Zoom Lawyering

Zoom Lawyering

Covid has served to disrupt the Harris County Criminal Courts. In addition to face mask requirements, the system itself has changed considerably in an effort to provide a safe and suitable court and work environment. For the last four months, many court settings have been rolled to new dates, sometimes without notice. The original reason for this tactic was to delay until safety could be assured, and to reemploy regular dockets when the threat was controlled. Most of us believed that we would be in the quagmire for no more than three months. 

The quick opening of the State of Texas has created a new surge in cases and has put a substantial crimp in everybody’s plans. Now it cannot be predicted when it will be safe to return.  And cases are piling up. Judges are seeing their case load nearly double during this pandemic and some are beginning to panic.

The lynchpin that keeps the criminal justice system humming along are plea agreements. Neither the criminal defendant, his criminal defense lawyer, or the prosecutor has the ability or impetus to work a case out when nobody ever has to go to court. Another impediment to a plea agreement is the lack of criminal juries. Actually, the problem is the lack of a threat of a criminal jury. If an Assistant District Attorney has no reason to fear an obligation to present her case to a criminal jury, she is way less likely to actually take a serious interest in her case. My experience is been an ADA is not likely to dismiss or offer something reasonable until they absolutely have to. 

Some Assistant District Attorneys just don’t help very much. None of them come to court anymore. Most sit at home in front of their computers and make court appearances, when necessary, by Zoom conference. Some return emails and some don’t, but it is difficult to make an argument for dismissal to a prosecutor while she’s playing with her cat. In their position, it’s so much easier for them to punt. Frankly, there’s lots of punting on third down going on in Harris County. 

Harris County Criminal Defense Attorneys don’t escape criticism here. They also have no impetus to complete a case. Their clients, after all, are presumed innocent while the case is floating through the system. Most criminal lawyers are sitting at home or in their office, making necessary appearances by Zoom as well. As noted, most of the time appearances aren’t necessary since cases are being rolled without end.  

I have been going to court nearly every day. I’ve used Zoom, but it just doesn’t feel right. I think criminal defense is too personal a vocation to do it by video. However, my wife thinks I’m just a leopard that can’t change its spots.  In any case, Judges are showing up, and some other lawyers show up, some in masks and some in hazmat suits. Most of the court personnel are protected behind plexiglass shields.  It all looks pretty dangerous. 

Frankly, I don’t know how the courts are going to get back to normal. Social distancing isn’t possible in there. Rules have been put into place to limit the number of people riding the elevator to four, but I watch that rule ignored every day. If we were to go back to regular court dockets, we would have lines for blocks by allowing only four riders per elevator. It’s just not workable. The Harris County criminal Courts are typically as congested as New York subways, and we all know how that turned out. However, something has to give or the court system will collapse under its own weight. 

The Danger of Staying Home

The Danger of Staying Home

I can’t speak for other criminal defense attorneys but judging by the calls I’m getting it appears that the stress of home confinement has caused an increase in family violence. Some of it is simple bickering, some is outright hostility and unfortunately, some of the calls I get describe criminal activity. 

I have received phone calls from wives who need help from their assaultive husbands. Calls from husbands and boyfriends whose significant other has just called the police and calls from those who have been charged with the offense of assault. The story has been familiar. The couple, normally in a peaceful partnership, have found themselves at each other’s throats since Harris and Fort Bend counties shut down. 

There is a danger in leaving a residence in a time when a novel virus circulates in the community. Danger is everywhere, though. Most families are not used to being locked in an apartment together. This combined with the added financial stress of job loss and reduced medical insurance can have a deleterious effect on an already frayed relationship.

I have a different view than prosecutors when it comes to family violence. I look at the holistic nature of the family and don’t presume that one act of violence defines the entire relationship. A family shares a partnership in financial matters and child rearing. The family has a vested interest in continuing this partnership. It also usually has the strength to work past a sordid chapter, much like the long-term marriage that works through infidelities. 

It does not necessarily benefit a wife who has reported an assault to force her husband from the home. It doesn’t benefit her or the children for her husband to lose his job. Often times what is needed is forgiveness and healing. Of course, this may require the accused accept responsibility for his mistake, but the family cannot heal when the only recourse offered by the State is to strap the accuser with a criminal record.

We are in a new world and it’s not likely to be normal any time soon. I worry that continued confinement and financial devastation will cause far greater damage to our community than Covid-19 could. It doesn’t have to be a zero-sum game. Our leaders need to broaden their analysis of this crisis and consider the collateral damage that comes with shutting down our cities. 

DNA Sample for a Misdemeanor?

