Monday, November 16, 2009

Will Scott Rothstein Get A Voluntary Surrender?

The public takes for granted when they hear that someone "surrendered to authorities."

Surrendering to authorities means that either there is a mature, experienced agent or police officer on the case, or that heavy negotiations took place, or that there's some pissed off cop who didn'tget a chance to have his "fun."

I say "fun" because recently I asked for a voluntary surrender for a client and was told by the officer: "well, making those 6:30 a.m. arrests are really the only fun we have anymore."

There is no policy for voluntary surrenders, a topic about which I previously wrote.

Recently I developed my own policy after a client who answered some questions in an effort to cooperate with a federal agent was picked up 2 years later at 5:30 a.m. because the prosecutor rejected the agent's request for a voluntary surrender.

My new policy is that if a client chooses to cooperate, there will be an agreement to a voluntary surrender, first. None of that "lets see how it goes." You're holding jail over my client's head already, no need to hold scaring the shit out of his kids and embarrassing him in his neighborhood over his head.

So back to the question: Will Scott Rothstein get a voluntary surrender?

He should.

As there is no policy, let me suggest we formalize one. One that prosecutors will probably say they already use. It's just a series of questions:

[1] Is the suspect aware of the investigation?

[2] Has the suspect cooperated?

[3] Has the suspect hired a lawyer? (This is not to put a suspect with money to hire a lawyer in a better place than a poor suspect, it's just one factor.)

[4] Has the suspect done anything to avoid the possibility of arrest? (Morocco?)

[5] Are the suspect's whereabouts known?

[6] Is there any evidence that the suspect will flee if asked to surrender?

Each of these are one factor to take into consideration. A balancing test (we in the criminal justice system all know about balancing tests) is done and a decision is made.

The problem is that recently I hear from the prosecutor: "I don't get involved in that. I don't want to interfere with the agent's/officer's investigation.


Rothstein left the country. He came back. He has a lawyer who seemingly is in communication with the feds. Yes, his client is in an "undisclosed location," but I surmise the feds know the location. I trust Rothstein knows he will be arrested at some point and I trust if the feds felt he was still a flight risk they would file a complaint and have him picked up with an outrageous bond.

So I think the deal is done. Maybe it was done before he came back from Morocco.

The "perp walk" satisfies several purient interests. It allows law enforcement to do the early morning stake out, it allows the public to see a hated man walk in handcuffs, and that bodes well for, well, I have no idea.

So I think he gets his voluntary surrender, and in the end, it really doesn't change anything except to show our ability to be professional.

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

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