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

Thursday, December 15, 2011

Listening In On A "Double Your Income Call."

The email was one of many I, and other lawyers, receive:

I am hosting a free teleseminar on August 10, 2011 entitled:

"How to Double Your Criminal Defense Practice Income Without Spending One Extra Hour In The Office”

What I will reveal in this call will enable you to design and implement a strategy to boost your practice revenues and boost them quickly! These are proven techniques

One hour, on the phone, a free call, the tips I needed to build my dream practice, only 200 lines available, RSVP now.

So I did.

And then I waited. I waited for the email: "Sorry Mr. Tannebaum, we're all full (because we know who you are and are not letting you near this call.)

It never came. I guess I'm not that famous. Damn.

I got plenty of auto follow-up emails from her, but not the expected, "sorry folks, parks closed" one.

The host?

Rachel Kugel, admitted to the Bar in 2005.

I don't know her, don't know anything about her reputation as a lawyer, just this, and this.

Here's what happened on the call.

It was an interview type conversation. A seemingly drooling questioner, and Rachel answering the questions. It was like an infomercial on the phone. Just enough was said to get people to want more.

The first thing was about who she is - "I'm not a marketing coach." "I don't teach what I don't do." "My primary income comes from being a lawyer."

OK. Sounds good.

She told of her history - solo right out of school, and a half-million in income two years later. There were also hints that that number is now one million.

Now everyone is listening.

The overriding theme was that this can be done, as a criminal defense lawyer, with little work. That kept being said over and over again. It sounded attractive to the young, desperate "how to make money as a lawyer" lawyers, although Rachel made it clear it was for all lawyers. There was no doubt that the strategy was to let people know over and over again that making money taking other people's lives into your hands was "easy" and required "little work to implement."

The system involves getting clients to hire you. It has nothing to do with actually representing them. It is all about "being first" to get the client, convincing them you are "the expert" to handle their DUI or shoplifting case through forms and other tactics, (these two types of cases were mentioned over and over again, no other examples of cases were mentioned), and charging more while obtaining these clients without having to be in the office by "leveraging technology," (read: e-mail, etc...). At one point Rachel said that potential clients get messages from her that make it seem that they are actually coming from her (read: auto, canned, messages.)

She referred to her many vacations and stress-free life, her "Park Avenue address" where she only has to go there "when I want." The questioner thought that was absolutely amazing. I think it's probably a time-share Regus type deal.

She revealed that her average fee is $4,000. This would mean that on average, she opens 250 cases a year or, on average, over 4 cases a week.

The talk was all about the smaller cases. She said that a lawyer she knew said he would take on high profile big murder cases for the sole purpose of getting hired on smaller cases like DUI and shoplifting. I found that interesting, because in my 17 years, I have found that most lawyers who do high-profile murder cases do them to get other high-profile murder cases or other high-profile cases. But maybe I'm wrong.

The word system started to be mentioned. At one point, the questioner said "we've heard system, system, system," and then he asked her to elaborate. This was exactly 45 minutes in to the call.

It's $1297, although we were told it's worth tens of thousands of dollars.

But wait, there's more.

For the callers, a couple "bonus" items, including a personal coaching call from Rachel.

And for us, $997, with a 90 day guarantee that it will work.

Rachel at one point said one of her goals was to "return honor" to our practice. I have no idea how teaching lawyers to convince clients (whether it's true or not) that you are the expert for their shoplifting case is going to "return honor" to our practice. I think there's plenty of honor. Teaching lawyers to make money by strategic marketing tools that are less than a face to face meeting with the new client, isn't real attractive to me.

I don't know how many people were on the call last night, or how many signed up - you can do the math.

And that's my report on the call.

Rachel did say one thing that I liked - that when clients get her on the phone they have already decided to hire her. That's something I've strived for - to get rid of the, as she says "tire kickers."

Although when clients hire me, it's not because they are dazzled with my strategy, my leveraging of technology, or my ability to make it seem like I am actually talking to them.

It's because they need a good lawyer, I hope.

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 05, 2011

If A Post About TSA Fell In A Forrest...

I haven't spent much time talking about the TSA. Unlike my good American Mark Bennett, I still fly. I have plenty of other things that invoke my anger, but the recent allegations of a strip search of some old lady at JFK Airport have caused me to write.

I write not to express outrage at the notion that airport security would ask some old lady to take her pants off, I write to ask what the point is in even talking about it?

What's the point of pounding the keyboard to rant about the unbelievable power of TSA and the cowards in Congress who allow it to continue?

Very little will ever change.

TSA can do whatever they want because our air transportation system has had no terrorist attacks since 9/11/01. As long as that stat remains, they can do whatever they want. If they want to make changes to their search tactics, they can do that, but no elected member or members of Congress are going to say something like "enough with the old ladies and kids."

The fear is that one day a terrorist group will use an old lady or 5 year old kid to bring down a 747, and then of course the member of Congress who advocated reasonableness in airport security will be defeated at the voting booth. And no one wants to be defeated at the voting booth. No one.

The philosophy of TSA is simple - everyone is a potential terrorist. Everyone.

Last week I was at Tampa International Airport where in front of me was some middle aged mom with her husband. She clearly looked like she was headed to see her kids for the weekend or some other non-terrorist activity. But, yes, Al-Queda could have recruited her and deep inside those mom jeans could have been a device ready to kill everyone on their way on a Friday morning from Tampa to Toledo.

TSA spent a lot of time with her - gloves, questions, pat downs. No discretion, no reasonable thought. It was just, "let's check out this mom so no one thinks they get a pass just because they are wearing a knit sweater and their luggage tag has a picture of 2 dogs."

TSA has now apologized, kind of to Ms. Zimmerman. "Sorry." It was a finely crafted (bullshit) apology):

TSA contacted the passenger to apologize that she feels she had an unpleasant screening; however, TSA does not include strip searches in its protocols and a strip search did not occur in this case" said a spokesman for TSA.

"Sorry you feel being asked to take off your pants was a strip search you old bag, perhaps you should look up the legal and technical definition of a strip search before you accuse us of strip searching you just because your pants were off you stupid old lady."

There was no video, so TSA initially did their perfect "no video" response by denying everything. Perhaps they thought everyone would believe this woman took her pants off voluntarily. They are the TSA and they are keeping us safe and when you keep us safe, we believe everything you say. Everything. Just keep keeping us safe by making us take our cash out of our pockets.

I know there are people who think that it's important that we continue to write about these disgusting tactics of TSA, and I'm not saying it's' not. But I do hope we all know that the TSA doesn't care. They can do whatever they want, and they do.

Non-anonymous comments welcome.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, November 20, 2011

It's Time For A National Conversation On Law Enforcement

It's almost a daily exercise, watching video of law enforcement conduct that raises eyebrows. The responses are always the same: 1) The video doesn't tell the entire story, 2) We don't understand the "adrenaline" that causes police officers to beat the living crap out of suspects after they are securely in custody, and 3) So what, the guy's a criminal anyway.

