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. 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. Post to Twitter

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
percent.

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

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

Upsetting.

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. Post to Twitter

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. Post to Twitter

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. Post to Twitter