Trick or Treat: Scary Criminal Justice Statistics

From on of the various fact sheets on the website of Families Against Mandatory Minimums:

Race and mandatory sentences

Prison populations

•One in 20 African American men over the age of 18 is in state or federal prison, compared to one in 180 white men.

•Two-thirds of the 2 million Americans in jail or prison are African American or Hispanic.

•In 2001 the lifetime chances of going to prison were highest among black males (32.2 percent) and Hispanic males (17.2 percent) and lowest among white males (5.9 percent).

•At the end of 2003, black prisoners made up an estimated 44 percent of all federal and state prisoners with sentences of more than one year. White prisoners accounted for 35 percent, and Hispanic prisoners 19 percent. (Prisoners in 2003, Bureau of Justice Statistics)

Drug offenses

•African Americans make up approximately 12 percent of the population and are 13 percent of the drug users, yet they constitute 38 percent of all drug arrests and 59 percent of those convicted of drug offenses.

•Nationwide African American males sentenced in state courts on drug felonies receive prison sentences 52 percent of the time, while white males are sentenced to prison 34 percent of the time.

•In 10 states African American men are sent to state prison on drug charges at rates that are 27 to 57 times greater than those of white men in the same state.

•When sentenced for drug offenses in state courts, whites serve an average of 27 months and blacks an average of 46 months.

•African Americans are 59 percent of those convicted of drug offenses but, since they are less likely to strike a favorable plea bargain with prosecutors, are 74 percent of those sentenced to prison for a drug offense.

Enjoy the candy.

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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Criminal Defense Brethren: The 11th Circuit Says "No" On The Ben Kuehne Case

If he hasn't already, my good friend David O. Markus will certainly blog the result in the Ben Kuehne case handed down today in the 11th Circuit. An opinion from a case of first impression in the 11th circuit on the issue of the exemption of section 1957 (f)(1) for criminal defense fees.

If you are a criminal defense lawyer and do not know about this case, well, you're not really a criminal defense lawyer. Maybe you just play one on the internet.

The court found the "plain meaning of the exemption set forth in §1957(f)(1), when considered in its context, is that transactions involving criminally derived proceeds are exempt from the prohibitions of § 1957(a) when they are for the purpose of securing legal representation to which an accused is entitled under the Sixth Amendment. Accordingly, the exemption is limited to attorneys’ fees paid for representation guaranteed by the Sixth Amendment in a criminal proceeding and does not extend to attorneys’ fees paid for other purposes."

My favorite part of any criminal appellate opinion these days is references like this: "See U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense)."

As if the system needs to be reminded.

The Government argued in this appeal "that the exemption in §1957(f)(1) has been nullified or vitiated because, shortly after the provision was enacted, the Supreme Court held in Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 626 (1989) that the Sixth Amendment right to counsel does not protect the right of a criminal defendant to use criminally derived proceeds for legal fees."

But the 11th Circuit had to remind the Gubmint that the cited case: "addresses a different statute governing the civil forfeiture of criminally derived proceeds," and "has no bearing on § 1957(f)(1).

Oh, ok.

The court further reminded the Government that the cited case: "held simply that Congress may require the forfeiture of criminally derived proceeds, even if those proceeds are used for legal representation, without running afoul of the Sixth Amendment right to counsel.

And the death knell to the Government's attempt to jail this prominent member of the Bar: "It would therefore make little sense—and would be entirely superfluous—to read § 1957(f)(1) as an exemption from criminal penalties for non-tainted proceeds spent on legal representation, as those funds can always be used for any legal purpose. We do not believe Congress intended such an absurd result, which nullifies the provision and divorces it from its statutory context, thereby violating basic canons of statutory construction.

The 11th Circuit spoke in plainly, referring to the Government's argument by describing it as a "rocky premise," and an "implausible interpretation," of Congress’s belief at the time it drafted § 1957(f)(1).

The ruling is not just an affirmation, but states that the district court was "eminently correct in holding that Defendants are not subject to criminal prosecution under § 1957(a), because the plain language of §1957(f)(1) clearly exempts criminally derived proceeds used to secure legal representation to which an accused is entitled under the Sixth Amendment."