We as criminal defense lawyers, civil libertarians, and yes, even some prosecutors and judges, watch these videos and know that there is a large segment of the country that finds this conduct just "part of the job."

And then something like this pops up:

College students, sitting in a line, in custody, being pepper sprayed in an image that reminds those of us who have seen them, of the videos of mass executions, like this one:

And so Officer Pike has been placed on leave, he'll probably be fired, and I hope arrested for aggravated assault. (Cue the giggles of the defense bar).

A few years ago I was sitting with a law-and-order type who had grown tired of the increase in minimum mandatory sentences, the lack of discretion of judges to do what they felt was right, and he made a comment that finds it's way in to this discussion:

"Why did the government believe after September 11, that the thing to do was to give all the power to prosecutors and cops?"

That's what we did, and we did it because all we wanted was to be safe.

Today, politicians confidently state that the number one priority of government is to "keep us safe. Is it? Is that what the majority of Americans want from their government more than anything? I ask because since Barack Obama has been President of the United States, we haven't had a terrorist attack and it looks like he's going to be fighting for his job next year.

Alexis Madrigal, in one of the best articles on the pepper spraying by Officer Pike that lays out how we got here, he writes:

9/11 put the final nail in the coffin of the previous protest-control regime. By the time of the Free Trade of the Americas anti-globalization protests in Miami broke out eight years ago this week, an entirely new model of taking on protests had emerged. People called it the Miami model. It was heavily militarized and very forceful. The police had armored personnel carriers.

As for what happened to the students of UC Davis: Authorities have long claimed that they were merely battling the "black bloc" of violent anarchists. But when you look at all these videos, the bogeyman isn't there.

Instead, it's a dozen scared kids and a police officer named John Pike spraying them in the face from three feet away. And while it's his finger pulling the trigger, the police system is what put him in the position to be standing in front of those students. I am sure that he is a man like me, and he didn't become a cop to shoot history majors with pepper spray. But the current policing paradigm requires that students get shot in the eyes with a chemical weapon if they resist, however peaceably. Someone has to do it.

Where are we going here? Where are the leaders in the country, on both sides of the political sphere, who believe that all this must stop, and stop now?

Law enforcement can make or break some political candidate's campaigns. Anyone in politics knows that.

But it's time to put aside the desire to gain and remain in public office at the expense of ignoring what is happening on the streets of this country, and to our kids.

It's time to have a real conversation about this. It's time for the media, government, civic and business leaders, and law enforcement, to sit down and talk about this.

Things need to change.


Non-anonymous comments welcome.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 04, 2011

Amanda And Casey

As I write, Amanda Knox is on a British Airways plane to London on her way home to Seattle after an Italian appellate court overturned her murder conviction. The majority of Americans (not as many Italians) are happy. After 4 years in prison, Amanda Knox will return to the United States, to the loving arms of her family, the media, the book publishers, and movie producers.

Like Casey Anthony, much of the Amanda Knox trial was shown on television. Like Casey Anthony, American White Trash's favorite TV hack Nancy Grace spent a great deal of time on the Knox case.

And so yesterday, after the verdict, I commented that now we have "another young female defendant goes free on a murder charge and we all celebrate. Well, the first part at least is true."

Of course the public and private response was that "the cases were different."

I know that, but the real response, never said, was "don't mess with my anger that Casey was acquitted while I celebrate Amanda's freedom, even though I really don't know what happened in either case."

So what was different?

First and foremost, there was a dead toddler in one case.

Second, one case was in America, where we blindly trust the judicial system. The other case was in a foreign country. It doesn't matter which country - we don't trust justice in any other country.

Third, we knew everything about Casey's behavior during the investigation. We viewed her as a liar, and therefore a murderer. We didn't follow every move since the murder in Amanda's case. We saw her as a pretty young exchange student.

In the end, Amanda's case was too far away and involved much of the unkown regarding Italian criminal law for us to find her guilty before trial. Sure, there were scandalous allegations about Amanda's sex life and reputation, but those came from foreign prosecutors, so they were disregarded, by Americans.

What do we know about Amanda's case that comforts us in our happiness over her freedom - the DNA was contaminated. With that, we cheer her freedom. We need to know nothing else.

Did Amanda participate in the murder? Amanda is coming home, and that's all we care about.

Sure, the cases are different. Every case is different. But one thing is the same in both cases - we don't know what really happened.

Welcome home Amanda.

Non-anonymous comments welcome.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, September 19, 2011

How To Hire A (Criminal) Lawyer

There are few experienced criminal defense lawyers who can't say they've "seen it all." But then this pops up:

An order from Southern District of Florida Magistrate William Turnoff, worth a pause in your day, tells the story of a criminal defense lawyer who went on a crime spree with a client's family:

On March 14, 2008, [Emmanuel]Roy appeared before the Honorable Ted. E. Bandstra and announced that he would be filing a temporary notice of appearance as counsel for Defendant. According to the billing records, Roy also met with Coulton , “co-counsel Peter U. Mayas,” AUSA Fine, and Agent “Cuddington,” and made telephone calls, for which he billed a total of 12 hours. The court minutes reflected that the hearing lasted 5 minutes.

Taking a step back, Emmanuel Roy had already been retained by the client's wife, at the rate of $600 per hour with a $150,000 retainer. This was his arrangement with the wife, to whom he said nothing about making fee arrangements with other family members.

Mrs. Sewell, Ms. Reid, and other family members pooled funds from their savings accounts, pension plans, and a credit union loan to pay the legal fees to Roy. (Tr. at 49-52). Mrs. Sewell provided Roy with cashier’s checks totaling $83,000.00. (Tr. at 53). The copies of the cashier’s checks showed payments to Roy & Associates as follows: $30,000.00 on March 17, 2008; $4,000.00 on March 24, 2008; $16,000.00 on April 14, 2008; $10,000.00 on April 16, 2008; $3,200.00 and $10,000.00 on May 12, 2008; and $13,000.00 on August 2, 2008. (Exh. L). Mrs. Sewell never received copies of IRS Form 8300 evidencing these payments, and Roy’s billing records were inconsistent with regard to the amounts documented in Defendant’s exhibits. (Tr. at 53); (Exh. L; P). Roy failed to advise them that he was also obtaining jewelry and other assets from Mrs. Coulton as payment toward his legal fees. (Tr. at 54). Even a cursory review of the billing records concerning the time billed, the services rendered, and the amounts paid, reveals that they are fraudulent.

Roy then flew to London, with his wife, met with the client's wife, and at breakfast had her hand over her wedding ring. This was before having her turn over her condo to him, valued at over $250,000.00.

