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

Monday, January 31, 2011

Of Porn And Charity

A South Florida businessman has racked up some impressive donations to the community.

According to the Miami Herald, he's donated tens of thousands of dollars to charities for at-risk and underprivileged children. He has helped keep parks open, bought uniforms for a high school football team and supported bands across South Florida. His recent golf tournament raised $82,000 -- 90 percent of which will be donated to causes such as sending disabled kids to Dolphins games, money for Toys for Tots, police charities, Haiti relief, the American Cancer Society and the American Red Cross, he said.

But his business? He runs a couple strip clubs.

Lap dance anyone?

Now an elementary school in Palm Beach County is considering returning a $20,000 gift because the district learned that the donor, Rodriguez, is not just a wealthy businessman who gives to charity.

No, he also runs a legal business.

Rodriguez has always donated anonymously. Now the word is out, and he doesn't understand:

I've been doing this for years and I always do it quietly, Rodriguez said. Now, for some reason they want to make a big deal out of it.

Yeah. So much for trying to be a nice guy.

So Rodriguez used $20,000 made off of businessmen and college kids looking at naked women and gave it to a elementary school in a low income neighborhood.

Thankfully the media found out and not "citing policy," it looks like the school principal will have to give it all back.

Rodriguez still doesn't understand:

I think it's very small-minded, he said. If you ask someone who has cancer if the money to help them is coming from a strip club, I don't think they would care.

Depends on who has cancer I guess.

Cue the Christian Family Coalition, an organization I believe is not affiliated with the public school system:

The school district should consider what the decision will teach its students, said Anthony Verdugo, executive director of the Christian Family Coalition.

Praise the Lord.

Fearing the school would make a big announcement at the elementary school, naked women and all, Verdugo lays out the tenuous argument:

It came from someone associated with the exploitation of women -- and that demeans half the population, Verdugo said. If you do that, where do you draw the line? That's not the message to send to kids -- that it's OK to exploit women.

And of course if we take these donations, the terrorists win.

Let's not mention that Rodriguez has his own idea of morality - he's a former Marine that has been married 30 years and has six children.

Not everyone objects to Rodriguez' money. He also gave $50,000 to keep a park open for at-risk teenagers. The mayor of that city said while he didn't "condone" Rodriguez' career choice - the donation kept 300 to 400 kids off the streets.

He also makes this shocking statement:

One has to look at the broader picture, Jones said. This is a business that is legal, even though, in a lot of circles, it isn't fully received by society. But we're not living in a world where anyone is on a perfect pedestal. You have to ask Does the good outweigh the bad?

Oh boy, where's the leadership? "Look at the broader (no pun intended) picture?" The business is "legal?" Does the good outweigh the bad?

There are so many messages here, many lessons.

I remember when the newly incorporated city I live in started it's own police department. They were going to have a picnic to welcome the police officers. I spoke to a city official and then followed up with a letter offering to sponsor the event. No response. Yes, I live in the community, raise children in the community, support business in the community, but then again, I do defend criminals for a living.

We see these separations of our citizenry daily. We white people lock the doors in black neighborhoods, we stay away from people who do things of which we don't approve, legalty aside. We cannot comprehend that someone who pays taxes, raises a family, but runs a risque business, can do wonderful things for the community. It says more about us then it does about guys like Rodriguez.

At least we have clean corporations like insurance companies to make donations to schools and parks - when they're not denying life saving procedures to their customers.

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, January 21, 2011

We, Not They, Lost Two Great Cops

I hesitated to write about this, not wanting to engage the "yeah, shut up, you hate cops," ignorant crowd, but here goes.

Yesterday two Miami-Dade Police Officers were murdered in broad daylight. They went to arrest Johnny Simms on a homicide warrant. To the relief of every defense lawyer in Miami, he's now dead too. Simms was where they thought he may be, and came out of a room, shooting.

As I sat in an airport waiting to come home, I saw the national breaking news on my phone. I told the prosecutor I was traveling with, and we both reacted the same. Yes, a prosecutor and I traveled to a meeting yesterday to discuss changes in the criminal rules - changes which we were on opposite sides. We sat together on the way up, argued intently against each other at the meeting, and then had lunch and did the "same" seats thing on the way back. There's a point to that, some of you got it, for others I'll explain later.