DNA Sample for a Mere Misdemeanor?

Every summer, us criminal defense attorneys pay attention to the mechanizations of the Texas Legislature to determine what new laws we may be having to deal with in September. This year I was curious about a bill proposed by a Conroe legislator that mandated a DNA sample for essentially all persons arrested of a crime above the level of a Class C misdemeanor.

Amendments and negotiations resulted in the passage of House Bill 1399 amending Government Code 411.1471 to require a DNA sample be taken for all persons arrested for a number of violent felonies and for those convicted of offenses found in Title 5 of the Texas Penal Code. Title 5 contains, among other misdemeanors, the offense of Assault. 

This is a problem. What this means is that anyone who winds up being convicted for participating in a bar fight or is convicted of an assault against a roommate or spouse, will be subject to a DNA swab. And what this means is, despite the presumption of innocence in your rape charge, your DNA will be recorded for later analysis. Forget about the difficulties inherent in making poor court deputies put on latex gloves and sticking a Q-Tip in strangers mouths. The real problem is clearly more insidious.

What will happen with these DNA samples? Will they be stored? Not likely. Government doesn’t want to stash thousands of swabs in a series of warehouses somewhere. Ultimately, all of these samples will be analyzed, and the results will be digitized. They will go into a data bank, that will reach out to other data banks and so on, resulting in a permanent record. This will all happen in the blink of an eye, and perhaps while your case is running its course through the court system. 

Again, our legislature has determined that so long as somebody has been accused of a crime, privacy rights are irrelevant. Already, we are being watched by street cameras, cell phone towers. Our IP addresses are being monitored. Are we really ready and willing to give up our most private information? The Government Code claims that in the event of an acquittal, the DNA sample and any analysis will be destroyed. Do you believe that? Isn’t that trying to put the genie back in the bottle? It’s one thing to order the District Clerk to delete all of their computer records. It’s another thing, when the digitized DNA is shared by government agencies throughout the country. How do you successfully expunge that?

Listen to Your Lawyer

Listen to Your Lawyer

I remember most of the stupid things I have done. One that sticks out is the day I decided to replace the pea trap under my kitchen sink. It really looked simple. Two attaching rings and maybe one pipe section that needed to be replaced? How hard could that be? I’m an educated man after all, and often considered intelligent. This is just plumbing, right?

I won’t go into detail about the level of damage I caused, the four trips to Home Depot and then the specialty plumping shop. The bottom line is I ventured into an area for which I was unprepared and I made a mess of things. The final cost of the job was astronomical since it involved an emergency after hours visit from a plumber. (By the way, he did the job in thirty minutes.) 

These days when I get a visit from a new client looking to hire a criminal defense attorney, he has spent a pretty good amount of time on Google searching for information about his legal situation. By the time he gets to me he is already pretty sure about how his defense should be carried out. I listen patiently to these newbies since I know that I am part of the problem. Lots of Criminal Lawyers advertise solutions to legal problems and my website is more detailed than most. I’ve always believed that the client should not be isolated from relevant information. 

However, there is rarely a standard disposition on a particular type of criminal case. I say rarely because in some counties we can count on an offer of pre-trial intervention for some types of crimes for first time offenders. However, in the vast majority of cases, resolution depends on the two competing factors of unique offense facts and offender characteristics. How effective a lawyer balances those competing factors ultimately determines the outcome of the case. 

Now, I’m pretty good at balancing those factors. I remember one time I represented a young man involved in a bank robbery. There were three co-defendants, all under the age of 23 who, after a particularly boring day of video games, got it in their heads to rob a bank. Unfortunately for all of us, they had access to guns. 

My client was the youngest of the three, but he was also the chap who wound up on video wearing a black ninja suit and mask, holding two semi-automatic handguns pointed in two directions. It made a particularly dramatic picture of danger. 

After the robbery, the three made their get away on four-wheelers. They surmised that if they took off through the woods that bordered the bank, they couldn’t be followed. As it turned out, they were right and wrong. Nobody followed them but officers waited for them where the woods cleared to suburbs and they were all arrested in possession of the guns and money. Confessions followed. 

I remember the offer well. 30 years!  I thought, this for a 21-year-old kid attending college with no criminal or juvenile record?  After speaking with him, it was clear that he was far from the leader in the group, and despite video evidence to the contrary, was far from violent. It appeared that the robbery was conceived, planned and carried out much the same way that a video game would have been played. Except it wasn’t a game, and the prosecution was dead set on making sure that my client didn’t get out of prison. 

