Weak Judges vs. Strong Judges

November 3, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

The trial judge calls many of the crucial balls and strikes at trial including on which jurors are chosen to sit on the panel, what evidence the jury may hear, what arguments the lawyers may make, whether the case even makes it to the jury, and what formal instructions are given to the jury.  While some judges see their role as a referee on the sideline — for better or worse — they play a far more important role.

If the Judge makes mistakes in their rulings — those can be appealed.  Here’s why that’s not as easy as it sounds; (1) appeal can be extremely expensive if you don’t qualify as indigent; (2) the appeals courts rarely over-turn what happens in the trial court and often label the trial judge’s mistakes as “harmless error;” and (3) appeal takes a long time which means if you’re convicted at the trial court you may be serving probation or be sitting in jail waiting for the appeals court to look at the trial judge’s mistake (though you may be able to post an appeal bond).

For better or worse, I categorize Judges into two categories: weak and strong.  Weak judges guess at the law and try to make “safe” rulings which won’t get them appealed.  They often gravitate towards the prosecution because the feel safer ruling in their favor on close issues.

Strong judges know the law and aren’t afraid to disappoint the prosecution or the defense for that matter.  Because strong judges give more predictable rulings, their dockets tend to be more efficient as a whole.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice on any specific case or matter you should directly consult an attorney.

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If You’re Under Investigation for Injury to a Child

October 13, 2010

By Dallas and Collin County Criminal Defense Attorney Jeremy F. Rosenthal

texasdefensefirm.com

(972) 562-7549

Child abuse allegations are extremely serious in nature.

Texas law takes these matters so seriously that we are all charged with an affirmative duty in Texas of reporting any abuse or neglect of a child to the authorities.  This duty even cuts through the attorney-client relationship.

It is extremely common for law enforcement, either a local police agency or Child Protective Services (CPS) to conduct investigations of child abuse or endangerment — without trying to ‘tip off’ the accused that he’s being investigated for a felony.  What may seem like an innocuous request to have an in-person interview, may be a back-handed attempt to get a confession.  If you have any question about why you’ve been contacted for an investigation you should speak with a lawyer immediately.

The law surrounding child abuse allegations in Texas are extremely complex and if you’re accused, you shouldn’t attempt to navigate these waters alone.  Child abuse can be either a crime where someone is alleged to have acted “intentionally” or “knowingly” or it can be what is known as an “inchoate” crime which is a crime of omission — or failing to act.

For starters, “Injury to a Child” is defined by Texas Penal Code 22.04 which says,

(a)  A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or intentionally, knowingly, or recklessly by omission, causes to a child, elderly individual, or disabled individual:

(1)  serious bodily injury;

(2)  serious mental deficiency, impairment, or injury; or

(3)  bodily injury.

There are affirmative defenses under this statute, however:

Penal Code 9.61 governs the parent-child relationship and says, “(a)  The use of force, but not deadly force, against a child younger than 18 years is justified:

“(1)  if the actor is the child’s parent or stepparent or is acting in loco parentis to the child; and

“(2)  when and to the degree the actor reasonably believes the force is necessary to discipline the child or to safeguard or promote his welfare.

“(b)  For purposes of this section, “in loco parentis” includes grandparent and guardian, any person acting by, through, or under the direction of a court with jurisdiction over the child, and anyone who has express or implied consent of the parent or parents.

Teachers are also provided an affirmative defense in some situations under Section 9.62:

“The use of force, but not deadly force, against a person is justified:

“(1)  if the actor is entrusted with the care, supervision, or administration of the person for a special purpose; and

“(2)  when and to the degree the actor reasonably believes the force is necessary to further the special purpose or to maintain discipline in a group.

Again, law surrounding injury to a child is extremely complicated and the stakes are very high.  By handling things on your own or simply trusting investigators that have contacted you — you are taking a huge gamble with your future!

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For specific legal advice you should contact an attorney directly.  Contacting Jeremy F. Rosenthal through this blog does not create an attorney-client relationship and that contact is not considered privileged or confidential in any way.

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Watering Down the Burden of Proof

September 21, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

The burden of proof in a criminal case in Texas is “Proof beyond all reasonable doubt” of all the elements of an offense.

The courts in Texas used to reason that, “A ‘reasonable doubt’ is a doubt based on reason and common sense after a careful and impartial consideration of all the evidence in the case. It is the kind of doubt that would make a reasonable person hesitate to act in the most important of his own affairs.”  Geesa v. State, 820 S.W.2d 154 (Tex. 1991).

