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

Wednesday, March 30, 2011

Cops, Prosecutors Fight The Enemy: Innocence

"The proposal is designed to help prevent wrongful convictions, but is opposed by the law enforcement lobby.”

That's a real quote.

It's about yesterday's passage of a bill creating a "blind" administrator when showing photo line-ups to witnesses and victims.

Makes sense. This way there is no question that the administrator is not skewing the results with a little nod or something more specific.

It's like the difference between having a judge who is the brother of one of the lawyers, or one who has no interest in the outcome of the case.

But innocence legislation is always controversial, because innocence is embarrassing, and anything that addresses the problem creates questions about law enforcement - police and prosecutors - that law and order types don't want asked.

That's the issue, that the mere creation of laws designed to protect the innocent - you know, like the 267 nationwide that have been exonerated - 75 due to eyewitness misidentification - is a problem. Once we officially recognize the problem, it actually exists.

Doesn't it make sense that if we are trying to prevent eyewitness misidentification, that taking bias out of the photo lineup process would be a good start?

The Florida Sheriff's Association, the Florida Police Chiefs Association and the Florida Prosecuting Attorneys Association are all opposed.

And when law enforcement opposes legislation, you get thoughtful responses like this:

Sen. Paula Dockery, R- Lakeland, said she was voting against Negron's bill because she didn't feel comfortable opposing law enforcement groups.

And who wants anyone to be uncomfortable when were talking about innocent people going to prison or death row?

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, March 27, 2011

Florida's War On The Judiciary

There's a proposal in the Florida Legislature to lower judicial pay by 8%. Combined with pension reductions, judges are looking at about a 20% reduction in compensation.

The logic behind the 8%?

State Representative Richard Glorioso offered no justification for the salary cut proposal other than a general comment that they had to cut somewhere

Cuts to other elected officials? None.

There is an all out war on the judiciary in Florida, except you can't say that to the legislature, because it offends them - that someone would figure this out.

Take, for example, the proposal to pay incentive bonuses to judges that close cases efficiently.

But let's go back to the pay cut.

Judges in Florida make about $142,000 a year.

That's a lot, if you make less than that amount. It's paltry, if you consider that a first-year associate at BigLaw can make $160,000.

I think judges should make $250,000 a year.

Hold the "kiss-ass" comments.

Your philosophy about judicial pay comes from how you perceive who should become judges.

In Florida, the list of qualifications are as follows:

1. Lawyer in good standing for past 5 years.

This list of qualifications above, grants a lawyer the right to preside over a DUI case, or a death penalty case (assuming the judge attends a course to become qualified to do death cases.)

There's a proposal to up it to 10 years, which I support.

In Florida you can become a judge two ways - appointment or election.

I believe in appointments. Most voters have no idea who to vote for (as judicial candidates cannot discuss issues that may come before them), and some voters are resentful that they are asked to select candidates about which they know nothing.

Yes, the appointment process is political, but I also believe in a merit retention process that is meaningful.

Most importantly, I believe the position of judge should be reserved for those who have had successful careers as a lawyer. I don't mean they've made a lot of money, I believe the position of judge is for those who have "been there, done that."
But let's get back to the pay issue.

Judges are looking at a possible pay cut of eleven grand. That's a lot. Forget about no raises, taking away money is a whole other concept.

There's a buzz that judges will resign. They should.

While becoming a judge is not a path to wealth, Florida's assault on the judiciary is a path to attracting either the independently wealthy, or the inexperienced who see $142,000 as a significant pay increase. Which judge do you want?

There are those that say we shouldn't compare private and public sector wages, but the reality is that a 20 year lawyer sitting on the bench should not be making less than a first year associate.

When I mention the $250,000 number for judicial pay, I hear that it would cause a feeding frenzy. The question becomes - what do you want on the bench? Most lawyers I speak to want experienced lawyers with perception and experience. When we have a society where those lawyers won't consider becoming a judge, we wind up with those we find ourselves complaining about - career government lawyers with no concept of private practice, and inexperience.

Sure, there are career prosecutors that have become great judges, and inexperienced lawyers who have done the same, but the fact remains that attracting quality is not the same as being happy with luck. We have few judges who were successful lawyers and in the middle of their careers decided to seek the bench. Why is that? The answer is money. While we want more of these lawyers to become judges, we are unwilling to attract them.

Want good judges, attract good lawyers. It's really that simple.

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, March 23, 2011

The 1,214 Email Vacation, Taming The Listserv Beast

I did it.

Turned off the blackberry for a week - 7 days.

The goal - to see how many emails I receive in a week, and to see whether I would return to "is this thing on" from anyone.

So here's the breakdown:

1,214 - average of 173.8 a day, an average of 7.2 an hour.

883 came from lawyer listservs - 72%

189 of the listserv emails, or 21%, came from 29 people.

Of the rest, about 189 were "somewhat" relevant, meaning they came from real people not trying to sell me anything, including some from clients.