The two officers killed for knocking on a door leave 4 kids. Officer Roger Castillo is a father of 3, and Amanda Haworth a single mother of a 13 year old. Both officers have been on the force for over 20 years, Ms. Haworth's father never wanted her to become a police officer due to his fear she would be killed.

Johnny Simms was a career criminal. He was typical of the "I'm not going to jail today," type that no law or bulletproof vest can prevent. In the days to come, Simms' record will be scrutinized, his 11 arrests, the reasons he was placed on probation, and some legislator will craft a new type of statute that will pretend to prevent this from happening.

The statute will be convoluted, be named after the officers, and will say that someone like Johnny Simms must be sentenced to something, reports must be filed, things must happen.

And a few years from now it will happen again.

There is no law, no sentencing scheme that can prevent a Johnny Simms from murdering police officers again. I trust in Simms' cases there were witness problems and therefore proof problems. No surprise that there were probably certain witnesses not wanting to walk in to a courtroom and testify against this killer.

But first is the tension. Our courthouse will be filled as usual with police officers. They will all have black strips on their badges, all mourning the death of a colleague. The tension will be around for a little while. It will be around in the courthouse, and in traffic stops. Hell, these two were just serving a warrant. They knew Simms was dangerous. Traffic stops, the other site of police murders, are more of a roulette game today then they've ever been. The violence is mind numbing.

Events like this rock not only the police community, but the criminal justice system as a whole, and that includes defense lawyers. Back to my day with the prosecutor.

Those who take a superficial view of the criminal justice system believe that the only way defense attorneys operate, is under the notion that all cops are bad. We spend our days questioning everything they do, and place questions and arguments before judges and juries that evidence their mistakes. In the system many prosecutors believe we hate cops, out of the system, it's the general public.

It's always comical when a prosecutor watches from afar while a police officer slaps the back of a defense lawyer, or comes down to the coffee shop to see a group of officers having coffee with some defense lawyers.

Yes, we spend our days questioning the work of police officers. Some officers will say we make them better at their jobs. We also represent them when they have an internal affairs issue, or worse, get arrested. There are police officers who ask defense lawyers for referrals to other types of lawyers, and there are defense lawyers who are married to officers.

I remember in 1997 when a beloved highway patrolman was killed by a drunk driver. The funeral looked like congress (before they agreed last week to "sit together.") Defense lawyers on one side, prosecutors on the other. I also remember the looks from prosecutors - as if to say "what are you doing here, this was our officer."

It was sad yesterday to see a defense lawyer comment on a local blog about the murders that "I know we criticize the cops, but....." It was as if to say "I know some of you can't understand that everyone does their jobs....."

It's like saying "I'm a Republican, but I'm still upset over the attempted murder of Democrat Gabrielle Giffords."

It's at the heart of the problem with society today - we are unable to understand, accept, and behave in a manner that teaches our children that while people may argue, and disagree, and fight, and battle in an arena, whether that is a courtroom or political chamber - there is another side of life. There are relationships that transcend our profession(s).

I think in small towns this notion of prosecutors, defense lawyers, and cops having personal relationships outside "the office" is more prevalent and accepted. In the big city, there's more of an "us against them 24/7" mentality. I know cops that hate "all" defense lawyers, defense lawyers that hate "all" prosecutors, and so on. I think it's ingrained in us at a young age here. I remember being a young public defender and being told not to be seen in the coffee shop socializing with prosecutors.

I mourn the loss of Officers Castillo and Haworth, regardless of the prosecutors and cops that may say I have no right to do so because I represent criminals and therefore somehow I'm part of the problem. I do not support crime, I don't support violence, and I don't feel better knowing two officers are dead. There are people out there though that can't understand that a criminal defense lawyer would feel this way. It's too bad no one can help them.

RIP Officers Castillo and Haworth.

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, January 16, 2011

Shame On The Texas Bar, And Us

A 47 year old Texas man, husband and father of two young children, steps on an airplane and goes from 37,000 feet to the bottom of the Atlantic Ocean. Recently promoted to CFO of his multi-national corporation, he leaves us at the height of his career, with his current salary of $1,500.000.00.

His family hires a personal injury lawyer and signs a retainer agreement. The Texas lawyer will receive 33% of any recovery prior to filing a complaint, and 40% thereafter. The personal injury lawyer has a stellar reputation and several 7 and 8 figure verdicts under his belt.