It goes on. It gets worse. One of the worst 33 pages of lawyer misconduct I've seen.

Despite their ineligibility to practice before this Court, neither Roy nor Mayas ever informed Coulton, his wife, his family, AUSA Fine, or the Court, that he was not authorized to appear as counsel in this District. (Tr. at 12; 56); (ECF No. 169). On the contrary, Roy actually lied to Defendant’s family informing them that he was not only a former Assistant District Attorney in Florida, but that he had also worked with AUSA Fine.

Roy wasn't even admitted to practice in the Southern District. He lied about having been a prosecutor. He lied about "meeting" with the judge. He lied about so many things. He filed pleadings under someone elses electronic filing account number.

When a family member finally received a call back after sentencing: [Roy] told her that he had been invited to President Obama’s inauguration and that, since the “head of the U.S. Bureau of Prisons” would be there, he would discuss Mr. Coulton’s medical issues with him at that time.

Here's the cap on his and his co-counsel's career:

Given the willful, deliberate, and fraudulently contemptuous conduct committed by Roy and Mayas; given that their conduct appears to be driven solely by a desire to line their own pockets; given that they committed numerous ethical violations during the course of their representation of Coulton; and given the public policy issues at stake, extraordinarily severe sanctions are in order. Accordingly, the Court holds Roy and Mayas, and their respective law firms, in contempt of court and imposes the following sanctions: (1) that they disgorge all fees obtained as a result of their unauthorized practice with interest; (2) that they be publicly reprimanded; (3) that they be barred from practicing in this District; (4) that they be required to reimburse Coulton for all fees and costs incurred in order to obtain counsel; (5) that they be required to fully cooperate with Coulton in his efforts to collect any and all sums owed to him as a result of these proceedings; (6) that they be required to pay all fees and costs to do so; and (7) that they each be referred to the Bar for disciplinary proceedings.

Looks like Emmanuel Roy has other problems to deal with as well.

This is one of the most offensive stories of lawyer misconduct I've seen. Going on a crime spree while taking advantage of the foreign family of a incarcerated client is despicable. The list of offenses here, the conspiracies that occurred - are an embarrassment.

But it also begs a question. How many other lawyers out there are benefitting from a client's lack of research? It's easy to determine whether a lawyer is admitted to practice in a certain jurisdiction, so why didn't anyone look?

When I've written before about the fraud the permeates the internet, I often get the "shut up Brian, we're not stupid, we can look at Google."

But we don't. Clients, don't.

I think Google and the greater internet is the enemy of lawyers who want to lie, who want to bolster their credentials, and hope that unknowing potential clients don't know any better, or don't know what questions to ask. If the Coulton family had taken a few moments to research their lawyer, they may have discovered he's not even admitted to practice in the Southern District of Florida.

But in the world of criminal defense, there is desperation. There is the client and the client's family who will write checks to the first lawyer who tells them what they want to hear. Typing names on the internet takes too long, unless we're looking for the cheapest price.

h/t South Florida Lawyers

Non-anonymous comments welcome.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, September 12, 2011

The Criminal Defense Mafia

As practice areas go, the criminal defense bar is about as collegial as it gets.

Yes, we, like any other type of "consumer" lawyers (PI, divorce), have our bunch that market themselves to death, but we tend to come together more often than other types of lawyers, as there is still a large group of us who are actually doing this work with the understanding that it means something. And so when Bob is going to be held in contempt you may find a dozen or so fellow criminal defense lawyers in the courtroom for support, and when Jim has a trial tomorrow, a few of us will send him some voir dire questions to help him out. We generally, not always, look out for our colleagues.

But there exists a mafia within our group. It's the former federal prosecutor mafia. There's probably a former state prosecutor mafia, but it's less structured, and generally isn't in on major white collar cases. Major white collar cases are where the "money" is, and where there is money, there are assholes who don't care about quality of representation or the client's choice of lawyer. More about that in a minute.

I've said forever that there is a difference between a criminal defense lawyer and a former prosecutor. Especially the "WE'RE FORMER PROSECUTORS" crew. That statement is much more true when you throw in former federal prosecutor.

Federal prosecutors are generally sprouted from better law schools and spent some time in BigLaw prior to going to work for the gubmint. When they leave the U.S. Attorney's office, it's rarely because they developed a sense that defending criminals was meaningful, rather, there's another BigLaw opportunity to be the "white collar" lawyer (never "criminal defense" - never), or they want to start a defense boutique and use their perceived connection to the office as a springboard to clients. "I used to work there, so I can get better deals." What most people don't' realize, is that most people, "used to work there." They're gone too. What most people don't realize either, is that current prosecutors don't like it much when their former colleagues use "I use to work here" as an attempt to gain some benefit. Client's don't really know that, so, whatever.

When former federal prosecutors go out in to the world of criminal defense, they generally like to stick with their former colleagues. Nothing wrong with that, except when they violate the Rules of Professional Responsibility, and violate the unwritten rule of helping clients without concern for their own ass.

The first time I realized there was a mafia in law though, it was not from a former prosecutor, it was a civil lawyer.

I was right out of the PD's office and received a call from a newly arrested business owner. It wasn't a big white collar case, he was charged with possession of cocaine.

We spoke on the phone and he agreed to hire me. He just wanted me to come to his business to get the check and meet. Being a young hungry lawyer, I obliged. When I arrived, he had a look of fear on his face and apologized. He had spoken with his civil lawyer who told him "you cannot hire that guy, if you don't hire the lawyer I am recommending to you, I will no longer work for you."

And that was that.

The former federal prosecutor mafia is much more apparent. I see the same half dozen lawyers in the same white collar cases, and I used to wonder - just how did that happen?

Now let me pause and say that yes, when I have co-defendants come to my office, I will recommend other lawyers. I make the recommendation based on who I think is the best lawyer for the client, having nothing to do with where they used to work. I have a weird sense that clients should be paired up with good lawyers that are a good fit, period.

The way it really works though, is like an insurance company.

There's a lead lawyer. He meets with all the co-defendants. He's getting paid by the company or the guy with the money. He recommends lawyers. The lawyers he recommends will all be paid for by his client. The other clients are free to hire who they want (with much discouragement), but they are on their own.

So a client hears of the investigation and calls their friendly neighborhood lawyer who they've known for 15 years. They advise of the situation and say they are not doing anything without this particular lawyer. When the subpoena comes, or the agent comes knocking, they call the head of the mafia who advises that friendly neighborhood lawyer is not a good choice, because he's real expensive and mafia head won't pay his fee regardless. He will though, pay the fee of a fellow "former federal prosecutor" who will of course represent the client marvelously and within the confines of what the mafia wants - information and access to the client.

There sometimes comes a point where the client wonders whether the lawyer "assigned" to them is looking out for their best interest, but often it's too late. If the client winds up charged and wants to go to trial, well, they'll get to that, maybe.

