Zoom Jury Trials — “It’s Good Enough” Lowers the Standard in Our Courtrooms

May 19, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Collin County is kicking around the idea of jury trials via Zoom or some other similar platform.  They just tried a virtual jury trial – sort of.  It was a “summary jury trial” which is a practice run typically for wealthier litigants.  The fake jury comes back and tells the parties what they think the outcome should be — and the parties then consider settling.

***What did you say?  Sorry.  Go ahead.***

And not to pick on Zoom.  There are other similar platforms too, but I’ll just collectively refer to them here as Zoom.  Sorry.

Judges organizing and developing the idea get A’s for ingenuity, effort, and passion for their jobs.

But it’s still a terrible idea.  Remember, a jury trial is often the most important day in one or more person’s entire life.  Here are some of the biggest reasons I can think of:

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  1.  Over Simplification of Human Communication

Human communication is complex, intricate and amazingly subtle.

I’ve interviewed thousands of potential jurors  — and I have cross examined hundreds of witnesses.  Many, many jurors cannot give my client a fair trial but would still swear they could.  Many, many witnesses want to make sure I lose and evade questions until they are pinned into answering.  A critical part of my job in the courtroom is to hone in on the most minor of cues from a juror or witness.   An eye dart.  A smirk.  Posture.  Hand position.  Voice tone or inflection… and on and on an on.

***Sorry.  Lost you for a second.***

Zoom and other similar platforms are — at least for now — tone deaf.  These subtleties are either flattened, lost, or are drowned out in 20-people being crammed onto an 18-inch monitor.

And there is something to be said about accountability of the jurors too.  Jurors deliberate knowing they will have to go back into the courtroom and look me, my client, the prosecutor and in many cases a victim in the eye.  Jurors who share less of an emotional stake in the outcome will give the parties less of their focus and attention.

2.  Too Much is At Stake

For criminal defendants decades may hang in the balance not to mention the tidal wave which hits their families and loved ones which can be practical, financial and certainly emotional.  For victims it is their opportunity to be heard and have the jury see how real and fresh their pain truly is.

Zoom is probably fine for quick interactions and brief hearings.  It’s a great tool to visit with clients both incarcerated and free on bond.  It’s probably fine for motions practice with a Judge, lawyers, and possibly other witnesses during routine hearings too.

But any one of us would feel cheated and angry if we or our loved ones were sitting in jail after a trial where we couldn’t even see the jurors or our accusers in person.  Any victim whose defendant is acquitted will feel the same way too.

***Wait, who is talking?  Sorry!***

This is a jury trial — not a teamwork meeting or happy hour.  Can you imagine deciding something as critical and complex as a sexual assault shaping the lives of countless people without some sort of personal interaction?

3.  If Anyone Cares — It Violates a Bunch of Rights

This is a blog — not an amicus brief or a law review article.  So I apologize if I keep this quick and direct.

***Look at that guy’s cat!  He will knock down that picture on the wall***

Let’s start with the right to confront witnesses under the Sixth Amendment.  Then we’ll go to Due Process under the Fifth and Fourteenth Amendment.  Then let’s talk about the umpteen-million opinions you’ll see about the jurors ability to judge witnesses based on x, y, and z.  Or maybe we just throw those all out because we need to get our docket moving?!?

Make no mistake — Judges are asking the specific question, “Can I get away with this without getting reversed?”  My message to them — be my guest but don’t complain about trying the case when it comes back on appeal.

Bottom Line

Is Zoom “good enough?”  Perhaps in some ways and for some things.  People can talk, listen and see videos and exhibits.  But until the platform is as good as the Jedi Counsel meeting where Yoda can sit in his chair remotely from Kashyyyk and interact – it won’t be the same.

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

 

 

 

 

 


How You Clear a DWI from your Record in Texas

May 18, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Until recently the only way to hide a Driving While Intoxicated Arrest from the Public was to win your case or have it dismissed.  Often a tall order.

The Texas Legislature passed & the Governor signed a law in 2017 allowing non-disclosures for DWI cases where the person qualifies after a DWI conviction.  A non-disclosure hides the arrest and court records from the public.  It can still be viewed by many public entities and it shouldn’t be confused with an expunction which is a complete destruction of the arrest records.  But its still pretty good.

Remember you have to file additional documents to expunge or non-disclose records.

There is a big debate amongst lawyers whether this provision is retroactive — that is whether you can clear something which happened prior to September 1, 2017.  Early returns suggest you can.

Here’s how you qualify to non-disclose a DWI:

  • First time offense
  • No car accident in the arrest
  • Blood Alcohol Concentration (BAC) below 0.15
  • Get probation for your DWI
  • Have Interlock Ignition Device on your car for 6 Months of your probation.
  • Wait 2-years from the date your probation ends

The provision was like lightning from a clear-blue sky.  As you can imagine, DWI arrestees have been a punching bag for politicians in Texas for the past 40 years.  Interestingly, there is no requirement you plead guilty — which means you could take your case to trial and if you lose — still qualify for the non-disclosure.  It would give a DWI arrestee two bites at the apple so to speak.