The lawyer writes a "demand letter," and seeks $5,000.000.00. Three days later he receives a call offering $3,000.000.00. Turns out there may have been some safety issue involving the engine, which was discovered by the lawyer doing a quick Google search. With the lawyer having done about 4 hours work, the family agrees to take the $3,000,000.00.

For that four hours of work, the lawyer will receive approximately one million dollars, or $250,000.00 per hour.

And there is nothing unethical or illegal about that.

A 47 year old Texas man, husband and father of two young children, receives a knock on his door from the FBI. Turns out the investment scheme he was promoting is just that, a scheme-to defraud. Recently promoted to CFO of his multi-national corporation, he imagines the inside of a jail cell at the height of his career.

He hires a criminal defense lawyer and signs a retainer agreement. The Texas lawyer will receive $50,000.00 prior to the filing of an Indictment, and $250,000.00 if an Indictment is returned by a grand jury or an Information is filed. The criminal defense lawyer has a stellar reputation and several "stunning" victories under his belt. He has the respect of prosecutors, judges and law enforcement throughout the community. The client happily writes a check for $50,000.00.

The lawyer calls the prosecutor and arranges a meeting. Three days after the meeting, the prosecutor offers to subpoena the client as a witness rather than file charges. With the lawyer having done about 4 hours work, pursuant to his "non-refundable" "earned upon receipt" retainer agreement, the client files a complaint with the Texas Bar, claiming he has just paid his criminal defense lawyer $12,500.00 per hour.

Pursuant to the proposed changes to the Texas Disciplinary Rules of Professional Conduct, he may get the refund to which he agreed he was not entitled.

Scott Greenfield muses about the "right to contract freely" in his post describing the practice of criminal defense."

But he knows we don't have that right. He is probably thinking of Thomas v. Anderson, 861 S.W.2d 58, 62 (Tex. App.-El Paso 1993, no writ). (As a general rule, the court has no authority to determine what fee a litigant should pay counsel, that being a matter of contract). Texas lawyers clearly don't have that right (When interpreting and enforcing attorney-client fee agreements, it is “not enough to simply say that a contract is a contract. There are ethical considerations overlaying the contractual relationship.” Lopez v. Munoz, Hockema & Reed, L.L. P., 22 S.W. 3d 857, 868 (Tex. 2000).

We have the right to do what our State Bar says we can do, because as I've said before, State Bars exist today for the sole purpose of protecting the public from lawyers. "Pay your dues, and keep the clients perfectly happy" is their mantra. While one Bar prosecutor once told me "there are two types of complaints, complaints against lawyers, and complaints against criminal defense lawyers," more and more the civil lawyers who Scott refers to as "Bar types," show their lack of love for us. The love only comes at 1:30 am when the partner who "can't stay in jail or he will die," must be released, and his case dismissed immediately, needs "the best" - for a reduced fee of course because while civil lawyers play like they're rich, they are cash poor and Lexus rich, or don't see the monetary value in criminal defense lawyers. (But get him out now and be thankful that a civil lawyer called you to represent a civil lawyer).

The issue in Texas, that Mark Bennett wants criminal lawyers, no, all lawyers to oppose is the proposed rule that addresses "unearned" fees.

The comment to the proposal states:

Fee agreements sometimes state that the fee is a flat fee, advance fee, nonrefundable retainer, or some other kind of fee. But without regard to the label, if the fee is a prepayment for services, paragraph (d) requires a lawyer to deposit the fee into a trust account until it is earned. Applicable law, not these Rules, determines when a fee is earned.

Dallas lawyer Michael Sawicki writes about the 41 year old seminal case on contingent fee agreements, Mandell & Wright v. Thomas, 441 S.W.2d 841, 847 (Tex. 1969) which contains an interesting dissent. In Mandell, the court held that a lawyer hired on a contingency fee basis, that is discharged without good cause before the representation is completed, may seek compensation in quantum meruit or in a suit to enforce the contract by collecting the fee from any damages the client subsequently recovers.

But as Sawicki notes, "any attempt to apply the 'strict contract' approach will be subject to substantial scrutiny." He also notes the power contained in the disciplinary rules," reflecting "the trend away from Mandell & Wright seen in other states."

The dissent (where most opinions in favor of anything criminal defense lie), "felt the focus on evaluating the contract should center on the facts at its inception, not when the contract terminated."