But 72% of the emails I receive on a weekly basis are on lawyer listservs.

Now I'm a member of 5 lawyer listservs. Three are criminal defense, two are ethics. The most active is NACDL, and FACDL coming in at 261 and 268 emails respectively for the week, as compared to the NACDL White Collar Listserv at 60.

Listservs are an interesting animal. After many years watching and participating, I've been called "the meanest person" on my state association listserv for my comments referring people to things like "google" and books that contain rules and statutes.

On lawyer listservs (and I've confirmed it's not confined to criminal defense), there's probably a half-dozen personalities.

There's the "I have to write a motion and don't want to re-invent the wheel" types. Translated: "I haven't written shit, wouldn't know where to start and just want to copy yours."

Then there's the person who goes to the listserv with every question from law to tech to where to eat on vacation.

And there's the ones who never miss an opportunity to answer every question, usually starting with "I've never had a case like that and can't answer your question, but I did save 15% on my car insurance from switching to Geico."

And let's not leave out those who are looking for an expert who of course will work for free. These are the same people looking for a referral to a lawyer, not to hire them, but to talk to them. They also are looking for various lawyers who do very specific things in very small towns. For example: "I'm looking for a lawyer in (insert town no one has heard of) who has handled a contract dispute between a trucking company and a deaf guy who was 27 minutes late to work and was suspended for a day and lost $125 and wants to sue but has no money and owes me money for the last case I handled. Any takers?"

Did I leave out the "me too?" These are the people who read about a ruling or motion, and want a copy. They've never provided anything of value to anyone, but are happy to accept your work.

There's always the "oops" people. "Sorry, that was not meant for the entire list." Really, so you're not going to call me in an hour to discuss the discovery issues in the Smith case?

Let me not forget the "I just took money from a guy for a case I have no idea how to handle, please send motions, thoughts, candy, flowers..."

And the "I'm not happy unless I can perpetuate a debate for 4 days" folks.

And the "I have a trial coming up, in 3 hours, anyone got any case law for me?"

Of course I would never leave out the news people. These are the lawyers who believe no one else reads the paper or sees news on the internet. Two days after a big story hits - they're right on it. That always wakes up the "that's not fair" crowd.

Some emails on listservs shock me. I recently asked what lawyers would write if they knew their clients would read it?

Some make me laugh.

Some make me wonder if the lawyer actually has a practice, or just sits at their dining room table on the computer all day answering emails.

And some ask why I just don't get off. What is it I get from being on listservs.

Well, for one, there's an occasional gem, some good advice, and interesting ruling.

Cases? Most people looking for a lawyer on a listserv are looking on behalf of a client with little to no money. Not a criticism, just a fact.

I do refer a lot of cases, and that, I like to do. No, I don't go on and announce I'm looking for a lawyer, I have enough friends and colleagues to know how to get those names without doing the "anyone interested in a DUI in Backwater?" What I do is provide names to people who ask, and I do it in a way no one else seems to understand: OFF-LIST.

It shocks me that I receive over a thousand emails a week, many irrelevant, but for now, for those few lawyers who benefit from a recommendation, and the occasional interesting tid-bit I read, it's going to have to remain this way.

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, March 09, 2011

In Florida, It's Now "Let's (Some Of Us) Get To Work"

To no one's surprise, Florida's Cabinet voted 4-0 to (go back to the stone age) reverse the advances made in restoration of civil rights for convicted felons.

The policy allows non-violent offenders to regain their rights without a hearing after being crime-free for five years after being released from prison. For certain classes of violent offenders that require clemency hearings, the waiting period is seven years.

Yeay. Great work. The sheriffs and prosecutors are happy, what else matters?

Does it matter that this goes against the goal of getting people back to work?


Whatever we can do to perpetrate the criminalization of life, we're good for that.

What happened here is the most dispicable, pathetic, disgusting thing I've seen in state government in all my years as a lawyer.

Yes, I'm serious.

Here's a fact:

The public wasn't asking for this.

When our new Governor was running, the main issue was unemployment. That's why his campaign theme was "let's get to work."

Automatic restoration of civil rights gets criminals who have paid their dues, back to work. Delaying restoration of civil rights, makes it harder to get a job.

Is there any coincidence that the waiting time is 5 and 7 years? We vote for the Governor and cabinet members every 4 years. Do the math.

So if our goal is to get people to work, and the first thing our leaders do is make it more difficult to get people back to work, what do we call that?


If we're being nice.

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, March 08, 2011

Today, Florida Takes A Huge Step Backward

Today Florida's Executive Clemency Board will vote to repeal former Governor Crist's granting of automatic restoration of civil rights to convicted felons. Only Kentucky and Virginia require applications for restoration of civil rights.

It's a done deal, although the general public doesn't realize it yet. Most don't care, because they think it doesn't affect their innocent selves.

