What Does a Jury Do?

May 27, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Lawyers take for granted that everyone understands a trial from television — but not even television makes the distinctions very clear.  And there’s no such thing as a stupid question.  Usually.

A jury determines what are known as “questions of fact.”  a judge determines “questions of law.”  The difference can be complicated but here’s a common example that demonstrates the difference.

Take an assault/ family violence case where self-defense was an issue: the judge would determine whether the evidence of self defense was admissible and whether it rises to the level which would allow him or her to give the jury an instruction on self defense.  The judge makes no decision on whether the evidence is believable or not… just that it is sufficient for a jury to consider the defense without completely guessing.

The jury would determine whether the evidence of self defense is believable and whether the state has dis-proven the theory of self defense beyond a reasonable doubt.

Jurors are the exclusive judges of the credibility of witness and decide whether the prosecution has met their burden.  The jury obviously doesn’t rule on objections (because again, it’s the judge that decides the law).

A person’s right to a jury trial is guaranteed by the U.S. Constitution in both civil and criminal cases and is a cornerstone of our legal system.

*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 directly consult an attorney.

Leave a Comment » | Uncategorized | Tagged: , , , | Permalink
Posted by Jeremy Rosenthal, Esq.

Female Shoplifting and Depression – A Link?

April 19, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

I’m not a psychiatrist or a psychologist.  My law license says “Counselor” and I joke that I’m not exactly sure why.

Regardless of the disclaimers, it seems to me that there may be a link between depression and theft when it comes to women.  Just in surfing the internet, there is article after article about the links between the two from medical professionals and non-professionals alike.  Even Winona Ryder, famed shoplifter from 2001, suffered from depression and anxiety disorders.

Putting on our lawyer’s hat, the question isn’t necessarily the same question that medical professionals may ask themselves.  The legal question is two-fold.  First, how does this apparent phenomenon translate into legal reality — and second, what are appropriate treatments assuming conventional criminal justice punishment misses the mark?

Texas Penal Code 8.01 is the insanity defense.  That statute states,

“(a)  It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.

“(b)  The term “mental disease or defect” does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.

As you can see, the statute expressly prohibits diagnoses such as kleptomania or other “abnormality manifested only by… antisocial conduct.”  This language may tend to have courts highly scrutinize an insanity defense in a shoplifting or theft case.  Indeed, Texas case law is somewhat scant in these cases as well providing little useful guidance.

Not only do courts highly scrutinize the insanity defense for theft cases, but many jurors have an extremely difficult time acquitting or excusing someone who is factually guilty of any criminal offense.

Based on the legislature, courts, and jurors view of the insanity defense, an insanity defense could be an extremely difficult defense to raise in a theft or shoplifting situation.

As far as treatment is concerned, most courts in Texas send persons that have either plead guilty to theft to “anti-theft classes” for probation.  Also, not being a medical professional, my guess is that therapy, counseling, and/or medical treatment for the underlying depression and discussion of the triggers for the theft actions can never be a bad idea.  The problem is that the counseling and treatment may come along with a painful criminal record.

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 always consult an attorney.

2 Comments | Theft, Uncategorized | Tagged: , , , , , , , , , , | Permalink
Posted by Jeremy Rosenthal, Esq.

There’s No Such Thing as a Minor Family Assault Charge

March 8, 2010

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

Domestic or family violence charges in Texas range from class c misdemeanors (the same level as a minor traffic offense), to felonies in other circumstances.  The fact that some are charged as class c’s doesn’t diminish their importance and can act as a trap door.

A class c assault occurs where there is unwelcome offensive or provocative contact.  The state does not need to prove the victim suffered any pain or discomfort whatsoever.  They appear deceptively insignificant because they can be charged in smaller municipal courts and before justices of the peace where the rules are less formal and far fewer people have lawyers.

In class c domestic violence cases, the prosecution may try and add a small enhancement paragraph to the charge known as “an affirmative finding of family violence” under Texas Code of Criminal Procedure 42.013 and Texas Family Code 71.004.  If the court enters this finding, even where the defendant gets deferred adjudication, then that finding can be used to enhance a future misdemeanor assaults all the way to a felony.