Here's where it gets interesting for criminal defense lawyers:

Fee arrangements normally are made at the outset of representation, at time when many uncertainties and contingencies exist, while claims of unconscionability are made in hindsight when the contingencies have been resolved . . . Except in very unusual situations, therefore, the circumstances at the time a fee arrangement is made should control in determining a question of unconscionability. Agreements are unconscionable when they are not or cannot be proper, not when it is merely possible for them to be improper.

Criminal defense lawyers understand this dissent without exception, the word "hindsight" sending chills through every advocate of the criminally accused.

As stated in the comments to the Texas rules: ...“unconscionable” adopts a
perspective to give the lawyer the benefit of the doubt of the uncertainties at the outset.

Texas lawyer Roger Hughes, author of Drafting Appellate Fee Agreements and Handling Fee Disputes: A Defense Perspective, writes about "unconscionable" legal fees.

Apparently, back in the 1940's, freedom of contract was paramount, kind-of:

Back then, except for fraud, breach of fiduciary duty, or if the parties to the contract were mentally incompetent or minors (did we prosecute minors back then?)if the contract was valid when made and the parties are mentally competent, it is enforced without court review of the reasonableness of the fees agreed upon. Polybutylene Plumbing, 23 S.W.3d at 436; Parker v. Boyles, 197 S.W.2d 842, 849 (Tex. Civ. App.–Galveston 1946, writ ref. n.r.e.).

When I said "kind-of," I was referring to this language regarding the exceptions:

There are two recognized exceptions to enforcement once the attorney has performed:

Performed? Cue the circus music.

Have I "performed" if I resolve your case, and return you to your life in 3 hours instead of 3 months? I, like anyone else, sometimes get the question at the end of the case: "So, I get any money back?" "No, you agreed the fee was earned upon receipt." Yes, but you didn't do much."

And then I'll ask this question: "If I told you at the time you hired me, that for that fee I would resolve the case in a matter of a day or two, would you have paid it?"

(Shrugged shoulders).

The terms "unconscionable," and "reasonable," when talking about attorney's fees are determined by a collection of theories, definitions and statutes.

"The ultimate litmus test for unconscionable under Rule 1.04 will be a comparison of the lawyer’s time and effort with the fee and the results." See Walton, 149 S.W.3d at 844. Results? Well since contingent fees in criminal cases are prohibited, of course Texas wouldn't use the standard of results for us criminal defense lawyers. So we're left with time, efforts, and fee.

But who determines our time and efforts in comparison to the fee? State Bars claim they don't participate in "fee disputes," which we all know is horseshit, because the dispute invariably revolves around "I paid too much and want some back." As the question is always whether the fee is "unconscionable" or "unreasonable," State Bars do involve themselves in fee disputes. It is only a fee dispute for which the Bar refuses participation when the fee is determined to be reasonable, therefore leaving the issue to a civil court if the client chooses that route.

The Texas Bar has painstakingly tried to convince criminal defense lawyers that "oh, we're fine, don't worry." And this comment to the rule seems to lead a reasonable lawyer to believe them:

Applicable law, not these Rules, determines when a fee is earned

Applicable law? Meaning Texas Law?


It is presumed that the usual and customary attorney's fees for a claim of the type described in Section 38.001 are reasonable. The presumption may be rebutted.

Ok, so we assume all fees are reasonable, but clients can rebut that presumption.


A person may recover reasonable attorney's fees from an individual or corporation, in addition to the amount of a valid claim and costs, if the claim is for:

(1) rendered services;

(2) performed labor;

(3) furnished material;

(4) freight or express overcharges;

(5) lost or damaged freight or express;

(6) killed or injured stock;

(7) a sworn account; or

(8) an oral or written contract.

Or an oral or written contract? Is that the "applicable law" of which the Texas Bar speaks?

Wait a minute, if this is the "applicable law," that a lawyer can recover fees simply based on a contract, then are we saying lawyers are governed by this statute and not the Bar rule? Of course not, because this "applicable law" speaks of freedom of contract, which we lawyers do not have. The Bar will determine whether a fee is reasonable, whether the client agrees to it, and even if there is a clear contract.

The Bar committee proposing these rule changes notes that as to flat fee agreements, it should be clear (to the lawyer, as well as to the client) and agreed to by the client," and that criminal defense lawyers should find some other term to use or not use a term and simply be descriptive in a written fee agreement with the client).

The Texas Bar's focus on the criminal defense lawyer's "flat fee," is disgraceful. But it is symptomatic of what Scott Greenfield refers to as the "Bar types" that mill around state bar committees when they are not in their offices waiting for someone to bring them coffee in embossed ceramic cups (with a saucer Goddammit, and now).

