A blog by Miami Criminal Defense Lawyer Brian Tannebaum. Commenting on criminal law issues of local and national interest.

Saturday, March 21, 2009

Solo Criminal Defense Out of Law School, And Other Dumb Ass Ideas

Been gone for 10 days. Anyone notice? Actually got some work done. Stepping away from daily blogging gives me a great deal of respect for people who do it everyday as a matter of course.

Now that the shock of Madoff remaining in jail has worn off (yawn), I report this question on twitter that struck fear in all competent criminal defense lawyers around the country, or the blawgosphere, if we're being honest.

"Is it normal for someone who just graduated law school and passed the bar to practice solo criminal defense and still live with his parents?"

My response: "anyone who just passed the bar shouldn't be doing solo criminal defense, can't speak for living with parents."

To those in criminal defense, and others practicing law, I'm right. To those outside the legal profession, I'm just stifling competition, fearing my client base dwindling, and trying to keep the criminal bar from growing.

There has always been a perception that criminal defense is "easy." We don't produce mounds of paper like civil lawyers (a notion that is correct for those who have never handled a white-collar case), in many states there are no depositions in criminal cases (reading some civil depos lately makes me wonder why they don't ban depos there. Thirty-five pages of "objection to the form" seems a bit wasteful), and most of the cases resolve with a guilty plea in court shortly after the initial appearance or arraignment.

I'll never forget one of my first encounters with a civil lawyer in a criminal case. I was deposing the victim of a DUI accident. During a break he said "so what do you do, just go to court and plead these cases out?" "No, I take depos, prepare motions, fight them until I get a good offer or the jury comes back." I remember the look on his face was as if I asked him the square root of 48905.

When I talk to young lawyers who say "maybe I'll do criminal defense," I often hear "yeah, I'll just take misdemeanors and minor ("minor") felonies."

What they intend to do is go to court one time, get the state's first offer, and convince the client that they should take it. What a great lawyer. When they realize that some clients understand that jail is probably not an option, that same young hungry lawyer tells them that jail is a "possibility." I tell those same clients that jail is a "possibility" like the possibility of death from a tooth extraction.

I have a title for these lawyers.


They have manila files, with the fee written on the inside cover. Sometimes the payments made are listed, and maybe a cell number for the client. There may be a paper of two stuck in there as well. Their fees, minuscule, commiserate with the time they put into the case.

In the last 2 weeks, 3 clients have called me to see if I could reopen their cases, misdemeanor and felony. I can't. I expect more to come.

I believe to practice criminal defense a newly minted law student should be required to do one of three things: be a prosecutor, be a public defender, "clerk" with a practicing criminal defense lawyer who's been practicing criminal defense at least five years.

That though, is a pipe dream. Clients are entitled to the lawyer of their choice, and if they want it to be someone who's ink on their law degree is not dry yet, they can have that lawyer.

And yes, I know, across the country prosecutor and public defender offices have hiring freezes. So go find a criminal lawyer to work with. They're not hiring either, or you just think you're worth $100,000?

Over the next few months, I expect more laid off civil lawyers and newly minted lawyers to walk into criminal court, where it's "easy." I expect them to get lots and lots of clients who don't know any better and are attracted by the notion of a criminal defense lawyer for $500.

I look forward to talking with these clients about their experiences when they come whining to me about their imminent deportation, their job loss, benefit loss, or just pure stupidity, all assisted by a lawyer who wasn't good enough to admit they had no idea what they were doing.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com


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Wednesday, March 11, 2009

Mistrial: Jurors On The Internet

Although we hear time after time that a jury verdict of "guilty" means the defendant "did it," we know otherwise. Too many people have been exonerated after a guilty verdict for us to continue to believe that if 6 or 12 people decide to check the "guilty" box it means anything other than that they "believe" he did it.

We expect jurors to rely only on the evidence presented at trial, but we know that is not the case. Jurors bring with them the government cradled "common sense," and their own history. Jurors say they will be fair, that they will rely only on the evidence presented at trial, that they understand the lawyers are not on trial, and all that other good stuff.

