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

texasdefensefirm.com

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.

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Posted by Jeremy Rosenthal, Esq.

Insurance Fraud

November 17, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

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.

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Posted by Jeremy Rosenthal, Esq.

Why I Defend People

July 27, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

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.

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Posted by Jeremy Rosenthal, Esq.

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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Can a Drug Conviction in Texas Impact Financial Aid for College?

March 19, 2011

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Yes.  Here is a great article I found recently on the topic which discusses some of the far reaching collateral consequences of marijuana convictions all across the country.  Collateral consequences of convictions range from eligibility to be a foster or adoptive parent, gun ownership eligibility, or difficulty in receiving federal financial aid.

The article points out that under 20 U.S.C. 1091(r), a student that is convicted under federal or state law is not eligible for federal financial aid for 1 year for a first conviction, two years for a second conviction, or an indefinite period for a third conviction.

Keep in mind that under Texas law, deferred adjudication means that a person is not convicted.  Although, some federal agencies do not recognize deferred adjudication (such as in immigration proceedings for example).

Before accepting a deferred adjudication or conviction for marijuana offenses, be sure you have been thoroughly advised by your attorney.

*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 specific situation, you should contact an attorney directly.

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