Some of these lawyers are very good, mind you, but the way they handle cases and bring other lawyers in, is a dirty little secret of our profession.

At least it was.

Non-anonymous comments welcome.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 08, 2011

Florida's New Clemency Rules Cause People To Say Stupid Things

The story goes like this: Florida was a state that didn't have automatic restoration of civil rights after a criminal was released from his sentence. Our former governor changed that. Then, one day, there was a cabinet meeting where at the very end, our new attorney general, under our new right-wing governor, simply asked why felons were having their rights restored automatically? Just like thiat, we got these new rules.

It's easy to understand why having a bunch of released prisoners without civil rights and awaiting a hearing became a problem. Florida likes to convict and sentence people to prison. Most of these people eventually are released. This is because most people are not sentenced to life in prison for things like drug possession, grand theft and other non-rape, robbery, murder type of crimes (although that may change if we keep going down this road).

When people are released, employers like to know that their "civil rights have been restored." This includes the right to vote (usually Democrat), the right to hold office, serve on a jury, etc... No civil rights, less chances of getting hired or even getting a professional license. (The new rules don't make it harder to get a professional license).

So now it's been several months since the new leaders in Florida decided we were all better off with felons waiting for hearings to restore their civil rights.

Here's the results according to the Miami Herald:

89,833 people are waiting to have their civil rights restored.

The wait is seven years for a clemency hearing. A huge backlog of pending cases means it likely will take much longer for felons to regain the right to vote, serve on a jury or run for office.

Here's where the "stupid things people say" I mentioned in the title comes in to play:

But a new report by the Florida Parole Commission shows that a released felon in Florida whose civil rights are restored is much less likely to commit a new crime than others in the overall prison population.

The report was quietly delivered to officials a few weeks ago and has not been discussed publicly.

So let's discuss it.

The agency studied 31,000 cases over a two-year period in 2009 and 2010 and found that about 11 percent of people whose civil rights were restored ended up back in custody. (note: that means 89% don't, but we don't mention that if we're elected officials).

And then of course the ACLU has to jump in and make total sense:

“This shows that the more you integrate people back into society, the more you’re going to reduce crime, save money and make the state safer,” said Howard Simon of the American Civil Liberties Union, which strongly protested the new waiting periods for clemency hearings.

But our attorney general, sees it, well, differently:

Bondi said the report shows that making it harder for ex-felons to regain their civil rights was the correct decision.

It does?


Actually, no it doesn't.

It shows that people who have their rights restored are much, much less likely to re-offend. It's the notion of having their civil rights restored, not the wait.

Unfortunately, Floridians will not rise up and demand a return to the old/fairly new system. While we continue to create a permanent underclass in Florida and around the world, saving money, helping people who want to live crime-free lives, get jobs, is not something that excites us or even causes us to write a letter or make a call.

The list of those waiting for civil rights restoration will continue to grow. The process is now meaningless and too far removed from release to matter. Civil rights restoration is nothing more than a token decision that will be made much too late to affect a newly released job-seeker.

We all pay for this, daily. We pay each time a resident of our state cannot get a job. Crime is just as much a part of our economy as business. This is why when the business community stands up and demands change, it will happen.

For now, it's just he ACLU and a few criminal defense lawyers.

Like trees falling in a forrest.

Non-anonymous comments welcome.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 27, 2011

Taking That Case In Norway

Until you've had it, it's the dream of every criminal defense lawyer - to get that case. The big one. The one everyone is talking about. That client - the famous one, the one everyone will be watching.

But not the one everyone hates. That's the one we don't take. The one we shy away from because we may look bad, we may get angry calls, and in today's world of marketing ourselves to death - it may affect our "brand."

Consequently, it is only the criminal defense lawyer that finds themselves in this dilemma - having to put oath of attorney above marketing and perception - having to defend the hated, despised, loathed, because it's the obligation of the profession we've chosen. We do this while other practitioners either applaud, or condemn us.

Talking Points Memo describes the events leading up to the call:

After massacring at least 76 people, most of them young members of the Norwegian Labor Party, right-wing zealot Anders Behring Breivik had a request: to be defended by Oslo lawyer Geir Lippestad.

Those following this horrific case closely know that the massacre took place at a Labor Party Youth Camp, Breivik having his issues with the Labor Party.

The story continues to the old "would a Jew defend a Nazi," or "would a African-American defend a member of the KKK,:" Breivik apparently did not know another biographical detail of his lawyer -- Lippestad is himself a member of Labor, the party whose policies of racial tolerance and multiculturalism the killer loathes.

Lippestad, a well known criminal defense lawyer in Norway, simply responded: "Someone has to do this job."

Lippestad went on to describe his thoughts and discussions leading up to his accepting the case:

"My first reaction was that this was too difficult," he said. "But then I sat down with family, friends and colleagues and we said that today is the time to think about democracy, and if I said no to this job, then I would say no to democracy.

Most of us criminal defense lawyers in America wonder what the system is like around the world. We wonder if being a criminal defense lawyer is the same in countries where they don't have a "Bill of Rights." We ask whether other countries have a Fifth Amendment. We wonder whether there are times when a lawyer has to take on a hated defendant.

Geir Lippestad didn't have to take this case. He knew that. He could of said no to the man who is currently the most hated man in the world. His agreement to represent this monster was not for the benefit of the client, but for the benefit of democracy.

Most of us will never be in this position - the thought of having to take on a case like this - to even have to consider it, scares us. We toil in "garden variety" cases and find meaning in paying the bills and getting an occasional dismissal or acquittal.

These are the moments that create lawyers. These are the moments that make websites, direct mail, and your LinkedIn account look meaningless (because they are).

I salute Geir Lippestad. I wouldn't want to be him, but I salute him.

Do you?

Non-anonymous comments welcome.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 08, 2011

Casey Anthony: Epilogue

This will be it, nothing more to write.

Four years for four misdemeanor counts of lying to police? The proper sentence, in this case (assuming the double jeopardy argument doesn't apply to the four counts for one long interview). I don't know Judge Perry well, but what I do know about him tells me that he didn't give Casey Anthony four years because she was acquitted, he gave her four years because he thought she deserved four years.

Caylee's law? Go ahead, change the law, make yourself happy. Make it a felony. Question though: If Casey Anthony was convicted and sentenced to death plus four years for lying, would anyone care? Would anyone notice?

Caylee's law isn't about Caylee, it's about Casey.

Casey Anthony will have a miserable life. Stalked everywhere, turned away from most places, yelled at, screamed at, and have things thrown at her. I know you don't care, I'm just making a statement (since you all care so much about Amendment One, and none of the others).

Jose Baez, he won a case most lawyers will never try. He did it after only being a lawyer a few years. You're envious, jealous, angry, hateful.