We went to trial. The facts were pretty lousy, so my strategy was to plead guilty to the robbery and present an entirely different case to the jury. I offered evidence about my client’s relationship with the other two defendants, who had not yet been to trial. I provided the entire life story of my client, and presented each and every witness I could find to give an impression to the jury that countered the oft referred to video still of my ninja clad client holding the guns. I even put on his pre-trial supervision officer to testify to what a model supervisee he was. (I was also fortunate that he supervised the oldest co-defendant, and was able to testify that the co-defendant, by contrast, was recalcitrant and drug using.)

Ultimately, the jury gave my client five years, which was the minimum possible punishment for the charged crime. I still remember whispering to the foreman “Thank you” and her equally appreciative “your welcome” after the five-year sentence was read by the Judge.

I bring this up because the case was an example of how the balance of facts and offender characteristics can be used by a dedicated and experienced counsel to achieve a particular result. Without experience, knowledge is mostly irrelevant. Mere information is not a defense, no matter where the information is obtained. 

There is no possible way to pigeonhole a case. If that were true, we would have pled the aforementioned case to 30 years! Some of my prospective clients seem to think that hiring a lawyer is something akin to buying a new Toyota Prius; if you know the color, package and style you want, then the only thing that needs to be discussed is price. Hiring a lawyer for a criminal case doesn’t work that way. Experience and ability sometimes trumps law and facts in the courtroom. It was that way long before Google, and it will be that way long after our criminal justice system turns into a series of video chats. 

The Damage of a False Accusation

Houston Criminal Lawyer
The Damage of a False Accusation

Many of my clients are innocent. Falsely accused, they burn with a fury that is often times difficult to reign in. I am often asked the same question, “You mean to tell me that I can be charged with a crime based only on the statement of one person?”. It is hard to tell them the truth, but yes you can. All it takes is one person, be it a child or an adult, to accuse you of a crime and you can be arrested, charged and forced to answer in court. 

Prosecutors will explain this anomaly to the jury by explaining that it is the criminal who decides when and where to commit his crime. They will rhetorically ask the jury why any good criminal would commit a crime in front of witnesses? However, the converse is also true. If a person wants to claim a false crime, wouldn’t they also decide what would be the best time to explain no witnesses, or no other evidence. Any individual who falsifies a criminal claim is the real criminal. They know what they are doing. 

I successfully relieve my clients of criminal convictions in these situations. However, it takes time and it is continuously painful for the falsely accused. I wish I could do more, but all of us are subject to these false accusations. Sometimes it is within a family. Sometimes it is at work. And sometimes it is in court. 

The real problem with these false accusations, is that they last no matter what happens in court. A not guilty verdict and expunction relieves the criminal problem, but the real problem still exists. An accusation, especially in this instant world, makes its way through the community by way of gossip and the internet. Even if a person is exonerated, the stain remains. Who hasn’t heard the statement that “He lawyered up and beat the charge”? The implication is that the accused wasn’t actually innocent. People prefer to believe this rather than deal with the uncomfortable reality that all of us are subject to false claims. It makes things more tolerable. 

I just had a trial where it was clearly established that all of the witnesses against my client were embarked on a poorly run conspiracy to frame him. The jury had no problem seeing through the lies thrust upon them. The verdict of “Not Guilty” came quickly. I think that at the end of the case, even the prosecution that their case was based on falsehoods. 

He was happy with the verdict, of course. However, as the relief wore off he began to digest the damage that the accusation had caused him. His cost for legal fees and court days would never be recouped. The worry of his family and lost sleep would never be erased. He asked if he could sue. I told him the truth about his chances for success in such an endeavor and it crushed him. 

This system is imperfect. It is not an engine humming along to ultimate justice. It works as a method to ensure that a conviction can only be obtained when proof is so substantial that it requires conviction. However, it requires help. It only actually works when the accused is adequately represented. It only works when prosecutors take cases to court when they have done their due diligence in determining the credibility of the accuser. However, and to our great shame, it has no ability to resolve the pain of the false accusation. 

Federal Detention Hearing | Ed Chernoff’s Blog

Federal Detention Hearing

Ed Chernoff reviewing law on Federal Detention

Nuts and Bolts of Federal Detention Hearing

The Bail Reform Act of 1984(18 U.S.C. §3142) is the best place to start. This law was enacted during “Just Say No” and the TV show Miami Vice, where the country was coming to terms with the proliferation of cocaine. The act allows a Federal Court to detain an arrestee pending trial if the Government proves through “clear and convincing” evidence, after a hearing that no release conditions “will reasonably assure the safety… of any other person or the community”.

