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.

Oops.

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.

Why?

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. Post to Twitter

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. Post to Twitter

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. Post to Twitter

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. Post to Twitter

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. Post to Twitter

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. Post to Twitter

"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. Post to Twitter

This Is How The Profession Really Works. Really.

Sixty comments. 60. I've never had 60 comments to a post. Yes, I'm talking about the last post, the one inspired by John Wait. I throttled John. He responded. He used his name, not like the growing crowd of anonymous cowardly "lawyers" posting on blogs as if they are leaving a pile of shit at someone's doorstep and running away like children. John engaged me in a discussion. Don't be surprised if we continue the conversation down the road. While he disagrees with some of what I said, and probably thinks I acted like an asshole, don't confuse that with the impossibility of beginning a relationship..

The discourse was great. The comments were a tapestry on the subject of criminal defense. Two comments near the end caught my attention (My comments appear in bold in parenthesis):

"You have a good strategy. Criminal law is a great place to learn the fundamentals (on the backs of poor defendants who don't need lawyers who are committed to criminal defense or have any experience in the field) and also to generate cash flow (because it's all about the cash flow) while you build a civil practice (and hopefully quick so you don't have to defend guilty scumbags); especially if you are building a contingency fee civil practice. This is because of the following reasons:

1. Most criminal cases are bite sized. (like m&m's). Stay away from murders and big felonies unless they can pay a big fee (if they can pay a big fee, take them and fake it. Hopefully the client won't figure out you aren't experienced. Hopefully you've created a false online presence that can convince anyone you are "experienced."). They are too much stress and usually too little money (and the practice of law should never include cases that are stressful without the requisite "big fee."). This does not apply to drug conspiracies; drug dealers have lots of money (or at least they did in 1983). Take lots of DUIs (because you can only go to jail for 6 months for DUI), small drug possessions (only 60 days in jail), domestic batteries (maybe a year, but hey, what's a year in jail?), misdemeanors and the like (hopefully you'll get a lot of "the like."). Try to take them to trial (whether you know how to try a case or not). Most clients are guilty and, in state court, the punishment is usually minor (so try to keep a straight face when you do voir dire and speak of the presumption of innocence, and try to keep a straighter face when you tell your client you are sorry he's going to jail for 30 days when he could have pled guilty and received probation). Win if you can (but only if you can. If you can't, at least you'll have the experience for when you "go civil":). Loose if you must (or lose). But have fun (fun, like at Disney World). Even if you don’t try them, you learn other important skills like negotiation, case management and client control. (These are things you will learn on your own, no need to seek mentors to help you. They are all mean and will only tell you about practicing in areas in which you are "passionate," and when we're dealing with cash flow, there is no room for this so called "passion.")

2. Criminal trial and negotiation skills are transferable: You cross examine, direct, argue and negotiate exactly the same way in civil litigation. (and the rules are the same, well not exactly the same, but similar, kind of, like almost, maybe.)

3. Clients overlap. The people who commit run of the mill crimes are the same ones who are workers comp/ PI plaintiffs. Tell your criminal clients that you do PI and you’ll get lots of good cases (lots, wink). The deadbeat who can barely get $500 for you to do a quick plea might get a $200,000 PI case next week. (or the week after)

Some caveats:

1. You pick up bad habits as a state criminal defense lawyer (but not as a PI lawyer, or commercial litigator, never). Federal civil litigation is very precise and methodical and the rules are followed. (they are not followed in federal criminal court, just go in and see for yourself.....)
2. You won’t learn civil discovery and complex research and writing from criminal law. (right, and you won't learn how to grow tomatoes from taking a class in American history)
3. There’s no homework in criminal (none, not a single criminal lawyer does anything but walk in and out of court.) but lots of homework in civil (but don't confirm this with any civil lawyer, because you might be confused). Spending too much time in court takes you away from your desk. Bunch up all of your criminal cases on only 2 days each week so the rest of the week is free for work. (just tell the judge this is how you need it to be, trust me, they will all understand.)

Your concern about public defenders is unwarranted. The average client looks down on the public defender. They think PDs are like medical residents: lawyers in training. Or they think PDs are lawyers too bad to have their own practice. This is not true, but that is the clients’ perception. Guys who spent 3 months in the state’s attorney’s office brag for the next 25 years that they are “aggressive former prosecutors”. (first true statement) Former public defenders hide that they ever worked at the public defender’s office. (ut oh, I better start hiding this) It’s ridiculous, but that is the perception.

Good luck to you. (yes, especially if you take this anonymous advice - GOOD LUCK.)

And then there's Anonymous 2, who has all the answers:

Anonymous said...

John:

This is how the profession really works: A lot of lawyers start with criminal. They get experienced. They then move on to bigger and more lucrative civil litigation. (this is true.)

But criminal law (or insert any type of law) can be a refuge for complacent lawyers. Criminal defendants are poor (all of them, even the wealthy ones, just go with it). There aren’t many cases where the client pays enough money for you to make a big deal out of it (and who's going to "make a big deal out of it" if the money is not good?). State criminal law is a bit of a confidence game. You ask the clients’ expectations. He may be terrified of going to jail. You know that he’s not realistically going to go to jail; but he doesn’t. During the interview, you gather economic status information. Multiply FEAR x ECONOMIC STATUS = LEGAL FEE. (yes, this is how the scumbag lawyers do it). After you are paid, you resolve the case to the client’s satisfaction with a five minute plea negotiation (five minutes, not a second more). You tell the client what a great lawyer you are (repeatedly); and you move on. If a client has unrealistic expectations or expects lots of work, you charge an exorbitant fee and he moves on. (never take on a client where there may be "lots of work," we don't want that. We're not trying to build a reputation here, just cash flow.)

Complacent lawyers can make money. They refer PI and other civil cases for a 1/3 cut and don’t bother learning to be good civil litigators. I know guys making over $300k who work 20 hours a week and haven’t tried a jury in 15 years. (do this, you can make lots of money and never have to worry about being a good lawyer - this is the goal of this generation.)

But with legions of young lawyers who can now repeat the marketing tricks (taught by failed lawyers selling said marketing tricks) and undercut in price, the complacent lawyers are complaining. It’s their fault for being lazy and not having moved up market years ago. (it's also their fault for taking the advice to be complacent lawyers and make money instead of building their skills as lawyers.)

Well.

This is the advice out there. This is why I laugh when people ask me why I ride these marketing trolls, the ones teaching twitter instead of trial. The ones teaching SEO, instead of BOLO.

One thing I've learned from this is that in many jurisdictions, taking criminal cases is as easy as asking to be on a list. Where I'm from, we have screening committees. No experience, no cases. You want criminal appointments in Miami - apply, and hope you get selected. It's not a training ground here like it is elsewhere. I understand though, in smaller jurisdictions there is no ability to be selective because fewer people want to take criminal appointments.

But my question is this: Does pride matter anymore? Is there any desire to be good at what you do? Or is it just a factory - an exercise in cash flow?

There are many complacent lawyers, in many disciplines. The civil bar tolerates us criminal lawyers. We know this. They think we walk in to court and just plead people guilty, and for the most part, that's what happens every day.

Let's not forget though that in those moments where a client wants more than a plea machine, more than a "complacent" lawyer, more than a kid trying to generate cash flow, there is a need for non-anonymous criminal lawyers who are in this for the purpose of a zealous defense.

And this is how the profession works, really.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer. Post to Twitter