And so Mark, I have some bad news for you. Your criminal defense colleagues may vote against this and all the new proposals. More likely, they will remember after the deadline that the ballot went in to the garbage, and they didn't have time to vote because they were "in trial." You are screaming from the rooftops, maybe others are joining you, but the masses won't pay attention until they receive a letter a year from now from the Texas Bar about their non-refundable $2,000.00 fee.

I am a Bar-type. I mill around those Bar committees in my khakis and blue shirts (no-tie) while the masses of civil lawyers in suits with briefcases tagged with their initials in gold who "tolerate" us, cast us off as part of the problem in the profession - disregarding that their precious billable hour is the definition of fraud. I am a Bar-type, I pay my own way to meeting after meeting, speaking up when I hear our criminal defense bar malinged, and constantly trying to convince my colleagues there is a good answer to "why do you go to all these meetings?" They all think I'm doing it for my resume, or some judicial aspiration, and are still wondering why after 16 years, neither has been true.

Until the criminal defense bar infiltrates state bars, gets on every committee, and participates at the same table as the manicured civil bar, we will continue to beg for our constitutionally mandated existence.

Good luck Mark, and good luck my brothers and sisters in the Texas Criminal Defense Bar. May the rights of clients to be guaranteed a flat fee and not be nickel and dimed for every .2 conversation, or charged for when we are "thinking about the case" throughout the representation, be protected.

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, January 09, 2011

A Weekend Of The First (Not Second) Amendment

I don't remember what we were discussing before Saturday. Health Care? Unemployment? North Korea?

We've now spent the last two days watching the aftermath of the attempted assassination of a member of congress. We've learned in the path of this attempt, died 6 people including a respected federal Judge, a staff member of Congresswomen Giffords, and a 9 year old girl recently elected to student council, a girl who went to the Safeway grocery store for the sole purpose of meeting a government official she could imagine becoming, Congresswoman Gabrielle Giffords.

Now Jared Loughner sits in federal custody as the suspect, charged with a slew of offenses including murder, and we await the (truthful) updates regarding the recovery of Ms. Giffords.

Now let me get one thing out of the way for you anonymous snipers. Yes, if I was an attorney in Arizona and I was asked to represent Ms. Laughner, either by appointment or retention by the family, but for a conflict of interest, I would accept representation. So stop typing your simplistic "oh sure, I'm sure you're all broken up about this but you would represent that monster wouldn't you, huh? huh? Yes. So shut up and go find another blog to anonymously spew your lack of intelligence. I'm not interested in that debate right now and the First Amendment doesn't apply to this blog, even though the ignorant believe it does.

Looks though like Judy Clarke, former counsel to unabomber Ted Kaczynski, will competently represent Mr. Loughner. So go yell at her, tell her you believe in only parts of the Constitution, the parts that allow you to live free because "you'd never be a defendant in a criminal case."

Mr. Loughner needs a lawyer more than anyone in this country right now. You want him to have a good lawyer, because if he doesn't, oh never mind. Let's move on.

I was stunned Saturday. I was told I shouldn't be. because this was bound to happen. I explained it's like knowing a hurricane is coming and then seeing the damage. Reality is always different than the idea of reality.

I don't know who's fault this is, and I'm not all that concerned about it right now. All I know for sure is that somebody shot, wounded, and killed a bunch of people and a congresswoman is in the hospital recovering from brain surgery.

Between Saturday and now, I knew many different things. I knew about the shooting. I knew 5, no 6, no 9, no 3, no it's 6 people died. I knew 15, no 19, no 30 shots were fired.

I knew Congresswomen Giffords died.

I knew that the current state of the media, is in complete disarray.

I took journalism in high school. I learned about the "2 source," rule. Always make sure you have 2 sources. Then, with CNN, MSNBC, and FOX, talking to 2 sources became too time consuming. One person was enough, even if that person was a crank caller trying to get Howard Stern's attention.

The definition of "source" has even changed. It's no longer a public information officer, or assistant, or family member. It's SDOT (Some Dude On Twitter), or a kid with a cell phone at the scene. It doesn't matter who is giving the information. Being wrong doesn't matter, it's being first that matters.