This sounds ominous, of course, since it appears to be left up to the Government to decide who is dangerous, and who isn’t. However, the law clearly states that the judicial officer does not have unbridled discretion in determining release. Under 18 USC §3142(b) she must, in fact, release the arrested individual unless it is proven no conditions would assure safety. Hence, the default position is release, and the good news is that in the majority of cases the arrestee is released on pre-trial conditions.

There are provisos to this general rule of release. One of those is drugs. Subject to rebuttal, it is presumed by the Act that no condition is sufficient to release an individual charged with a drug crime under the Controlled Substance Act, where the possible maximum punishment is ten years or more. This pretty much includes most drug crimes charged in Federal Court. Another exception is for individuals charged with gun crimes. There are more. It is usual for a Assistant U.S. Attorney to move for detention and a detention hearing in those situations.

So how does a detention hearing work? After arrest, the accused is brought before a magistrate to determine whether the Government intends to move for detention and whether the accused needs appointed counsel. The detention hearing must be held “immediately”. This rarely means the hearing is held right after the Government moves. Typically, the hearing is held the next day and rarely more than three days after the preliminary appearance. Usually, any delay is necessary for the accused to hire a criminal defense attorney and for the defense to gather up the witnesses necessary to rebut any presumption of detention.

At the hearing, the Government has the burden and will normally produce one agent who has information about the case in general. Usually he has some first hand knowledge, but he is allowed to testify to hearsay, and may have only received his information from what other agents told him or from a review of an offense report. The defense is permitted to cross-examine the agent on his credibility, relevant facts underlying the offense and information about the actual dangerousness of the accused, or lack thereof.

The defense can rebut any presumption of detention with witnesses that show that the accused is not a danger or flight risk. The judicial officer must consider the personal history and characteristics of the accused, including his contacts within the community, family ties, employment, mental and physical condition, past conduct and criminal record and financial conditions. This information is likely to be produced by defense witnesses who have a strong connection with the accused, usually one or more family members. Employment records might also be produced. It is very rare that the accused will testify. I’ve never done it or seen it done in Federal court. The U.S. Attorney would take that opportunity to cross exam the accused on the underlying accusations. Bad idea.

I’ve had quite a bit of luck convincing magistrates to release my clients, despite the presumption attached to drug cases. I don’t get the impression that most Federal magistrates make a knee-jerk reaction towards detention. They just want to make sure that the individual is going to return to answer the charges and not cause mischief while he is out. It is important for the defense to produce some member of the family who can sign on to any unsecured bond. After the hearing, the magistrate can release on personal recognizance or on conditions. Conditions can be as minor as maintaining employment and staying within the confines of a particular geographical region, or as severe as an electronic monitoring device with curfew. However, my experience has been that release on conditions are never so burdensome as to make compliance impossible.

Any release with conditions is likely to be administered by the Federal Pretrial Agency in the district. This means that the released individual will need to report periodically to an assigned agent. Sometimes the agent will visit the place where the accused is supposed to be staying. Often, drug and alcohol tests will be administered.

The good news is that release is likely. My advise is not to delay in hiring a criminal lawyer after the arrest. Even if the government has moved for detention, it is possible to convince them otherwise when provided information about the personal circumstances of the accused. This may speed up release. In addition, your hired criminal defense attorney needs time to learn about the allegations and gather up family members for the detention hearing. All is not lost, even against the Federal Government.

Тhe War on Doctors | Ed Chernoff’s Blog

The War Against Doctors

Who Is to Blame for the Opioid Crisis?
Charges Against Doctors Are on a Rise
What If the Pain Is Real?
There Is a Street Alternative of Prescription Painkillers : Heroin

The opioid crisis is a real crisis. People are dying. Of course, the government looks for a clear bogeymen in these situations, since it makes for palatable political fodder. In the two decades after Ronald Reagan took office as President, the main bogeymen for the drug crisis were the drug users themselves. The zero tolerance policy that the Federal Government and State legislatures adopted filled our prisons with drug users and small time drug dealers, creating hundreds of thousands of felons. It was good politics.

Drug users were easy targets, but ultimately, this was untenable. The cost to (white) families and the institutions that paid to house criminals was too great to bear. Now we see a reversal in attitude for these drug users. Somehow, governments began to recognize the immorality of housing our drug-addled neighbors. In many large metropolitan District Attorney’s offices, diversion programs are now accepted as the main way to handle drug arrests. The Federal Government has adjusted the sentencing guidelines downward.

Who Is to Blame for the Opioid Crisis?

