Can I Sue the Police After an Arrest?

December 10, 2020

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

I’ll do my best to stay in my lane.  I defend people charged with crime and I don’t sue police but I get this question a lot so I’ll do my best to answer.

I often refer cases where folks are interested in taking legal action out to lawyers who focus more in that area.  But if I don’t think you’ve got much of a case — I can still probably diagnose it and let you know if it’s good time and energy spent on a bad task.

What I can also say is this – if you’re charged with a crime the first priority is always to defeat those charges.  I liken it to playing defense before playing offense.  Pleading guilty or losing a case where you’re trying to sue the police is a great way to spoil that case.

Immunity From Suit

Police, prosecutors and judges have wide-ranging immunity from civil liability and for good reason.  We want them to be able to do their jobs and not constantly worry about getting sued nor put their own personal assets on the line for just doing their job.

There are some limited situations where they are individually liable.  The main one is under 42 U.S.C. 1983.

42 U.S.C. 1983

This federal statute says the following:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congressapplicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

In English – if a government worker as part of their job intentionally deprives someone of a constitutional right or liberty then they can be sued in federal court.  There are law review articles on this statute and it’s the subject of entire law school classes – so I don’t pretend for a moment this blog covers it all.

In short – 1983 claims are typically brought for police brutality and prison litigation but it isn’t exclusively reserved for that.  The standard is pretty difficult because negligence generally isn’t enough to trigger liability.

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

 

 

 

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Sexual Abuse Charges – Blog 17: Preparing for Punishment and Mitigation

December 8, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Criminal trials are bifurcated.  This means there are two phases.  The first phase is guilt/ innocence and in the event of a guilty verdict then the second phase is a punishment phase.  The punishment phase can be either before a judge or a jury.  The defense is legally and ethically required to prepare for both.  Preparing for punishment is today’s topic on my continuing series of blogs about sexual abuse charges.

Losing or Pleading Guilty on a Sexual Abuse Charge

Many defense lawyers talk like pro wrestlers.  We talk about how tough we are and how we rip the opponent from limb to limb.  But the fact is we come in second place in our profession more than we’d like and plea bargaining is a critical aspect of defense work.

With the punishments for sexual abuse being as stiff as they are – we always have to keep in mind the possible second phase of the trial.  We have to work just as hard preparing for the possible punishment phase as we do the guilt/innocence phase.

In sexual abuse cases – particularly with child victims – plea bargaining is often not a major component.  This is because the plea offers can be so high that there is either no reason to seriously consider them or if the prosecution wants such a high prison sentence then on our side we may as well go down fighting.  But it never hurts to research, learn and develop mitigating facts either for punishment or on the off-chance we can plea bargain to lower charges.

What is Mitigation?

Mitigation means learning and proving facts which lessen punishment.

Mitigation is a difficult task in a sexual abuse case for a number of reasons.  There is a victim who has suffered horrific abuse which has the potential to emotionally and psychologically scar them for life.  Sex is still — and will always be — a taboo subject for many folks too.  Thus, many folks don’t understand criminal sexual dysfunction and aren’t interested in understanding it.  Another hidden factor is many jurors want to prove to other jurors how tough and intolerant they are of sexual abuse too.

The best mitigating evidence is what I call “three pronged.”  That is it accomplishes the following:

  • It acknowledges the abuse and thus helps the victim heal;
  • It explains underlying causes of the abuse;
  • It provides reason and hope the defendant can conform their behavior in the future.

Examples of Mitigating Facts in a Sexual Abuse Case

A saying I like is “hurt people hurt people.”  Many of the mitigating factors we look for are along those lines.  Examples could include:

  • The defendant was sexually abused themselves;
  • the defendant suffers from some mental deficiency;
  • the defendant suffers from some type of developmental deficiency;
  • the defendant suffers from some type of psychological deficiency;

Another key component of mitigation in sexual abuse cases are evaluations from licensed sex offender professionals which use empirical data to assess the degree of risk and the underlying causes of the dysfunction.  The evaluation can include a prognosis and discuss if any type of treatment will help the accused.

