) the person isn’t eligible to non-disclose the DWI because of the DV plea from 2010.

Firearm Ownership

Both Texas and Federal law can restrict your rights to firearm possession and ownership.  Federal law prohibits those convicted of domestic violence from possession.  Texas – and perhaps other states – restrict rights for possession for special permitting to carry firearms.

Divorce, Custody and Adoption Issues

A person with an affirmative finding of family violence cannot be named a managing conservator of a child or a joint managing conservator of a child.  It goes without saying this can be the most devastating consequence of them all because it could mean losing your children in a divorce proceeding.

The Shattered Glass Effect – Indirect and Collateral Consequences 

I’ll go geek lawyer for a second — criminal charges have what we call “direct” consequences and “collateral consequences.”  An example of a direct consequence of an affirmative finding of family violence would be a subsequent charge can be enhanced.  It’s predictable and fairly certain to happen upon a 2nd arrest.

But what about getting fired from a job 8 years later?  Can the legislature change the law for the worse 15 years from now and will it affect someone?  How others view criminal charges over time is thoroughly unpredictable.  We just know it can be bad.

I call remote collateral consequences the “shattered glass” effect.  We simply can’t predict them.  Affirmative findings have far reaching consequences which we just can’t calculate.

*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.

 

 


Sexual Abuse Charges – Blog 12: Fist Fights Over Evidence

December 3, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

How do you corroborate your story with a completely he-said/ she-said debate about something which happened 5 years ago?

This is one of the big challenges of sexual abuse prosecution and defense.  Physical evidence such as DNA or other injuries which might be associated sexual abuse can be rare – particularly when an outcry is delayed for months or years.

So it’s often the case each side takes seemingly small or what may seem like insignificant scraps of evidence and do their best to magnify it by 10,000%  to try and corroborate their story.  The ensuing debate in the courtroom over just what the small shred of evidence might mean is what I call “fist fighting over evidence” and it’s the topic of today’s blog in my continuing series on sexual abuse cases.

The Challenge

Most offense reports I read allege something to the effect of the child making the outcry of abuse — and the report goes on to say the specifics of incident x happened “over the summer” or “sometime in March” or “a few months ago” in a certain location (i.e. aunt’s house, friend’s apartment) in a certain room of the home.  The reports then detail the specifics of the abuse if any are given by the child.

So if I’m having a conversation with a client who insists he is innocent – he can never answer the question, “where were you every day last summer and how can we prove that?”  He can never answer the question of “okay, even if you were at aunt’s house sometime in March – how can we prove victim wasn’t there at the same time and/or you and victim weren’t alone?” The task is virtually impossible in most cases.

So if there is any nugget of evidence which tends to show Defendant’s story is the truth – it becomes huge.

The Best Example – Brett Kavanaugh’s Calendar

Without getting into details of cases I defend – probably the clearest example of a “fist fight over evidence” would be Supreme Court Justice Brett Kavanaugh’s calendar which he contended was proof of his innocence against allegations of sexual assault and the US Senate then having a “fist fight” over what the calendar actually proved.

Staying away from the politics of it all – was the calendar proof Mr. Kavanaugh didn’t sexually assault Dr. Ford?  Maybe yes and maybe no – but my point is this is all he had other than his word.

The calendar even got parodied on Saturday Night Live.

Smart Phones – Evidence in a Box

A major difference between 1982 and the 21st century are smart phones.  Today we can tell if someone took the tollroad on a certain day, their GPS location at any given time, or pictures they took… etc.  So today we actually have a lot more potential to strive and attain some small nugget of proof which we hope can corroborate our story.

*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.

 

 


Sexual Abuse Charges – Blog 11: The Prosecution’s Trial Strategy

December 2, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

jeremy@texasdefensefirm.com

A chain is only as strong as its weakest link.

The prosecution in a sexual abuse charge with a child victim has a particularly daunting challenge – their star witness is normally a child.  So the state’s case is often only as strong as their child witness.

Many child witnesses can actually be quite good on the witness stand, but then again, children come in all ages, sizes and intellectual abilities.  It goes without saying when we ask a child to testify – we’re asking a child to do an adult thing.  There are memory issues, concerns about others trying to influence the testimony, and concerns about embellishment of details or the opposite – minimization of details.  And the concerns about child testimony obviously don’t end there.

Today in my series of blogs about sexual abuse we discuss the prosecution’s strategy in sexual abuse cases and how they deal with what is typically the “weak link” in their chain.

Strengthening the Weak Link

Anyone defending sexual abuse cases understands the Children’s Advocacy Center (“CAC”) was built like a machine to secure convictions.  Their playbook is simple, effective, and designed to steam-roll anyone in the defendant’s chair.

The CAC does everything in their ability to try and relay to the jury they believe the child is telling the truth and they have the unique power to know when a child is lying or telling the truth.  They provide often multiple witnesses for each trial which attempt to act as human polygraph machines.  Forensic interviewers, detectives, and other professionals from the advocacy center are highly polished career witnesses.

I call these folks the “truth detectors.”  But does strengthening every other link in the chain make the weak link any stronger?

Challenge #1 with Strengthening the Weak Link

Rules of evidence and due process prohibit what is known as “bolstering” and they also prohibit an expert witness telling the jury directly an opinion defendant is guilty.  So it would seem parading one witness after another from the CAC to wink and nod at the jury would be prohibited?

The prosecution takes advantage of rules on expert witness testimony which give flexibility to witnesses.  Rule  of evidence 702 allows witnesses with a particular knowledge and expertise in an area the ability to discuss their training and experience and to some degree allow them to opine more than a common or fact witness.  Judges are somewhat timid in shutting down these practices which have since been upheld by higher courts… meaning the defense has a harder time making legal challenges to this type of testimony.

