The Top 5 Mistakes You can Make When Hiring a Criminal Lawyer Countdown — Reason No. 5

February 14, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

For the next five days, I’ll be counting down the top 5 mistakes people make in hiring criminal defense attorneys regardless of whether the case is a DWI, Marijuana, other drugs, theft, assault, felonies, or any other type of case.

#5: Hiring a Criminal Defense Attorney Based Solely on Price:

I’m not going to lie — the cost of a criminal defense attorney may very well be a good indicator of how good that lawyer really is.  Sometimes the best guy around is the priciest and the guy who charges the least may be that way for a reason.  There are plenty of other things to consider about judging a lawyer.

The more the lawyer’s time is in demand, the more it’s worth, and the higher the fee.  The less they are in demand, the less they charge.  That is the theory, anyway.  The bad assumption in that argument, though, is that the lawyer is in demand (or not in demand) because they are good (or bad) at what they do.

Consider this  —  a lawyer with a slammed schedule is slammed because they’re just better at marketing than other lawyers in the community.  Or a lawyer who charges a lesser fee has a smaller office and over-head doesn’t dictate their fees.  These things punch big holes in the theory above and there are countless other things which dictate what a certain lawyer may charge.

Should the fee be an important factor in hiring a criminal defense lawyer?  Absolutely.  Abraham Lincoln said it best about legal fees, “…In this way the client knows he has a lawyer, and a lawyer knows that he has a client.”

My point is that money shouldn’t be the only factor!  Ask tough questions.  Are you comfortable with the answers?  Do they make sense?

Your gut and intuition are often the best tools in assessing lawyers and sometimes price can be misleading.

*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 consult an attorney.

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Posted by Jeremy Rosenthal, Esq.

How Can I get a Police Report After I was Arrested?

February 12, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

Texas law makes it tougher than you might think to see your own police report.  Believe it or not it could be the middle of trial before you’re allowed to see it!

But don’t worry, in Texas state courts it rarely, if ever, happens that way regardless if it’s DWI, theft, assault, drugs or whatever.

The Michael Morton Discovery Act passed taking effect for cases filed after January 1, 2014 require the prosecutors to give your lawyer a police report upon request, though, there are limitations on to whom your lawyer can disclose the report.  You can read more about those changes here.

Two quick points — lawyers look at police reports the same way doctors look at x-rays.  We key in on things you may not notice because they’ll have legal significance.  If you don’t already have a lawyer — consider one.  Second, this discussion isn’t for traffic tickets and municipal fines in Texas though some of the same rules may apply.

Police departments don’t have to give you the report in a criminal case unlike a civil car accident.  Texas Government Code 522.108 is an exception to the Texas Public Information Act for law enforcement in criminal matters.

Many prosecuting agencies like Dallas and Ft. Worth and Collin County currently have “open file” policies meaning the defense attorney has access to the entire file.

And you do have rights in all this.  The Texas Code of Criminal Procedure Art. 39.14 provides that if you show “good cause” to the Court, the Court can order the prosecution to produce a whole laundry list of items from their file prior to trial.  The prosecutor has legal and ethical duties to produce favorable evidence to you.  Brady is generally any evidence which is exculpatory (proves innocence) or which is favorable to the defendant — though the issue is complex.

Again, without legal training and experience as a legal practitioner — getting your hands on a police report can be useless.  If the case is serious enough for you to want a police report, it’s probably serious enough for you to get a lawyer!

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

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Posted by Jeremy Rosenthal, Esq.

Do You Need a Lawyer for a Drug Case in Texas?

February 11, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

jeremy@texasdefensefirm.com

Drug cases are very technical in nature and are typically more defendable than you may think.  They’re not hopeless and by just talking with the prosecutor yourself, you’re precluding almost any chance of acquittal.  This is for several reasons.

