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

Sunday, December 12, 2010

Anyone Available To Cover?

Matt Brown over at Chandler Criminal Defense laments the crappy, lazy, too busy to represent their clients, lawyers who have their own definition of "coverage."

He recalls his early days of practice:

When I first started out, other attorneys would regularly take advantage of my willingness to help out. I was eager to meet lawyers and get into court. Other lawyers were eager to avoid work. Lawyers who had the same tribal indigent defense contract I did would ask me to cover hearings and tell me the hearings were just simple continuances. The clients were pissed no one visited them, judges were mad the defense had blown deadlines, and prosecutors were frustrated that the defense hadn’t returned their calls. One lawyer asked me to cover what she said was “a dismissal.” I appeared and it was a bench trial. She thought the victim wouldn’t show and it would just get dismissed. She thought wrong, and I was like a deer in headlights.

Criminal defense lawyers who are members of e-mail listservs know all too well the everyday occurrence of this:

"Is anyone going to be in (name courthouse) tomorrow?"

Or with the economy causing lawyers to take cases hundreds of miles away from home:

"Can anyone cover a case (name city at least 150 miles away) tomorrow at 9:30? It's the first pre-trial conference, just need a continuance, thanks."

Matt's post goes in to detail regarding one hearing he covered that turned in to a "disaster." Those of us who have covered know about these "disasters" all too well.

I caused a disaster for a lawyer once. I went out of town. (Rule #1 for criminal defense lawyers - you cannot go out of town when anything is set for court, period. It does not matter what is set. If you are not there, something will go wrong. Guaranteed.) A client was set for trial. There was some sense the victim was not going to appear and the case was going to be dismissed. The client made clear that if the victim appeared, he would enter a plea of guilty. The victim appeared, and the client changed his mind. My "coverage" lawyer spent 4 days in trial before the case was eventually dismissed. Yeah, terrible.

Matt Brown says: I can’t just refuse to help out other lawyers when they really need it. If I know they’re incompetent or unethical or there’s something else wrong with them, the case, or the situation in general, I say no. I have no problem disappointing people when it’s necessary. What happens when the lawyer asking me for a favor is an unknown though? Do I only help lawyers when I’m familiar with their work? How familiar? Or do I help anyone unless I have reason to believe they suck? Should I help anyone regardless of my opinion of their lawyering so long as they haven’t thrown me into a crappy situation in the past?

You're a good guy Matt, but you need to draw a line when it comes to stepping up to a podium to advocate for a client - even if it's not your client - especially if it's not your client.

First, never cover a "critical" hearing for a lawyer. I'll cover your motion for continuance, or "status" report. (or whatever you call a "judge, I'm here to advise the court that...... hearing). I will not take a plea for you. Most lawyers worth anything would never ask another lawyer to cover a plea - too many things can go wrong, like the client can decide not to plea and the judge can announce that a jury panel is coming down now and you are trying the case.

Second, I will not cover for those lawyers who, as a practice, take cases all over the state with the knowledge that they can seek coverage all the time. If you want to take a case 300 miles away, that's what we have airports and expressways for, not e-mail listservs. It's the same lawyers, sending the same e-mails, all the time. If you can't make money practicing close to home - move.

Finally, I'm not covering for shitty lawyers. Chances are, you're not telling me the whole story, like that your client is routinely late, brings his girlfriend and screaming baby in a stroller to every hearing, or will keep me outside in the hallway for 20 minutes asking me questions I can't answer. If I don't respect you as a lawyer, I'm not entering a courtroom and announcing that I know you.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer.Share/Save/Bookmarkokdork.com rules Post to Twitter

Thursday, December 09, 2010

Judge Roberto Pineiro

Judge Roberto Pineiro died today. He was 56. He had a stroke.

The death of a judge is a unique experience for a courtroom lawyer. Courthouses are like small cities, full of different types of people with different reputations among the various practitioners. There are "good" judges, there are "terrible" judges, there are judges that make people wonder how they ever became judges, there are judges who are "fine," or "OK," and there are "great" judges.

Rob Pineiro was a great judge.

I knew him as a intensely fair man who could spot bullshit better than anyone on the bench. Reading comments on various websites from both defense lawyers and prosecutors alike, I am not alone in my opinion.

That is how you determine whether a judge is "great" - when lawyers on both sides of the courtroom have the same high opinion. It indicates a judge who plays no favorites, allows people to be heard, and does the right thing.

Judge Pineiro's death is sad because he was young and well liked, but it is tragic because those that practiced in front of him all felt like they were in a courtroom where justice was doled out. I read comments today from prosecutors who often lost in his courtroom, and from defense lawyers whose clients received lengthy sentences. All comments included a deep affection for Judge Pineiro.

Judge Pineiro was famous for his involvement in resolving cases. Even after case law held that off-the-record conversations with judges about plea offers were a recipe for reversals, Judge Pineiro continued the old school way of clearing his calendar. He'd take the 28 year old prosecutors and 26 year old public defenders and a smattering of private lawyers in to chambers and tell prosecutors not to bullshit him, and defense lawyers that they were crazy to take the case to trial. He'd take a 3 year prison offer and reduce it to 6 months jail because we all knew that this is what the case deserved.

Judge Pineiro was unique. To go on would be a waste of time for those reading here, because unless you were in his courtroom, you cannot understand the impact of his presence on the bench.

But I do have two stories that define the man. Neither are my cases, for those I have my own stories.

The two stories happened recently, in fact on the same day.

It was a busy day in Judge Pineiro's court. Dozens of cases, way too many people in the courtroom needing to speak to the prosecutors and public defenders, and Judge Pineiro keeping things moving along like a conveyor belt. He was not an impatient man, but there was no need to spend 10 minutes on something when 3 would do.

The prosecutor told Judge Pineiro she was offering credit time served to a woman in jail on a probation violation. All she needed to do was admit the crime, and she'd be sent home. Someone noticed there was a co-defendant in the case, and the co-defendant's case was closed. The question was asked what disposition the co-defendant received. The prosecutor responded that the disposition was a dismissal. That someone who noticed there was a co-defendant and asked about the disposition was not the defense lawyer - it was Judge Pineiro, who then asked "well don't you think this defendant, who's charged with the same exact crime, should get the same exact disposition?" The defendant didn't care, she was going home either way - but Judge Pineiro wanted to make sure the right thing happened.

On that same day, the prosecutor offered a very generous plea to a defendant on a drug possession case. The defense lawyer announced that the defendant would accept the plea, and then walked away from the podium to talk to another client. The prosecutor also walked away to deal with another matter. The next words heard in the courtroom were "does anyone have a motion to suppress?" No one responded. Judge Pineiro then read aloud the arrest affidavit, which laid out a law school type scenario where the search and seizure of the defendant was a textbook violation of the Fourth Amendment. Judge Pineiro then asked the defense lawyer again - "would you like to move to suppress the search?" Like he was woken up from a nap, the defense lawyer said "yes," the motion was granted and the case dismissed.

Judge Pineiro paid attention. He had a sense of his duty that went beyond the factory type setting we often see in our courtrooms where the only goal is to close cases.

I don't know how many cases Judge Pineiro had on his docket when he died today. I know it doesn't matter, because tomorrow there will be more.

Unfortunately, those defendants, and the lawyers who prosecute and defend them, won't have the privilege of having their cases presided over by Judge Pineiro.