I saw little restraint. Actually, I saw one instance of restraint. FOX's Shepard Smith was hesitant to announce the name of a member of Congresswoman Gifford's staff because he wasn't assured the family knew of his death.

Reporters and anchors have become creative in violating ethics at every instance in the race to be first. Over and over again we hear speculation in the form of non-speculation - "we have no evidence that this is terrorism." Ok, so why mention it? Because "terrorism" attracts viewers. Journalists guess how investigations will proceed, bring on psychiatrists to "evaluate" the suspect, and of course, bring on lawyers to discuss how "they" would handle the case from their TV studio stool.

All of this is ok. That's my point. This weekend was not about the Second Amendment. Congressional events will have more security, people will talk about gun control, but that's about all that will happen as a result.

What I haven't seen is deep, sincere apologies regarding all the bad information that was put out this weekend. We all saw the press conference from University Medical Center where the doctor said Congresswomen Giffords was alive and he was optimistic. I guess that meant (oops) she wasn't dead.

We've heard a lot about "discourse," and "rhetoric." Someone said that we live in a country where when it comes to politics "you either agree with me, or you're evil." I believe that, but I believe that the bigger issue is the proliferation of communication. People can talk all day, all night, in the middle of the night, every day, and do it anonymously. Most important - none of it has to be true. The days of a half hour news (real news) program in the evening, is long gone. News is 140 characters, or less, all the time. John Doe from Tupelo can tweet something and in 10 minutes it's on CNN as news, our new definition of "unconfirmed sources."

I was embarrassed this weekend. I think some people in the media were as well, but their voices are being drowned out by talk of whether this is the fault of one person or another. The media has a way of moving on from mistakes, especially in these days of blaming others for your lack of ethics.

If anyone questioned the strength of the First Amendment, you saw it this weekend. You can basically say whatever you want, and while as the Sheriff of Pima County said there are "consequences" that come with the First Amendment, he was speaking of the consequence that is death and destruction.

For those unfamiliar with the First Amendment, here's a familiar face reading it last week on the floor of Congress.

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, January 04, 2011

Ha Ha Ha, A Prosecutor Got Arrested

That's not the reaction of every defense lawyer.

But recently, a Texas prosecutor, tough on DUI cases, was arrested for DUI. Former Houston prosecutor Murray Newman got upset at the reaction, calling it a "double standard."

The entire situation sent the criminal defense blogosphere in to a frenzy, as noted by Scott Greenfield:

Taken from a particularized instance to a generic battle, this blew up into a seething animosity lurking just below the surface between prosecutors and defense lawyers. It spawned posts by Matt Brown and Jeff Gamso about the relative nature of our work, our relationship with legal concepts and human reality, and the philosophical foundation for irony. These are all big concepts.

It all started with Houston's own Mark Bennett responding to former Houston prosecutor turned defense lawyer Murray Newman's post:

The presumption of innocence exists and applies to Murray’s friend as much as to anyone: if he is punished for DWI when the government hasn’t proven its case beyond a reasonable doubt, that will be offend our senses of fairness. Any criminal-defense lawyer, called upon to represent Murray’s friend, would set aside personal feelings and fight like hell for him, or—if she finds that impossible—decline the case.

But there is irony here that cannot be ignored: not only did Murray’s friend faithfully serve for years the system that now has him in its clutches, but he also has, more than once, argued for harsh punishment in alcohol-related cases to “send a message.” When he has done so, he has hurt human beings. Did they deserve it? Murray and his ilk think they can tell; I’m not so sure, especially when the difference between a maximum of six months in jail and life in prison is—as in Howard’s case—nothing more than dumb luck. I think that knowing what a person deserves would require a godlike wisdom that no prosecutor I have ever met has had.

Blizzard and Allen thought that Howard deserved life in prison. I think they might well have been wrong. Right or wrong, Blizzard and Allen harmed Howard, as prosecutors harm human beings every day. They think—how could you do the job and not think this?—that the people they are harming deserve the harm. And they may be right; the harm they do may be justified … but some of the risk that they are wrong falls on them. If they are wrong, and there is Justice, there will be consequences.

Mark then makes the point regarding the reaction when someone on the "other" side of the criminal justice system winds up a defendant:

A criminal-defense lawyer might feel schadenfreude at a cop’s or a prosecutor’s unfortunate encounter with law enforcement; this is entirely natural. When we feel it, we should note it, think about its roots, and not be ashamed: criminal-defense lawyers are allowed to have feelings, emotions, and even prejudices.

