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

Thursday, July 29, 2010

A Crack

Yesterday Congress decided black people shouldn't go to prison for a significantly longer period of time that white people for using different forms of cocaine.

No, that's not a snarky way to describe what happened, it's what happened:

From the Washington Times:

Congress on Wednesday changed a quarter-century-old law that has subjected tens of thousands of blacks to long prison terms for crack-cocaine convictions while giving far more lenient treatment to abusers, mainly whites, caught with the powder form of the drug.

Gee, what a thought. Let's all celebrate.

The most significant part of what happened yesterday, is this:

The bill also eliminates the five-year mandatory minimum for first-time possession of crack, the first time since the Nixon administration that Congress has repealed a mandatory minimum sentence.

The first time in about 40 years that a minimum mandatory has been repealed. Unreal.

Minimum mandatory sentences were created to take discretion away from judges. It was the beginning of the Executive Branch telling the Judicial Branch they were not to be trusted. They would do what they were told. They would not look at a defendant as an individual, it would not matter how he otherwise lived his life. Sure, there's the "safety valve" that allows a judge to drop below the minimum mandatory, but we're still starting from a point of no discretion, unless certain factors come together like the sun, moon, and the stars.

About 10 years later, we had the U.S. Sentencing Guidelines, telling judges to become bean counters and add up a bunch of numbers to determine a defendant's sentence.

The issue from yesterdays historic vote is not the end of the 100-1 ratio for crack to cocaine, it's the fact that for the first time in 40 years, we're taking a different road, going back to a little discretion.

I wish I could say it's the start of some serious sentencing reform. I don't think it is. We talk about all the non-violent people in prison serving ridiculous prison sentences, while idiots claim it's not true.

So yesterday's vote was a great thing, but let's not get all excited as if it's the beginning of anything.

It's just a crack.

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, July 26, 2010

Is The Blogosphere Getting Too Personal?

There's been a recent shift in the blogosphere. From a place where we find way too much robotic marketing and self-promotion dressed as blog posts, now comes a slew of deeply personal posts from some well respected writers, and all very recently.

CBS's Andrew Cohen, one of the best journalists around for political news, writes about the love of his life marrying, someone else.

Fresno Criminal Defense Lawyer Rick Horowitz thinks the criminal justice system is broken and is thinking of taking down his blogs.

Another criminal defense lawyer, Norm Pattis, isn't sure he wants to come back from vacation (but he will).

These are all pretty personal essays. I wonder if it's a trend, if it's just the summer doldrums, or a trend in the blogosphere.

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, July 21, 2010

The Hatred Of Being In Trial

I never understood it.

A criminal lawyer is prone to try more cases than a civil lawyer. It's what draws us to the profession. Yet I hear every day lawyers bitching and moaning about being in trial. It's not because they don't like trying a case (which some don't), it's mainly the private practitioner that believes it's a burden on the "practice."

I disagree.

Why would you enter the profession of criminal law and not want to be in trial? Isn't the greatest part of the practice sitting in court and questioning witnesses, arguing points of law and facts of a case? Or is it sitting in the office collecting checks and interviewing potential clients?

Last night a fellow criminal defense lawyer lamented to me that being in trial meant "no new clients" until the trial is over. Really? Trial ends in the evening. Is meeting with a potential client after work or on a Saturday prohibited?

The treadmill of morning court - office - home - morning court - office - home, gets old, and it doesn't make anyone a better lawyer. There's nothing better for the "practice" then dusting off the "good" suits and going toe to toe with the government for a few hours, few days, or few weeks. It's not a burden on the practice, it's a benefit of the practice.

Being in trial just means things get shifted. I find myself more disciplined when I'm in trial - waking up earlier, not procrastinating, using the free time efficiently. If you have some friends that can cover other matters, life goes on.

In private practice the trials don't come as often as when I was in the public defender's office. This is why I embrace them. There is a peacefullness to being in a courtroom with no cell phone, no wireless access, no fires to put out in the office, no running from courtroom to courtroom or meeting to meeting. Just sitting in one courtroom, trying a case.

I love it.

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, July 19, 2010

Run Prosecutors, Run

Perusing the paper this morning, I see political endorsements are in full swing at three a day. Two of the three races mentioned today included prosecutors running for the spot.

Although neither prosecutor was endorsed, there was noticeably absent any other type of lawyer, including of course a criminal defense lawyer.