In 16 years of practice I've been in front of many judges. Many are memorable for both good and bad reasons. Judge Pineiro is one of those that I will forever be thankful that I was able to practice before, and I will count as someone in my career that I was incredibly lucky to know.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer.Share/Save/Bookmarkokdork.com rules Post to Twitter

Monday, December 06, 2010

Our Addiction To The Flexible (Non) Payment Plan

"Get it up front." That's the advice from any experienced criminal defense lawyer.

But cash flow is slow, you need the case, and you're OK getting $1,500 down on a $5,000 fee, because you really need that $1,500 right now.

A month later that first of seven $500 payments doesn't come. You hope the judge will give you enough continuances to get paid, and you're looking for a way to convince the client to pay his fee. In the end, you've received $2,500, you hate your client, and most of the conversation with him is about "when" he's going to pay.

This isn't his fault, it's yours. There's no such thing as a payment plan. It's a non-payment plan. When clients don't have to pay all the money, they don't. Remember, you're representing people accused of crimes. Some of them are accused of crimes having to do with theft or fraud. Some of them haven't done so well fulfilling obligations, so why do you expect they'll fulfill their obligation to you?

But the flexible payment plan is here to stay. Criminal defense lawyers who run factory type offices are fine with them. They'll take the credit card for the $500 down, do that a few times a day, and in the end, it's enough to pay the overhead and take a little for yourself. The lack of payment of the rest is the cost of doing business. Maybe in a year you'll look at your receivables (if you even keep track) and want to (unsuccessfully) try to collect.

I listen to how criminal defense lawyers run their practices. I hear about all these things. Sure, there are the clients that pay, but more often it's about chasing the money.

There's payment plans, and payment plans. Taking half down, or even a third and accepting a few payments may work. If you have a real case and not some show-up-once-and-get-a-plea thing, it may be OK. But generally, payment plans are a recipe for getting the down payment and nothing more.

I know "your clients" can't pay all up front. You sure about that? Have you ever asked for it all up front? Is it so foreign to you that you would never even think of it?

If you have the type of practice where you spend your days "feeling bad" for your clients, I just hope you have the type of practice where not getting paid is not an issue. Maybe you don't have rent in your home office, maybe you have no assistants, and your only overhead is your cell phone.

Those of us that don't get paid the fees we quote, deserve it. We need to stop complaining about it. People will treat you how they are permitted to treat you. If you allow clients to pay over time, you are telling them you don't really need the money.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer.Share/Save/Bookmarkokdork.com rules Post to Twitter

Thursday, November 25, 2010

A Criminal Defense Lawyer's Thanksgiving - Tyler Weinman Edition

Unless you live in my neighborhood, you probably don't know the name Tyler Weinman. Yesterday the Miami-Dade State Attorney dropped all 19 charges against him. This happens - prosecutors dropping charges, dismissing cases, setting formerly accused defendants free.

But since last year, when Tyler was 18, he wasn't known as "Tyler," he was referred to as he was in today's headline:

Accused serial cat killer cleared of charges

Police and prosecutors -- who initially relied on the opinions of Miami-Dade's Animal Services department -- built a circumstantial and highly publicized case in the mutilations that terrorized pet owners across the upscale cities of Cutler Bay and Palmetto Bay.

Weinman was initially accused of slaying 19 cats in South Miami-Dade, was faced a slew of burglary and cruelty to animal felonies.

Why were charges dismissed? Lost witnesses? Contaminated evidence? Lazy prosecutor?


Two scientific experts determined that an animal, not the teen, was to blame for a string of grisly feline mutilations in South Miami-Dade last year.

Actually, there were 3. Two of them worked for the state.

The important inaccuracy in the the article is the statement - That means Tyler Weinman, 19, is now a free man.

Free, as in no longer under conditions of bond, no longer facing prosecution or jail, but not free like me, or you.

Tyler is the accused serial cat killer. To the many commenters (unemployed illiterate morons who do nothing but type comments all day on newspaper websites) Tyler is guilty.

The lesson is that we live in a society where the government's accusation is paramount. Damn the truth.

If I could have anything today, it would be to be at Tyler Weinman's house tonight.

Other things I'm thankful for:

The prosecutor who this week dropped a charge that would have made my 18 year old client a sex offender for life. My only regret was not asking him to step outside the courtroom to see the half a dozen family members crying uncontrollably. The prosecutor didn't drop the charge because he couldn't prove my client had sex with his underaged neighbor, he dropped it because he thought it was the right thing to do.

To criminal defense lawyers everywhere, that phrase, the right thing to do, has special meaning. We rarely see it.

I'm also thankful:

That Kathleen Williams, the Federal Public Defender of the Southern District of Florida was nominiated to the District Court. I hope she is confirmed soon.

That I don't have to use the word aggressive, or the phrase fight for your rights on my website or anywhere else, because those who call for my services already assume that.

For the young (and older) lawyers who solely based on something I wrote, have decided not to spend a dime with some failed or former lawyer on social media marketing.

For public defenders who go to court everyday and deal with unappreciative clients, impatient judges, impossible case loads, and a salary that is little more than I made doing the same job 13 years ago.

That I do this work because I still love it, not because I find it "easy," or I couldn't make money in some other practice area.

For anyone who reads this blog. Some set up blogs for profit, for the promise of clients. I do it for myself, and that one person every so often who e-mails me and tells me they took something from it.

For the few people left in this country who say they appreciate and understand the importance of the criminal defense lawyer, and actually mean it.

For Families Against Mandatory Minimums.

For Frederick Banting.

For any judge who understands, really understands, that due process is notice and the opportunity to be heard.

That I can call as friends,





every day





affects a persons freedom.

Happy Thanksgiving.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer.Share/Save/Bookmarkokdork.com rules Post to Twitter

Wednesday, November 24, 2010

This Isn't Burger King

Two recent calls to my office contained the same type of client - "this is how we're going to do things.

The first had an employee call and advise that the boss currently had a lawyer but was looking for someone else. The employee refused to disclose the bosses' name because the last (read: one of 12) lawyer contacted his current lawyer and now he thinks his lawyer is upset with him.

I advised that anything the boss told me in contemplation of representation was attorney client privileged, but at some point, if hired, I would need to speak to his current lawyer.

A couple weeks later, boss calls and begins talking to me. I stop him and ask his name. He refuses to tell me. I explain that I cannot determine whether I have a conflict in accepting representation unless I have his name. He says, "ok, here's what I propose..." I responded, "here's what I propose, the next two words out of your mouth are your first and last name." He apologized for "wasting" my time, and hung up.

Potential client two calls and advises she wants to meet with me - "today.". I explained that I didn't know if I could meet with her that day, but if she faxed me her documents, I would read them over and try and call her.

I do this in most cases. If the client has documents I can review before a face-to-face meeting, maybe look up the docket sheet and see who the judge and prosecutor are, maybe do a bit of research, the face-to-face meeting can be more productive.

"I don't feel comfortable faxing you my documents."

This is a potential client that believes my fax machine is in the middle of a shopping mall, next to the candle kiosk.

I explained that my office was small, and the fax actually went right to my assistant's computer and then to me.

"I just don't feel comfortable faxing it to you."

I told her if she wouldn't fax me the documents, there was nothing I could do.

She said thank you and hung up.

Neither of these clients are clients I want. They are people with serious problems, who believe their control of the situation is as important as hiring a good lawyer. Many other lawyers would succomb to their desire to control the representation - anything for a fee, right?