So who is the bogeyman in the opioid crisis? The finger appears to be pointing to the medical Doctors who prescribe. The recent crackdown on Doctors, nurse practitioners and pharmacies across the nation who prescribe and dispense opioids show a clear policy by the Federal Government to stop the flow of opioids at the source. But are Doctors really the source, or is this just another example of the Government finding the easiest political target?

To be fair, there are dirty medical Doctors out there. The money is simply too great in the after market sale of opioids for some Doctors and nurse practitioners to resist. When an Oxycontin sells on the street for ten times its cost at CVS, someone is going to attempt to benefit from that margin. If a Doctor over prescribes an opioid simply to profit through kickbacks or under the table cash payments, she needs to be prosecuted fully. But what of the Doctor who prescribes opioids for pain in the ordinary course of his practice? Is he safe from prosecution? I don’t think so.

In a 2017 Fortune Magazine poll, interviewees were asked who was most at fault in the Opioid Epidemic. Drug users came out first, at 25%. Doctors came in second at 19%. The drug companies registered well below the answer “I don’t know”. With the recent busts of Doctors and Nurse practitioners, I venture to guess that if the question were asked today, Doctors would win in a landslide. This is troubling because it has the smell of political expediency.

Charges Against Doctors Are on a Rise

I have represented many doctors. Currently I represent two. As a result of my interaction with these clients, I have had to become involved in their methodology in treating patients. I think most people don’t know that, long after medical school ends Doctors are continuously instructed on how they should handle patient complaints. Decades ago, it was not uncommon for Doctors to sparingly dispense pain medication because they were advised by the FDA, AMA and through their continuing education that pain medication was for temporary relief. That changed for them.

Around 1995 a movement developed in the medical community that chastised Doctors for not paying attention to and treating patients with chronic pain. The organizations that Doctors listened to, including the AMA, instructed Doctors to consider pain a “5th vital sign”, and to treat it accordingly. Not coincidentally, this movement was joined and supported by the pharmaceutical companies that sold opioids. It became the common and accepted practice to prescribe medicines for pain, even chronic pain. This was considered good medicine.

My belief is that Doctors prescribing repeated doses of opioids will start being prosecuted, irrespective of their motivation for prescribing and whether or not a profit motive is involved. Some questionable pain clinics have been closed already, leaving their addicted patients on the street without their “fix”. The prosecution does not have the resources to treat those patients, even if they were inclined to do so. Where do these patients go?

What If the Pain Is Real?

It is an easy answer to state these patients should not be given pain medications at all. Some Doctors now refuse to prescribe pain meds for any patient, no matter how valid the complaint. However, patients seeking pain medication don’t come into the Doctor’s office and announce that they have recently been cut off from their pain pills because their clinic was closed. They have normal complaints. Back pain. Neck Pain. They describe in detail the symptoms for Fibromyalgia. A doctor can order an MRI and take blood tests, but ultimately they can’t be expected to assume a patient is lying. In fact, the vast majority isn’t lying, since their opioid addiction actually began with underlying and continuing pain. What is the compassionate response from a medical Doctor?

In fact, what should a Doctor do when he decides his patient has become dependent on his pain medication? Should he just cut her off? Most of the individuals who suggest this solution have absolutely no experience with the horrors of opioid withdrawal. There is a very good reason why an addicted person is willing to steal medications from a friend’s house or pay $80 for a Hydrocodone on the street. The pain of withdrawal, and the pain itself, requires it. Lets not forget that there are alternatives for the opioid addicted. Fentanyl and heroin are two of them.

If a patient refuses to detox and refuses treatment, what should be the best course of action for a Doctor? He could tell his patient he is on his own and cut him off. Some do. This virtually guarantees the Feds will not prosecute him, but leaves his patient on his own to take whatever means necessary to relieve his hideous withdrawal symptoms. If this patient buys his pills on the street, or turns to an illegal drug he will do so without any medical oversight.

There Is a Street Alternative of Prescription Painkillers : Heroin

Doctors may be in the cross hairs, but they are also caught in a Catch 22. Once told they were supposed to treat those who complained of pain, they are now told to ignore the pain of those who are addicted to opioids. And they are given no solution to this quagmire. Instead they are being vilified and probably facing prison time. The irony is the prosecution and public can ultimately defeat this opioid crisis by going after the Doctors, whether they over prescribed or not. Once the onslaught of prosecution begins, there won’t be a single legitimate Doctor that will dare prescribe an opioid for any purpose. Then the vacuum will be filled and we will have another crisis to deal with – that of opium based illegal drugs. The Doctors will be off the hook then, but none of us will be better off.