He doesn't care.

He won, regardless of what you think.

For the lawyers and former judges on TV saying the jury "didn't understand reasonable doubt?" You disgust me.

To all those asking what I think of the verdict? I think a jury of 12 people agreed the state didn't prove the case, and when 12 people can read instructions and evaluate evidence and come to a unanimous decision, I am happy that the Constitution is still a part of our system, no matter how many politicians and self hating lawyers try to tear it down.

I'm sorry a little girl is dead. I have two myself.

But I never want the Constitution and our criminal justice system to take a back seat to those who believe the burden of proof is just a technicality.

Non-anonymous comments welcome.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, July 05, 2011

The Embarrassment Of The Casey Anthony Verdict

The decision would be a foregone conclusion.

Everyone knew Casey Anthony killed her daughter. They never once criticized the prosecutors. Defense lawyer Jose Baez was a punching bag for his colleagues, his "brothers of the bar" in Orlando, and the public who enjoyed trashing him hourly - and with 3 years experience, was merely comedic relief for "legal experts" on cable news shows whose last murder trial was, well, let's move on.

I don't know what happened to 2-year old Caylee Anthony. Neither do you.

Neither do you.

But according to you, the case was solid. Casey was a lying slut, she lied to the cops, a few people opined on whether her trunk had a dead body in it, and well, a child was dead, so there we have it. The fact that there was no murder weapon, no cause of death, no witnesses, and a bunch of other "no," didn't matter. Cable news and social media addicts had no doubt, and all that was left was 12 people to agree with the majority of twitter, Facebook, and the zombie audience of Nancy Grace.

And like all of our best laid plans, it just didn't work out.

The jury of 12 unanimously rejected that the state proved Casey Anthony killed her daughter.

CNN calls this a "stunning" conclusion. Why?

Because the public knew she was guilty.

People are "disgusted," "sick," shocked that their demands that "the verdict better be guilty" were not met. Even lawyers, officers of the court, are showing disrespect for the system for which they are a part.

According to those not on the jury, if they were on the jury, the vote would have been 11-1, apparently.

This same jury that would have been applauded upon the return of a guilty verdict, is now a "bunch of uneducated" "morons" who "couldn't get it right."

The media is almost speechless. Almost, because the legal commentators are now stepping all over themselves to backtrack on their disgraceful commentary during the case and try to claim they are oh-so-pleased that the Constitution worked today. The media is on the verge of tears that the jury won't speak to them. I wonder which reporter is falling over which reporter to get Jose Baez' interview now?

I hope someone will compile all the comments of the media throughout the case so that we can all watch the summary, and make it a required lesson in every journalism school in America.

For the media now doing the typical questioning of their behavior during the trial, save it. You made your bed, you lost your bet that there would be a death sentence, and questioning yourself is the definition of hypocrisy.

As for the public's "disgust," and whiny disastrous attempts at complete sentences on social media - I can't help you understand the system of American justice. You don't care. You want what you want, damn the Constitution and jury instructions. All I can say about you is that I will argue for your right to act like complete morons and I will argue for a criminal defendant's right to a fair trial, which includes the obligation of the state to prove each and every element of the charge(s) beyond and to the exclusion of a reasonable doubt.

The embarrassment of the Casey Anthony verdict is not the verdict, it's everything surrounding it.

Non-anonymous comments welcome.

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, June 28, 2011

Lessons From Casey: The Silent Lawyers

The main lesson from the Casey Anthony case is how little the public knows about the criminal justice system.

Who's to blame?


When's the last time we went to a Rotary Club lunch to explain due process? When's the last time we asked to go to career day to explain to kids the meaning of the Sixth Amendment?

Sure, there are people in society that have their own opinion of the system and could care less if it's Tuesday and someone tried to convince them it's Tuesday, but we as lawyers take little time to educate the masses.

In fact, the only lawyers I see these days are those on TV kissing ass to their host and abdicating their responsibility to maybe take the other side and explain the way things really work.

As the Casey Anthony case comes to an end - the lessons for lawyers, for anyone who works in the criminal justice system, are several:

[1] Trials are like football games. Fans decide who they are rooting for and if a penalty is called against their team, it's bogus. In fact, any moment which shows the weakness of their "team," is discarded as irrelevant and a cheap shot by the other team.

[2] Speed is important. Stopping proceedings to deal with legal issues is not good for ratings. Better to raise those issues on appeal, and have the appellate court reverse the conviction and order a new trial. While the public will complain, it will give them another opportunity to watch a "dramatic" trial.

[3] Accuracy in media reports takes a back seat to the amount of time set aside for the report. Incorrect reporting on rules and case law is of no matter. If it sounds good, it works.

[4] Although the defendant is on trial, the trial is really about the victim, and all rulings should be in favor of the victim. That whole "defendant has a right to a fair trial" thing was written a long time ago, before the public was able to tweet.

[5] Successful commentary is that which criticizes the defense, and everything related to the defense. Take the other side, or express objectivity, and you're out.

Lawyers need to write, speak, express rational thought. Change a mind. Educate a moron.

Those of us sitting back in wonderment over the frenzy, the comments, the lawyers acting like theyre on Broadway, should remember that sitting back is part of the problem.

Non-anonymous comments welcome.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, June 22, 2011

An Open Letter To The Orlando Criminal Defense Bar

So, how's the courthouse coffee shop these days? Remember when you all used to sit around and talk about this judge, and that prosecutor, and whether Joe was going to win that tough case down the hall? You mused over the recent Fourth Amendment ruling and whether Judge so and so would get re-elected, having kicked a big coke case?

Now the Orlando criminal defense bar seems like the movie Cocoon. Remember? A couple guys found an energized pool that made them feel great? Then everyone jumped in the pool and sucked all the energy out of the pool, ending the magic, and killing the people who lived in the pool.

Is this that important to you? This perceived fame? This extended 15 minutes? Would it have killed you to decline to be a pimp for the cable news shows, for your local media outlets who just want to see the defendant convicted? A staple of law practice is that when someone is attacking a colleague, it's often difficult to find a local lawyer to handle the case. Not anymore. Fame, money trumps any sense of "Bar."

The public loves it, spewing love all over those lawyers who will "tell the truth," as in be on cue for criticism of the lawyer who walks the same courthouse halls on a daily basis.

And those who were lawyers involved in the case who are no longer restrained by your representation? Is this what your former clients, Casey's parents, Mark, want to hear you say about their daughter? Are the compliments from the mob-mentality public that essential to your already successful career?

The Casey Anthony trial will end. The cameras will leave, the reporters you think are your friends will move on to the next big trial in the next local community, with the next group of lawyers willing to spend their days trashing their colleagues. You won't be relevant to the broader legal system. You were used for a reason - a need for local Orlando lawyers to dump on the defense. Violins everywhere are jealous.