While I think that ends things for Ben on this topic in this prosecution, I'm not at all convinced the Government is done with us.

Not at all.

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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Senator Grassley Slams DOJ's Medical Grass Policy

It's typical in this country to say we're fighting 2 wars - Iraq and Afghanistan. We're actually fighting dozens of "wars." Today I heard someone speaking so passionately about the increase in violence against women that she actually said we are "losing the war on women" in this country. I'm sure that's not what she meant. Maybe she did.

So we have this war on drugs. Depending on who you talk to, we're winning, or miserably failing. Most people in the criminal justice system, conservatives and liberals, think we're wasting our time on the wrong people.

So DOJ decides to prioritize the war on drugs. Imagine that. It is decided that prosecuting the medical marijuana crowd (those who prescribe and use marijuana where it is legal for medical purposes) will no longer be a priority.

It's a step in the right direction.

Unless you're Senator Charles Grassley.

He's from, well, Iowa. Here's his website with a good picture of Iowa

Here's his talking points (targeted at complete morons who are led to believe that marijuana is the beginning of terrorism) “I think that marijuana is a gateway to harder drug use,” Grassley said. “Medical marijuana brings a certain amount of legitimacy to an illegal drug, even though it attempts to do it in a legal way. We have a federal law that is intended to outlaw its use. That federal law ought to be enforced. It was enforced in the previous administration and I think having a national program against drug use is very, very important.”

Yes, even a national program against legal drug use for people who legally use drugs to kill pain because legitimate doctors believe it is good for them.

Grassley said that while some of the people who produce and distribute marijuana may be law-abiding citizens in the eyes of their state, people should not forget that “most of the marijuana that flows into the United States comes from the drug lords.”

Funny, I hear about a lot of it being grown here.

Senator Grassley, enough. In order to "win" the war on drugs, we need to target importers and high-level dealers.

Even your constituents don't think that arresting people who are writhing in pain and about to die is of any use.

Now let's move on.

Go oppose some other new idea that may change the focus of law enforcement for the better.

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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When Our System Confronts Pure Tragedy

Yesterday in Miami, Ronald Salazar was sentenced to two consecutive life sentences for rape and first degree murder. The story is here.

I assume somewhere else in the world yesterday, some defendant or two, or more, were sentenced to life terms for murder, rape, kidnapping. It is what our system was meant to do, take violent criminels off the streets so they can never commit what we deem the most serious crimes, again.

Our system has evolved though. We now send people to prison for life if they've sold too much drugs, or have committed too many other types of crimes. Life in prison is no longer reserved for those that have killed, or almost killed.

Everyday our system confronts crime. Car theft, credit card fraud, mortgage fraud, and other personal and property crimes. Prosecutors hand out jail sentences, argue for no bond, and our system further blurs the lines between those who belong in jail, and those who don't.

Ronald Salazar was 14 when he raped and murdered his sister. His parents did not hire a lawyer for him nor support him through the process. I'm not blaming them, just stating this as a fact. He tried to put on an insanity defense, but his post-crime activities didn't convince the jury that he didn't know what he was doing. The prosecutor assigned, was one of the most senior homicide prosecutors in the state attorney's office. I wasn't there for the trial, so I can't say whether Mr. Salazar has a shot on appeal. Most defendants don't.

The trial was not a circus, or a media spectacle. The story mentions a nearly empty gallery at the reading of the verdict.

This, to me, is one of the most tragic cases I've seen. It defines pure tragedy. These parents have lost a daughter and will live the rest of their lives knowing their son is in prison. With no parole in Florida Mr. Salazar knows now, at the age of 19, that barring a successful appeal, he will eventually die in prison.

I saw no post-trial press conference by either side, no inflammatory comments, no sense of joy in the community, or concern that a 19 year old will die in prison.
This, is how we confront pure tragedy. Quietly, professionally, and without any sense of satisfaction.

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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Letterman Extortionist Lawyer Bombs on Today Show, says People Magazine

Visit msnbc.com for Breaking News, World News, and News about the Economy

Why would a lawyer turn down an invitation to go on the Today Show?