Forensic interviewers are often allowed to testify as “outcry” witnesses even though their hearing the allegation from the child isn’t the first person over the age of 18 to hear the account of the abuse — and their hearing the allegation is a pre-meditated effort towards trial strategy.

Challenge #2 With Strengthening the Weak Link

The training and experience utilized by professionals at the children’s advocacy center tends to be highly anecdotal – so on the job learning instead of actual science.  The problem with the anecdotal experience is it really isn’t any good when your on the job training is in an echo chamber.  Not only this, at some level the actual science matters.  This is why being a candy-striper at a hospital for 20 years doesn’t mean you get to do surgery.

Also, even the science and psychology about children and sexual abuse tends to be highly subjective and malleable… and unfortunately some professionals at the advocacy centers don’t concern themselves much with the actual science and psychology.

So what we often get in trial are forensic interviewers or detectives who say things like:

“If the child recants the abuse – it’s because defendant is guilty;

“If the child sticks to the story – it’s because defendant is guilty;

“If the child looks the jury in the eye to tell confidently tell their story – it’s because defendant is guilty;

“If the child looks down and cries to tell their story – it’s because defendant is guilty;

“If the child omits huge chunks of their story – it’s because defendant is guilty and child is ashamed to tell their story;

“if the child gives graphic details – it’s because the child is emboldened and an empowered survivor and it’s because defendant is guilty.

The problem is the “truth detectors” might not be wrong about some or all of these assertions in any given case…. and as you can see there is nothing a witness like this can’t spin into “he’s guilty.”  Also, most of these observations are more conventional wisdom than actual science.  This is the juries job to resolve – and providing them an editorial shouldn’t be necessary.

Not all Trials are the Same

Evidence in each case obviously varies.  In some cases there might be a confession.  In other cases, DNA evidence or medical injuries might be present.  But a common denominator is the playbook from the CAC.  Fortifying the weak link.

I’ll be discussing how, as defense lawyers, we deal with and combat the prosecutions strategy later on in my continuing series.

*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.

 

 


Sexual Abuse Charges – Blog 8: Double Jeopardy

November 29, 2020

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Today I’m covering an extremely technical legal aspect of sexual abuse cases which tends to be problematic for the courts – double jeopardy.  For the 40,000 foot view of all my blogs in the sexual abuse categories you can read here.

Why is Double Jeopardy Such a Headache in Sex Cases?

Double jeopardy has different applications.  It prevents folks from being put on trial twice for the same crime.  It also prevents defendants from being convicted and/or sentenced twice of the same crime.

There is a danger defendants are getting convicted and sentenced multiple times for the same singular criminal act simply because our legislature has written so many over-lapping criminal statutes.

For example (and I apologize in advance, as always, for the graphic nature of the subject matter), let’s say there is an act of molestation against a 13-year old which includes the actor causing genital to genital contact of the victim:

In that instance the following criminal offenses have been committed:

  • Indecency by exposure (2-10 years TDC)
  • Indecency by contact (2-20 years TDC)
  • Aggravated Sexual Assault of a Child (5-99 years or life).

But did the legislature intend for there to be three distinct punishments or just one?  If the answer is three punishments then a person could be sentenced to up to 129 years in prison.  We hear these type of sentences in other States, but not Texas.

This is a routine challenge for prosecutors to properly legally strategize as well as Courts and defense lawyers to make sure these things are properly legally handled.

Prosecutors obviously don’t want a defendant acquitted merely because they fail to prove the highest possible charges.  It’s a common tactic for prosecutors to “plead in the alternative” or to plead lesser charges as well as the higher charges for that very possibility.

But here’s the danger for the prosecutors – they risk having some of their good convictions vacated on appeal if those convictions punish someone twice for the same distinct criminal act.

Lesser Included Offenses

One of the challenges is because of what are known as “lesser included offenses” or “lesser included.”  A lesser included means a charge within a charge.  For example, if the prosecution alleges theft over $100 but less than $750 – but at trial it is shown the item stolen was only worth $98 – then defendant may be guilty of the “lesser included” charge of theft under $100.

It’s unfortunately not as clear-cut in sex crimes with regards to “lesser included” offenses.  This is because the statutory scheme by the legislature simply didn’t draft the offenses the same way theft charges or assault charges are drafted.

The test for whether a charge is a “lesser included” offense is if one charge contains an element (a required unit of proof) which the potentially greater charge does not.

Areas Where the Law Gets Extremely Messy

One of the distinct problems with sexual abuse cases is there tend to be often not only multiple allegations of different acts of abuse – but those acts are often alleged to have been committed on different dates and frequently at different places.  Because these cases deal with children who aren’t always the best at communicating the abuse they’ve suffered to the authorities, the courts and lawyers dealing with the cases have a hard time sorting out things too.

Often a prosecutor can charge the defendant with continuous sexual abuse of a child – which tends to “clean up” and legally simplify the charges and the jeopardy issues.  Then again, it’s hard to blame a prosecutor, too, for simply alleging every charge they can articulate in every different way so as to make sure the defendant is convicted.  But the prosecutor may be opening the door to double jeopardy issues down the road on appeal if they do so.

Why Double Jeopardy is an Important Issue

The way a case is charged by the prosecutor affects everything from plea negotiation, preparation of the defense and even frequently post-conviction if the defendant is seeking an appeal.  Sorting out and quantifying the legal impact of the prosecution “throwing the book” at your client is simply part of defending these types of abuse cases.

*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.