Currently, depending on who you ask, 17% percent of the Florida Legislature are lawyers (Cue the "that's too many, lawyers suck" crowd). Some say it's less. Of course this doesn't account for those who call themselves "lawyer" but don't practice.

Running for office as a prosecutor is like walking in to the dance as the pretty girl without a date. It creates automatic attention.

Former prosecutors are even more fascinating. If an estate planning lawyer is running for office, and worked as a prosecutor for 5 minutes, he's not an estate planning lawyer running for office, he's a former prosecutor. Hey, whatever it takes to get elected. Who the hell cares about an estate planning lawyer anyway? No one went to jail. Any lawyer who runs for office and spent some time locking people up, makes it a point to let the public know. The public has always found some correlation between prosecutors and good law, even though the country is broke, foreclosures are out of control, public schools are a disgrace, and state health care programs are failing, it's always good to have a former or current prosecutor in office. At least the masses wont be given the key to the jail. That would ruin everything.

And of course there's the criminal defense lawyers who run for office. The few. Right now there are three criminal defense lawyers running for the legislature in Florida. To their credit, they all mention criminal defense experience. They mention it. None highlight it as if representing people charged with crimes gives them some knowledge of how the constitution and statutes work in practice. That's a no no. One criminal defense lawyer/former prosecutor candidate headlines her bio with:

Distinguished Law Record- Tough on Crime

Having a legislature full of prosecutors, or those who believe their only relevant experience is that of a prosecutor or former prosecutor, is like having a courthouse where there are no defense lawyers, no one to balance the cry for more jails, more minimum mandatories, more criminal offenses for every known type of conduct. Would things be better if legislatures were all Republicans or all Democrats? Some say yes. They're ignorant.

Criminal defense lawyers as a group rarely run for office. The anti-government mentality of many of us means that we don't want to be part of the process. We feel better cursing the problem than trying to be a part of the solution. I wish more criminal defense lawyers would run for office. I wish the public would appreciate the presence of a defender of liberty.

But until criminal defense lawyers are included in two out of three elections in a day of newspaper endorsements, the public will continue to see a criminal defense lawyer running as the exception, instead of the norm.

And people don't like the exception. They like the norm.

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, July 16, 2010

My Cousin Vinny Meets A Houston Criminal Defense Lawyer

Jackie Carpenter, African American criminal defense lawyer in Houston, Texas, for a fleeting moment, is a suspect in an armed robbery case. Her story, while interesting to the criminal defense bloggers, was met with shock mostly by the non-lawyer readers, and of course the rationalization by law enforcement. We criminal defense lawyers read stories like Jackie's and know that they don't just occur in movies.

The issue here is not whether the officer's conduct was improper. Jackie probably shocked her readers by saying she won't sue, but she knows better - the only damage is to her perception of the world, so who cares. Her moment "in the client's shoes" is something that will make her a better lawyer, and her clients will appreciate the passion of a lawyer who can say "I've been there."

The issue is faulty eyewitness testimony.

Tonight (Friday) Chris Hansen will discuss the topic of faulty eyewitness testimony on Dateline NBC. I saw a preview this morning, and it looks like something everyone should watch that thinks eyewitness testimony means anything.

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

Saturday, July 10, 2010

To Kill A Mockingbird Turns 50

July 11, 1960, To Kill A Mockingbird was published. Look above, and it's obvious the story has great meaning to me. The Washington Post blog has a great post about the background of the book.

Author Harper Lee, known to be quite reclusive these days, sent me a message a few years ago. I had written an article for the Florida Association of Criminal Defense Lawyers (FACDL) magazine commerating the death of Gregory Peck. After it was published, the executive director of FACDL called me and asked if I was sitting down. She told me Harper Lee read the article and liked it.

The Death of Atticus Finch

As I sat in stunned silence, she went on to tell me that the house FACDL owns in Tallahassee, Florida was purchased from a relative of Harper Lee. This relative for some reason made a point to always read the FACDL magazine. When she saw the article, she sent a copy to Ms. Lee.

So other than being a criminal defense lawyer, that's my "connection" with the story, my "brush with greatness."

I found this video, it captures the essence of To Kill A Mockingbird as best as I've seen, although the music is a little misplaced.

Enjoy, and happy anniversary to a story that should be required reading, or viewing.

