How COVID Broke the Courts Blog 3 -(Negotiation)

August 19, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

COVID has altered the way we negotiate cases.

Communication isn’t the same.  At times, the new modes of connection are difficult to overcome.  Rapport, trust, sincerity and the degree of how emphatic a particular plea is just harder to convey if it’s anything other than in-person.

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Prosecutors are funny creatures.  I believe they are driven by decency, a quest for justice and a sense of duty.  I know because I was one and I really enjoyed it and found it fulfilling.

But understanding them and what makes them tick is far more complicated.  Many are younger and being a lawyer for the State is their first job in our profession.  Some of the more experienced ones have still never ventured outside the DA’s office.  Their world is like none-other.  I found it to be eerily similar to an echo chamber at times filled with adulation of citizens and the all-to-often somewhat self-assured notion that we had a monopoly on the truth.  The result is prosecutors often take the guilt of the accused (or proving the guilt of the accused) for granted.

I include this to say their view of cases — and often their firmness in sticking to their point — is often far different than mine.  When I’m negotiating with them for a better plea offer convincing them to simply walk-away and dismiss a case – it takes persuasion.

Knowing what motivates prosecutors is absolutely crucial in criminal defense.  And whether I’m trying to convince a prosecutor a certain case requires cooperation or collaboration — or I’m simply trying to convince them their poker hand is an offsuit 2-7 split — it is far more difficult to do it with short, choppy emails or text messages than it is just to sit and visit with them for a few minutes.

What tends to happen with phone calls or emails is the prosecutor tends to hear the message — perhaps miss some of the intonations I’m trying to convey — and then retreat back into their echo chamber to consider it further.  It shouldn’t come as a surprise it’s a far more difficult sale.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He is a Texas Super Lawyer as designated by Thomson Reuters.




Watering Down the Burden of Proof

September 21, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

The burden of proof in a criminal case in Texas is “Proof beyond all reasonable doubt” of all the elements of an offense.

The courts in Texas used to reason that, “A ‘reasonable doubt’ is a doubt based on reason and common sense after a careful and impartial consideration of all the evidence in the case. It is the kind of doubt that would make a reasonable person hesitate to act in the most important of his own affairs.”  Geesa v. State, 820 S.W.2d 154 (Tex. 1991).

While this definition, like any other definition, wasn’t perfect — it was still very high and more importantly wasn’t subject to being manipulated consistently by prosecutors or criminal defense lawyers arguing their case.  The definition was open and shut.

In 2000, The Texas Court of Criminal Appeals changed it’s mind and ruled in Paulson v. State, 28 S.W.3d 570 (Tex. 2000), “We find that the better practice is to give no definition of reasonable doubt at all to the jury.”  Despite the fact there are legal definitions for other lesser burdens of proof in civil cases, family cases, and CPS cases, the Court reasons in criminal cases that, “It is ill-advised for us to require trial courts to provide the jury with a redundant, confusing, and logically-flawed definition…”

So today, despite the mountains of case-law, research, and scholarly articles that define proof beyond all reasonable doubt, Texas courts today routinely instruct juries that on the single most important burden in a criminal case that they can simply define proof beyond all reasonable doubt as they want.  Basically the jury can make up the rule as they go along.  Experience tells me that generally favors law enforcement.

And prosecutors have, over time, increasingly seized on this glaring weakness.  Maybe it’s just me, but I’ve noticed more and more that prosecutors are dedicating time in jury selection, opening argument and closing argument to lowering the burden of proof on themselves rather than focusing on the facts of the case.

Examples include showing unfinished puzzles to prospective jurors and suggesting that because they can still make-out an image even with the large missing pieces — that the unfinished puzzle represents proof beyond all reasonable doubt; or repeatedly dedicating time in opening and closing argument not to the evidence in the case — but to giving the jury their own theory of what “beyond a reasonable doubt” should mean (and it’s always an attempt to lower the burden).

Getting the jury to understand the significance of having a high burden of proof and de-bunking the State’s creative attempts at lowering the burden is the challenge of every criminal trial lawyer.  Experienced criminal defense lawyers do everything they can to make the state accept — not shirk — their burden of proof.

*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 on any specific matter you should consult an attorney directly.

A Prosecutor’s Duty to Seek Justice

April 15, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

A prosecutor has a statutory duty to seek justice.  Unfortunately, the prosecutor — not you — is the one who gets to define what that means.

Texas Code of Criminal Procedure Section 2.01 says in relevent part, “It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done. They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.”

This statute is a crucial safeguard in the criminal justice system which should not be diminished nor ignored.  This provision is highly subjective and can be very frustrating… as a defendant’s remedy for the prosecutor’s breach of this duty may not equal the great harm the prosecutor has inflicted.

The main frustration in the everyday practice of criminal defense law is that the gatekeeper of what is in “the best interest of justice” for any given situation is the prosecutor themselves.  Most prosecutors take their duty very seriously.  As with any given set of human beings, though, some approach it in a misguided manner and abuse their discretion whether they know it or not.

Examples of judgment calls a prosecutor must make range from interpreting whether evidence is favorable to the excused or is exculpatory (tending to prove innocence) and thus making the evidence mandatory to disclose.  Other examples include whether to reduce charges in certain situations.  Again, much difficulty comes from the fact that the prosecutor is engaging in an adversarial process where they, unlike the judge or jury, are not required to presume the accused as innocent.  Therefore, some prosecutors, if they don’t think innocent people ever get accused, can view their duty to seek justice far more narrowly than everyone else.

Unfortunately there isn’t much of a remedy for many prosecutorial decisions, but some misconduct can result in sanctions, new trials, and even acquittals from the Courts.

Brady violations, generally referring to a failure to disclose exculpatory evidence for guilt or favorable evidence for punishment, are the main area for prosecutorial discipline.  Some Brady offenses are worse than others, but in extreme cases, Courts have actually acquitted accused people due to those violations.

*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 any specific legal situation you should consult an attorney for advice.