Can I Change Lawyers in a Criminal Case?

January 11, 2021

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

You can change lawyers in a criminal case but it’s subject to the Judge’s approval.

Most judges readily agree unless it will cause a significant and/or unnecessary delay in the proceedings.  I’ve never seen a judge stop or prevent a substitution early in the proceedings well before the case is set for trial – or even several months before a trial setting.

Judges get annoyed, though, when someone wants to substitute on the eve of trial or with just weeks before.  Judge also get irked when someone tries to substitute lawyers multiple times which the court often sees as a delay tactic.

A Client is Entitled to the Lawyer of Their Choice

The Sixth Amendment to the US Constitution guarantees right to counsel.  In retained or hired cases, it is generally accepted and understood the person gets counsel of their own choosing.  There are limitations, though.  Counsel must be a member of the bar, counsel can refuse representation, and the court can step in if there are other extenuating circumstances (such as if the court detects a serious conflict of interest or the court feels the representation is inadequate).

Why Does the Judge Need to Approve of a Change?

A judge is responsible for managing their cases and their docket and the integrity of the adversary legal system.  When a lawyer files a pleading or a letter of representation – the lawyer is legally and ethically binding themselves to representation in that case through the completion of the case.

A lawyer representing a party in case before a judge is known as an “officer of the court.”   A judge, then, can depend on the lawyer and require the lawyer to be present to represent their client when the Judge says so.  A judge can require a lawyer to handle a case even against that lawyer’s wishes if circumstances demand.

What Are Good Reasons to Change Lawyers?

This is a person-by-person choice.  I get calls all the time who are either upset or worried about their lawyer.  When I do visit with folks in this setting – I always do my best to see the situation from their lawyer’s point-of-view.  They are almost always in a better position to evaluate the case because they’re knee deep in the case and I’m not (yet).

The most common reasons I hear when folks come to me wanting to change from their previous lawyer are lack of communication, concern about qualifications or strategy, and general lack of confidence.  While I really will try to see the case from the viewpoint of the previous lawyer – I always want to make sure I’m not just telling the client what they want to hear.  If their previous lawyer has been doing a great job then I let the client know.  Even if I don’t get hired, I’ve helped the client have more faith in their lawyer.

Ultimately it is about the client’s comfort and confidence in counsel.  It is a bedrock of the lawyer-client relationship.

*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.

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Failure of a Lawyer to Give Immigration Advice in a Criminal Case

January 9, 2021

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

jeremy@texasdefensefirm.com

Immigration is such a major topic in criminal defense the topic has been given it’s own name:  Crimmigration.

Criminal defense lawyers have a non-delegable duty to advise their clients about immigration consequences.  The point was made clear in the landmark US Supreme Court case Padilla vs. Kentucky, 559 US 356 (2010).  Padilla holds it is ineffective assistance of counsel for a lawyer handling a criminal case not to advise a client about the immigration consequences and dangers which come with the criminal case.  This is because erroneous advice – or not giving advice at all – can lead to a client’s deportation, removal or ineligibility to renew immigration status.  It is not enough for a criminal defense lawyer to tell their client, “your immigration issue is not my problem – I’m just handling your criminal charges.”

I’ve blogged before on the complexity of immigration issues in the criminal context and you can read it here.

Being Aware of Immigration Tripwires in Criminal Cases

Immigration law is it’s own completely different practice of law from criminal law.  I explain to clients that me giving immigration advice in many ways is like a foot doctor giving advice about your shoulders.  Nonetheless, Padilla and the cases which have followed require criminal lawyers to educate themselves in immigration law enough to effectively advise clients about what can and can’t happen because of things like guilty pleas, conditional dismissals, or specific sentences.

Some immigration rules require detailed analysis about facts and issues which are easy for a criminal lawyer to over-look.

For instance, immigration courts have different classifications for drug possession than Texas criminal courts.  The Texas criminal courts have their own scales for charging drug possession cases which don’t necessarily correlate to the federal court’s or immigration court standards.  Many Texas criminal lawyers may just skim the amount ultimately weighed just to make sure it comports with Texas law – but the lawyer must also beware the tripwire of the immigration consequences if applicable too.

Being Extremely Cautious in Decisions Which Affect Immigration

I tend to be extremely cautious when dealing with immigration issues and complications.  It’s because immigration has been and will probably always will be a white-hot legislative topics in the federal government.  Just because the law says pleading guilty offense x in 2021 is fine doesn’t mean the laws can’t change in 2026 and take a completely different view of what we did 5 years before.