Just think, you go on the Today Show, get to meet Matt, Meredith, Ann, and Al, maybe a couple celebrities in the green room, and then, after your interview, get all those emails and phone calls: "Hey! Saw you on the TODAY SHOW! Awesome!."

This can lead to: "you should hire him, I saw that dude on the Today Show!" It also adds a nice touch to the website: "As seen on the Today Show."

But there's that moment when lawyers grow up, we hope.

Eight years ago I accepted an invitation to appear on national television. I was appointed to represent a high profile defendant that CNN named the most important case of 2003. After one appearance, I realized the most important question a lawyer should ask before appearing on national TV, or even giving an interview to the local paper:

"Does it benefit the client?"

I can hear it now: "The client?" "Dude, I'm going to be on national television! The calls will come pouring in to my office."

Exactly: Does it benefit the client?

I haven't appeared on national television in almost 5 years. Not for a lack of invitation, but for asking that question.

Yesterday's interview (above) with the lawyer for the accused extortionist of David Letterman, reaffirmed my philosophy.

He bombed. Ann Curry embarrassed him. But hey, then he made much more news, like on the website for People Magazine

When Curry pointed out that his client had cashed a $2 million check and had been recorded on a detective's wire, Shargel's response was to say, "I've been at this a long time." He also talked up Halderman's 20-year career as a respected TV producer and mentioned the name of Dan Rather, though it was not clear how the former CBS News anchor is relevant to this case.

Curry defined the moment: "I'm giving you access to media this morning and you are not giving your client's side of the story."

So I wonder. On the way to the Today Show in the back of the limo, what was this lawyer thinking? He's been a lawyer for 40 years. No question he knew what the questions would be, and knew he wouldn't answer them.

So why go on the show? Scott Greenfield asks the same question.

The answer is typically that the client is getting killed in the media, especially when the alleged victim is the "king of late night," and the lawyer should equally defend the client in public.

Can't argue with that.

But that's not what happened.

What happened was the lawyer got the national stage, and did nothing for his client.

I wonder if he got to hang out with Matt. I like Matt.

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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Roman Polanski, Criminal

Roman Polanski is a beloved film director who survived the Holocaust and suffered further horror as his wife was murdered by arguably the worst criminal "family" in the history of the world, the Mansons.

In 1977 he plead guilty to having sex with a 13 year old. Prior to sentencing, he fled the United States.

So what am I missing?

There appears to be three arguments going on in favor of Polanski. (1) he has had a rough life, (2) there are mitigating factors favoring dismissal of the warrant, such as the United States lack of dilligence in attempting to bring him back, and (3) someone re-neged on the deal he made, therefore justifying his fleeing the country.

Now that the dust has settled and the idiots have said their peace, let's talk reality.

I've only been practicing criminal defense for 15 years, but I am comfortable saying that there is no legal justification for fleeing the country prior to sentencing.

The argument from Polanski's supporters appears to be "c'mon, leave the guy alone, it was over 30 years ago."

Well, there's legal precedent for that. The government cannot just "sit" on a warrant and make no attempt to arrest the defendant while his whereabouts are known. Warrants get "stale." You snooze, you lose.

Sometimes.

But not in this case. Polanski was in places, carefully chosen, that do not permit extradition. The only thing the government could have done was to lure Polanski to another country or effectively "kidnap" him.

See folks, warrants don't just go away. I just had a friend deported who was convicted over 20 years ago. He was ordered deported after his conviction. After he left prison, he lived openly under his real name, started a business, even got an American Express card. A few months ago at 6 a.m. ICE came and took him to Jamaica. his wife's still here. No one cares.

I agree with "you snooze you lose." Unfortunately, that's not generally how it works, especially post conviction.

If Roman Polanski got a raw deal or believes the warrant is "stale," or has some other legal argument why he had the right to flee, he should make it, in court, in America. I trust he has outstanding lawyers in America making every argument they can at this point. I trust their investigators have spoken with the victim and everyone else associated with the case to attempt some resolution.

I just know when I represent clients in these types of situations, most prosecutors say "when he comes back, we'll talk."

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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