To the young lawyers in Orlando, the ones who look up to the more experienced around them, who strive to be great trial lawyers, and be a part of a bar that provides support, mentorship, and constructive criticism, the answer to your question is "no," this is not how local criminal defense bars should operate. Those lawyers that are more interested in fame and love from the public at the expense of those they share a wait in line at the podium with, are the exception.

Take my advice, when the Casey Anthony case is over, the lawyers you saw on TV that you should want to ask questions to, to seek advice from, to get perspective about the the practice, are those who sat at counsel table.

Non-anonymous comments welcome.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, June 20, 2011

A Post For Me, Don't Read It, I Don't Care. It's A Bookmark For Me

I took the last week to breathe. For the first time since 1999, I am no longer in a leadership position in the criminal defense bar. (Immediate Past President is an official position in FACDL, but my main job is to keep quiet unless asked to speak). Last Saturday night June 11th, I gave my awards, got my engraved marble Washington Monument looking momento, and said good-bye.

When I gave my (when will he sit down) good-bye remarks, I focused on the young lawyers in the room. I told them that 13 years ago I had no idea I would ever be President of FACDL.

I got involved in the governance of the criminal defense bar for no other reason but to be involved in the governance of the criminal defense bar. My small bar is no different than any other bar - there are suspicions of those who ascend into voluntary bar leadership. Few days went by where someone didn't say "why are you doing all of this?" "Are you running for judge?"

Now that I'm done, I'm asked about NACDL, and other Bar positions.

I would not trade the last 13 years. Organizational politics takes it's toll. Many times you wish you never knew the "workings" of a voluntary bar association, you wish you could be like many who show up for the beer and pizza, leave early, and complain, wondering what is being done to fix their problems.

This was never a marathon for me, a road to the top of the world. I love being a criminal defense lawyer, and I love FACDL. I've made deep, lasting, friendships. I've seen single lawyers marry and have multiple children. I've seen dear friends divorce, and listened to people confide in me their medical conditions. I've even represented a member or two in some minor dust up. I count as some of the most important people in my life those I have met in FACDL.

I have no desire to be a judge, to be President of NACDL, or anything else other than continue building my practice and re-commit myself to charitable causes in my native Miami community, including Diabetes, a disease I've had since the age of 34. We've started a Florida Association of Bar Defense Lawyers, and I'm going to work on building that organization. I'm not saying these other things won't be of interest in the future, but for now, I'm tired, I'm done, I'm satisfied.

One of the things I always hear from lawyers is "I want to get involved, but I don't have the time." You have the time. Not everyone needs to be on the board, or be President. There are committees, projects, things that take little time but can result in much growth in your career, both personally and professionally. The apathy of the criminal defense bar nationwide is to blame for much of the railroading we receive by judges and legislatures. That we concentrate more on making money than making policy, is well known.

I once stole a quote from a Bar leader which I think is prevalent here:

"Your practice is not the walk from your house to your car to the courthouse."

Non-anonymous comments welcome.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, June 14, 2011

What Will You Say If Casey Anthony Is Acquitted?

After my last post, where I criticized the lawyer frenzy of commentary on the Casey Anthony case, I was immediately asked if I was going to write about the case. I said no. I would not be writing about the case. I would not be picking apart the evidence, the lawyers (on either side), the judge, witnesses, or any other aspect of the case. I'm not there. I'm watching bits and pieces, and it's not my case.

I've accepted an interview once during the trial, by a reporter I know and respect, who had one question regarding whether it's common to see a certain type of evidence in a case. Easy question, and the answer wouldn't involve me pontificating about a death penalty trial 200 miles away.

In not "writing about the case" though, I do have a question: What if she's acquitted?

I'm not saying she will be, or even that it's likely, but anyone who has ever entered a courtroom knows that you can never say what a jury will do.

The hate mob surrounding the defense in this case is as big as it gets. I have read nothing negative about the prosecution. Nothing negative about the judge. This was not the case in O.J. Simpson, where both the defense and prosecution and judge were the subject of the public's scorn. In OJ, the defense had the best mob, simply because Simpson was a popular figure. Casey Anthony is hated.

So I ask, if she is acquitted, will Baez be a hero? Will it be because the jury was stupid? Will it be because the judge did something wrong? What will be the take from the anonymous commenters on newspaper websites and from lawyers who have been spending months critical of everything defense?

Will everyone have been wrong? Will the "system" be to blame?

Just a question.

Non-anonymous comments welcome.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, June 06, 2011

No One Would Like My Commentary On The Casey Anthony Case

This morning I began to write a post on the Casey Anthony trial. I started writing about my disgust over the media coverage. I stopped because I figured too many people would not be able to separate my thoughts about this case from what's currently going on in the Rakofsky circus.

People would ask how I could write about my opinions on the coverage of the Casey Anthony trial, my thoughts that the pounding on the defense is just disgusting, when I have been part of the commentary on the Rakofsky matter. I realized quickly that the difference is that I am a defendant in the Rakofsky case, and my commentary in his underlying case is post-trial. I'm not commenting from afar on an ongoing trial.

But I stopped. I went to work. Then, coincidentally, I got a call from the media, asking for an interview on the Casey Anthony trial. I called back too late. They found someone else. I had no doubt. Lawyers have been chomping at the bit to comment on this case. Lawyers have turned commentary into careers. I didn't want to give the interview. Was it because both defense counsel Jose Baez and Cheney Mason are friends of mine? Partially. I believe in friendship and loyalty, and I'm not going to exchange my mug on national TV for a friendship. There are those that don't believe in friendship over their own ego.

But the main reason I didn't want to give the interview? The case is ongoing. I believe in fair trials, and I believe in the sanctity of the system. I know the jury is sequestered, but leaks happen. In a society where just being a lawyer makes one a "legal expert," I choose to take a pass.

In the legal profession it has always been taboo to attack one of your own, especially in your backyard. Many an out of town lawyer has been retained to go after a local lawyer because "no one in town will take the case." In Orlando, they all hate Jose Baez - the lawyers, and the media.

Some of the "reporting" by the local Orlando media is disgraceful. No one cares about fair trials anymore, it's all about the opinions, the "bombshells," and the guessing about what a jury will believe. Few of the commentators have ever tried a death penalty case, but no one asks, nor cares.

Of course I have opinions about the case, about what I see going on in court. But this is not theatre, this is not a punching bag for the local defense bar to hit throughout the day. Have some damn dignity, let the trial go on - tell the media that you will not be a part of the frenzy. You walk the halls of the criminal justice system and using a life or death moment for your own fame is indefensible.

You want to educate the public - do that. Do not use the time or microphone and camera to play contrarian to your brother of the bar just to gain favor with the vultures of the media that have already decided that the defendant is guilty.

This is the interview I will give. Any takers?