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, July 05, 2010

No Violins Needed

I don't know where or when it started. I'm sure it started its demise before I was around, hell, Atticus Finch was never the darling of society, but the criminal defense function, not just the lawyers, has reached a level that goes beyond "unwelcome."

I have been thinking about this for a while now.

At our core, we, the criminal defense lawyer, have the following philosophy:

We exist for the purpose of making sure that the government, law enforcement, and those who would advocate to take away liberty, do so by presenting evidence that proves each and every element of a crime, beyond a reasonable doubt. We study and investigate whether any search or seizure of our fellow man was, under the Fourth Amendment, reasonable. We try to discover whether our fellow man was advised of his right to remain silent, and if the government alleges that he waived that Constitutional right (number 5), we investigate whether that right was waived freely and voluntarily. We act as the Sixth Amendment, providing the required effective assistance of counsel. We do not draft contracts, wills, litigate monetary disputes, or assist in the breakup of families. We assist those who are required to have counsel under the Constitution. Finally, we advocate against cruel and unusual punishment, something we are all protected from by the Eighth Amendment.

Four of the first ten amendments, otherwise known as the Bill of Rights, were written for the criminal justice system. To sum it up, the criminal defense lawyer mirrored the philosophy behind the creation of America - a mistrust of government, a method of redress, and liberty. The criminal defense lawyer was given important powers to question government and assure that any attempt to take away liberty was done with strict scrutiny.

Now I know, back then they didn't have cocaine or ecstasy or airplanes or grow houses or terrorists. I know. They didn't have parents or teachers who relied on the juvenile justice system to raise their kids and teach them discipline. They didn't have 24 hour cable news, and they didn't have Law & Order running 6 hours a day teaching us that prosecutors and cops were angels, and criminal defense lawyers were the devil.

I wasn't sure how to write about this, and then of course, Gideon took care of it for me.

Forgive the length, but it's that poignant:

These are the rights of individuals – all individuals and checks against the power of the large governmental entities. The Constitution drew a line and on the site that was protected were placed the flesh and blood individuals, the citizenry and on the side that was being warned and whose authority was being severely limited was the abstract, nameless, faceless Government.

What a beautiful concept: we are individuals first and as individuals, we have rights that will not be subordinate to those of an ever-changing abstract concept.

The concept is dying a quick and painful death. It took only 200 odd years for the pendulum to have shifted completely in the opposite direction. By attrition, or force of sensationalism, or crowdsourced fear, the line drawn by the Constitution has turned around and is now facing those very individuals it sought to protect. The idea of individual liberties is so foreign to most, that comes as a surprise to many that the founders fought and fought hard for them.

These protections and rights exist merely as a thorn in the side of the righteous who seek to punish the evil. US vs. criminals. Speeding this disaster is the learned hand of those who are in charge of interpreting and enforcing the august protections enumerated and implied by the Great Document.

Jurisprudence, over the years, has taken an increasingly narrow approach to individuals’ rights, especially those charged and convicted of criminal offenses. The scope of acceptable intrusion by the Government has increased dramatically over the years and the zone of protection surrounding each individual and his possessions has correspondingly narrowed.

Cops want to use collective knowledge to deem that someone carrying two cell phones is a drug dealer and thus about to embark on a baby-killing spree? Allowed. Cops want to use lies and trickery to trap individuals into confessing to things they may or may not have done? Allowed. Prosecutors make impermissible remarks to juries and comment on a defendant’s exercise of his rights? Frowned upon, but the guy was guilty as sin anyway, so it doesn’t matter.

I fear that if one were to embark on the task of writing a book that enumerated the remaining fundamental protections, it may be just long enough to fill Twitter’s 140 character requirement. The Twitstitution.

Really, what 4th amendment rights does one have anymore? Police have to get a warrant? Well, not always. And even in cases where they really should have, it’s mostly okay. What if the prosecutor circumvents the probable cause requirement and adds charges later that aren’t supported by the evidence? Too bad, prove it at trial.

The role of the defense lawyer has gone from Constitutional law expert to mitigation specialist. Cases are won and lost on the facts, not the law. The law is dead to us. A lifeless corpse that taunts us and obstructs us in our efforts to keep the Govermental power in check. There is no longer any confidence backing up an assertion that an act by the police is “clearly illegal”. Frankly, there is no such thing anymore. Courts will find a way to condone whatever improper action we complain about.