Examples of Mitigation the Prosecution Tears Through

Mitigation and preparation for punishment has to run deep.  There are some cases where the defense parades all of their friends and family to testify what a great person they are and hope it helps to lessen punishment.  I’m not against giving the jury a full picture of the accused’s life but doing a witness parade without something deeper allows the prosecutor to prove-up their narrative the defendant simply has everyone fooled.

Another poorly conceived punishment strategy is to tell the jury they got it wrong in the guilt/ innocence phase.  Don’t get me wrong… there is nothing worse to me than fighting like hell on a case I strongly believe in only to have a jury reject us.  But we only make matters worse by blaming them in a punishment phase.

*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.

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Sexual Abuse Charges – Blog 16: The Focus of the Defense

December 7, 2020

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Proving innocence in any capacity is hard if not impossible regardless of the case.  To prove this point during jury selection, I’ll often invite a juror to prove they are innocent of not running a stop sign on the way to court.  I shoot down argument after argument (you didn’t get everyone’s license plate at that intersection did you?  You didn’t happen to have a passenger did you?  If you did bring a passenger – of course they’re your family and will lie for you).  Eventually they see it is their word against someone else’s word.  Proving you are innocent of sexual abuse charges really isn’t any easier.

So if the defense can’t prove our client’s innocence – then were should the defense focus?  This is today’s topic on my continuing series on sexual abuse charges.

Playing Offense –  Theories of the Case

The major challenge of any sexual abuse case is why the child’s allegations are not so.    No blog or article dedicated to this topic would fairly do it justice.  But the complexity and difficulty of the topic underscore just how thorough the defense needs to be in evaluating not only the child but the child’s circumstances as well as the circumstances of the adults around the child.

Child and teenage psychology is such a vast ocean you could earn a Ph.D. on the topic and dedicate your entire life to studying, researching, and improving it.  The defense needs to explore different theories of the case based on every bit of evidence they can muster.  An effective defensive theory is more than just conjecture and should be supported by academics.

A misconception about a defense which suggests what a child is saying is untrue is that it is done with malice by either a child or adult hatching a plot to ruin someone’s life.  This binary misconception tends to thrust or flip the burden of proof onto an accused to not only prove they are innocent, but to also show a jury some evil intent by an accuser.

Many defensive theories focus not only on children who make the allegations but on the adults who surround them have a profound effect on what and how their children communicate to them.

Focusing on the adults around the children can reveal whether an outcry was in response to repeated questioning, suggestive questioning, or cross-examination of a child by a hysterical parent or adult.  Focusing on adults around the child, too, can reveal whether a child has been “congratulated for their bravery,” rewarded, or otherwise put on a pedestal with positive attention for saying what adults might want to hear about a ne’er-do-well relative or acquaintance.

These examples, of course, represent just the tip of the iceberg for situations where an outcry has gone awry.  You can read article, after article, after article about the terrible an unjust turns these types of cases can turn based on the hysteria and mismanagement of the adults who handle these cases.

So What Does the Defense Need to Focus On?

Everything.

*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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Sexual Abuse Charges – Blog 14: The Bold, Aggressive, Courageous Defense

December 5, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

The next several blogs in my continuing series on sexual abuse charges is going to be about how we defend these types of allegations.  The common denominator for any effective defense is this: courage.

Remember, sexual abuse charges can be a Petri dish for injustice as I’ve said before.  This is because you’ve got highly emotional folks on each side of these cases with accusations of detestable conduct on one side and life-altering consequences on the other.  The corroborating evidence for each side’s story can be highly subjective, malleable, and with little or no scientific underpinnings.

Courage

It’s difficult to go to the 50 yard line at Cowboy’s Stadium and to shout “Go Cowboys!” in front of a capacity stadium.  There are nerves involved with getting in front of that many folks or maybe even being on TV.

But it’s far more difficult is it to go to the 50 yard line of Cowboy’s Stadium and yell, “Go Eagles!”  This is how it can feel to defend someone charged with sexual abuse of a child.

