Domestic Violence Charges – Blog 16:  Areas of Defense Focus

December 29, 2020

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

jeremy@texasdefensefirm.com

It’s tough to quantify or discuss all possible defenses to all possible cases in one neat blog.  There are some cornerstones, though, and areas which any defense lawyer should look for acquittals.

You can read my index to other domestic violence charge blogs here.

A Note on Legal & Factual Sufficiency

It’s obvious I wasn’t watching any given couple’s quarrel which lead to someone getting arrested.  I couldn’t be a lawyer in those cases because I’d be a witness.  I don’t evaluate cases for what I personally think happened, rather, I evaluate them for what I think a jury may or may not believe.

What I evaluate to prepare for a trial, then, is what we call legal sufficiency and factual sufficiency.  Just remember when I discuss possible outcomes below – what I mean to say is “will the evidence be enough to show….”

Legal and factual sufficiency are confusing appellate terms which I’m evaluating for when I hear a case.  Maybe I’ll blog about that one day on it’s own if I want to put everyone to sleep… but not today.

What you do need to know about legal and factual sufficiency for the purposes of this blog is this:  A judge cannot allow a jury to deliberate at all if the evidence is legally and/or factually insufficient.  If the evidence shows the crime was committed by an apple and it’s an orange charged with the offense – then the judge acquits the orange before a jury can deliberate.

If there is Evidence Assault Occurred, Can the Prosecution Get it to a Jury?

The Texas Rules of Evidence dictate what a jury can hear.  If a jury isn’t allowed to hear something under the rules – then it could render the evidence insufficient and require acquittal.

Example #1:  Complaining witness told a neighbor who told their hairdresser they got choked by their spouse.  Can the hairdresser come in and prove-up the assault for the prosecution?

  • No.  The rules of evidence (specifically the hearsay rule) would prevent this testimony.

Example #2:  Neighbor routinely sees police coming to the house next door and sees the defendant yelling at children on Halloween.  Can the neighbor come to court to prove-up assault because “everyone knows he beats her?”

  • No.  The rules of evidence prohibit speculation of this sort.

The Confrontation Clause

Another topic which could easily take three or four lectures of a law school course in constitutional law is the confrontation clause.  Any lawyer defending domestic abuse cases has to be extremely up-to-date on these issues no differently than a physician has to keep up with the latest medical research on studies and pharmaceuticals.

The confrontation clause under the 6th Amendment of the US Constitution normally requires the accuser themselves to come into court and testify to secure a conviction.  But this isn’t always the case and the exceptions are constantly changing.

If the Jury Can Hear Evidence of an Assault, Can We Persuade the Jury Otherwise?

If the evidence might be legally and factually sufficient to sustain a conviction then we can’t count on a judge throwing it out before it gets to a jury.  In these cases we have to get to work proving the accusers account is incomplete, exaggerated, or otherwise wrong.

This is where a lawyer has to get into the dirt of a case knuckle-deep.  Who said what to one another, who was standing where, who was holding what object, who is on what medications, who consumed alcoholic beverages, who has a history of of doing what… etc, etc.

Do we have reason to believe the accuser exaggerates?  Do they have a history of exaggerating such claims or bringing false claims?  Does the complaining witness have psychological disorders such as manic episodes which might contribute to them giving a falsified account to police?

Are There Any Applicable Defenses?

I’ve blogged about the main defenses to assault – which apply regardless whether the complaining witness is a family member or in a dating relationship or not.

Can we show the jury this was self defense?  Who hit first and can we prove it?  Did they place the other person in fear of imminent bodily injury?  If so – how?  What does the physical evidence show?

Did the accuser “consent” to or otherwise invite the assault by their conduct?  Did they stand in a doorway and refuse to allow the other to leave?  Did they somehow dare the other one to hit them?

Each Case is Unique

Again — every case which comes in is unique.  But the good news for defending cases like these is they are rarely cut and dried.  The police have the difficult job of showing up to a scene and keeping the peace.