I don't like paranoid clients - the ones who will never answer their cell phoones because they believe the FBI may be calling to discuss their recent possession of marijuana, the ones who take copious notes in my office (I don't allow that) so their Bar complaint against me has sufficient detail ("Mr. Tannebaum guaranteed he would win my case, have the prosecutor fired, and return all my money.")

These clients were more than paranoid, they were ones who would second guess every single thing I did throughout the representation. My experience, knowledge, relationships with people would mean nothing to them, they would have a better way of handling the case, throughout.

Many in our profession say "it's all about the client." Our profession - that of the criminal defense lawyer - is a simple one - we represent clients who are in trouble, may be in trouble, or in rare cases, are trying to avoid trouble. Yes, it's all about the clients.

But just like going to a doctor and seeking advice on a medical condition, it is inappropriate for a patient to say "doc, I'm going to lay on my side while you do this, instead of my back."

Many in our profession are willing to let clients run their lives and tell them how to do their job.

I am not.

If you want to "Have it Your Way," I'm the wrong lawyer.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer.Share/Save/Bookmarkokdork.com rules Post to Twitter

Monday, November 22, 2010

Now You Want Some Civil Liberties? Now? Too Late.

It's funny watching my fellow Americans bellyache, whine, and express shock over the TSA's new policy of "doing whatever the hell we want to anyone and there's nothing you can do about it."

For a criminal defense lawyer, this is nothing new. Anyone here ever try to tell a judge about something going on in the jail? First reaction: "I have no jurisdiction over (corrections) (Bureau of Prisons). Judges have much power, over a lot of things, except apparently where they send defendants. I'm not sure many are bothered by the fallacy that there's nothing they can do. Makes the job easier.

And so it is we do the same dance here. While TSA Chair Pistole continues his PR campaign of "the (beatings) pat-downs will continue," no one appears to be stepping in to claim jurisdiction over the TSA. We all know it's Congress, but they seem to be doing the "yeah, what he said" thing without any more. Our President supports the "enhanced security measures," which doesn't bode well for any significant change, and the media is doing their media thing where one story has 3 people who are outraged, outraged I say, and another story has 3 people who think everyone should have to fly naked.

Why I find it all funny, is that after 9/11, no one cared about civil rights, or civil liberties. If we needed to search every home in Topeka, Nashville, and Mayberry, (except yours, and his, and his) to find Osama Bin Laden, it was perfectly fine. If we needed to get every piece of personal information from everyone breathing on the planet (except yours of course), fine. If we needed to push aside the warrant requirement for recording phone conversations (I know we can record yours, you don't care, you don't say anything terrorist like), fine.

We drew no line. We accepted that fear was everywhere and anyone that would help subside that fear, even if it meant taking the clothes off our kids, was acceptable in the name of the war on terror.

I'm surprised it took this long for pat-downs at airports. The "Christmas Day" bomber carried explosives in his pants, so off with your pants. Remember, we take off our shoes (and now don't put them in a bin but directly - DIRECTLY I SAID - on the belt- in honor of the shoe bomber. Comedian Bill Maher once said that if someone tried to commit an act of terror on a plane while wearing a blue hat, blue hats would be prohibited.

No, I'm not a communist, and I don't support terrorism, and I don't have the answers. I do know that once we as Americans gave total and complete power to our government to move the line of acceptability when it comes to our civil rights, we lost any credibility in trying to move it back, or even keep it where it is.

By the way, Wednesday's "opt-out" protest, will be a miserable failure. Sorry but everyone's got to get somewhere, no time for taking a stand on anything this week.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer.Share/Save/Bookmarkokdork.com rules Post to Twitter

Friday, October 29, 2010

Screw The Public Defenders

There's just no such thing about a stupid comment among friends. When it happens, blogging about it the next day is as timely as eating 4 week old bread.

My friends David Markus, Jeff Gamso, and Scott Greenfield reported the news yesterday that Aspen District Attorney Martin Beeson (great website by the way) said:

Public defenders are not defenders of the public. They are not serving the public good. They are taxpayer-funded attorneys for criminals.

The comment came in response to a reporter's question about the disparity between budgets for prosecutors and public defenders.

These are the kinds of stories for which little commentary is needed, but we discuss them anyway. The story is not just that a public official, the public official charged with seeking justice feels this way and said it, it's that many agree. The respect for the Constitution and its Amendments (see Amendment Six) has dwindled to nothing more than a demand that no one take their guns away.

Reaction was as expected. Disgust. Those who agree, quiet. Shawana Geiger, President of the Colorado Criminal Defense Bar, has asked for a retraction. There is also this blog post requesting an apology or resignation.

I'd request both.

I also think the Colorado Bar should investigate if there was a violation of Rule 3.8(f)

except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.

Beeson is unrelenting. I stand by my statement. The so-called public defenders do not defend the public. The law enforcement defends the public. The prosecutors defend the public. Public defenders are government-funded defense attorneys and should be called just that, government-funded defense attorneys.

What Beeson really wants, is defense attorneys to lay down. Most private defense attorneys in this district are men and women of integrity.” But he criticized some lawyers for meritlessly accusing him and his office of prosecutorial misconduct, attacking victims of crimes at trial, and frustrating the DA’s efforts with superfluous motions to suppress evidence.

Be sure, there are other elected and appointed prosecutors and their assistants that agree. Just like there are defense attorneys that believe all prosecutors are liars.

People like this don't belong in the criminal justice system. That's as simple as I cam put it. Anyone who believes the other side is by default, a "problem," has no concept of criminal justice, the adversary process, or law.

But they're around. They just know better than to express their true feelings to someone with a tape recorder.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer.Share/Save/Bookmarkokdork.com rules Post to Twitter

What I'll Say To The Civil Lawyers

I'm watching the sunrise outside my hotel room window here in Jackson, Mississippi as I prepare to speak at a CLE conference sponsored by Ole Miss. They asked me to speak on the topic of civil lawyers practicing criminal law. Why not? I've never been to Mississippi, they were willing to pay the freight, and it's always good to meet other lawyers.

I prepared my talk without any guidance. I was simply told that the crowd would have a "good number" of civil lawyers. I knew I had to remember to be sensitive. Outside of big cities, there are few lawyers who only practice criminal law. My traditional hotel room review of lawyer ads in the yellow pages finds my theory correct here in Jackson.

My tone would be that criminal law is not as "easy" as cash flow hungry civil lawyers would think, and to remember Rule 1.1 of the Model Rules of Professional Conduct - Competence. I would go on to talk about all the things criminal lawyers have to think about - IRS 8300 forms, Padilla, money laundering, conflicts, etc...

Then last night at the speakers dinner, I was given more specifics - there are a bunch of registrations from BigLaw associates. I learned more - that BigLaw, at least here in Mississippi, is increasingly keeping things in house - including criminal cases. Now they just need to have someone competent to handle criminal defense.

My audience today will not be merely part-time criminal lawyers who also do divorce, PI, Bankruptcy and "18 Wheeler accident law" (lots of that here) who are looking to fine-tune their skills, it will also be lawyers who have never set foot in criminal court, and are now going to be their law firm's criminal practitioner.

They won't like my presentation. I won't be telling them it's OK to get a fee and immediately beg the prosecutor for a plea offer so they can close the case and get back to document review. I won't tell them they don't need to investigate their cases, talk to witnesses, research holes in the case, file motions to obtain additional discovery, or go to the scene of the crime.