Murray says that when he was a prosecutor:

I never relished in the misery of a defendant that I was prosecuting. I was always keenly aware of the repercussions prosecuting somebody had on collateral matters such as a defendant's family, his job, etc.

That's not the philosophy of every prosecutor, and Murray makes the point:

Somewhere along the way, people picked up the erroneous perception that prosecutors, and by extension, police officers do their jobs because they just truly enjoy ruining people's lives. They enjoy the power trip. They enjoy the chaos.

I am sure that there are probably some prosecutors and police officers that fit that description. And maybe I'm naive, but I truly believe they are in the small minority.

Problem is that those on that power trip are in the same courthouse as Murray. The defense lawyers that went up against Murray, went up against those he calls the "small minority."

Murray is mad at the defense bar. He says that:

Those same defense attorneys, who will gladly stand by any accused murderer, rapist, or pedophile, will vocally celebrate if a police officer or (fingers crossed!) a prosecutor gets arrested for anything. Die-Hard civil libertarians who will (rightfully) proclaim any citizen's Presumption of Innocence, suddenly forget that standard if the person accused is a public servant enforcing the law.

He goes on to say that:

The irony of the situation is stunning, because as members of the Defense Bar celebrate and rebroadcast the arrest of a prosecutor or police officer, they are abandoning the most sacred principles of the Constitution.

But I will never think that they are bad people deserving of trauma in their lives simply for being prosecutors, because that is nothing short of absurd.

And I would never take pleasure in the troubles.

Anyone in the criminal justice system for a few years has seen a colleague, prosecutor, cop, arrested. Hell, when I was an intern in a state attorney's office in law school, a public defender was arrested for his third DUI.

And there was a feeding frenzy. Happiness abound.

Let's not dance around this - anytime someone who enforces law, or defends alleged criminals is arrested, there is a certain "see how that is" reaction.

The reactions, however, depend on two things:

1. The maturity of the lawyer; and,
2. The character of the arrested.

I've known a bunch of prosecutors and defense lawyers arrested, many cops - even judges.

Bad things happen to bad people, and bad things happen to good people.

Upon hearing of the arrest of a prosecutor, my reaction may be, "damn, that's too bad, he was a good guy, always fair, always professional. Or my reaction may be "damn, that's too bad, and too bad the guy's an asshole."

It's real simple for me. It has nothing to do with it being a prosecutor, cop, or judge. It has everything to do with my knowledge of the hell that is the criminal justice system, along with my thoughts on the person arrested. Even the most mature lawyer, upon hearing that the "toughest, meanest" prosecutor was arrested for something, is going to have some sense of Kharma. Some may even wish for jail for a prosecutor that never considered giving anyone a break.

Any defense lawyer that relishes in the mere fact that "a" prosecutor is arrested, better hope they never step off a sidewalk when a cop is around, or have one too many ar the bar on Friday evening.

I've seen some of the most aggressive prosecutors, after arrest and on their way out of the office for good, become different people. It's a humbling experience. While I don't hope for the arrest of any prosecutor, I hope that every defense lawyer out there has the chance in their career to go up and shake the hand of a tough nose prosecutor after they were arrested and wish them luck and watch them almost driven to tears.

I've done it, several times.

The lesson here is that if you are seen as someone who uses what power they have, to the fullest extent, then when you are on the other side of that power, people are going to want to see you incur the wrath.

It's just the way things are, in criminal justice, in everything. We want celebrities to fall so we can say they are just like us. We want people who we perceive as abusing their power, to get abused. When people fall, there are those who want them to get up, and those that want to push them down. Some of this is revenge, some is of the person's own doing.

Kind of all comes down to the Golden Rule, huh?

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, January 02, 2011

Embracing Michael Vick

The other day I saw a criminal defense lawyer promoting a petition against President Obama's words of thanks to Philadelphia Eagles' owner Jeffrey Lurie for giving Michael Vick a second chance. This criminal defense lawyer spends a great deal of time advocating against animal abuse. I think that's wonderful.

But I disagree that criminal defense lawyers should be raging against Vick getting a second chance.

Now to discuss this, I need to go back a few steps. You can't discuss anything relating to animal abuse without making a few things clear. So to all you animal rights activists, stop typing, for a moment.

Certain crimes are more emotional than others - crimes against children, the elderly, the disabled, theft of money from charities, and yes, animal abuse.