Then they go on the internet.

A mistrial was granted in a complex federal case this week because of the internet.

Luckily, a juror brought it to the judge's attention.

This juror advised that another juror talked about evidence not presented at trial. He said he knew more about the case. He said he read about it, on the internet.

The offending juror said it wasn't true, and then under the eye of the federal judge, admitted the truth.

This led to the other jurors being questioned.

Many others admitted they searched the internet about the case, and the lawyers.

They did this during the trial, and during deliberations.

This is one trial. I imagine it goes on in hundreds across the country.

This issue brings to light questions about what jurors really consider in their deliberations. We in the system know it is more than the evidence, we now know it's google, facebook, blogs, websites, and anything else posted on the information superhighway.

We used to tell jurors not to watch TV or read the papers. Now with those mediums going away, all that is left is where I am right now, the internet.

This issue raises more issues. With TV and newspapers, jurors were possibly tainted by the reporters view of the case, but the information was limited to whatever was said with a microphone in front of the courthouse, or column space.

Now, jurors can read comments left on blogs and newspaper sites, personal information about the lawyers and maybe the judge. The information is everywhere and accessible on cell phones while jurors are in the bathroom.

Think about this if you are a trial lawyer, what is on the internet about you? What have you written? (Oh shit). What has been written about you? Can you control it? No.

Can you control the jurors?

Probably not.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com


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Sunday, March 08, 2009

I Don't Live In A Small Town

Practicing criminal law in Miami, like any other big city, numbs lawyers. I realized this last week when I took a drive 2 ½ hours north to Ft. Pierce, Florida for a hearing in federal court.

I was in Green Cove Springs and Sebring, Florida, but those stories are nothing to write about except to summarize them as “home towned.” For those non-lawyers, “home towned” means being treated as if you are in fact not from the current town you are in and being made to feel that leaving soon is in your best interest.

But back to Ft. Pierce last week.

My client was scheduled for both a first appearance and change of plea. This was a so-called “Rule 20” proceeding where my client had already worked out a deal in another state and the Government agreed to let him actually take the plea here in Florida.

Federal court, being the formal setting for criminal practitioners as opposed to state court, would still require a first appearance hearing, change of plea hearing, and sentencing hearing.

First appearance was at 9:30 before the magistrate, change of plea at 1:00 before the district judge, and I’d be home for dinner after leaving Miami at 5:45 am. Long day.

Then, the day before, an unsolicited order is issued. The magistrate will do both the first appearance and the change of plea at 9:30 a.m. I may be home for a late lunch.

The day before the hearing I also receive a call from a probation officer. She let me know if I arrived a half hour early she would interview my client for his “pre-trial services report,” and asked if I’d like to do the pre-sentence investigation report interview right after the plea. Usually these are scheduled a couple weeks after the plea, and I’d have to drive back up or appear by phone.

“Absolutely,” I say.

I asked her about the judge and she gave me some important advice, mainly to be on time. In federal court you are either on time or dead. I asked her how big the calendar was, and she responded “you’re the only case.”

Next morning: destination Ft. Pierce.

I arrive at the federal courthouse, which is the size of my local neighborhood library. There’s one car in the parking lot.

My client and I meet across the street at the only place open for breakfast. A place that doubles as a local gift shop and post office. I am overdressed, and even in my specifically chosen drab brown suit, white shirt, and blue tie, garner the attention of the locals. I brought back a souvenir, the above picture taken on my Blackberry.

After toast on a paper plate and as much coffee as I was willing to grab from the machine “over there,” I head to the other corner of the block and into the federal courthouse.

I see the familiar grey pants and blue jackets holding the Motorola radios and hand over the required ID. They are asking me to stop emptying my pockets and take my “stuff” off the security machine. Apparently the fact that I am a lawyer is significant here.

I head in to the courtroom, there’s only two, and see a lady reading a book. That’s code for “court reporter.” She says hello. In comes my probation officer and we go into a room outside the courtroom and do the interview, which was more like a conversation with a smattering of laughter. She advises she will also be doing the post-plea pre-sentence investigation interview.