While this definition, like any other definition, wasn’t perfect — it was still very high and more importantly wasn’t subject to being manipulated consistently by prosecutors or criminal defense lawyers arguing their case.  The definition was open and shut.

In 2000, The Texas Court of Criminal Appeals changed it’s mind and ruled in Paulson v. State, 28 S.W.3d 570 (Tex. 2000), “We find that the better practice is to give no definition of reasonable doubt at all to the jury.”  Despite the fact there are legal definitions for other lesser burdens of proof in civil cases, family cases, and CPS cases, the Court reasons in criminal cases that, “It is ill-advised for us to require trial courts to provide the jury with a redundant, confusing, and logically-flawed definition…”

So today, despite the mountains of case-law, research, and scholarly articles that define proof beyond all reasonable doubt, Texas courts today routinely instruct juries that on the single most important burden in a criminal case that they can simply define proof beyond all reasonable doubt as they want.  Basically the jury can make up the rule as they go along.  Experience tells me that generally favors law enforcement.

And prosecutors have, over time, increasingly seized on this glaring weakness.  Maybe it’s just me, but I’ve noticed more and more that prosecutors are dedicating time in jury selection, opening argument and closing argument to lowering the burden of proof on themselves rather than focusing on the facts of the case.

Examples include showing unfinished puzzles to prospective jurors and suggesting that because they can still make-out an image even with the large missing pieces — that the unfinished puzzle represents proof beyond all reasonable doubt; or repeatedly dedicating time in opening and closing argument not to the evidence in the case — but to giving the jury their own theory of what “beyond a reasonable doubt” should mean (and it’s always an attempt to lower the burden).

Getting the jury to understand the significance of having a high burden of proof and de-bunking the State’s creative attempts at lowering the burden is the challenge of every criminal trial lawyer.  Experienced criminal defense lawyers do everything they can to make the state accept — not shirk — their burden of proof.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For legal advice on any specific matter you should consult an attorney directly.

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Getting Letters Threatening to Sue You for Shoplifting?

September 6, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

Retailers have made it a habit of sending letters threatening lawsuits under the Texas Theft Liability Act to people that were arrested in their store for the suspicion of shoplifting.  It is important to first understand that any civil action or demand is completely and wholly separate from your criminal case.  Their letter is no different than a private party trying to settle a lawsuit out of court.

People often have the mistaken idea that giving in and paying the money has a bearing on the criminal prosecution one way or another.  There is no connection between the cases… in fact, if the letter were to threaten criminal prosecution of any sort in exchange for a civil settlement — then the retailer could be prosecuted themselves for extortion!

The Texas Theft Liability Act is a civil statute which may allow for the companies to sue someone in civil court for money losses (Tex.Civ.Prac.&Rem.C. Chapter 134).  Section 134.003 says, “a person who commits theft is liable for the damages resulting from the theft.”  Section 134.005(a)(1) holds that the damages they could win in court are, “the amount of actual damages found by the trier of fact and, in addition to actual damages awarded by the trier of fact in a sum not to exceed $1,000.”

The problem the retailers usually have with being successful in this claim is that in shoplifting cases — the items alleged to have stolen are virtually always recovered.  Therefore, a retailer cannot honestly say they’ve suffered any damages “resulting from the theft.”  Some will argue that the fact they have to hire loss prevention personnel are damages… but they’re not damages that resulted from THE theft in question.

Finally, Section 134.005(b) states, “Each person who prevails in a suit under this chapter shall be awarded court costs and reasonable and necessary attorney fees.”  This can be interpreted to be a “loser pays” provision.  Meaning the store comes to court and loses — they pay for your lawyer.

If you’ve been arrested for shoplifting and you get a letter from a retailer — at the very least talk with a lawyer about your rights and whether it’s a good idea to pay their demand.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article should be considered legal advice.  For any legal advice about any specific situation you should directly consult an attorney licensed in your state.

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Project Innocence Interview — Peter Neufeld

August 19, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

Today I’m posting an interview done  by Slate Magazine with Peter Neufeld, the co-founder of project innocence.  It’s an amazing read.

The main stream regularly writes off people like Mr. Neufeld and project innocence as “village idiots” unless and until the system turns on them.  The main theme that runs throughout his interview, although they don’t say it in these terms, is confirmation bias — where the police grab onto a theory and won’t let the facts get in the way.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any specific you should consult an attorney directly.

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