Animal abuse is one of those crimes that is defenseless. Stealing food, for example, while a crime, can be understood if the person is starving to death.

Abusing defenseless animals is something for which there is no excuse.

Michael Vick abused defenseless animals. Call it "dogfighting," call it whatever you want - he put dogs in an environment where the goal was for them to kill each other. Disgusting, pathetic, criminal.

So before you type line 6 of the talking points "you support dog fighting, I don't.

I support Michael Vick getting a "second chance," and encourage all criminal defense lawyers to do the same.

Let me continue.

When the ink was still drying on my law degree, I was appointed to represent a Santeria priest charged with slaughtering animals. His defense - religion of course, but the way he slaughtered these animals was not in accord with religious methods.

A few weeks after my appointment, I was called in to court. The judge was receiving letter after letter, call after call. On the record, the judge handed over all the letters that were received - everyone saying the same thing, word for word. "If the defendant is convicted he should receive the maximum sentence." Some letters varied. Some were downright nasty, particularly the one written by my aunt.

The letters to the judge kept pouring in. A leader in the Florida ASPCA made sure he went to the press and trashed my client. I responded with a letter to his boss. He responded with a letter to my (new) boss. I was told to apologize and back off - "we don't need to get in to it with those people." My boss was on the cusp of an election. I complied.

The point is that animal rights activists are not the easiest people with which to engage in debate.

I told this criminal defense lawyer that I didn't think criminal defense lawyers should be advocating that someone who pled guilty, served their prison sentence, and successfully completed probation, shouldn't be able to return to their profession.

Now I've learned over the years that the criminal defense bar is not homogeneous. There are conservative republicans, liberal democrats, devout Christians, and devout atheists (is that an oxymoron?) There are criminal defense lawyers who passionately believe in the death penalty, and those that believe every client is innocent. It's important as criminal defense lawyers that we understand this distinction. We may be on the same side of the system, but we are far from all being on the same team when it comes to many of life's issues.

When I pursued the issue of Vick getting a second chance, and how we as criminal defense lawyers should use this experience as a way to show people that being a convicted felon should not be the end of life, I was told to have a sex offender babysit my kids. I wasn't surprised, this is how this crowd rolls.

I explained that football has nothing to do with dogs. Of course I wouldn't let a sex offender babysit my kids, nor would I let a chronic car thief borrow my car - but Michael Vick should be able to play football.

Now when Vick was arrested, I said he would never again play in the NFL. It wasn't because I didn't think he should play, but because I thought that the animal rights advocates would make the world of the NFL a living hell - that they would attend every game, protest sponsors, yell things to fans entering stadiums.

There were some protests, but they died out. The objection now is clear: Vick is doing well, he's throwing good passes, running fast, making fans happy. This, is the objection.

I asked this criminal defense colleague to tell me what would happen if Vick was a plumber? What if Michael Vick was a plumber, got arrested for dog fighting, pled guilty, went to prison (by the way, how many people have gone to federal prison for dog fighting?), was released, and went back to plumbing? The answer is obvious - no one would care.

The caring comes from the fact that Vick went back to a career where the world can see him on Sundays, and his salary is not $30,000, but more money that most people make in a lifetime. Animal rights activists don't find this fair. That's ok, I understand. They wanted life, or death.

We live in a society where just getting arrested these days can end a career. Convicted felons have little chance of getting a job, much less returning to their former careers - even when their job has nothing to do with their crime.

The argument from criminal defense lawyers who despise Vick is that "none of my clients would be able to finish their sentence and return to making millions." It's the rich vs. poor argument that gets us nowhere. It's the "why did he get that sentence and my client got this sentence" cry that results in nothing.

The discussion of "celebrity justice" when it comes to Vick though, is non-sensical. Vick didn't get celebrity justice. He got indicted, he went to prison, he served his time. He killed dogs. No one thinks that's ok. But his job is to run and jump and throw, not to be a zoo keeper or a Veterinarian.

Sometimes the criminal defense bar needs to take the opportunity to use an anomaly in the system to their advantage - talk about how someone like Vick can return from the depths of conviction and be a productive person.

Or use your agenda to wail against what it is you really want - an opportunity for your client to be like Michael Vick.

Brian Tannebaum practices both Criminal and Bar discipline defense, and is the author of The Truth About Hiring A Criminal Defense Lawyer.Share/Save/Bookmarkokdork.com rules Post to Twitter