Non-anonymous comments welcome.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, June 03, 2011

I'll Miss Joel

It's an odd world in which we live that people we've never met, never spoken to on the phone, become our "friends." We read their words, comment on their thoughts, engage in typing wars, and never shake hands. Yet when he hear of harm or worse, death befalling one of these "virtual" friends" we are touched in the same way as if they were a neighbor.

I don't remember when I first "met" Joel Rosenberg. I remember reading a comment here and there that he would write on various blogs I read, and he'd even chime in on my blog(s). My first impression was that Joel and I were complete opposites. He, a passionate gun advocate, and I, well I hate guns.

I assumed Joel was a wacko, nut job, idiot who was probably anti-defense, until I was quickly disabused of all of those thoughts. I learned Joel was an accomplished author, a brilliant mind, well read and passionate not only about Amendment 2, but also 4, 5, and 6.

Joel was a welcome commentator in the criminal law blogosphere, a place where well thought out comments from the citizenry is often lacking. Joel would agree, disagree, present another viewpoint, but always have an intelligent thought behind anything he argued. A rarity online.

Joel died suddenly yesterday.

I learned this today, as I was sitting in court waiting to defend a client. Joel would have been happy to know I was there.

Joel was the author of Everything You Need to Know About (Legally) Carrying a Handgun in Minnesota. He asked to include some passages from an e-book I wrote. In a profane response, I advised him that he need not seek my permission to do this, that it was my honor. But Joel didn't do things that way. He liked respect, getting, and giving it. There were laws and rules, and as he taught people to follow them, he wanted to follow them too, even if the laws revolved around copyright.

I will miss Joel, as will others.

My condolences go out to his beloved Felicia, and his daughters Judith Eleanor, and Rachel Hannah.

I leave you with what I believe sums up JDog. R.I.P. good man.

Non-anonymous comments welcome.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, May 31, 2011

She Was Innocent

Any criminal defense lawyer knows that the typical defense presented in a pot case is "wasn't mine." That it wasn't marijuana is a rare answer.

In Robin Brown's case, it wasn't.

Didn't matter. It was field tested. Field test said marijuana. The prosecution wanted to be sure, so they sent the sage to a lab.

They just didn't wait for the results before going to Brown's work and taking her out in handcuffs.

They arrested me in front of my customers, my boss, my co-workers,” Brown said. She later was subjected to a body cavity search, a strip search and an overnight stay in jail.

Her lawyer gets the discovery, notes the sage wasn't tested at the lab, and demands the test.


Ullman said one apologetic prosecutor called him to say it was “scary” that someone could be arrested under such circumstances.

Our policy is to make sure the evidence is tested, at the very least, before trial,” said Ron Ishoy, spokesman for the Broward State Attorney’s Office. “Looking back now at this specific police report, it would have been the better practice to test the evidence before filing a formal charge.

But what's the harm when we don't do the "better practice?" Someone goes to jail? So what. Isn't that what we want in America, people in jail?

The surveilance and investigation were intense:

After a day of bird watching:

When Brown returned to her car, a deputy and officer with the Florida Fish and Wildlife Conservation Commission were waiting. They asked what she was doing there.

Bird-watching, she told them. When they continued to question her, she opened her backpack to show them her binoculars and bird book.

That’s when the deputy spotted her sage and the smudging bowl with burned ashes.

Three months later, she found herself in jail.

For untested suspect marijuana that wasn't even marijuana at all.

Now Brown is suing. Her case is on appeal after Circuit Judge John Bowman dismissed her case in January, saying prosecutors are given immunity from lawsuits in the course of doing their jobs.

That's correct. under Florida law prosecutors enjoy absolute immunity for acts performed within the scope of their prosecutorial duties.


The prosecutor must be free from the harassment of unfounded litigation that would deflect his energies from his public duties and undermine the independence of judgment required by his public trust. Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128(1976)

I believe Ms. Brown is out of luck. I believe the appellate court will find this to be negligence, and immune from suit the prosecutor and state attorney's office.

Because we all make mistakes, and society is willing to accept these types of mistakes.

Unless it happens to you.

Non-anonymous comments welcome.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, May 25, 2011

What Will John Edwards Do?

Plead Guilty.

Yeah, no long analysis or "wait till the end of the post" type stuff. He's broken, his life a tragic tale of lies and deceit. No reason to put all of that in a courtroom. He'll lose his law license, which will be the last in a series of losses for him, but he won't fight this.

Those we're happier times above. Me and John Edwards. Me thinking he was an all-American guy (even though someone I respect told me he wasn't). Me remembering his cell phone ringing and him saying it was Elizabeth. Maybe it was.

Lots of lessons.

Non-anonymous comments welcome.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, May 24, 2011

Not Just Another Prison Overcrowding Case

Andrew Cohen provides a great analysis of the U.S. Supreme Court's recent prison overcrowding case of Brown v. Plata, a case that may result in the release of 37,000 California prison inmates.

For those unfamiliar with prison overcrowding cases - they work like this: county jails and state prisons become overcrowded based on "tough on crime" legislation. Every so often a suit is filed and the feds order a reduction in the population. State and local governments figure out a way to release inmates while announcing that the biggest crime spree in history is about to occur. We all know of course that releasing a drug possessor 4 months early is a blight on society and will only cause murder and mayhem in the coming days.

Justice Scalia started the trumpeting of what's to come in his dissent, calling the ruling a "staggering and radical event in the annals of law."

Cohen rightly says that the ruling marks a nadir in America's persistently zealous efforts to imprison its citizens: We still lead the world in that category by far.

Cohen goes on to say that the opinion's author, Justice Kennedy finally (did) the dirty work that has long needed to be done; to hold accountable lawmakers and prison officials who have tarried for decades in providing state prisoners with a constitutionally acceptable level of care and living conditions.

With language that is surely to cause the Nancy Grace minions to say "so what," Justice Kennedy, in addition to noting the needless suffering and death, writes: As many as 200 prisoners may live in a gymnasium, monitored by as few as two or three officers. As many as 54 may share a single toilet.

Cohen pulls no punches:

Here, at last, after decades of short-sighted policy, comes the butcher's bill for the war on drugs, the state's dubious three-strikes law, and the magnetizing political pull of victims' rights groups. And it was delivered to the Golden State by the only tribunal in America with the power and the authority to speak on behalf of the nation's last lobbyless constituency -- our nation's prisoners. If this decision is a "slap in the face" to the victims of crime, as so many overheated commentators were suggesting Monday afternoon, it is not a slap delivered by the inmates themselves or even the federal judiciary. Like so much else about modern governance, we see here instead the consequences of the gulf between political promise and budgetary reality; between our short attention spans (lock 'em up, throw away the key) and life's long journey (in or out of a cell).