First is that the evidence must be seized lawfully.  In Texas, Article 38.23 of the Texas Code of Criminal Procedure holds that unlawfully seized evidence cannot be admitted into evidence.  If the prosecution has no evidence, they lose because they have the burden of proof.  The sands are constantly shifting between what is reasonable police conduct and what is not under the 4th Amendment to the U.S. Constitution.

If you’re reading this article for your own case, you probably know by now that police can sometimes be highly aggressive, persistent, and sometimes manipulative in their goal of searching your person, car, or home.  When they legally reach too far — and it’s an easy and common mistake for them to make — a judge may throw out all or some of the evidence against you.  This happens where I practice, in Collin County, Texas, all the time.

Also the legal definition of “possession” in the Texas Penal Code under Section 1.07(a)(39) means “actual care custody control or management.”  Merely because you were in the same vehicle or area where drugs were found doesn’t mean the evidence is legally or factually sufficient to demonstrate “possession” and could also mean acquittal from a judge or jury.  And remember — the state has to prove you are guilty.  You have the right to remain silent during the arrest and all through your trial and never have to prove your innocence!

Though the Texas legislature and courts have made recent pushes towards rehabilitation for marijuana cases and other prescription abuses such as hydrocodone or oxycontin, the government’s version of “help” could still mean labeling you a criminal for the rest of your life an subjecting you to treatment which could be inferior to treatment you could get in the outside world.

Having an attorney in a Texas marijuana or other drug case can help you evaluate your legal position in the matter and if necessary, can help mitigate the charges against you.

 

*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 a Texas Super Lawyer as designated by Thomson Reuters.  www.texasdefensefirm.com

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Posted by Jeremy Rosenthal, Esq.

What is an Expunction in Texas?

February 7, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

jeremy@texasdefensefirm.com

A criminal arrest record can be like the legal equivalent of cancer.  It can cost you a job, a promotion at work, or countless other opportunities.  The damage is done when someone hears about the arrest.  Most aren’t interested in details that you were acquitted or the charges were dropped.

An expunction is the legal equivalent of curing the cancer that is a criminal arrest.  A state district judge orders the records stemming from a criminal arrest destroyed.  This includes records which were part of the arrest or that reference the arrest such as court records, the district attorney’s file, and even transcripts of the trial.  When people refer to having something “taken off” their record, an expunction is generally what they mean.  This also means that the state’s agencies can’t give information about your these arrests to private companies who gather criminal data for distribution for private background checks.  Tex.C.Crim.P. § 55.03(2) even allows for a person with an expunction to “deny the occurrence of the arrest…” in certain circumstances.  The code has specific details you should be aware of for that provision.

What is unknown by most is qualifying for an expunction can be somewhat difficult.  Though expunctions can be highly complex in certain circumstances where (where multiple allegations stem from the same arrest for example) – most are cut and dry.  If prosecution against you has been barred as a general rule, you are probably entitled to an expunction.  Prosecution can be barred where you are acquitted by a judge or jury, where the statute of limitations has expired and the case hasn’t been filed, or if prosecution has been barred for some other reason.

It is a common misconception that getting deferred adjudication ‘magically’ drops the criminal arrest record on it’s own for any offense.  Deferred only entitles you to an expunction for (most) class “C” misdemeanors in Texas.  These are the lowest level of offense, which include traffic tickets and petty offenses ranging from minor in possession, possession of drug paraphernalia, and theft below $50 in value as examples.  Even though you weren’t taken to jail on a class “C” doesn’t mean there isn’t a record either!  An Expunction may still be necessary.

Deferred adjudication for offenses from class “B” misdemeanors and above may entitle you to apply for a petition for non-disclosure which generally limits who can know about your criminal case but is different from an expunction.

An expunction doesn’t happen on it’s own.  A state district judge must approve your petition for expunction.  This is a very technical process and is commonly handled by lawyers.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. This article is not intended to be specific legal advice.  Please consult an attorney for questions regarding this subject matter.

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Posted by Jeremy Rosenthal, Esq.