There is no formula to practicing criminal law. There is no script. I won't be telling them to go from A to B to C to D. Cases ebb and flow, and while one day you're looking at a hopeless case, the next day you're picking a jury, in that same hopeless case.

I will tell these civil lawyers that unlike what they do on a daily basis - the useless motions to compel, the .2 review of court notices, the conferences (lunch) with the partner to discuss "strategy," representing a client in criminal court matters. I will tell them that people go to jail when they lose criminal cases, they don't just write checks.

When it's over, the criminal lawyers will say "thanks." The part-time criminal lawyers will take a new look at their criminal cases, and the civil lawyers will either decide they don't want to jump in the water, or tell me I don't know what I'm talking about.

Regardless, I've got a 4 p.m. flight home.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer.Share/Save/Bookmarkokdork.com rules Post to Twitter

Tuesday, October 19, 2010

An Investigation Of Prosecutors

There is a notion deep within the criminal justice system that prosecutors, and those that assist them (police, investigators, witnesses) commit violations of ethical rules, and those violations are protected by judges, and the Bar.

We all saw the video of the Arizona cop who took a document out of a defense lawyer's file while a full courtroom looked on. We saw the judge's initial reaction of, "I'm kinda busy here."

That prosecutors rarely receive discipline is more than a lament, it's a fact. The public doesn't much pay attention to this, happier to believe that the defendant is "guilty anyway," and these violations are OK, as the greater good is served - the coveted conviction.

So yesterday's headline: California Bar Reviewing 130 Prosecutors for Possible Disciplinary Action, was almost embarrassingly responded to by lawyers across the internet.

Little will come of the investigation, other than the ruffled feathers of prosecutors everywhere. It's more symbolic than anything else. The investigation is more of a defensive move, as a result of a report that discipline of prosecutors who commit misconduct, is "lax."

The first line of defense? The report itself: The report by Northern California Innocence Project at the Santa Clara University School of Law noted the
majority of California prosecutors use fair methods
to prosecute those they believe are guilty.

Well, that's true, but does that mean that a little bit of misconduct is OK?

The numbers are a wake up call to the law and order types that believe that even with exonerations of the innnocent, everything is "just fine."

The study found that over a 13-year period,

600 prosecutors have committed misconduct
according to rulings by state and federal appellate
judges. They range from small technical mistakes to u
nfair and deceptive tactics to win cases, such as
hiding evidence. The study analyzed about 4,000
appellate court rulings from 1997 through 2009.

Sixty-seven of the 600 prosecutors committed
misconduct more than once.

Only seven of the 600 prosecutors whom the
courts found to have committed misconduct were
disciplined by the State Bar -- slightly more than 1

Prosecutors are not happy: Scott Thorpe, director of the California District
Attorneys Association, faulted the study for
exaggerating the problem of prosecutorial

"It dramatically overstates the problem," Thorpe
said. "They didn't quote one single prosecutor. It's


They didn't "quote one single prosecutor?" Well, score one for us in the line publications and articles where defense attorneys are left out. Ever notice that? Read a few articles on a criminal case or issue - watch how many times a defense lawyer is quoted or mentioned, as compared to a prosecutor. It's an epidemic.

Even the Bar's appointed chief trial counsel sounds like he has little hope anything will come of this investigation:

Towery said most of the misconduct is
probably not serious enough to warrant public
reproval, suspension or disbarment.

I wonder what "not serious enough," means? Is it based on the amount of time an innocent guy spent in jail? Or is it based on whether the defendant was "really, really guilty?" Are we now applying harmless error to prosecutorial misconduct?

We'll see.

I wish the California Bar good luck in conducting a fair and throrough investigation. I hope something important comes out of it, even if there is no discipline because the allegations are too old or don't rise to anything more than allegations. These prosecutors deserve a fair and impartial investigation - their law licenses are on the line, and specious allegations are dangerous and career threatening.

Although the investigation may end with no formal discipline, the message from the California Bar is received - all lawyers are subject to the rules, even if they are only trying to put someone in jail.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer.Share/Save/Bookmarkokdork.com rules Post to Twitter

Tuesday, October 12, 2010

Simple Blogging, 25,000 Comments Later

Last night, Simple Justice author "Surviving" Scott Greenfield announced the 25,000th comment had been posted on his blog.

Odd announcement from someone who feigns the hype of numbers in the social media world.

But the number, itself, is significant. Not that it's 25,000, but that it's 25,000 comments, written by humans (yes, some spammers) who have touched a keyboard for the purpose of responding to something written about a real issue by a real (lawyer) person.

Twenty-five thousand.

There will be no love for Scott Greenfield today due to this feat, and let's be clear, it is a feat. It's a feat because Scott violates all the new rules of blogging. He doesn't let (a marketer) someone else write his posts, he doesn't throw up all over his blog with links to his law firm, he doesn't spend his days blogging about how all the shiny new toys of Apple will change the lives of lawyers, he doesn't ask others for links, nor allow others to gratuitously link to their garbage marketing site du jour, and he responds to almost every comment left for him.

The social media marketers, the failed lawyers who (are broke) work daily to convince lawyers how to blog, stay clear of Scott. He has reached the success in the blogosphere of which these (scam artists) marketers can only dream. While they attempt to create blogs for their desperate lawyer clients who simply (no pun intended) "want to be on the internet," Scott wakes up every morning and types. Sometimes he types about criminal justice, sometimes he types about books, and sometimes he types whatever is on his mind, no social media strategy for this lawyer.

Scott's blog is read and appreciated and criticized because it has something the social media marketers will never understand - a point of view. Scott writes what he thinks. He is not blogging for profit, or trying to gain the love of the young pups who know everything, right down to the newest drink they're serving at Starbucks.

The same baby lawyers and marketing bloggers that privately comment to each other how much they can't stand Scott, comment on his blog, and wake up every day wondering if they'll ever have the practice, the blog, the respect of real lawyers and judges and prosecutors, like Scott Greenfield.

They curse the rain while they stand outside with rainbuckets trying to collect every drop for themselves.

So congratulations Scott. In an internet world where there are much less bloggers and many more marketers, thank you for keeping the real conversation going. Thank you for reminding us what blogging was meant to be.

That's my comment.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer.Share/Save/Bookmarkokdork.com rules Post to Twitter

Wednesday, October 06, 2010

Gloria Allred, Famous Criminal Defense Lawyer

So here I am, taking a few weeks (blasphemy!) off from blogging, and the race to the bottom of the internet just gets more and more ridiculous.

Anyone who hosts a blog gets these occasional annoying (solicitations) emails:

Hi Brian,

I recently discovered your blog, and I have become a frequent reader. I recently published an article “10 Famous Defense Attorneys” that dovetails well with your audience. Perhaps you would be interested in sharing with them? Here's the link to the article if you would like to take a quick look for yourself:( http://www.criminaljusticedegreesguide.com/features/10-famous-defense-attorneys.html).

Thanks again for the great content, and I hope the article I've linked primes your interest.

Yes, it "primes" my interest.

Specifically, this "primes" my interest:

4. Gloria Allred

Known for taking mainly high-profile and mostly controversial cases, Gloria Allred is a famous attorney, who frequently makes her rounds on TV. Allred has famously represented Amber Frey, the key witness in the murder trial against Scott Peterson and several of Tiger Wood’s alleged mistresses in the media whirlwind that followed the public lineup of the pro golfer’s infidelities. Allred became well known in the late 70′s, after successfully representing a woman in a lawsuit against an all male club in Beverly Hills for denying the women’s application solely based on her sex.

