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. Post to Twitter

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. 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. Post to Twitter

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. Post to Twitter

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. Post to Twitter

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. Post to Twitter

"To Seek Justice" Does Not Include An Acquittal

Several years ago I moderated a panel on ethics in criminal justice. A former senior prosecutor-turned judge said that he believed professionalism had diminished due to the atmosphere in "the office" that it's all about winning.

From The National Center for Prosecution Ethics National Rules and Standards:

3-1.2(c): The Function of the Prosecutor
The duty of the prosecutor is to seek justice, not merely to convict.

Seeking justice is a broad term, but attaching it to my trial last week, it appears that it means the prosecutor's duty was to present evidence to a jury and ask them to convict, because she believed the 6 Defendants were guilty beyond a reasonable doubt.

The jury disagreed. They acquitted 4 of the 6 Defendants.

That's justice.

But society disagrees. Our "Law & Order" society believes that an acquittal is not justice. Why is that? Because we thirst for the bad guy to be caught, and sent to jail. We are conditioned to believe that anything else is the result of a bad prosecutor or slick defense attorney.

We can't bring ourselves to believe that evidence is presented in a court of law and a jury determines that it's not enough, or God forbid, that the Defendant is innocent.

Helping this twisted notion of justice, is the Department of Justice and their method of announcing trial results.

The press release on my case:

"Jury Convicts 2, Acquits 4 in $21 Million Dollar Mortgage Fraud Scheme."

No, I'm kidding. Here's the title:

"2 Miami-Dade residents convicted in 21 million dollar mortgage fraud scheme."

Nowhere in the press release does it mention the acquittals.

Why? When the Defendant's were indicted a press release was sent to the media. Why aren't they entitled to a press release when they are acquitted?

Because that is not justice

Because the goal is not to seek justice. It is to seek convictions.

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. Post to Twitter

3 Years And 14 Days to Justice

I don’t spend much time here talking about my cases. This isn’t a billboard for my practice. It’s a place for me to express thoughts, joke, and do whatever the hell I want to do. Lawyers who can’t have a conversation without telling their own “war stories” are annoying, and mostly full of crap. Lawyers who use their blogs to promote themselves, achieve success in “traffic” and little else.

But last Friday, after 11 days of trial and 2 and ½ days of deliberations, a federal jury said my client, I’ll call him “Jose,” (because his name is Jose), was not guilty of both conspiracy to commit wire fraud and wire fraud. Four of the other six defendants in the case received the same verdict. This ended a journey that began when Jose came to me three years ago.

An acquittal is of course not as common as a conviction. Most (97%) of criminal cases end in a plea, dismissal, or other type of resolution. Trials are the exception, and federal trials are an animal unto themselves. By the time a federal indictment is returned, often the feds have been working on the case for years.

Am I happy about the acquittal? Of course. Is it the reason for this post? No. I’ve won before. I hope to win again. The rule of the professional criminal defense lawyer, as opposed to the self-promoting “look how great I am” type, is that you take your acquittal and quietly move on to the next case. Most believe an acquittal is the result of “luck” or “technicalities,” or a jury gone wild. No sense in talking about the acquittal for too long, as it appears to be bragging, or garners the public’s “you got lucky with your guilty client” mentality. Few get acquitted on Law & Order, people don’t like it.

This case was different.

Jose is a maintenance man from Cuba. He started at his job 22 years ago making $6 an hour. He was laid off last year due to budget cuts. At the time he was making $24 an hour. In 22 years he never received a complaint, was never disciplined by his boss, and according to his employer, was a “good employee.”

When the real estate market was at its height, Jose and his fellow workers were approached about “making money in the real estate market.” As a maintenance man making $24 an hour and owning a modest home, Jose never thought of making money doing anything but fixing things. He was told by a fellow worker that because he had good credit, he could invest in homes that would be fixed up and sold, and when those homes sold he would receive $5,000 per home. The word “mortgage” was never used, nor was the word “fraud” or “scam.”

A fellow worker told him it was legal, so he handed over his driver’s license and social security card, put “no money down,” and sometime later, he received money.

A year later Jose received a visit from a federal agent. He made the rare decision to find a lawyer prior to talking to the agent, and that’s where I joined the party. Jose agreed to talk to the agent, who came to my office so Jose could tell him the story. The agent showed Jose mortgage documents with his signature. He had signed none of them, attended no closings, and the agent knew it. There was no doubt in my mind my client was going to be a government witness in an eventual case of mortgage fraud.

A year later a slew of government issued cars, agents, and guns descended on Jose’s house pre-dawn and arrested him. He had been indicted with 14 others. I called the agent to ask why there was no voluntary surrender. “The prosecutor said to arrest everyone, even the ones with lawyers who cooperated.”

At the center of the case was the already convicted leader and organizer of a $24 million dollar fraud enterprise – her homes, yachts, and sports cars already seized. In her effort to reduce her 10-year prison sentence, she laid out the entire fraud. Jose would face trial with other “straw borrowers” (those for whom mortgages were taken out in name only), as well as people who worked in the office whiting out loan documents, lying about who they were when lenders called, falsely verifying employment with fake phone numbers actually reaching cell phones of fellow employees of the fraudster, and a banker who created fake checks and false verifications of deposit.

The theory of prosecution of my client? He knew it was mortgage fraud.

