Tuesday, December 15, 2009

A Voluntary Surrender Becomes Another 6 a.m. Knock On The Door

A little while ago, while dreaming about nothing, thinking about nothing, and enjoying a rare sleep past 4 or 5 a.m., I heard it - the slight vibration on my nightstand.

The caller ID said it all.

It was the client promised a voluntary surrender months ago, weeks ago, and hours ago when the prosecutor called me yesterday late afternoon to say "it's time."

We agreed that this middle aged man charged with "white-collar" fraud would today walk himself into the jail at 11 a.m. It was all he wanted from the beginning of the representation. He knew he would be arrested, and he just wanted to surrender. From day one my first conversation with the prosecutor ended with "of course, no problem."

At least he now got a free ride, I guess.

Faithful readers of this blog, and those who spend more than 5 minutes with me talking about the criminal justice system know that this is a major pet-peeve of mine.

This time, I don't blame the prosecutor, I blame the cops.

Rule #1 or maybe 2 in criminal law is that when there is a warrant, there is an arrest. There is no explaining that it was issued in error, there is no nothing. A warrant means an arrest, period. In 15 years I've only had one client not arrested on a warrant (that I can remember) and it was a juvenile whose case was dismissed, and instead of that being entered into the record, a warrant issued and the cop was kind enough to give me a couple hours to go to court to clear it up with the judge.

But that was it.

This morning was the typical mindless script:

Cops come to door, client jumps in shower. Wife runs downstairs with me on the phone and says "he knows he's being arrested, he was told by the prosecutor (whose name is mentioned) to be at the jail at 11 a.m. We know the bond is $______, can you talk to his lawyer, he's on the phone?

The response was equally mindless: Deny knowledge of name of prosecutor (whose been there for many years and is well known), announce that "we have an order from a judge to arrest him," ignore that the person on the cell phone seems to know a great deal about this, (including when the cop said "the bond is," the wife said the exact amount), and at 6 a.m. is likely actually a real, living and breathing defense lawyer, and refuse to speak to me.

The cops relied on the rules, and to them, I'm just some scumbag defense lawyer who is trying to break them - probably trying to see if I can get my client out of the country on a case that he's known about for months and hasn't as much left his neighborhood.

So today will go like this: My client will get out, the prosecutor will apologize and tell me he never meant for that to happen. He may even contact the Sheriff's department, but probably not. No need to ruffle feathers with your friends. I'll write a letter to the Sheriff which, if responded to, will say that "I must understand" the seriousness of the task, and basically everyone will point fingers, if they even bother to use the energy to do so. Someone got arrested today, someone is in jail, that's all that matters. The public is "safer" because my client was picked up 5 hours before turning himself in.

It seems like the more I practice, the less I get this voluntary surrender down to a science. We live in an endless bureaucracy of "nobody told me," and "I didn't get the memo," and those will be the excuses that fly today.

And so recently I've begun to counsel clients to forget about voluntary surrenders and worry more about the case. Cops and prosecutors use voluntary surrenders as leverage and if the client "doesn't care," the leverage is gone. If the voluntary surrender happens - great. If not, let's move on.

Everyone did their "job" today. The prosecutor agreed to the surrender, the cops made their 6 a.m. arrest. The human component of all of this is buried under notions of defendant's fleeing the country, and an unwillingness to trust anyone, or even listen.

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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