I walk beck in the courtroom and there’s a couple other lawyers there and a defendant in prison clothes. The clerk gets up from her chair, looks at me, smiles, and says “you must be Mr. Tannebaum.” She walks over and we chat about procedure.

In comes the prosecutor, who initially introduces herself with her first name. No formalities here. The rest of the morning she said nothing except to advise the judge that she was in agreement with me on a bond amount.

I realize there are two other matters on the calendar and that 9:30 is hopeful. That was quickly contradicted by the judge taking the bench at 9:15.

The first defendant understood about half of what he said and asked him to repeat himself, which he did, every time he was asked, without the hint of impatience.

My hearing ran like a machine, the judge even granting my client some liberal travel restrictions. The judge wasn’t chummy, overly friendly, edgy, looking for one misstep, or appearing as if he hated his job. He was a federal judge in the sense of what any lawyer on either side would want and expect in a federal judge.

After, the Marshals appeared in the courtroom to take my client 50 feet away for “processing.” I asked “how long,” and was told “about an hour or less.”

While waiting for my client, the clerk walked out of her office and asked me if everything went ok and if I needed anything. She wanted to know if it was my first time in Ft. Pierce.

Twenty minutes later, my client appeared, interrupting my chat with the probation officer and one of the court security officers about the local town, and the history of Connecticut politics. (Court security officer was a motorcycle cop in the old days up there in Bridgeport and didn’t think telling me that would be a violation of national security) We reconvened for the pre-sentence investigation interview. There were more questions, more laughter, and offers to accommodate my client in some of his obligations.

And that was it.

On my way out, I told my court security friend that I’d see him in May for sentencing. He responded: “That’s a deal.”

I’ve often wondered what it must be like to practice in a small town every day. Perks, downfalls.

To me it was just interesting. It was worth the drive.

I was treated like a lawyer, not a spoke in the wheel, at least for one day.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com


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Sunday, March 01, 2009

Florida's Solution To The Depression: Criminal Justice Legislation

Tuesday (March 3) marks the beginning of the 2009 legislative session.

On Floridians minds?



Health Care

Homeowner's Insurance

Property Taxes

Paying the next bill

Keeping their homes

Living a normal life

Not to worry, Tuesday Florida's legislature gets to work.

They know better though. All of these priorities pale in comparison to what we all really need:

More criminal justice legislation.

Our wildly popular Governor has made it clear:

"Nothing is more important than protecting the safety of Floridians."

See, here's the rub: criminal justice legislation is easy. Make a misdemeanor a felony, increase a penalty, create a new offense, give prosecutors and police more unbridled power to search, seize, arrest, file, prosecute, convict, and you get the prize - the right to stay in office. Remember that the goal in public office is not to foster change or say what people need to hear, at least in Florida, it's....public safety.

Pay no attention to the fact that the Florida Prosecuting Attorney's Association has pleaded with the legislature not to pass any legislation that creates any new offenses. They know better. John and Mary Public are not interested in any of the priorities listed above, they just want more criminal offenses. That will solve.....well.....something I guess.

Here's three examples of Florida's path to recovery:

Authorizing arrest without warrant when a law enforcement officer has probable cause to believe that individual has committed act of driving under influence or unlawfully exhibited his or her sexual organs in public, allowing state attorney investigators to give traffic tickets, and allowing security guards to detain and search individuals.

There's more. More minimum mandatories, more criminal offenses. Just another year.

Now I'm not in public office, and no, I'm not in a position to have to pacify the public, drunk on law & order. I'm on the ground, and I know that most if not every person I speak to is concerned about the economy.

Can't Florida Legislators do what they do in past years? Listen to what the prosecutors want, and do it? Just leave criminal justice be for a year?

The answer is no. The other problems, too difficult to solve, and as a result, not on the agenda. In Florida, House of Representative members run every two years. Our real problems can't be solved in a year or two. Criminal Justice can be tinkered with, and easily modified.

How is one supposed to run for election on the notion that they are working on solving big problems?

Who wants to hear that?

Anyone in Florida want to hear that?


Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com


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