I’ve always like the movie where Rocky Balboa goes into Moscow and they boo him like crazy.  They see how determined he is – and what a worthy adversary he is – and eventually they cheer for him.  It’s campy, corny, and superficial – but there is a moral to it.  It’s more important people respect you than like you.  Rocky didn’t go into the boxing ring being apologetic for who he was.  He worked hard, trained hard, and fought hard and it showed.

Our Adversaries Advantages

Police and prosecutors soak-up high fives from juries and random humans they meet even in casual conversation in line at the grocery store.  The Children’s Advocacy Center is a non-profit who throws fundraisers and galas for donations (though as you recall it’s basically a highly unique police station).

Defendants are funded often by their own retirement funds, selling their homes, and sometimes their friends and families make similar sacrifices because they believe in their loved one’s innocence too.  Simply being accused of this type of crime means almost certainly being ostracized by others – and the accused finds out who his real friends are and aren’t quickly.  It’s no comparison.

I don’t want to short-change my opponents.  They stand up and fight for what they think is right and I respect them greatly for it.  They are hard working and they do have a very important job which I’m thankful they do.  Standing up for a victim and standing up against abuse is hard.  With apologies – defending someone accused of abuse is simply harder.

Back to Sports and Movie Analogies

Any defense in these cases must not only be executed with courage but must be aggressive and bold as well.  If you’re going to go to the 50 yard line of Cowboy’s Stadium and yell “Go Eagles” then you may as well mean it.  If you’re going to go to Moscow and fight Ivan Drago – then don’t be half-hearted about your efforts.

In the next few blogs – I’ll discuss a few more details about the nuts and bolts of defense work on sexual abuse charges.

*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.

 

 

 

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Sexual Abuse Charges – Blog 12: Fist Fights Over Evidence

December 3, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

How do you corroborate your story with a completely he-said/ she-said debate about something which happened 5 years ago?

This is one of the big challenges of sexual abuse prosecution and defense.  Physical evidence such as DNA or other injuries which might be associated sexual abuse can be rare – particularly when an outcry is delayed for months or years.

So it’s often the case each side takes seemingly small or what may seem like insignificant scraps of evidence and do their best to magnify it by 10,000%  to try and corroborate their story.  The ensuing debate in the courtroom over just what the small shred of evidence might mean is what I call “fist fighting over evidence” and it’s the topic of today’s blog in my continuing series on sexual abuse cases.

The Challenge

Most offense reports I read allege something to the effect of the child making the outcry of abuse — and the report goes on to say the specifics of incident x happened “over the summer” or “sometime in March” or “a few months ago” in a certain location (i.e. aunt’s house, friend’s apartment) in a certain room of the home.  The reports then detail the specifics of the abuse if any are given by the child.

So if I’m having a conversation with a client who insists he is innocent – he can never answer the question, “where were you every day last summer and how can we prove that?”  He can never answer the question of “okay, even if you were at aunt’s house sometime in March – how can we prove victim wasn’t there at the same time and/or you and victim weren’t alone?” The task is virtually impossible in most cases.

So if there is any nugget of evidence which tends to show Defendant’s story is the truth – it becomes huge.

The Best Example – Brett Kavanaugh’s Calendar

Without getting into details of cases I defend – probably the clearest example of a “fist fight over evidence” would be Supreme Court Justice Brett Kavanaugh’s calendar which he contended was proof of his innocence against allegations of sexual assault and the US Senate then having a “fist fight” over what the calendar actually proved.

Staying away from the politics of it all – was the calendar proof Mr. Kavanaugh didn’t sexually assault Dr. Ford?  Maybe yes and maybe no – but my point is this is all he had other than his word.

The calendar even got parodied on Saturday Night Live.

Smart Phones – Evidence in a Box

A major difference between 1982 and the 21st century are smart phones.  Today we can tell if someone took the tollroad on a certain day, their GPS location at any given time, or pictures they took… etc.  So today we actually have a lot more potential to strive and attain some small nugget of proof which we hope can corroborate our story.

*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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