Welcome to the criminal defense bar Gloria.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer.Share/Save/Bookmarkokdork.com rules Post to Twitter

Wednesday, September 22, 2010

We Stand Witness To A Monstrous Wrong

Leonard Pitts compares the Anthony Graves case to a a TV western:

There's been a vicious killing. Everybody knows who did it -- or thinks they know -- and the posse wants to string the varmint up. No need for the bother of a trial. The crime was outrageous, people are furious. So get the rope, find a tree.

Anthony Graves was arrested 18 years ago for the brutal murder of a woman, her 16-year-old daughter and four children. After the beating and shooting, the house was set ablaze.

As Pitts writes in his column, of course placed on the last page of the newspaper:

No physical evidence linked Graves to the crime. He had no motive to butcher six strangers. Three witnesses placed him at home at the time of the murders.

Graves was convicted and sentenced to death on the testimony of Robert Carter, the father of one of the victims.

Pitts notes that Carter had shown up to his son's funeral with his hands, neck and ears heavily bandaged, the result, he said, of having accidentally burned himself while doing yard work.

He, Carter, then admitted his guilt - he admitted committing the brutal murders. He admitted prior to his own execution that Graves was innocent.

Check out Texas Monthly magazine for more of the story.

Pitts explains the mood of this small Texas town at the time:

It was an awful crime, and people needed to see someone punished for it. Indeed, Somerville mayor Tanya Roush told the Austin American Statesman her town was impatient with the idea of a trial. "They're saying, `Bring back the hangin' tree, and save the taxpayers' money."

And Pitts states the obvious:

Graves is a victim of, and may yet become a martyr to, that need to see someone punished. Unfortunately, there is often an inverse relationship between that need and justice. The more you have of the former, the less likely you are to find the latter.

We stand witness to a monstrous wrong perpetrated out of that vestigial sense of frontier justice in the American psyche which says some crimes are so heinous they demand we bypass niggling questions of evidence, motive, proof, even fairness, on the way to the hanging tree.

Some crimes leave communities outraged and demanding punishment and there are those who say those emotions are the reason we must put people to death.

Prosecutors will re-try Graves in February.

I've made this argument before, that Justice is never innocence, it is always a conviction. When there is an acquittal or exoneration, the public cries that the victim didn't "get justice." The notion of "justice" for the defendant is a non-issue, as we don't see our system as a place for people to be acquitted, it is a factory of guilt.

Anthony Graves appears to be innocent, but the discretion of the prosecutors in the case will be thrown to 12 strangers in a jury box, in a small Texas town looking for "justice."

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer.Share/Save/Bookmarkokdork.com rules Post to Twitter

Friday, September 17, 2010

A Survey On Indigent Defense Training

No, this isn't a post about the results - I want you to take this survey if you provide indigent defense services as a PD or private lawyer.

A curriculum is being developed by the ABA, NACDL and the Spangenberg Project at George Mason University for an upcoming indigent defense training and technical assistance project funded by the Department of Justice Bureau of Justice Assistance. This comprehensive curriculum will be developed to present four regional training programs across the country for lawyers representing indigent persons in criminal cases. The survey closes on October 4th.

The survey is anonymous and your answers will not be linked back to your e-mail or identity.

The link is here.


Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer.Share/Save/Bookmarkokdork.com rules Post to Twitter

Sunday, September 12, 2010

A Disgruntled Prosecutor Seeks Advice

In this "tough on crime" "Law & Order" world we live in, there is a notion that prosecutors and cops (except the ones who are taser happy) are the good guys, and defense lawyers are "the problem." It is assumed that all prosecutors are in the right, doing the right thing, and committed to the concept of convictions and jail.

And then a defense lawyer (me) receives an email like this:

I apologize for the anonymity of this e-mail. I am indeed a disgruntled prosecutor.

I’m writing to you because I need some advice.

You see before I became a prosecutor I was a defense lawyer. I built my practice the old fashioned way – one client at a time with a healthy dose of referrals from other lawyers.

After a while the frustration of criminal defense work got the better of me and I applied for and was given a position as a prosecutor.

The truth is that I took the job for all the wrong reasons: financial stability and to have a shorter workday and not because I had a burning desire to prosecute people.

Well, I’ve been at this for a few years now and my dislike for what I do has gotten so bad that I can’t look at myself in the mirror anymore without seeing nothing but a fraud. I don’t believe in what our office does, I cringe at the arguments I make in court and I spend most of my days fantasizing about how I will quit.

I want to return to defense work. If anything, my time as a prosecutor has shown my just how defense minded I really was (and still am). I would leave my job tomorrow but my wife and I have young children now, a mortgage and bills. The economy is not the greatest and as much as I hate my job, walking away from a job that pays me over 100K a year with benefits and a pension so I can hang my shingle – essentially jumping into the unknown – leaves me scared shitless!

If anything this e-mail is a cry for help!

Any credible defense lawyer wants a prosecutor that, while doing the government's work, has some concept and respect for the defense function. I've always said that any prosecutor that has no respect for the other side of the courtroom, should quit or be fired immediately. (don't laugh).

But my anonymous friend is so committed to the defense function, that he needs to quit, tomorrow. He doesn't believe in what he is doing, and although there is no evidence he's not doing his job, he is being both unfair to himself, and his office. There are too many on both sides of the criminal justice system, that are just "doing their job" without any concern for the lives they are affecting.

There are those out there in this social media lawyer world that will scoff at my notion that this guy should walk away from his six figure job, but he should. He doesn't have a job, he is part of a profession, and within that profession he is working each day to convict people and possibly put them in jail. He doesn't want to do that, and he shouldn't.

But he should be smart about his future. He needs to give sufficient notice, and make sure he has enough funds to keep him fluid for a couple months. He needs to go back to building his practice as he did - one client as a time. He needs to stay away from the online snake oil salesmen who, for a fee, will claim to teach him the secrets of practicing law by laptop. And he needs to know that the economy is not what it was 2 or 3 years ago. Clients are not able to tap into lines of credit for legal fees, and there are more unemployed lawyers claiming to be "experienced" criminal defense lawyers - even though they are really experienced real-estate lawyers, without any real estate on which to work.

I trust he welcomes your advice as well.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer.Share/Save/Bookmarkokdork.com rules Post to Twitter

Tuesday, September 07, 2010

A Public Defender Rants

Many many years ago, like 5 years ago, the blogosphere was different. Lawyers came here to write, to express opinions on the issues of the day, to pass on other posts and news items from other blogs. Sure there were marketers, but it wasn't like it is today, where lawyers race to start a blog for the sole purpose of getting the phone to ring, evidenced by the cheesy style of the poor-content, heavy links to the firm, blog.

But the blogs of "yesterday" still exist. Some look fondly at them like that vintage car riding down the street on a Sunday, others, the marketers, look at them as they do their elders when they give advice - like they don't know what they're talking about.

Daniel Partain is a public defender in Georgia, and he has one of those old style blogs. He writes what he thinks, and isn't here to market his free services to the indigent. He doesn't have hundreds of readers, not many comment, and the posts don't exactly go "viral." But that's mostly because today's blogosphere isn't looking for important thoughts, personal perspectives, or controversial statements. People here today are looking for link-love, Google juice, and the coveted SEO (search engine optimization for those who haven't gone desperately to a social media marketer claiming to be able to find you wealth and fame with a keyboard.)

Shortly after midnight, he went off.