All About Pretrial Diversion | Ed Chernoff’s Blog

Everything You Need to Know About Pretrial Diversion Programs

By Ed Chernoff  | March 26, 2018

Pretrial Intervention is a contract with the prosecutor that feels a whole lot like probation. That’s the bad part. The good part is that the prosecutor’s responsibility is to dismiss the criminal action so long as the accused fulfills the probation like conditions for which he is responsible. There is no formal plea necessary.

And I do mean dismissal. The prosecutor fills out and signs a Motion to Dismiss and hands it to the Judge to sign. Said form is then handed to the clerk, who then files it for public disclosure. This is the holy grail of the criminal process. Nearly every single one of my clients hopes for this exact result. The only difference between a dismissal through pretrial diversion and a dismissal in any other circumstance is the timing. A dismissal through a pretrial diversion contract typically doesn’t happen until a year or more passes after the signing of the contract.

Why Is Pretrial Diversion So Popular Nowadays?

So, what’s not to love? Well, we will get to that. Pretrial Intervention is largely possible because the Texas Code of Criminal Procedure Art. 76.011 gives the Community Supervision and Corrections Department in each County the authority to administer such a program. What this means is that the county probation department can task their probation officers to meet with the accused monthly and make sure that all conditions of the contract are complied with, including drug tests, reporting, community service, etc. Hence, the probation feel of the program.

Pretrial Intervention also works because the Judges are willing to go along with it. The Judge doesn’t have to wait a year before a case in her court is resolved. In fact, several Judges in Harris County have refused such contracts in the past on what was espoused to be legal reasons, but upon closer inspection seemed a whole lot more like personal preferences.

Pretrial diversion programs have become the program du jour of several District Attorneys’ offices in Texas. The reasons are varied. Some counties are having particular problems with jail space. Some elected District Attorneys believe that first timers for certain crimes deserve a second chance. Some think that small amount drug possession should be treated differently than other crimes, especially if the possessor has a drug addiction.

Who Is Eligible for Pretrial Diversion?

Years ago, it took an act of Congress to get an assistant DA to offer a pretrial diversion. It often required a package of letters from the local clergy and a meeting with the elected District Attorney to get anyone to notice the request. Now some District Attorneys, like in Harris County, offer standard programs for crimes such as Possession of Marijuana, Shoplifting, Cocaine Possession and DWI. Some programs are easier than others. Harris County has a “reintegration court” where some first time drug possessors are instantly transferred after their first setting.

A person with a DWI may be considered for Pretrial Diversion. However, the counties that have these programs require jumping through some substantial hoops in order to get admitted. The bar keeps changing on this, but examples of facts that keep an accused out of this program is high breath or blood test, accidents or prior record. Even more hoops must be jumped through to stay in these DWI programs. The most onerous is that the interlock device must be installed and maintained through a substantial part of the contract term. Anybody who has ever had to blow into a tube every fifteen minutes to keep their car engine running knows what I am talking about when I say onerous. (I plan another blog post to discuss who actually benefits from these interlock devices.)

Marijuana and shoplifting pretrial diversion programs are less troublesome. Most of these contracts are short in duration and the conditions are limited to taking a class or two that are supposed to teach the offending person how bad it is to do such a crime. Drug pretrial programs are a little more extensive and are likely to involve some outpatient treatment and monthly drug testing.

In theory, any crime and anybody is eligible for pretrial diversion. For instance, Assault is one crime that I have often observed resolved by contract. Whether to offer pretrial diversion in any particular instance is up to the discretion of the chief DA of the court where the case is assigned. This sometimes takes a substantial amount of politicking and persuasion, which is another reason why it is important to make the right choice when hiring an attorney. In the vast majority of cases where I make a request for pretrial diversion, I prepare a packet of information along with my personal pitch for the contract.

So, Why Is It a Bad Idea to Ask for Pretrial Diversion?

So why not just always ask for pretrial diversion? First, it’s a really bad idea to ask for diversion if you are substantially sure that it will not be granted. To do so is to provide the DA with the entirety of your defense, including all of your mitigating evidence, when the case may wind up in trial.

The second reason? Pretrial Diversion is for guilty people. Most of the time, a Chief prosecutor will not entertain a pretrial diversion unless the accused admits in writing to committing the crime and requests forgiveness. This seems a reasonable demand, since such a confession suggests that the person has a certain moral compass and is less likely to commit another crime. However, what if the person didn’t actually commit the crime in the first place?