What Happens When My Lawyer Gives Me Bad Immigration Advice?

It’s common for our office to get phone calls when someone has taken a plea deal of some sort and then they get detained, removed, or are not allowed to renew their citizenship status.  It’s often the first time the client had any inkling there would be a collateral immigration problem connected with their criminal case.

When a lawyer doesn’t give immigration advice either because it scares them or they just didn’t spot the issue at all – or if a lawyer gives bad immigration advice it can be “ineffective assistance of counsel.”  Ineffective assistance of counsel in an immigration setting means the lawyer didn’t give proper advice and as a result – the client’s decision was rendered “involuntary.”  An involuntary decision – usually to plead guilty or no contest – is nullified in the event there was ineffective assistance.

Ineffective assistance of counsel can be addressed through different legal mechanisms such as a “Motion for New Trial” or a “Writ of Habeas Corpus.”

Ask Your Lawyer About Immigration Consequences

If you have any questions in a criminal case setting about immigration consequences – ask your lawyer.  It’s your criminal defense lawyer’s job to properly advise you about immigration consequences.  Often times it may take a joint session between criminal and immigration lawyers working together to make sure the client fully understands.

*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.

 

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What is Cyberbullying and When is it a Crime?

January 3, 2021

By Texas Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Texas laws on cyberbullying are somewhat smattered in different places.  Some laws are civil and could result in being sued, other infractions may result in school discipline and others are actually criminal.

Cyberbullying Defined

Harassment or stalking is what most people would consider cyberbullying behavior but online conduct aimed at demeaning, harming or threatening others and may take a variety of forms.

The Texas legislature has tried to address cyberbullying in criminal contexts but – there are balances with the first amendment and there is always the problem of keeping up with the ever-changing technological and social norms.

How the Education Code Defines Cyberbullying:

“Cyberbullying” means bullying that is done through the use of any electronic communication device, including through the use of a cellular or other type of telephone, a computer, a camera, electronic mail, instant messaging, text messaging, a social media application, an Internet website, or any other Internet-based communication tool.

It’s extremely important to remember, though, the Texas Education Code doesn’t make cyberbullying a crime.  It only gives school authorities enhanced abilities to deal with the problem.  The reason for this approach is likely the First Amendment which makes it more difficult for the government to actually punish someone for speech or a communication.

How the Penal Code Defines Cyberbullying:

Texas Harassment statute (Texas Penal Code 42.07) was intended to protect against cyberbullying and it reads (in relevant part),

(a) A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, the person:

(1) initiates communication and in the course of the communication makes a comment, request, suggestion, or proposal that is obscene;

(2) threatens, in a manner reasonably likely to alarm the person receiving the threat, to inflict bodily injury on the person or to commit a felony against the person, a member of the person’s family or household, or the person’s property;

…

(6) knowingly permits a telephone under the person’s control to be used by another to commit an offense under this section; or

(7) sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.

(b) In this section:

(1) “Electronic communication” means a transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system. The term includes:

(A) a communication initiated through the use of electronic mail, instant message, network call, a cellular or other type of telephone, a computer, a camera, text message, a social media platform or application, an Internet website, any other Internet-based communication tool, or facsimile machine;

This law makes it a class a misdemeanor under 42.07(a)(7) punishable up to 1 year in the county jail and a fine not to exceed $4,000 if the victim is under 18 and the conduct attempt to get the child to either harm themselves or commit suicide.  Otherwise it is a class b misdemeanor punishable by 180 days of jail and up to a $2,000 fine.

Defending Cyberbullying Charges

There is always the first amendment – but not many folks want to take their case all the way up to the Supreme Court.  The First Amendment guarantees the government cannot stop people from free communication and expression.  There are, of course, limits to free speech.  The textbook example is you can’t yell “fire” in a movie theater.

Intrinsic to the statute is the bullying needs to be “reasonably” likely to cause the alarm sufficient to convict.  This just means the criminal charges have to pass the smell test – though allowing a jury to debate an issue like this can be scary.

Juvenile Courts and Cyberbullying

Also many cyberbullying cases take case in juvenile courts who have jurisdiction over offenders who are younger than 17 years old.  Those courts tend to take more of a collaborative or therapeutic approach to curb future behavior.

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

 

 

 

 

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Domestic Violence Charges – Blog 18:  Preparing for Mitigation and Punishment

December 30, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

We attempt to fight all cases on two fronts.  We are prepared to fight about guilt/ innocence and we always have to prepare to handle things should we lose.