Daniel appropriately titled his post A Very Poorly Constructed Rant. Then again, rants are not meant to be anything but "poorly constructed."

Daniel says, in part:

I hear from fellow lawyers and laypeople about how noble it is to be a public defender, and how we do is gallant or a true public service. When I hear this bullshit, I want to vomit.

Guilt or innocence is reduced to probabilities and percentages. Sentences are just a range of numbers. Confinement is seen as a cakewalk. It is three hot meats and a cot or a vacation from the cares of the real world. Or in the eyes of certain jurists, sentences are seen as an instrument to enlighten the masses as to the repercussions of committing a criminal act, and to alter their behavior. However, in this era of Twitter, Facebook, and other social / mass media that produces more sound than fury, and makes all of us sound like blathering idiots, this jurist's pronunciations are lost in the static, the white noise. The collateral damage that comes from the system is ignored.

The bar may pontificate about the flaws in the public defender system, but they quietly expect us to keep going beyond the limits of intellectual endurance. If we snap or break under the stress, it is of no loss. We are expendable. No, we are interchangeable and easily replaceable cogs in the meat grinder that is the system. They would never treat the vaunted private attorney like the way they treat us.

However, there are days where I hear of something so fiendish or so deprave that it pierces even my hardened heart, and it causes me to recoil in horror and disbelief. Yet, within in a few days, if not less, I return to my callous state, where I am numb to the suffering of others, and I find myself capable of telling a joke about any depraved act without a second thought or without any malice in my heart.

Over the years of doing this line of work, I find that my mind and my body are in constant warfare with each other. My body wants to collapse from the emotional and psychological wreckage that I must wade through. My mind ignores it, and pushes through it. Yet, there are days where my mind breaks down. Some days it will drop into neutral, and I find myself suffering from the 1,000-yard stare.

The despair that I feel overwhelms me and it comes over me like a wave against an ocean shore. With each wave that comes over me, the man that I was is slowly worn away.

These are the words of a real lawyer, a man in the arena every day. He sees and feels the weight and power of the criminal justice system, and chooses to put his thoughts in writing. Few people read this post, and the tough-on-crime-why-was-Law-and-Order-cancelled crowd feels nothing when reading it.

We have gone from a society where we looked forward to Perry Mason and Matlock winning the case, to the demand that for hours on end every day, legal dramas on TV reminded us that the cops always get the bad guy, and the defendant is always convicted, regardless of his scumbag defense lawyer. We ingore that the system is broken, while lauding the creation of "Innocence Commissions" and "Innocence Projects." We fail to recognize that the system itself should be an Innocence Project, instead, feeling better about ourselves that we are now trying to right wrongs that are the result of our zeal to prosecute and convict, justice be dammned.

So Daniel goes back to work today, processing through the dozens of defendants that will enter his courtroom. Nothing he said in his post will matter to anyone important, nothing will change. He ranted for the purpose of a rant, for the purpose of expressing real thought about a real topic. He wrote to write. His post will bring him no business, no money, no love from the marketing lawyers on the internet.

And that's the end of my rant.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer.Share/Save/Bookmarkokdork.com rules Post to Twitter

Sunday, August 29, 2010

The Stale Anonymous Argument Against/For/Criminal Defense Lawyers

My post below on The Core of a Criminal Defense Lawyer was about recent thoughts I've been having about the genesis of my career and a desire to spend some more time going back to basics and representing indigent clients. That was the point. The point was not that I am tired of private practice, or that I want to go back to being a public defender, or as my anonymous commenter thought, that I had a conscience problem and was maybe thinking about not being a criminal defense lawyer.

But to my anonymous commenter, referred to as a "dickwad," by a fellow criminal defense lawyer, and more appropriately nicknamed as "typical uninformed but opinionated pontificator," the post was me questioning my role in society.

This is what we call a "teaching moment."

Let's look at anonymous' thoughts:

First, he suggests a career change for me may be a good thought:

Nice way to assuage the old conscience. I have a friend who spent some time as a defense attorney. He then became a prosecutor, taking a major pay cut in the process, but he can look himself in the mirror far more easily.

You know, I've been doing this for a while, and I've seen plenty of mirrors. Never had an issue taking a quick look. (The "sleep at night" comment is below, don't you worry readers)

Anyway, the comment generated some strong words from fellow criminal defense lawyer Mirriam Seddiq:

Anonymous is a dickwad. His friend wasn't making a dime which is why he went to be a prosecutor. Probably sucked at working for a firm, or for himself. Probably was a shitty defense lawyer since he didn't have anyone barking out orders or telling him what to do. Probably fucked up his clients rights on a daily basis, hence the inability to look himself in the mirror. Clearly didn't believe in our constitution. We are better off without him on our side.

Mirriam colorfully makes the point that criminal defense is not for everyone. For that matter, either is being a mortician, window washer (watching them certainly gives me the heebee jeebees), or prosecutor (there are some who can't see spending their days trying to put people in jail.)

All of this is OK. I can't remember a week where someone didn't read from the script and say "I could never do what you do."

I could never be a divorce lawyer - spending my days hearing bullshit complaints about kids and furniture and money, and being responsible for splitting a family apart. I could never be an insurance defense lawyer - spending my days trying to deny sick people medical care due to technicalities in policies.

It's really OK. Not everything is for everyone.

After Mirriam's comment, the bold Anonymous said (in part):

I can't tell you how successful he was in defending his clients, as we moved to different cities when we started work. I can tell you what he said to me a social gathering, that since he became a prosecutor he makes far less money, but has a cleaner conscience. His problem was that most (not all) of his clients were factually guilty of what they had been charged with. If that makes me a dickwad to say, that is your opinion. If you want to believe that every one of your clients, or even a majority of them, are factually innocent, then I have some desert swampland to sell you.

Now let's stop right here.

Mirriam never said anything about factual innocence, or her belief that all her clients are innocent.

Here we realize that Anonymous has missed the point, not that this should stop him from opining.

Let the teaching begin.

Anonymous (not sure if that's your first or last name), factual innocence is not an issue in most cases. See, what we do is investigate the case and determine whether there are grounds to argue that the Constitution (which I'm sure you've read) has been violated. Most defendants are found or plead guilty. Many guilty defendants that plead guilty, do so with the advice of a criminal defense lawyer - the same people you claim may have issues with their conscience or looking in the mirror. Sure, there are defense lawyers that believe that all their clients are victimized, but there are also prosecutors that believe everyone they charge is guilty. Really, it's true.

Anonymous continues:

I understand the need to have rationalizations for what you guys do. We all need to sleep at night peacefully. Heck, I even support having criminal defense lawyers do their best for their clients. It keeps the state honest and makes the government really prove guilt. That still doesn't prevent innocent people from going to prison, but it hopefully slows the process. But, really at the end of the day, if you perform brilliantly, and get someone who you know actually did commit some heinous act acquitted, does that make you feel good? Especially if your client had an innocent victim who will now not get justice through the legal system? Yes, your job as defense counsel IS needed, but there are a lot of unwholesome tasks that need to be done in our society. That they are needed doesn't make them good. But heck, if you can make a fortune at it, then rationalize away about government tyranny. Just remember that some of your clients have real tangible victims, with lives destroyed or damaged by the people you defend. Those victims are not "the government". Those victims are little children, raped women, or people who have died because of something your client did. The state doesn't always charge your clients just because it is amusing or politically expedient, although that DOES happen sometimes. Sometimes your clients get charged because, amazingly enough, they actually DID hurt or kill another human being. And if you are successful, that harmed human being will never get justice within the legal system. That sure is something to be proud of.