The case was severed and 7 defendants went to trial first. There was a hung jury on all defendants. The straw buyers were acquitted on the wire fraud charge, but the jury deadlocked on conspiracy. The reason for the government’s stunning defeat – the jury hated the fraudster. The prosecutor, who called the result a “fluke,” would not be deterred. There would be no re-evaluation of the case, no attempt to make a deal with the straw borrowers in that case. Trial number two would proceed.

Now it was my turn, along with 5 other defendants.

This time the government would change strategy. No, not that strategy – they did their typical federal trial thing – turning over a witness list the morning of trial with 39 witnesses, leaving off a few others who sauntered in to testify. They also proudly had their case agents walk over to our table at the end of the first day of trial, and give us a few hundred pages of “Jencks Act” discovery – reports they’d had for months. They weren’t given out the morning of the first day because the prosecutor “forgot.” Throughout the trial other reports surfaced, and were handed out moments before the day’s witnesses would began to testify.

Here was the change: They would not call the fraudster, and they would lightly tread on the extent of the fraud – leaving it up to the jury to determine whether the clients signed any documents. They knew they were all false, but hey, maybe they weren’t…… Their theory would be that the clients handing over their driver’s license and social security cards started into motion this massive fraud – and they should be held responsible.

The height of the disingenuious presentation of evidence was a witness who did exactly what Jose was accused of doing, but wasn't indicted. The only difference was that the witness waited a while to accept his check because he had second thoughts. He did, eventually, take the check. In closing the prosecutor argued that he "walked away." I had to remind the jury that he actually "stepped away," for a little while.

The government screwed this case up from the beginning. Instead of working out deals from the bottom up, they went from the top down. The jury wasn’t buying it. How could the government claim that these people knew of all this fraud when it was clear the fraudster did everything to hide who she was and what she was doing, including filling out change of address forms for all the straw borrowers so that the mortgage correspondence went to a P.O. Box instead of their homes?

The government made some bets here. They bet on the environment out there – the anger over foreclosures, the understanding that the collapse of the real estate market is why the economy is tanking. They bet that the jury would convict anyone who had anything to do with mortgage fraud, even if in fact, they had no knowledge they were participants in a mortgage fraud scheme. They bet that the excused potential juror who claimed (as some potential juror always claims) that “if they were indicted, they must have done something wrong,” shared a similar thought with a few of the 12 who were seated to hear the case.

Why was the jury out for 2 ½ days? I don’t know. I think jurors are more skeptical when they are about to acquit, than when they are going to convict. I’ve heard many statistics, but one I believe is that 80% of potential jurors show up for jury duty prone to convict. Maybe when they hear a case and do not have proof beyond a reasonable doubt, especially in a case like this – with 8 boxes of evidence and dozens of witnesses - they second guess themselves. “Are we really going to tell the government they didn’t prove their case?”

My client didn’t just get lucky here, beat the rap, or escape justice. He was innocent. Yes, for all those who said after the trial “what did he do,” the answer is “nothing.” He was an unknowing participant in a scam. The government had to prove that at the time he handed over his information, he knew that it was fraud. No one came to court to testify to that. No one said “I told Jose it was a scam, that we would forge documents, that multiple loans would be taken out in his name.” Jose of course was approached because he wouldn’t know, because he wouldn’t ask questions, because he wasn’t as smart as the fraudster.

The government just wanted a jury to find beyond a reasonable doubt that he knew, because they are the government, and well, they only prosecute guilty people.

They wanted to send a message – don’t be an idiot, don’t get scammed, or you will go to federal prison.

This was not about an acquittal, a framed verdict form on an office wall, or an “attaboy” from my colleagues. This was about how the government can create criminality from stupidity, from naivety, from a desire to send a message to society that is mired in an environment of blame.

Jose was found not guilty because he was not guilty. The fact that he had to endure the possibility of being locked up in federal prison over his conduct is shameful. That the government brings cases to trial because they think they can craft a case that will leave a jury wondering about guilt, and forgoing the burden, is both scary and a derogation of their duty as prosecutors.

This was the first case I can remember where I said not a word to the prosecutor the entire time. No “good morning,” no “good evening,” no nothing that wasn’t necessary for the discharge of my professional duty. I could not bring myself to converse with a lawyer whom I believed was prosecuting an unjust cause. This was a case where the government believed they could prove guilt, whether it was there, or not. In the presentation of every loan, the question was asked: “how much was Jose borrowing here?” He wasn’t borrowing anything. The reports the government had of their multiple interviews with the fraudster and other witnesses, gave them knowledge that Jose didn’t take out any loans. Still, maybe they could get a jury to believe otherwise. Maybe then they could send that message that getting scammed is a crime. Maybe then they could prosecute every old lady and gullible American who buys into a scam.

This is a case where my joy over the acquittal is tempered with my disgust for the government in even bringing this case. The prosecution was a waste of time and money. The presentation of evidence was disingenuous. The government knew what happened here, but acted throughout trial as if “hey, we’re not sure.”

That this case ended in a not guilty is a tribute to the fleeting thought that the system, despite a prosecutor who tosses discretion in favor of an attempt to prove criminality, can still work.

As I said in my closing: “this case isn’t even close.” There was no knowledge, no intent, and no specific intent to defraud. None. Zero. Still, I engaged in a war with the federal government, who poured water on the jury and asked them to trust that it was raining.

They were smart enough to look up.

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. Post to Twitter

A Friday Musical Interlude

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. Post to Twitter