I have never once asked a client to admit to something he didn’t do. This is true for pleas of guilty and it is true for letters to prosecutors in a package for pretrial diversion. The criminal justice system would be bastardized if prosecutors finagled false confessions simply to provide justification for dismissals. If the accused didn’t do it, the prosecutor should dismiss. If not, that’s why we have jury trials.

Another reason not to ask for pretrial diversion? There might be an easier option than a contract. In cases where it appears pretrial diversion is likely, I prefer to try to negotiate a lesser option. For instance, I had a case two weeks ago where my client was charged with Possession of Marijuana at his school dorm room. I produced some spectacular school transcripts, which showed my client’s unusual dedication to his studies and the prosecutor agreed to dismiss with proof of 15 hours of community service. This was completed in a week’s time and the case was dismissed out of court. My client made one court appearance. We are now working on his expunction. I call this “super duper top secret probation”.

A Little More About Harassment | Ed Chernoff’s Blog

A Little More About Harassment

A Little More About Harassment
Harassment Laws Does Not Stop People from Arguing
How Many Text Messages Is Considered Harassment?
One Message Does Not Violate Harassment Laws

By Ed Chernoff  | March 16, 2018

The crime of Harassment in the State of Texas originates from a broadly constructed statute that prohibits various types of electronic communication intended or designed to annoy, harass, alarm, abuse, torment or embarrass the recipient. Among other activities, the statute specifically prohibits communications that are obscene, threaten physical injury or is “repeated” with the specific intent to annoy, etc. (Penal Code §42.07)

Harassment Laws Do Not Stop People from Arguing

Electronic communications covered under the statute include text messages, emails and other messaging applications. The statute does not prohibit face-to-face verbal confrontation; no matter how annoying, though threats could be made that would implicate other penal sections.

Generally speaking, the First Amendment to the United States Constitution will prohibit the State of Texas from unduly constricting a person’s right to say how he feels about another person. The statute cannot restrict or limit the ability of two people to argue, even if it is done predominantly by text message.

The crux of the statute is to prohibit communication that is not designed for mere communication but is instead intended to annoy, harass, alarm, etc. For instance, Harassment can be charged if the person leaves a message that is obscene. The First Amendment does not protect obscenity. Harassment can be charged if someone threatens bodily injury by electronic communication. The First Amendment does not protect “fighting words”.

In my experience, the gray area of the law comes into play when two people have a dispute through electronic communication and only one of them decides to continue the conversation. The sender of “repeated” SMS messages or emails might not be sending these messages with the “intent” to annoy, but if the recipient decides she is annoyed, police may be called out to investigate. (Ex-spouses with children always seen to be the most easily annoyed.)

How Many Text Messages Is Considered Harassment?

Two questions have to be answered in investigating and prosecuting these cases: 1) What did the sender intend by his messages?, and 2) What constitutes “repeated”? Naturally, both questions are easily answered if 200 identical messages were sent in one hour, but what about 10 different messages in an hour? What about 50 emails in 24 hours?

I have observed that there are two types of police officers who investigate these gray area cases. The first type tries to diffuse the situation prior to calling the DA. This officer will get hold of the sender of the messages and warn him or her that any future messaging will result in charges. If the sender continues messaging after this warning, intent is imputed and prosecution usually follows.

The second type of police officer merely looks at the messages on the phone, verifies that more than one message was sent and includes in his report that the complainant was “annoyed”. In other words, he does no investigation and sends the case on to the DA for filing. Sadly, these cases often get filed and are either dismissed or wind up in trial.

I have tried several of these cases and one of them only involved four total messages. My client sent these messages to her mother. The prosecution seemed to be enamored with the party’s back-story, whose relationship had clearly soured through the years. However, the back-story is only relevant if the intent of the repeated messaging was to annoy, etc. By any standard, I’m not sure how the prosecution thought that four messages in one 24 hour period could show an intention to annoy, no matter what was said. The jury agreed and acquitted my client.

One Message Does Not Violate Harassment Laws

I think that police and prosecutors are both confused by the element of the offense that requires that the repeated communications be sent “in a manner reasonably likely” to annoy, harass, alarm, abuse, torment or embarrass. They focus on the complainant’s specific annoyance without determining what a reasonable person would objectively consider annoying.

It should also be remembered that a party could send one very annoying and alarming text to another person, replete with nasty words and insults about his mother and still not violate the law of Harassment. The First Amendment still allows us to be angry idiots.

A Little More About Family Assault | Ed Chernoff’s Blog

A Little More About Assault of a Family Member

A Little More About Assault of a Family Member
How to Convince Prosecutor to Drop Charges?
What Can a Defense Attorney Do in Family Assault Cases?
What If the Complainant Does Not Show in Court?
Dismissal or Acquittal – Which Is Better?