Rationalizations? I have none. I do what I do because I believe in the Constitution, I believe in this country, and I believe that anyone charged with a crime deserves a good defense - even you Anonymous who thinks that we serve some purpose when we think and do what you deem appropriate.

And he (or she) continues, having re-written the same comment, but with some changes:

Yes, you can make vast sums of money defending guilty people who can afford your fees. No, not every crime has a victim who is badly harmed. Not every suspect needs to get hammered with prison time. But, there are cases where if you do succeed, an innocent victim who your client raped, killed or otherwise assaulted, does not get justice. That isn't "the government" against your client as the rationalizations you have says. That is innocent human being, harmed or killed by your client, who has no legal recourse because you did your job well. I doubt if I could sleep well at night knowing that because I did my job well at 200$ per hour, a rapist or killer walked free. If fact, I would need a very strong fortress of moral excuses. But then again, I am not a defense attorney either.

"Vast sums of money." That's funny Anonymous. I know plenty of poor criminal defense lawyers. A small minority of people in every profession make "vast sums of money," but I know it makes you feel better to wrongfully think that we do this for the "vast sums of money." People don't like people who make "vast sums of money," so if you can throw that into your argument, it riles up the folks out there that think "all lawyers are rich greedy bastards."

And yes Anonymous, we know you are not a defense attorney. We all sleep better at night knowing that.

Then, Anonymous looks like she (or he) may actually be thinking while typing (a rarity amongst anonymous blog commenters), he, (or she) does the 'ole "hey, I respect what you all do and so......:

It isn't that I don't see a place for a high quality defense bar. I would like to see public defenders with far more funding and manpower. Without you guys, far more innocent people would face legal sanctions. What I object to is this pious "noble paladins defending a bunch of doe eyed innocent victims targeted by the evil government for no reason" rhetoric. Your job is to make the state prove every element of its case or at least to obtain the best deal possible for your client, but the fact remains that most of your clients ARE guilty. To rationalize otherwise is just to assuage your own conscience.

If you're still wondering when anyone said anything about factual innocence, the answer is still, never.

Now let's make something clear - Anonymous has a line of thinking. One we're heard before, probably 3 days ago at a cocktail party. Anonymous thinks we need good defense lawyers to make sure the government does their job. He thinks this is an important part of society, except when we win and people who rape and murder walk free. He thinks the system should provide trials and due process, as long as no guilty people go free.

In a perfect world, all guilty people would be convicted and all innocent people would go free. In a further perfect world, police officers wouldn't force innocent people to confess to crimes they didn't commit, wouldn't violate the Fourth Amendment (I linked to it Anonymous in case you wanted to take a gander), and eyewitnesses would never mistakenly identify the wrong guy.

What makes Anonymous a pillar of society is that if he was arrested and committed the crime, he would immediately plead guilty, even if a lawyer told him that the police made a mistake and due to that mistake he could go free instead of spending his life in prison for the harm he caused his victim.

Anonymous does make exceptions. Rape and Murder are crimes for which we criminal defense lawyers should be ashamed to take victories when the client is guilty. But when a client is guilty of getting into a 4,000 pound moving machine and driving drunk - getting people off is something to cheer:

Let me cite an example of a good criminal defense attorney I know. He was a cop who was an absolute wizard at racking up many airtight OVI (drunk driving) arrests. He retired, went to law school...and now has a practice that mainly defends drunk drivers. He is very good at it and makes a boatload of money. He has a good success rate defending his clients as well. I once charged one his clients with OVI and he got it reduced to a 100$ traffic fine for a non-OVI moving violation. This client was wasted and even blew a .10 BAC, but that is good legal talent at work. It was awesome to behold. If I am ever charged with OVI I know who to hire. But he is under no illusions about his clients' guilt if you talk with him "outside of school." If you are charged with OVI, this is the lawyer you want to hire. Not because he believes all the pious BS rhetoric about his "client being victimized by the state for no reason", but because even if he knows you were totally wasted behind the wheel, he has the legal skills to give you a great defense. If you pay him enough he will use those skills at your behest.

This is a perfectly honest and mercenary way to make a living, and it avoids the rationalizations.

Anonymous believes we rationalize, that we do our jobs by believing our clients are innocent and that the government is victimizing our clients. He is like that juror who says they "can be fair," but is really looking at the defendant during jury selection and saying "can I have the verdict form now?"

I appreciate people like Anonymous. There is no better way to educate people about the role of a criminal defense attorney, then to debate those who claim some understanding of what we do, when they have none.

Old, stale, transparent.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer.Share/Save/Bookmarkokdork.com rules Post to Twitter

Thursday, August 26, 2010

The Core Of A Criminal Defense Lawyer

Something's been happening lately. Questions have been swirling around my head about my role as a criminal defense lawyer.

I started as a public defender, my mornings all the same - rows of mostly men, in jumpsuits green or orange or hopefully not red, walking amongst the sounds of chains entering the courtroom and sitting in the jury box. They would sit, some would yawn, some would look around for that family member who "said they were coming." Some would indicate in a feeble attempt to raise a hand that there was urgency in speaking to me. They either had a question, a note with case citations, or just wanted to know, "am I going home today?" Some would wait until the judge arrived to announce that they wanted another lawyer, again.

Some days I knew what case or cases were going to trial, other days I would be surprised. This client didn't want probation even though he was facing 30 years, and that client found a witness named "shorty," or "pooh-boy" or "I don't know his name but here's his friends beeper number."

I tried the cases, I pled the clients guilty, I argued motions, I sought continuances to try and find a hole, or a prosecutor in a merciful mood.

Then I got bored, so I left. Yes, there was "more money" in private practice, more clients that weren't 3-time losers, more clients who had professional licenses and ways of paying legal fees.

After some time, I was lucky enough to be able to refer out cases I didn't want - cases that were good for a young lawyer starting out, cases that included clients who would suck the life blood out of me and my desire to enjoy my wife and kids.

And if I ever get to the point where I don't have to work anymore, I may consider going back to that life of being a public defender. I loved it, I just became bored and wanted to handle other types of criminal cases, do federal work, and have the luxury not to have 150 cases.

But lately I walk into a courtroom. I stand in the well and I look at that same jury box, with (some of) those same inmates.

I think they look at me differently these days. maybe its the suit, maybe it's the one file in my hands, maybe it's the way the judge greets me as opposed to "go talk to your client," or "have you made these plea offers yet?"

I think they know I'm not a public defender, and think (wrongfully) that my entrance into their case would be their ticket out of the system. I look at their tired eyes, their agitated faces, and I wonder if they think I'm some big shot private lawyer who has no use for them, or if they wish they could gather up some money to have a lawyer like me. A private lawyer. A "real" lawyer as they mistakenly think.

I don't feel guilty that most of my clients are first time offenders, and that most have a suit like mine, or can get one to wear to court. I don't think I've done something wrong by being a private practitioner. I'm not apologetic for my career.

But I look at these inmates, and I think back to a time when my life was dedicated to them, and only them. Sure, I know I could take court appointments. I take court appointments in federal court where the respect for appointed lawyers exists. In state court, it used to be easy to take an appointed case. Now it's better to do a case pro-bono in state court than deal with trying to get paid.

