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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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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Domestic Violence Charges – Blog 16:  Areas of Defense Focus

December 29, 2020

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

jeremy@texasdefensefirm.com

It’s tough to quantify or discuss all possible defenses to all possible cases in one neat blog.  There are some cornerstones, though, and areas which any defense lawyer should look for acquittals.

You can read my index to other domestic violence charge blogs here.

A Note on Legal & Factual Sufficiency

It’s obvious I wasn’t watching any given couple’s quarrel which lead to someone getting arrested.  I couldn’t be a lawyer in those cases because I’d be a witness.  I don’t evaluate cases for what I personally think happened, rather, I evaluate them for what I think a jury may or may not believe.

What I evaluate to prepare for a trial, then, is what we call legal sufficiency and factual sufficiency.  Just remember when I discuss possible outcomes below – what I mean to say is “will the evidence be enough to show….”

Legal and factual sufficiency are confusing appellate terms which I’m evaluating for when I hear a case.  Maybe I’ll blog about that one day on it’s own if I want to put everyone to sleep… but not today.

What you do need to know about legal and factual sufficiency for the purposes of this blog is this:  A judge cannot allow a jury to deliberate at all if the evidence is legally and/or factually insufficient.  If the evidence shows the crime was committed by an apple and it’s an orange charged with the offense – then the judge acquits the orange before a jury can deliberate.

If there is Evidence Assault Occurred, Can the Prosecution Get it to a Jury?

The Texas Rules of Evidence dictate what a jury can hear.  If a jury isn’t allowed to hear something under the rules – then it could render the evidence insufficient and require acquittal.

Example #1:  Complaining witness told a neighbor who told their hairdresser they got choked by their spouse.  Can the hairdresser come in and prove-up the assault for the prosecution?

  • No.  The rules of evidence (specifically the hearsay rule) would prevent this testimony.

Example #2:  Neighbor routinely sees police coming to the house next door and sees the defendant yelling at children on Halloween.  Can the neighbor come to court to prove-up assault because “everyone knows he beats her?”

  • No.  The rules of evidence prohibit speculation of this sort.

The Confrontation Clause

Another topic which could easily take three or four lectures of a law school course in constitutional law is the confrontation clause.  Any lawyer defending domestic abuse cases has to be extremely up-to-date on these issues no differently than a physician has to keep up with the latest medical research on studies and pharmaceuticals.

The confrontation clause under the 6th Amendment of the US Constitution normally requires the accuser themselves to come into court and testify to secure a conviction.  But this isn’t always the case and the exceptions are constantly changing.

If the Jury Can Hear Evidence of an Assault, Can We Persuade the Jury Otherwise?

If the evidence might be legally and factually sufficient to sustain a conviction then we can’t count on a judge throwing it out before it gets to a jury.  In these cases we have to get to work proving the accusers account is incomplete, exaggerated, or otherwise wrong.

This is where a lawyer has to get into the dirt of a case knuckle-deep.  Who said what to one another, who was standing where, who was holding what object, who is on what medications, who consumed alcoholic beverages, who has a history of of doing what… etc, etc.

Do we have reason to believe the accuser exaggerates?  Do they have a history of exaggerating such claims or bringing false claims?  Does the complaining witness have psychological disorders such as manic episodes which might contribute to them giving a falsified account to police?

Are There Any Applicable Defenses?

I’ve blogged about the main defenses to assault – which apply regardless whether the complaining witness is a family member or in a dating relationship or not.

Can we show the jury this was self defense?  Who hit first and can we prove it?  Did they place the other person in fear of imminent bodily injury?  If so – how?  What does the physical evidence show?

Did the accuser “consent” to or otherwise invite the assault by their conduct?  Did they stand in a doorway and refuse to allow the other to leave?  Did they somehow dare the other one to hit them?

Each Case is Unique

Again — every case which comes in is unique.  But the good news for defending cases like these is they are rarely cut and dried.  The police have the difficult job of showing up to a scene and keeping the peace.

It often results in someone going to jail for no other reason than the police don’t know the couple — they just don’t want to come back later the same evening and pick up a dead body.

The legal system is designed for police to make an arrest with a lower threshold of evidence for exactly this reason — probable cause.  We have plenty of time after the fact to put the pieces together and mount an aggressive defense.

*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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