It often results in someone going to jail for no other reason than the police don’t know the couple — they just don’t want to come back later the same evening and pick up a dead body.

The legal system is designed for police to make an arrest with a lower threshold of evidence for exactly this reason — probable cause.  We have plenty of time after the fact to put the pieces together and mount an aggressive defense.

*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.

 

 


Domestic Violence Charges – Blog 14: Common Prosecution Trial Tactics

December 26, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

In domestic violence trials, prosecutors know typically their case is only as strong as their complaining witness.

You can read other blogs about defending domestic violence charges and an index to the other blogs here.

Most family assault cases will have the prosecution calling to the witness stand the accuser, one or more police officers who were presumably on the scene, and increasingly expert witnesses who are often what we characterize as “blind.”

Exhibits will consist typically of photos taken the evening of the arrest of the complaining witness, the defendant and often of the place the altercation, if any, occurred if there is damage.  We also might see media in the form of 911 calls or body-cameras from police.

Corroboration

Because the accuser is the main witness – the prosecutor obviously attempts to show the jury as much evidence as they can which corroborate that witness’ account.  It could be physical injuries, cuts or scars.  It could also be physical evidence on the scene such as broken items or the location of other evidence or debris from an altercation.

Medical records exist in many cases but not all.  Obviously those are valuable pieces of evidence a to which a prosecutor will point if it fortifies their case.

Often times the corroboration might include statements the accused makes whether or not it is consistent with a true confession.

“The Cycle of Violence” and “Power and Control Wheel”

The cycle of violence and power and control wheel, which I’ve blogged about before, are central tenants of the Duluth Model and are loaded with assumptions and weaknesses.

The cycle is a theory which says domestic abuse goes through cyclical patterns which include assaultive abuse, a honeymoon phase, and then increasing tension followed again by assaultive abuse which is often worse than before.

The power and control wheel describes underlying motivations which include power and control by the abuser

These are generally incorporated into the prosecution’s case in AFV trials.  The prosecution attempts to fit aspects of the cycle and the wheel into the facts of the case.  Sometimes their evidence fits and sometimes it doesn’t.

True Story — I once had a prosecutor argue to a jury that when my client filed for divorce after she’d accused him of assault that it was because he was trying to control her.  I include it because it shows just how far the prosecution might reach and jam any fact they can into the “power and control wheel” whether it fits or not.  You would think filing for divorce would also be evidence of wanting to not be around another person at all (because they just had him falsely arrested for assault) and would be the complete opposite of trying to control them.

“Blind Lumper” Expert Witnesses

The “blind” expert is often a person who either works with law enforcement or as an advocate for domestic violence victims.  They are blind for the reason they usually don’t know any of the facts of a specific case until they hit the witness stand.  They are “lumpers” because academics tend to either “lump” everything into one-size fits all or they tend to “split” and show how one case differs from the rest.

They are then lobbed hypotheticals by the prosecution.  The unshackling result is the blind lumper witness then molds the hypothetical into how it fits the Duluth Model which shows, according to them, defendant is guilty.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He is designated as a Super Lawyer by Thomson Reuters.


Domestic Violence Charges – Blog 4:  Different Charges and Punishment Levels

December 15, 2020

By Texas criminal defense lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

I’m dedicating the next few weeks to blogging about defending domestic and family violence charges.  In those blogs I’m discussing here and there the different charge and punishment levels of different assault cases but it’s not particularly reader friendly.  Taking inventory of the different levels of punishment can be confusing so I thought I’d dedicate a blog to giving folks a straightforward index to the most common assault and domestic violence arrest scenarios.

So here it is.

Assault by offensive or provocative contact:

  • Class c misdemeanor (fine only);
  • Prosecuted in city court or in a Justice of the Peace Court;
  • Can be prosecuted by municipal prosecutor (city court) or district attorney’s office (JP Court);
  • Can still be subject to an affirmative finding of family violence.