Last two things — (1) if you’ve been charged with DWI in Texas, make sure the record is clear at your plea (or sentencing after trial) that you meet all of these requirements to make it easier down the road.  (2) If you’ve got a DWI from 2017 or before, check to see if you qualify.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas.

 

 


Chart for DWI Related Driver’s License Suspensions in Texas

July 5, 2013

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Here’s a quick run-down of driver’s license suspension times which relate to Driving While Intoxicated charges (as of July, 2013).

Driver’s license suspensions related to drunk driving charges occur one of two ways: (1) by either a breath/ blood test refusal/ failure: or (2) because of a conviction for DWI.

These determinations are slippery and the code doesn’t do a very clear job of sorting them out.  It’s best to consult an attorney before trying to figure it out on your own.  Also suspension’s listed below due to refusal/ or denial are appealable through Administrative License Revocation hearings (otherwise known as ALRs).  Though the State and police want you to really think these are automatic upon arrest — they really aren’t.

DUI (Minors with any detectible about of alcohol):

1st arrest — 60 day suspension

1 prior — 120 days

2 prior — 180 day suspension

1st DWI arrest (regardless of age):

Refusal:  180 day suspension

Failure (breath or blood over 0.08):  90 day suspension

Conviction: 90 days to 1 year (suspension is abated by classes taken during probation)

2nd “alcohol related contact” within 10 years

Refusal:  2 year suspension.

Failure:  1 year suspension.

Conviction of DWI 2nd: 180 days – 2 years (suspension may be partially abated by classes taken during probation)

Conviction of DWI 2nd within 5 years: 1 to 2 years (suspension may be partially abated by classes taken during probation).

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. For legal advice about any situation you should contact an attorney directly.


Should I Just Call The Prosecutor To Help Them Get My Loved One Help with a Drug or Alcohol Problem?

June 1, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

I’m asked every now and again by a family of a client if they shouldn’t just talk with a prosecutor in a case where their loved one clearly has a drug or alcohol problem — to see what the prosecutor can do to facilitate treatment.

That many not be the best idea.

Here’s why — because the prosecutor’s version of help and the real version of help may be completely different concepts.

Some prosecutors understand drug and alcohol dependency issues and others simply don’t.  Prosecutors who tend to see addiction and mental disorders as excuses may use what you tell them as a battering ram against your loved one.  To be fair — many prosecutors “get it” and do bend over backwards to help.  The problem from a family member’s stand-point is that divulging negative information to an agent of the State is always a gamble.

As criminal defense lawyers and prosecutors, substance abuse treatment and counseling aren’t really at the core of what we do.  We tend to analyze people’s cases from legal perspectives but there’s obviously a heavy overlap with substance abuse and treatment.

My advice is typically to seek private treatment over treatment affiliated with probation or directly with the criminal justice system.  The reason being is that there are several legal layers of protection in the private setting which are not available otherwise.

HIPAA and patient privacy laws will protect a patient in a private treatment facility but may not in a state or probation run program.  Also there tends to be better customer service in the private sector.  There, the treatment facility is accountable to the paying client.  In the probation setting — the treatment providers are conflicted between treating the patient and reporting violations to the prosecutors or the Judge.

If treatment is ordered as part of probation, for instance, and the patient doesn’t follow through with meetings — or admits to other unresolved crimes during treatment — those could be used for further prosecution and/or probation revocation.

*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 of your own situation you should directly consult an attorney.


Intoxication for PI is Higher than Intoxication for DWI

April 24, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

For the state to convict you of public intoxication, or PI for short, they must prove your level of intoxication is even higher than it would be for a DWI.

Here’s why:  Texas Penal Code 49.01(2) defines intoxicated (in relevant part) as, “not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body…”

The above definition of 49.01(2) is the definition used for Driving While Intoxicated in 49.04.

Here’s the difference, though — PI is governed by 49.02 and that code specifically says, “a person commits an offense if the person appears in a pubic place while intoxicated to the degree that the person may endanger the person or another.”

In other words, not only does the person have to be intoxicated (defined by 49.01(2)), but they ALSO must be so to the degree they may “endanger the person or another.”

A simple way of putting it is that to be convicted of DWI, a person must have consumed alcohol to the extent they are dangerous behind the wheel of the car — to get a PI, they must be dangerous merely by being in public.  Obviously it makes sense that there is a stricter standard for operating a motor vehicle.

Public Intoxication cases are class c misdemeanors — meaning they’re lower offenses than DWI.  PI arrests are highly subjective and frankly often done for crowd control reasons or even in cases where the passenger in a car is highly intoxicated (and the driver is getting hooked-up for DWI).  Many officers know that their arrests may very well not end up in convictions, but they feel they are necessary anyway and are supported by the lower burdens of probable cause.

*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, you should directly consult an attorney.