The leader of the repeal is our new attorney general Pam Bondi. You may have seen her on TV. She's a former career prosecutor who is very pretty and was often asked to appear on talking head TV shows to trumpet the guilt of suspects, like the Duke rape suspects. Remember them?

I met her once, about a decade ago when she walked into a courtroom for the specific purpose of objecting to the sealing of a record for my first time offender client whose case was dismissed. She was pleasant, but made clear to me that she didn't like the fact that my client hit her daughter's (abusive) boyfriend with a golf club. She toyed with the objection while we chatted, and eventually deferred to the court.

When she was running, I had someone ask her whether criminal defense lawyers should support her. I was told her response was something like: "some of my best friends are criminal defense lawyers, and if the criminal defense lawyers knew me well, they'd support me.


Pam won handily. She was the dark horse republican candidate. We were going to vote for a republican here in Florida for everything, because we hate Barack Obama and health care, and the republicans were/are going to fix everything, and as our new Governor says: "let's get to work."

Deferring a felon's restoration of their civil rights does nothing to get them back to work. That's not a concern of our leaders. Our concern in this republican dominated state is that felons mostly vote democrat, and well, you understand. No civil rights = no vote.

So at a recent meeting of our Executive Clemency Board, right at the end, our attorney general stated that she didn't think felons should get automatic restoration of their civil rights.

Bondi said:I fundamentally and philosophically oppose the concept of the automatic restoration of civil rights. I believe that every convicted felon must actively apply for the restoration of his or her civil rights and that there should be a mandatory waiting period before applying. The restoration of civil rights for any felon must be earned, it is not an entitlement.

The chorus of fellow members agreed. So did the Governor. Like, immediately. As if this had all been discussed prior to the meeting.... The Sheriffs joined the parade.

The Sarasota Herald-Tribune, published where democrats are as easy to find as snow in Florida, disagreed:

The current rules don't coddle criminals. They require felons to serve their sentences and pay their debts to society.

Imposing additional prerequisites, such as the mandatory waiting period that Bondi advocates, would serve only to extend felons' punishment and delay their return to productive lives. Remember: Many cannot work until they get occupational licenses, and they can't get those until their rights are restored.

This is a serious economic issue — especially in minority communities, where higher incarceration rates tragically perpetuate a cycle of poverty.

Economic issue? What?

Yeah, you see, when people can't get jobs, it affects the economy. It affects you and me. When we draw no line on when someone has paid their debt to society, we wind up paying a bigger debt.

Today the vote will be taken. It will pass. The reform that the public seemed OK with, gone.

We don't know the proposed rules though, the media not able to digest them, nor the public, because as Ms. Bondi's staff said.

...she plans to ask for a vote Wednesday and that the rules won’t be available until then.

Oh well, it was nice while it lasted.

I guess "let's get to work" is better said "let's some of us get to work," others can wait until we say they can get to work." Or something like that.

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, March 04, 2011

I Got To Meet Melvin Richardson

You don't know Melvin Richardson. Google will tell you nothing about him, he's not on twitter, and he wouldn't draw a crowd at any event.

But I got to meet him last night.

Melvin is a pretty hefty African-American guy with the demeanor of teddy bear. Seems a few months ago he was in traffic court in Pensacola and something important happened.

In Florida, like other states, a defendant is required to provide a DNA sample upon conviction. Here, we run a q-tip around someones mouth, drop it in a ziplock, the whole process taking about 6 seconds.

Melvin wasn't in court to be convicted of a felony, he was there on a matter involving a traffic citation.

This set of circumstances didn't seem to have any effect on the court security officers in the Escambia County Courthouse, who for a long while had been interpreting Florida's law as allowing them to take DNA from anyone sitting around without a nice suit. Yeah, they were taking DNA from anyone and everyone. Defendant's not wanting to rock the boat, and lawyers somehow unaware of the law, defined submissive.

Melvin was approached and instead of opening wide, turned to his lawyer and asked "do I have to?"

His lawyer didn't think so and when the judge took the bench, he inquired. The judge seemed confused that a traffic court defendant would have to give DNA, but also not wanting to usurp the power of the all mighty court security, ordered Melvin to submit to the DNA swab. He then immediately stayed the order to permit Melvin to appeal.

Melvin would now have to pay a $400 filing fee to appeal the order. Hefty price for a traffic ticket.

But there would be no appeal. Court security changed their policy. They changed their policy because Melvin said no.

And so last night at the annual dinner of the Pensacola criminal defense bar, Melvin received the first ever "Person of the Year" Award. Surrounded by giants of the criminal defense bar, donning suits, ties, and glasses of wine and enjoying perfectly cooked steaks, Melvin took the podium in his black pants and untucked black t shirt.

His only words were to recognize that he had a lawyer that helped him bring his objection to the court. He was clearly overwhelmed that someone whose only act was to say "no" would be brought to the center of an event like this to receive an award.

It was just one of the greatest things I've seen in my career.

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