How Can I Defend Someone If I Know They’re Guilty?

June 18, 2013

By Collin County Criminal Lawyer Jeremy Rosenthal

(972) 369-0577

If you practice criminal defense you are invariably asked questions by people who simply don’t understand what it is you do.  The questions don’t bother me.  We are all naturally programmed to think in terms of good and evil.  We all view ourselves on the side of good and can’t understand how anyone can cross the imaginary boundary we’ve established in our mind.

1.  How Can You Possibly Defend Someone You Know is Guilty?

When I defend a guilty person, I defend everyone.  If I can make it difficult for a guilty person to be treated unfairly then I’m making it extremely difficult for an innocent person to be treated unfairly.

Besides, not everyone is guilty.

2.  What This Person Did Was Awful.  How Can You Defend Him?

I don’t defend crime or criminal acts.  I defend human beings and their rights.

I defend people whose imperfection is making bad choices and/or hurting people from people whose imperfection is being judgmental.

Another fun way I respond to either of these questions is, “Well let’s just lop their hand off like they do in other parts of the world.”

That usually drives the point home.

*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 this or any other situation you should contact an attorney directly.

What is a Mistrial?

April 20, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

A mistrial is a declaration the judge makes to immediately halt and end a trial in progress.  Normally a mistrial is declared when a circumstance arises that taints the process beyond repair.  In certain situations, a mistrial can also result in an acquittal of a criminal defendant due to the concept of double jeopardy, but most merely result in the case being reset to a new trial status as if the mistrial had never taken place.

The circumstances which could cause a mistrial are seemingly endless.  More common reasons for mistrials are hung juries (meaning the jury couldn’t decide a case unanimously after a lengthy deliberation), or what is known as a “busted panel” which means after jury selection there were not enough qualified jurors to form a complete jury.  Other common reasons are improper arguments by a party, unexpected or improper comments from a witness, and on some occasions juror misconduct.

A judge has wide discretion to declare a mistrial if there is a “manifest necessity” to declare a mistrial.  Mistrials can be granted sua sponte (the judge declaring the mistrial without either party asking for it), or by either of the parties.

It is legally complex in situations where the Defendant requests a mistrial based on a prosecutor’s conduct during the trial as to whether double-jeopardy will bar retrial.  This is because, as a general rule, courts consider requesting a mistrial as a waiver of double-jeopardy.

The standard today for whether a mistrial requested by the defense should also cause a double-jeopardy bar is from the U.S. Supreme Court case of Oregon v. Kennedy, 456 U.S. 667 (1982) which holds that where the prosecutor baits or goads the defense into requesting a mistrial — then the defendant doesn’t waive double jeopardy by requesting a mistrial.

The easiest way to think about a mistrial triggering a double jeopardy dismissal is like an intentional foul in a basketball game.  One team has the ball and has a clear path to the basket.  In order to prevent an easy basket or layup, the other team fouls.  A prosecutor, thinking they have lost the case, makes a flagrant comment, asks an inappropriate question, or takes some other action to force defendant to request a mistrial so they can have another shot at prosecuting the defendant.  Courts in this situation can end the trial right there and bar the state from re-prosecution (essentially acquitting the accused).

*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 situation, you should contact an attorney directly.  Posts made to this blog and/or communications sent through this forum are not confidential nor subject to the attorney client privilege.  Contacting the author through this forum does not create an attorney-client relationship.

Computer Crimes – The Prosecutor Must ‘Put the Defendant’s Fingers on the Keyboard’

December 9, 2011

By Dallas and Collin County Criminal Lawyer Jeremy Rosenthal

(972) 562-7549

Every legislative session comes with new cyber laws altogether or new tweaks on existing laws.  Common online crimes are online harassment, online impersonation, unauthorized computer access and sex crimes such as online solicitation.

The biggest challenge for the prosecutor is to ‘put the Defendant’s fingers on the keyboard.’  In other words, the prosecutor must show that the computer crime, if any, was committed by the Defendant and not someone else on the same computer.  Though police may be able to track online activity to a particular Facebook or Yahoo account and can pin-point it to a particular IP address doesn’t mean they’ve made their case.  They must also eliminate other suspects under the same roof which can be difficult.  Remember too that the prosecution bears the burden of proof beyond all reasonable doubt and the burden never shifts to the defense.

This is where the advocacy of a skilled criminal defense lawyer can help with these types of charges.  Often police and prosecutors will quit on a case once they’ve narrowed the evidence down to a particular IP address if someone lives there with a motive to commit the crime.  In trial, though, the jury must be made to understand the importance of eliminating all other suspects — and thus eliminating all reasonable doubt.

Compare an online case with a case with biological evidence such as DNA.  In a case with a DNA match, the prosecutor can tell the jury that the DNA eliminates every other possible suspect in the state of Texas, the United States, or North America.  On a computer case, the prosecution can’t even eliminate other suspects living in the same house.

The prosecutor must “put the defendant’s fingers on the keyboard.”  Don’t let the jury allow them to get away with any less!

*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 issue you should contact an attorney directly.  Contacting the attorney through this blog does not create an attorney-client privilege and communications to the attorney through this blog are not confidential.

Insurance Fraud

November 17, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

Insurance fraud is governed by Chapter 35 of the Texas Penal Code.  It can be summed up as lying to an insurance company to attain benefits and/or coverage, but you should read the statute to clear up any questions you may have.