The article is a step by step history lesson as to how we got here. As Cohen says: Much of the extraordinary growth in the prison and jail population is attributable to a dramatic increase in prosecution and imprisonment for drug offenses. From 1980 to 1997, the number of people incarcerated for drug offenses increased by 1,100 percent. Drug convictions alone account for more than 80 percent of the total increase in the federal prison population from 1985 to 1995. In 2008, four of five drug arrests were for possession, and only one in five was for distribution; fully half of all drug arrests were for marijuana offenses.

And by the way, Cohen notes: many of the inmates in California's prisons appear to receive less care and consideration than do the terror law detainees at Guantanamo Bay, Cuba.

Cohen ends with a reminder of what our justice system is supposed to be about: Monday was a good day for the timeless proposition that our rule of law can on occasion protect even the least popular among us.

Every once in a while, after stuffing the criminal justice system with as much unfunded criminal justice legislation as will get a legislator re-elected, the rule of law chimes in. We are only occasionally reminded that if we say we have the best justice system in the world - that we must actually have it. We can't afford the system we think we want, nor can we continue to ignore the mess we've created.

Non-anonymous comments welcome.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, May 19, 2011

The Court Who Cried Wolf. For Real

One thing I've noticed about judges, elected prosecutors and public defenders, and everyone else in the court system, including civil lawyers, is that whenever budget cuts are discussed, we hear ad nauseam about how the cuts will "ruin" or "destroy" or "severely limit" access to courts.

I hear about firing prosecutors, courts being closed one or two days a week, clients languishing in jail due to lack of public defenders, civil litigants not being able to get hearings - but none of it ever happens.

Until now.

H/T South Florida Lawyers

Non-anonymous comments welcome.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, May 17, 2011

The Smell Of Marijuana, Part II

When I began my career, I didn't remember much hearing about the "smell" of marijuana. I heard a lot about young black men chronically dropping bags of cocaine in the presence of police officers, and the shock, shock I say of police officers when asked on the stand whether they coerced in any way the consent to search all of my clients. "No sir, he was very cooperative."

Then, a few years ago, I wondered if I was the only person not noticing the smell of marijuana all over the city - mostly while sitting in my car behind another car (usually a modified Honda Civic) in which the occupants were listening to loud music, but also behind the doors of homes.

Turning to the United States Supreme Court's decision yesterday regarding exigency as a exception to the warrant requirement under the Fourth Amendment, I am not shocked, surprised or otherwise in wonderment that the smell of marijuana, oh the smell, is good enough for a warrantless search of a house.

My comedic relief comes from this part of the opinion:

Officer Steven Cobb, one of the uniformed officers who approached the door, testified that the officers banged on the left apartment door "as loud as [they] could" and announced, "`This is the police'" or "`Police, police, police.'" Id., at 22-23. Cobb said that "[a]s soon as [the officers] started banging on the door," they "could hear people inside moving," and "[i]t sounded as [though] things were noises, Cobb testified, led the officers to believe that drug-related evidence was about to be destroyed.

I know - "c'mon Brian, everyone knows what the sound of destroying marijuana sounds like."

And the officer was right - the noises he heard was the sound of marijuana being destroyed:

...the officers entered the apartment, and they found three people in the front room: respondent Hollis King, respondent's girlfriend, and a guest who was smoking marijuana.

In reversing the lower court, the Kentucky Supreme Court tried to make a go of the argument that cops can't create the exigent circumstances. Specifically, that by banging on a door, the cops created a situation where the drug dealers would begin to destroy drugs. The Supremes quickly disposed of that argument.

It's a great Fourth Amendment opinion. We are reminded of the notion of cop vs. defendant with this statement:

Respondent argues that the officers "demanded" entry to the apartment, but he has not pointed to any evidence in the record that supports this assertion.

The only evidence being the banging on the door. Why would anyone think that people with guns banging on a door were demanding entrance?

The criminal defense bar knows where this case goes. We'll be hearing new and different things in drug cases. The "noises" of drugs being destroyed will become a staple of the direct examination in response to the 16th "what happened next."

The opinion never discussed what the "noises" of marijuana being destroyed sounds like.

I trust it will be defined by the totality of the circumstances.

Non-anonymous comments welcome.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, May 16, 2011

The End Of Anonymity

The website "skateboard city forum," (which I won't link to because some of you will leave there dumber than you are now), confirms that the childhood prank of leaving shit on someone's doorstep, ringing the doorbell, and running away is still around.

It's how I best describe the anonymous comment on a blog.

Some of my friends did away with anonymous comments long ago. My blogs don't get as many comments, and with moderation, it's been easy to delete the written words of people I am ashamed to know hold law licenses.

Whenever bloggers are critical of anonymous comments, the anonymous comment support group chimes in hysterically with all the important reasons why anonymity is essential to the continued existence of the internet. Every excuse from "I work for someone and I live every day scared of expressing an opinion," to "I am anonymous because I choose to be anonymous (read: I have the right to be anonymous and you can't take that away from me) gets repeated with just the right amount of entitlement.

While I will never understand why someone who went to law school, passed the bar, and works as an advocate is satisfied with living in fear of expressing their opinion, I no longer want to provide a place for it here.

People leave anonymous comments for only three reasons:

1. They want to criticize someone and are too scared to do it to the person's face,

2. They want to say things that aren't true without any consequences; or,

3. They fear that their opinion will have repercussions somewhere.

Whether you live in the world of 1, 2, or all three, I don't want you here. I don't want you here because for the most part, you're a lawyer, and a pathetic one at that. I don't know what you are afraid of, but you're an embarrassment to the profession, and I'd rather you embarrass yourself somewhere else, anonymously.

You want to comment here, leave your name.

If you don't, you can take your shit elsewhere.

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, May 04, 2011

"He Looked Like He Was Reaching For A Weapon." Just Say That

The more I hear about the killing of Osama Bin Laden, the more I feel like I'm listening to a press conference by the local chief on the shooting of a suspect in the dark streets of Miami at night.

But its not as succinct.

First I heard, "this was a kill mission, there was no intention of capturing him alive."

Then I heard he had a weapon.

Then I heard he didn't have a weapon.

Then I heard there were "threatening moves." Hint: we and the case law call them "furtive movements." Use "furtive." It has more meaning to someone in a robe.

Then I heard he looked like he was going for a weapon.

Then I heard he "resisted."

Then I thought - maybe we should stop explaining this, maybe we should stop trying to justify why we blew his head off. We're not doing a very good job.

My recommendation is that any government or terrorist organization or fringe group that wants to know why we killed Bin Laden, should be told to Google "world trade center airplanes September 11," and click the link to "video." Find the long video that shows people jumping out of the twin towers.

Yes, I am an anti death penalty criminal defense lawyer who believes in due process. Yes, making an exception here may make me a hypocrite.

But I've been called worse.

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