“But he’s only 16, judge”, “he didn’t really threaten the use of a gun”, “he’s only doing this because he has a massive drug problem”.

Go to any court and sit in on any pre-trial negotiation and you’ll hear most, if not all defense lawyers use variations of the above. Mitigation specialists.

That’s the only thing left to us: harkening back to the very individuality that the Constitution sought to protect. Each person is an individual, but instead of talking in terms of protection, we now speak of punishment. Each individual is different and must be punished differently.

Guilt upon arrest is but a foregone conclusion. All that remains to be determined is the term. We don’t practice law anymore; there is nothing noble left. We mitigate.

The law is dead and slowly, it’s killing us all too.

A frequent quip is that if the Constitution were to be drafted today, the 4th, 5th, 6th, and 8th Amendments would look much different, if they were written at all. More frequent is the cries of those who rail against the criminal defense function, until they are arrested, or worse, treated rudely by a police officer. At that point, they "know their rights." So they thought.

Sadly, I don't think we will ever go in a different direction. We see the criminal defense lawyer as an obstructionist, a delay tactic, and a waste of taxpayers money if it's a public defender. Newspapers relish their websites that immediately post the photos of the "presumed innocent" recently arrested locals, and the topic of going from 200,000 to 2,000,000 incarcerated in America, is a cocktail party "oh well."

With all this, the role of the criminal defense lawyer, while diminished by courts and the public, remains what it was always designed to be - an advocate for an individual for whom the government seeks to take away liberty. While we may lose the battle to convince society, other than a few who claim to understand, and do, of our importance, we will never have any less importance to the person standing next to us in an American courtroom.

One day society may catch up, and if not....

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, July 02, 2010

My Every So Often Rant On The Media

Somewhere in the archives of this blog are a few posts about the media. As a criminal defense lawyer, I read stories differently than Mom and Pop "did you see what that guy did!" do. I laugh at the buzz words that create anger amongst the public. Routine continuances are called "another delay," and defendants who are not required to appear at arraignments are reported to have "skipped out" on the 30 second hearing. A lawyer on vacation "did not return calls to his office," and any time two cars hit each other, "charges are pending,"

Former Florida Republican Party Chair Jim Greer was arrested recently. He had his arraignment. Get this - not only was he not there, his lawyers didn't bother to show up either! And, he has already decided he is going to trial and the iron clad date has been set.

Well, according to the newspaper:

Jim Greer, the former chairman of the Republican Party of Florida, will go on trial on charges of theft, fraud and money laundering.

The trial of Jim Greer on theft, fraud and money laundering charges is to begin Oct. 18. Greer, who has pleaded not guilty, wasn't at the hearing. Neither were his attorneys.

This type of writing is done for a reason - it creates the opportunity for a guaranteed follow up. A follow up that will say this:

Despite the judge setting a trial date of October 18, Greer's lawyers have asked for more time, a delay that will set the trial off for many months. Prosecutors said today they would "like to get to trial as soon as possible as justice delayed is justice denied."

Just once, I'd like to see the type of story above, written like this:

Jim Greer, the former chairman of the Republican Party of Florida, has a trial date for October 18. This is because every case, after arraignment, is given a trial date. It doesn't mean Greer will actually go to trial, or that the trial will be on that date, but it gives us an opportunity to make some assumptions in order to get the community all riled up over what will be a certain delay (we call continuances "delays" because people don't like "delays.") The "continuance delay" will be as a result of the same reasons in every single criminal case. Prosecutors probably have thousands more documents to turn over, depositions need to be taken, and much work needs to be done. Hell, prosecutors may even want some more time. Maybe a deal will be worked out. The reason a trial date was set for October is because there is a 180 day speedy trial rule in Florida, and this provides an opportunity for a waiver.

Greer wasn't at his arraignment, nor were his lawyers. This is because under Florida Law, and in fact in most states, written pleadings stating the defendant pleads not guilty, are favored over packing courtrooms with suits and defendants for 30 second hearings. We just say no one was there so that you can wonder why and maybe think the defendant is being rude or the lawyers are disrespecting the judge.

I understand the media has an obligation to sell its product. I understand the gritty details that cause people to say "oh, I see, no big deal," don't create a captive audience. But just once, once, I'd like to see a reporter go rogue and lay it all out.

Not just what's accurate, but the absolute truth.

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