The statute makes several types of insurance fraud illegal.  To be guilty of insurance fraud, one must intentionally or knowingly present false or misleading material information to the insurance company.  An example of this might be that someone reports a car accident occurred — which never actually occurred to get insurance money.

Another way the crime is committed is to have instead the person who prepares or causes  to be prepared the insurance claim be accountable for any fraudulent statements.  An example of this is where someone goes to the dentist to have their teeth cleaned.  Unknown to the patient, the dentist has his administrative assistant bill the insurance company for a root canal.  In that instance, the dentist and his assistant are both likely guilty of the insurance fraud though the assistant might be shown more leniency.  The patient would have no liability assuming they didn’t know about the scheme.

Yet another way the crime can be committed is when someone with intent to defraud or deceive receives a benefit  from an insurance policy they know is the result of fraud.  A good example of this would be where a plumber and a homeowner decide to split the money for a bogus insurance claim where the plumber unclogged a toilet and the homeowner and he have a handshake deal where they submit it as a busted pipe which destroyed the bottom floor of a house.

Now, if you ask the insurance company — virtually everything someone tells them about a claim they don’t want to pay is “fraud.”  And, they’ll have the public think that despite raking in oodles of premiums and having one of out stoutest lobbies in Austin, insurance fraud is a wide-spread epidemic and that they, the insurance companies, are somehow victims.  Please contain your laughter.  The vast majority of insurance issues that get hashed out in court are done in civil, not criminal disputes.

Chapter 35 contains a lot of language which shows the degree of deceit has to be somewhat steep in order to trigger a crime because insurance claims are inherently subjective and the subject of bitter disputes.  For example, there must be showing of intent to deceive as well as the ‘materialty’ or importance of the false statement to the over-all claim.  Though some may disagree, blaming the other driver for the car accident probably isn’t going to land you in hot water for criminal insurance fraud assuming you have a good-faith belief for making such a claim.

Truthfully, insurance fraud prosecutions are somewhat rare.  But they are serious charges.  The charges can range from misdemeanors to felonies based on the dollar amount of the alleged fraud, and the charges would almost certainly qualify a crimes of moral turpitude which impair professional licensing and carry a terrible stigma.

*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 situation you should contact an attorney directly.  Contacting the author through this blog does not constitute an attorney-client relationship and such communications are not subject to the attorney-client privilege.

Why I Defend People

July 27, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

Why do I defend people?

There are many reasons, I suppose.  I’m sure much of it is due to the way I was raised or my experiences with authority figures when I was growing up.  Either way, as with most people, I’m sure I’ll never fully understand exactly why I do what I do for a living.

Beyond that, though, there are several core values which I think I share with many other lawyers.

1.  Good People Can be Wrong

I fear the destruction decent people can do when they are blinded by the goodness of their work.  The more I see our criminal justice system in action, the more in awe I am of how the framers of the U.S. Constitution understood human nature.  They knew back then that government, law enforcement, and even the masses of citizens will ALWAYS seek more power in the name of safety, security and decency.  It was true back then and it’s true today.  And write it down… it will be true 200 years from now.

I realize it’s very easy to sound like the village idiot when discussing over-zealous prosecution.  But here’s the thing… decent people hurting others in the name of good comes in very subtle forms…

…like a rookie officer pretending to do a computer check while waiting for drug dogs to smell a teenagers car;

…a friendly reminder from the County Sheriff that you can enjoy your holiday weekend knowing officers are standing by to jam needles in the arms of the bad guys driving drunk;

…or a petty store loss prevention officer detaining and lecturing a manic depressed housewife for shoplifting for two hours before calling the police.

2.  Police Don’t have the Monopoly on Justice

I get to visit with juries on a frequent basis and show them that the prosecution and the police don’t have a monopoly on truth, fairness or justice.  Though I make a joke about it, we show citizens Superman and Batman don’t drink coffee with the police at Starbucks in between shifts rounding up bad guys.

We don’t live in a cartoon world where everything is black or white.  Just because the legislature says the punishment for a DWI is fair — doesn’t make it so.  I enjoy showing jurors the human side of the story to allow them to judge for themselves the right thing to do in each case.

3.  It Makes Law Enforcement Better

You read that right.

Everyone in America gets their paper graded.  Everyone.  Juries and Judges with the help of criminal defense Lawyers grade the police papers’ by throwing out cases where they have over-reached, done a sloppy job, or been flat wrong.  Law Enforcement officers will tell you that they can be trusted to manage their own performance, but again, the “trust-me” system of checks and balances is more for places like North Korea.

When a police officer gets caught exaggerating clues in front of a jury or has their arrest thrown out by a Judge because they took a shortcut, it honestly makes them a better officer whether they’ll admit that or not.

4.  It’s a Hard Job and it Takes Courage

Being a criminal defense lawyer isn’t for everyone.  You have to have the courage to stand in front of 70 complete strangers who can’t understand why the person next to you should even deserve a lawyer… or how any lawyer would even undertake to defend such a person.

Not only do you have to have the courage to confront this situation… you have to have the confidence, experience and preparation to fight — and win — trials that begin this way.

I’m not suggesting being a prosecuting attorney is easy or less honorable because it certainly is not.  But it’s a lot easier to stand on the star in the middle of Cowboy’s Stadium and scream “Go Cowboys” than it is to yell, “You’ve got it all wrong!”

5.  I’m a contrarian.

I just am.

*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 situation, you should consult an attorney directly.