By Ed Chernoff | March 16, 2018

At least once a week I receive a phone call from a girlfriend, wife or husband who regrets calling the police on their loved one and wants to know how to “drop” charges. I know what she wants. She wants to go back in time and erase the problem without having to deal with the court system or the expense of lawyers. I don’t blame her, but she knows what I’m going to tell her. Buy now it is well understood that only the State prosecutor can dismiss charges against someone charged with Assault. However, to be fair, that’s not the whole story.

How to Convince Prosecutor to Drop Charges?

It is not irrelevant to the prosecution that the aggrieved family member wants the case dismissed. They are not stupid. The State knows that they have a much better case when the complaining family member persists in his desire for prosecution. The last thing they want is to have to deal with a recalcitrant or difficult complainant. My experience has been that if the prosecutor has a good factual reason to dismiss an assault, and the complainant is on board with the dismissal, she will do so.

On the other hand, if in addition to the complainant’s statements to the 911 operator, the prosecutor has photographic evidence of physical injury or statements from third party witnesses, she is less likely to dismiss. The last thing she wants to do is dismiss an Assault case and it winds up biting her in the ass later when the abuse is repeated. However, even with that additional evidence it still does not mean that the case won’t ultimately be dismissed.

People caught up in the criminal justice system often get frustrated with prosecutors who refuse to dismiss because it sometimes appears they are trying to inject their personal beliefs about what is best for the family. In particular, a Magistrates Emergency Order of Protection can be horribly intrusive to a family with children, since it prohibits the accused from going back to the family home for 60 days.

But… let us look at it from the prosecutor’s perspective since it will be up to the prosecutor to dismiss when and if it is proper. What motivates the prosecutor? First and foremost, he wants to make sure that if violence occurred that it not be repeated.

Resolving this concern should be the first responsibility of the defense attorney. Obviously, if the defense can provide a reasonable argument as to why violence never actually took place, the decision to dismiss will be easier for the prosecutor. However, this is often a gray area, especially when the case involves an emotional plea for help to the 911 operator.

What Can a Defense Attorney Do in Family Assault Cases?

In my experience, there are other ways for a defense attorney to fill in the blanks on a case that will alleviate the concerns that a prosecutor may have. For instance, the prosecution usually has no idea what took place prior to the alleged act of violence. It may be that the smack that the family member complained of occurred as a result of previous violence against the accused. It is often the case that alcohol or infidelity was the fuel that ignited the argument and although both parties were involved in violent behavior, only one of them called the police.

The prosecutor has no real idea about the depth of the relationship between the parties. For instance, he will find it important that the parties have been married for twenty years with no prior difficulties, making the act complained of an aberration not likely to reoccur. Only the defense attorney can provide this information.

A complainant sometimes tells me that she lied to the police and wants to come clean. This puts me in a difficult position since I don’t represent the complainant. However, I do my best to admonish the complainant about the dangers of admitting to this lie. Although I have not known of a complainant in an Assault case charged with a false report to a police officer, the possibility exists. In these circumstances I usually tell the complainant to delay any further communication with the prosecution or law enforcement until I can review the offense report. If I feel like the complainant is in any danger I will advise them to get representation. Her lawyer can both protect her and help me facilitate the information where it is most helpful to my client.

What If the Complainant Does Not Show Up in Court?

Sometimes I am told by the complainant that she will not come to court when called to do so. I understand this philosophy. Her belief is that if she does not come to court, the case will be dismissed. This might be true. However, it is not always in my client’s best interest for her to refuse to come to court. A prosecutor does not have to dismiss simply because the complaining witness is not present. She is merely one witness and if he has other admissible evidence sufficient to proceed to the jury, he is permitted to do so. I can tell you from personal experience that it can be a frighteningly difficult task to defend a case when the complainant is not available and the prosecutor has third party witnesses that can describe the assault. Those third party witnesses have no idea what occurred prior to the assault, and in that vacuum the jury can be prone to attaching motive for the complainant’s absence that is not helpful to my client.

Dismissal or Acquittal – Which Is Better?

In 27 years, I have not lost a jury trial when my client was charged with Assault of a Family Member. However, that doesn’t mean I will continue to go undefeated. It is always better to resolve the case by dismissal and this should always be the paramount goal. I have worked out many more dismissals than acquittals. However, the way to do this isn’t for the defense attorney to thrust the complainant out to the prosecutorial wolves. He should use the complainant’s desire in a way that will achieve both her and his client’s goals.