Dealing with incarcerated clients is a world apart from those that come in and say "I just can't go to jail," in a way that they think they are the first client to make that statement. Incarcerated clients with prior convictions are a bit more realistic (not all) about their situation and are sitting across from maybe the only person in their life who has tried to do anything for them in recent time, or ever.

We criminal defense lawyers know too well about the poor client we were appointed to represent who gets convicted and sent to prison that says "thank you for fighting for me," and the private client who paid a fee, had his case dismissed, and wonders out loud why they ever needed a lawyer.

What I write about here is not something I'm "struggling" with, or something that is causing me to re-think my practice. I do plenty of pro-bono work. I give plenty of free advice.

I think I am just reaching the point in my career where I'm starting to think about my "core," and how I can spend a bit more time there.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer.Share/Save/Bookmarkokdork.com rules Post to Twitter

Re-elected Bond-Duty Judge Gets Standing Ovation

Support for good judges comes from all kinds of places.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer.Share/Save/Bookmarkokdork.com rules Post to Twitter

Wednesday, August 25, 2010

The Right To Remain: Judge Version

Florida's state court trial judges are elected every 6 years. In most rural and smaller areas, there are no contested elections. You don't run against a sitting judge. Period. In South Florida, mainly Miami for a long time, things are different. Judicial races are crowded with ethnic politics (a term that gets me in trouble) where the hypothetical Judge Joe Smith, a long-time respected jurist, can be defeated by the hypothetical Marisol Gonzalez, a 5 year lawyer with little experience. Contested elections have been creeping up the coastline over the past few years, and now include the opposite result in Broward County (Ft. Lauderdale), where the large Jewish population can saunter in the hypothetical Rachel Goldman to defeat the well-liked hypothetical Juan Gomez.

And so we had our elections yesterday.

Some judges, not liked by lawyers, mainly criminal defense lawyers, were soundly defeated. One was defeated by a no name no experience candidate.

The pundits can dissect the election and tell me why this happened, but I'll go through my day today thinking that both judges were defeated because they violated Rule #1 (my rule #1, not necessarily anyone else's rule #1): Be nice. (That's a cleaned up version of the real rule, by the way.)

The judges that lost were rude, short, and showed little respect for the lawyers before them. I saw this first hand, and then heard of it on almost a daily basis. While the public may think this is a good thing, because of course all us lawyers deserve a beat down from judges on a daily basis because we all suck, and, well, you know.... yesterday's election made the point that the public giveth, and the public taketh away.

Again, people will say that this election had nothing to do with whether lawyers liked the judges, but it is lawyers who contribute, and lawyers who are asked by the public to recommend candidates for whom they should vote. Lawyers play a huge role in judicial elections, because most other people have no idea what these judges are like on a day to day basis. They don't even know their names.

I don't know if these judges are thinking today, "maybe I could have been a little nicer to the lawyers in my courtroom, a little less quick to embarrass them, a little less quick to build my reputation as a judge who 'keeps lawyers in line.'" Actually, I don't think they are. I think they are being told and convincing themselves it was a "turnout" issue, or an issue with "who" voted.

I am always happy it appears the system worked. And it does. Just sometimes.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer.Share/Save/Bookmarkokdork.com rules Post to Twitter

Thursday, August 19, 2010

How's Your Practice?

"Things are slow" It's almost the required response these days to the question.

As most criminal defense lawyers go, "business development" or "practice management," are things we ignore, except to complain about. We can talk to a client about their case, read case law, and argue in court, but the business side of the practice is something we either do terribly wrong, or think we are doing right.

Either way, I find criminal defense lawyers complaining about the same things - chasing (non) payment plans, clients choosing other lawyers for the wrong reasons, and a complete lack of interest in the concept of doing something else besides going to court, going to the office, and going home, every day.

We'll jump at the chance to go to the 20th seminar we've been to on the topic of cross examination and expert witnesses, but won't spend 5 minutes in a room full of our colleagues learning about having a better practice.

One of my priorities this year as President of the Florida Association of Criminal Defense Lawyers is to turn some attention to our private practitioners. The majority of our members (as I assume most criminal defense associations) are private practitioners in practice over 10 years. We spend a great deal of time on indigent defense issues, death penalty issues, filing amicus briefs in important cases, and hosting seminars on the nuts and bolts of criminal law.

Now it's time to offer some help to the criminal practitioner who goes to work everyday and in addition to practicing law, has to buy paper for the copy machine, pay a secretary, advance costs for clients, and comply with trust accounting rules.

The perception that all private lawyers are "rich," is a joke, and if our private members can't keep the doors open, we lose. Society cannot continue to rely more and more on underfunded public defender offices to take on more cases then they can handle. We need private practitioners, and we need to provide continuing legal education that helps private practitioners (and those that want to be private practitioners - you're welcome to attend as well) learn something else besides the latest junk science. If you have no clients, stuff like that won't matter.

So I invite all criminal defense lawyers to come to Miami Beach October for an all day seminar devoted to something we spend little time discussing - The Practice.

The Practice

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer.Share/Save/Bookmarkokdork.com rules Post to Twitter

Monday, August 16, 2010

ICE Takes Page From Len Berman: "And Nobody Got Hurt"

Last week ICE Agents went looking for a drug suspect. Rule #1 in searching for a drug suspect: assume they are armed. Law enforcement need no information that the suspect is armed, just an assumption. It's somewhat understandable. When we read more and more that law enforcement can't even pull someone over for a traffic citation without being blown away, there is no sense in assuming that any suspect is unarmed and will go guietly.

Once the assumption is made, and it always is, the method of going out and finding the suspect, looks like this video where they entered into a home, broke a bunch of shit, scared the crap out of a family, only to learn that the suspect was in jail - for the last 10 months..

The Boveda family said federal agents raided and ransacked their home Thursday morning. Even the front window was smashed. Broken glass was scattered across the floor and nearly every door in the house was busted open. Even their closets were cracked.

Mr. Boveda, attempting to reason with the "no, we'll do it like they do it on Cops," offered the following unaccepted invitation:

I said don't break the window, I'll open the door for you, but you got the wrong house, you got the wrong house.

The wrong house. Yeah. Sure.

The family, including a 14 year old girl, were all held at gunpoint. Mr. Boveda was thrown on the floor, and the other family members were all pinned down. I don't know if the 3-year old dog came back after running away.

Now to save the ICE apologists some time, to help the comment authors who wish to explain to me that "nobody's perfect," and "hey, this is the price we pay to be safe and lets just say thank you to those keeping us safe," let me help here.

This isn't that case.

This is a case where some $10 an hour clerk could have pressed a few buttons on a computer and learned in seconds that this suspect was in jail over in the next county. When I can go to court first thing in the morning after an overnight arrest and be handed a list of my client's prior record that includes the date of every arrest and the sentence, don't tell me that federal agents can't determine whether a suspect has been in jail the last 10 months before they bust down someone's door.

We live in a society though where these "mistakes" are all forgiven. No one's busting down our door, killing our dog, scaring our children, so who cares?

ICE released a statement after this raid:

"We screwed up. We should have known our suspect was in jail for the last 10 months. We've asked the family to send us any repair bills for the damage we did to their home, and we've offered them $25,000 as an apology for our lack of dilligence." We are truly sorry."

No, wait, that wasn't the statement, it's here:

There were no injuries to the occupants of the house nor to police officers on the scene. The case is still under active investigation, and we are currently seeking additional members of the organization.

No one got hurt, and we are still looking for other suspects.

So there.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer.Share/Save/Bookmarkokdork.com rules Post to Twitter