A jury hearing a criminal embezzlement case for the first time, told that the defendant had confessed three separate times, would, according to many, be unwinnable. Todd Mensing won it, then shortly afterward won a two-week child custody jury trial in which the court-appointed advocate for the minor child was openly against Mensing’s client and advocated against Mensing’s client to the jury.
These two cases sit in different corners of Mensing’s record as a Houston trial lawyer. One came out of a Fortune 100 employee’s prosecution after an internal investigation produced three signed confessions, obtained by company security personnel and law enforcement officers. Another was a Texas family court matter Mensing took on for the Texas RioGrande Legal Aid Society on behalf of an indigent mother. What links them is the same defense move applied to different evidence: flipping the worst fact into the strongest one.
“Sometimes what appears to be your worst facts can be your best,” Mensing said.
The Three-Confession Embezzlement Case
A younger executive at a Fortune 100 company stood accused in State of Texas v. Petrie of running an embezzlement scheme. Before charges were filed, the company’s security team and law enforcement officers ran a parallel investigation. They came out with three separate confessions from the defendant, each obtained on a representation that cooperation would resolve the matter quietly.
It did not. The case went to trial.
Establishing that the confessions were coerced and unreliable was the defense team’s first hurdle. A jury walking in with the bare fact of three confessions starts the trial deep in the prosecution’s narrative. The prosecutors’ theory would be that whatever pressure existed, it could not produce three separate admissions from someone who was actually innocent.
Empirical record on false confessions complicates that intuition. The Innocence Project’s review of the first 375 post-conviction DNA exonerations found that false confessions, admissions, or guilty pleas appeared in 29 percent of the cases. In murder cases specifically, the rate rose to 61 percent. False Confessions, an advocacy and research organization drawing on studies by Steve Drizin and Richard Leo, has documented patterns in which multiple confessions to the same crime are obtained in roughly 30 percent of false-confession cases, with one confession used to prompt others.
For the defense, the question was how that empirical reality would be made to land with a particular jury hearing a particular case.
“When we started to get traction with the jury that the confessions were questionable, it flipped the entire dynamic of the trial, where it put the authorities on trial more than the defendant,” Mensing said. “The energy completely shifts in the courtroom if you’re able to take a worst fact and flip it on the other side, which is what we did here.”
Jurors returned a not-guilty verdict.
The post-trial reflection Mensing draws from the case is structural rather than tactical. Hardest facts in a defense case often look hardest because they have not been pressure-tested. Once the defense pressure-tests the way the confessions were obtained, the security team’s tactics, the inducements offered, and the disconnect between what the defendant said and what the documentary record supported, the same facts that opened the prosecution’s case began to undermine it.
A Child Custody Trial Against a Court-Appointed Advocate
That pattern repeated in a setting where most of the criminal-procedure machinery was absent. In re Xochiitil Trejo Whetzel was a two-week custody jury trial in Texas. The mother was the client. The father was the opposing party. A court-appointed ad litem wearing the mantle of the court’s authority and approval, and in theory neutral, had been assigned to represent the minor child’s interests.
Ad litem was openly on the side of the father.
That posture is, on its face, a structural disadvantage that ought to settle the case. Jurors who’re instructed to pay attention to a court-appointed advocate’s recommendation tend to do exactly that. Mensing’s reframing did not ignore the ad litem’s role. It attacked the role on two specific grounds.
“I attacked the bias of the ad litem in favor of the father, and I attacked the diligence to argue they were just taking a fee without doing the work they should have,” Mensing said. “Suddenly, our worst fact became one of our best facts because the people on the side of the father were now questionable to the jury. When your opponent takes a credibility hit, it contaminates the rest of their evidence and positions.”
That case turned on the same move that worked in the embezzlement trial: cross-examination architecture aimed at the credibility of the source rather than at the substance of the allegation. The mother prevailed on every issue. Mensing stepped into the case ten days before trial.
That trial also points to a dynamic Mensing has flagged repeatedly in his explanations of how jurors actually process evidence. When the defense can demonstrate that the strongest piece of the other side’s case rests on a witness or advocate with a motive to shape the record, jurors begin reweighting everything else that came from the same source.
Cross-Examination Architecture
What both cases share, beneath the obvious difference between a state criminal trial and a state family law proceeding, is the technical structure of how the defense built each cross-examination.
Mensing has talked about the pattern explicitly. With a witness who first appears credible to a jury, the defense cannot start hot. Aggressive opening cross-examination of a reasonable-appearing witness reads as bullying and tends to lock jurors deeper into the witness’s account. The opening pass has to be polite, slow, and aimed at strip-mining the witness’s stated certainty one detail at a time. Only after the credibility of the first layer has been broken can the cross turn assertive.
American Bar Association guidance on characterizing evidence in criminal trials emphasizes the same sequencing. Defense counsel benefits from establishing the foundation for adverse credibility findings before pressing on them directly, especially in cases where the witness is the state’s main piece of evidence.
In Petrie, that meant building out a picture of the inducements the security and law enforcement personnel had offered, the lack of corroboration in the documentary record, and the defendant’s profile as a younger, unsophisticated executive in his first encounter with corporate investigators. For Trejo Whetzel, it meant a paper trail showing the ad litem’s billed hours, the absence of independent investigation of the child’s circumstances, and the pattern of the ad litem’s recommendations tracking the father’s positions.
In both cases, the cross-examination established that the source had a reason to want a particular outcome and had cut corners to support it, without ever needing to argue that the witness or advocate was lying outright.
Why a Commercial Litigator Takes These Cases
Todd Mensing, a Chambers Band One-rated trial lawyer in Commercial Litigation, has tried more than 60 cases across state and federal courts, most of them complex commercial and intellectual property disputes. Criminal trials, like the indigent custody trials, are pro bono and paired with co-counsel from the criminal defense bar or family law bar. He estimates that his pro bono legal services across all categories total at least $1 million in donated services, with hours running into the thousands.
His professional logic for that allocation comes back to what each case taught him about cross-examination.
“Throughout my career, I’ve thought outside the box to get to trial as much as I possibly can and to hone my skills as a trial lawyer in all types of different settings,” Mensing said.
Cases that look unwinnable to outside observers, in his account, are where the cross-examination muscles get built. A case with one weak fact against the defense is a tactics drill. A case with three signed confessions or a court-appointed advocate working against the client is a stress test of whether the defense can reorganize the entire trial around the credibility of the opposing source.
The Pattern Todd Mensing, Trial Lawyer, Carries to Commercial Cases
Applicability is not abstract. AZA Law’s commercial practice routinely deals with evidence that initially appears to favor the other side: internal company emails that look bad, witness statements taken before counsel was retained, contract language that on its face supports the plaintiff’s reading.
Mensing’s commercial verdicts repeatedly reflect the same flip-the-worst-fact pattern. The defense team finds the cross-examination angle that turns the opposing party’s strongest evidence into a question about the witness’s reliability or the document’s provenance, and the energy in the courtroom shifts.
That is what the embezzlement trial and the custody trial document, in the absence of published opinions or press releases: a working theory of trial advocacy carried between dockets. Acquittal in Petrie and verdict for the mother in Trejo Whetzel are early instances of the same move that recurs across Mensing’s civil record.
“The energy completely shifts in the courtroom if you’re able to take a worst fact and flip it on the other side,” he said.
Two acquittals on facts most outside observers would have written off do not, on their own, prove a theory. They illustrate one. A defense lawyer who knows where to apply the pressure decides where the worst facts go.