Most domestic violence cases in Texas are charged as the class a misdemeanor assault — where the state must prove some bodily injury (defined as any pain or discomfort).  These cases can be very difficult for the state to prove.  Often times the state will offer a class c deferred on the morning of trial if they feel badly about their case.  Even in those instances, a person charged must be very careful because the affirmative finding may still be attached even though the charges reduced and getting deferred.

If you are charged with a class c assault where the alleged victim was a family member or someone in a dating relationship, you should strongly consider getting a lawyer regardless of how minor you think the situation to be.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. He is designated as a Texas Super Lawyer by Thomson Reuters.

1 Comment | Assault, Uncategorized | Tagged: , , , , , , , , , , , , , , , , , | Permalink
Posted by Jeremy Rosenthal, Esq.

Top 5 Mistakes in Hiring a Criminal Defense Lawyer Countdown — No. 2

February 16, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

This Week I’m Counting Down the Top 5 Mistakes People Make When Hiring a Criminal Defense Lawyer.

#2:  Hiring a Lawyer that Gives You Unreasonable Expectations

I’m licensed to practice in Texas.  Here it is unethical for a lawyer to promise a client certain results.  I can’t imagine it’s permissible in any other state.

I often visit with people and my view of the case is much brighter and more optimistic than they anticipated.  But making a promise there is even a sliver of a chance I can’t keep helps no one.

Every single case – DWI, marijuana, felonies, or whatever, is like a snowflake.  Each set of facts has it’s own unique nuances which may turn the laws in different ways.  There’s also the unpredictability of humans such as prosecutors, witnesses and not least of all – juries.

A Doctor can’t predict how the human body will react to treatment with 100% certainty – and a lawyer can’t predict how the human judicial process will react with 100% certainty.  Good lawyers recognize the variables and do their best to put those variables in perspective.

Every lawyer takes an oath to zealously represent their client.  Any lawyer you hire should be willing to fight for you and defend your case aggressively.  A guarantee isn’t part of the equation.

Another thing to consider about a lawyer that promises results – is that it’s not smart from the lawyer’s perspective!  Even if that lawyer can deliver on their guarantee often – they’re breaking their pledge probably just as often.  If a lawyer makes a mistake like this in their own judgment – how can you expect them to be smart with your case!

 

3 Comments | crimes against children, Drugs, DWI, Uncategorized | Tagged: , , , , , , , , , , , , , | Permalink
Posted by Jeremy Rosenthal, Esq.

Top 5 Mistakes When Hiring a Criminal Defense Lawyer Countdown — No. 3

February 15, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

This week I’m counting down the top 5 biggest mistakes people make when hiring a criminal defense attorney.

#3:  Hiring an Attorney That Isn’t Qualified

Economists estimate that a criminal record can reduce your lifelong income by as much as -30%.  For someone that would normally earn $50k per year, that comes out to a loss of $450,000 over 30 years!

Not only do you need a lawyer if you’re charged with a crime, but it had better be one that knows what they’re doing!

A licensed attorney in the State of Texas can practice virtually any field of law ranging from mergers, bankruptcy, truck crashes all the way to criminal.  There are slight exceptions here and there.  Just because someone is licensed doesn’t mean they’re qualified or experienced enough to handle your criminal case!

Board certified lawyers are lawyers that have qualified with the State Bar through recommendations from their peers and from taking a test.  In Texas, the only designation recognized by the State Bar in board certification is for the general field of “Criminal Law.”  While many lawyers hold themselves out as members of organizations such as the “DUI College,” this is not an official designation but more of a private membership.  Being board certified is never a bad thing, but it doesn’t give you, as the client, permission to turn your brain off when interviewing that lawyer to see if they are right for your case.

The best way to flesh-out whether an attorney your talking with is qualified for your particular case is to ask pointed questions.  Ask how many cases of the same offense have they handled in the past?  How familiar are they with the local rules of where your case is pending?  What percentage of their over-all case load is your type of case?

The lawyer’s answers will tell you a lot!

 

*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 please consult an attorney.

1 Comment | Uncategorized | Tagged: , , , , , , , , , , , , , , , , | Permalink
Posted by Jeremy Rosenthal, Esq.