Preparing for punishment in a trial is like buying car insurance.  No one buys it because they’re planning to crash, rather, you buy it because it’s the prudent thing to do and the law requires it.  The law requires defense counsel to prepare for a punishment phase of a trial too though we do our best to avoid being in one.

For all the tough talk about taking cases to trial and winning not guilty verdicts – punishment and mitigation cannot be ignored.

Here are my other blogs in this series on defending domestic violence charges.

Mitigation

Mitigation is evidence which tends to explain or lessen the culpability.

I explain to clients people commit acts of domestic violence for one of two reasons.  Either they are rotten and no good SOBs who enjoy inflicting pain on people they love — or there are deeper causes, factors, and issues which need to be untangled.  In all my years of practice, I don’t know if I’ve met anyone in the first category.  The former is a caricature or cartoon figure which prosecutors make my clients out to be — the latter is reality.

As for the deeper causes or roots to these situations — we can and do find them everywhere.  They can be anger issues,  substance issues, or mental health issues.  Perhaps parents or previous partners unintentionally trained them to solve family problems with physical abuse.  Maybe their relationship has the dysfunction of reciprocal domestic violence which needs addressing.

To avoid harsh sentencing we must also present a compelling mitigation case to a judge or a jury.

This Can’t Happen Again

If we are pleading guilty or the jury finds defendant guilty – this is question about which we must be able to assure the jury.  Beyond assuring it doesn’t happen again there are very real victims in domestic violence who need to be allowed to heal in their own way too.

A good mitigation strategy is good for the society, good for the victim and is fair to the defendant in light of all the circumstances.

“Never Lose Punishment”

I have a saying at our office – “never lose punishment.”

Trials are broken into two phases.  The guilt/ innocence phase and if the judge or jury finds defendant guilty then a punishment phase.

We don’t make the facts and each case which walks in the door walks in with different degrees of difficulty.  I’d love to say we can secure acquittals in the guilt/ innocence phase for all – but that’s a tall order.  But we should be able to tell our client’s story in a compelling fashion for the purposes of mitigation if nothing else.

For punishment – the prosecution often has theories and tag lines.  They try to sell the jury on the caricature or cartoon wicked-guy.  We have a human being with a story.  I don’t think we should ever lose punishment.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He is recognized as a super lawyer by Thomson Reuters.

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Collin County Pre-Trial Diversion Update (April 18, 2011)

April 18, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

The Collin County Pre-Trial Diversion program (formerly known as deferred prosecution program) is beginning to take shape.  This is the program which allows many people who have never had a run-in with the law a chance to fully clear their record without the risks associated with trial.

Prior to 2011, to be eligible for “deferred prosecution,” someone needed to be between the ages of 17 and 21, be accused of a non-violent offense, never have been in trouble before, and a resident of Collin County to qualify for the program.  The former administration (under District Attorney John R. Roach) would not accept applications but would review incoming cases for those they deemed as qualifying.  Those people would get an unsigned letter on the DA’s letter head directing them to call a particular probation officer.  If you didn’t answer on time or if for some reason you never got a letter — you were out of luck.  Finally, if you did successfully complete the program (and that was a bigger “if” than it should have been), you would have to wait 2 years to apply for an expunction, which the DA’s office could technically oppose if they wanted.

Here’s how it works with the new Greg Willis administration — after the arrest, the filing agency (usually the police department that made the arrest) files their case with the DA’s office.  The DA’s office in turn files misdemeanor cases with the trial court or if the case is a felony with the grand jury.

Once the case has been assigned to a trial court, the defendant’s attorney can request the case be considered for the pre-trial diversion from the prosecutor.  If the trial court prosecutor approves, they send it through several channels within the DA’s Office.  If those get approved as well, the accused is invited to meet with the probation officer to enter the program.

Prosecutors are given general guidelines for the Pre-Trial Diversion.  While the program is still not open to DWI or domestic violence cases, felony offenses are now available for the program.  Prosecutors have been instructed to scrutinize cases where there may be impaired driving that falls short of driving while intoxicated — which may include drug arrests in cars.

The trial-courts have agreed, in principal, to cooperate with the Pre-Trial Diversion program.  There are still likely details with the Courts that must be worked out with how these cases are accounted for or monitored.

Finally, the best benefit of all to the Pre-Trial Diversion program is that for the first time, the DA’s office promises the accused in writing that if they successfully complete the program, they agree to dismiss the case and never refile it.  This bar to prosecution makes expunging the arrest more clear and immediate.

Again, the diversion program is still a work in progress. If there are more updates with the program, you can read about it here.

*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 particular situation, you should contact an attorney directly.

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