Assault by threat:

  • Class c misdemeanor (fine only);
  • Prosecuted in city court or in a Justice of the Peace Court;
  • Can be prosecuted by municipal prosecutor (city court) or district attorney’s office (JP Court);
  • Can still be subject to an affirmative finding of family violence;
    • Occurs where someone threatens another with imminent serious bodily injury or death;
  • Can be subject to an affirmative finding of family violence;

Assault causing Bodily Injury:

  • Class a misdemeanor (up to 1 year of jail, fine not to exceed $4k);
  • 3rd degree felony with prior affirmative finding of family violence (2-10 years TDC & fine not to exceed $10k);
  • Prosecuted by District Attorney’s Office;
  • Jurisdiction in County Court at Law if charged as a misdemeanor;
  • Jurisdiction in District Court if charged as a felony;
  • Occurs where there is assault causing bodily injury;
    • “Bodily injury” is physical pain, impairment of physical condition or illness
  • Subject to affirmative finding of family violence.

Violation of a Protective Order

  • Class a misdemeanor (up to 1 year of jail, fine not to exceed $4k);
  • Prosecuted by District Attorney’s Office;
  • Jurisdiction in County Court at Law;
    • Occurs where a person violates an Emergency Protective Order
  • Penalties can be more severe if more frequent violations/ and or violence occurred during the violation.

Assault by Choking (impeding the airway, normal breathing or blood circulation in the neck);

  • 3rd Degree Felony (2-10 years TDC & fine not to exceed $10k);
  • Prosecuted by District Attorney’s Office;
  • Jurisdiction in District Court;
    • Occurs where a person impedes the normal breathing or circulation of the blood of the person by applying pressure to the person’s throat or neck or by blocking the person’s nose or mouth;
  • Subject to affirmative finding of family violence;

Continuous Violence Against a Family Member;

  • 3rd Degree Felony (2-10 years TDC & fine not to exceed $10k)
  • Prosecuted by District Attorney’s Office;
  • Jurisdiction in District Court;
    • Occurs where a person commits two or more acts of assault causing bodily injury against a family member in a 12-month period;
  • Subject to an affirmative finding of family violence.

Aggravated Assault (Serious Bodily Injury)

  • 2nd Degree Felony (2-20 years TDC & fine not to exceed $10k);
  • Prosecuted by District Attorney’s Office;
  • Jurisdiction in District Court;
    • Occurs where a person causes serious bodily injury injury (SBI)
    • SBI is injury with a substantial risk of death, serious permanent disfigurement, or protracted loss or impairment of bodily member or organ
  • Subject to affirmative finding of family violence;

Aggravated Assault (Use or Exhibit of a Deadly Weapon)

  • 2nd Degree Felony (2-20 years TDC & fine not to exceed $10k);
  • 1st Degree Felony (5-99 years or life & fine not to exceed $10k) if deadly weapon used in conjunction with serious bodily injury of a family member;
  • Prosecuted by District Attorney’s Office;
  • Jurisdiction in District Court;
    • Occurs where a person ‘uses or exhibits’ a deadly weapon in the commission of an assault
    • The assault is often assault by threat when a weapon is used to threaten
  • Subject to affirmative finding of family violence;
  • More legally complicated to qualify for probation or deferred adjudication;
  • Not eligible for parole unless 50% or more of the sentence is fulfilled.

*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.

 


Podcast: Family Law Talk with Lawyer Brook Fulks

November 3, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

On my weekly podcast which I’m calling, “The Lawyer Show,” we had a good talk about family law and divorce cases a few weeks ago with a good friend of mine and an excellent lawyer Brook Fulks.  We talk a lot about the intersection of family law and criminal law as our cases do over-lap in domestic violence issues and issues about sexual and child abuse.

I hope you find the discussion interesting!

 

*Jeremy Rosenthal is board certified in criminal law by the Texas Board of Legal Specialization.  He is designated as a Texas Super Lawyer by Thomson Reuters.


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

May 19, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.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:

Screen Shot 2020-05-19 at 9.14.28 AM

  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.