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

Friday, February 25, 2011

Hey Charlie...

Can't remember the magazine, Men's Health maybe? GQ? I saw the editor recently wrote his column about Charlie Sheen and called it "Dear Charlie."

So I'll say "Hey, Charlie" instead.

What's up with you? You're not doing too well. Screwing porn stars, being publicly nasty to your wife, claiming you're cured of your problems with alcohol. C'mon, let's be real.

You're spiraling, downward. I know this because I have clients tell me all the time that they're "OK." I know they're not. I hear their voices, look at their skin, watch their demeanor. It's obvious. You're obvious Charlie.

And now you lash out at what's his name - the guy you work with on your show that pays you 2 million an episode? What's up with that? Where are we going with all this?

You're feeling abandoned by some folks? That's what happens when they can't deal with your excesses anymore. They walk. They relieve themselves of the great and stressful and tiring responsibility they have endured to be your friend. It's too difficult when you act like a complete asshole at every opportunity.

What happened to the guy who played Bud Fox?

C'mon Charlie, dump the porn stars and strippers. Rekindle with or divorce your wife, apologize to your TV family, and cut the crap.

You think AA is bullshit? OK, do something else. Just shut up, get clean, and move on with your life.

Or you'll die. I know. I've seen it.

Couple times. At least.

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, February 21, 2011

A Message To Prosecutors & Public Defenders: Quit

As state legislatures prepare to begin their 2011 sessions, one thing is clear - state employees are going to get screwed. Actually, anyone who relies on government, i.e., everyone, is going to get screwed. It appears the screwdriver is currently being borrowed by Wisconsin.

It's a simple rule of economics: less money means less services. So whether you are employed by the government, or just use their services - like courts, schools, or roads, you'll feel the effects of multi-billion dollar deficits in many states.

Every year as legislatures commence session, the same issues exist in the criminal justice system: will there be more funding for judges, raises for prosecutors and public defenders, will drug and other rehab programs continue? One thing that is always assured, though, is more statutes creating more crimes. Even when prosecutors go to legislatures and beg that no new criminal offenses be created ("we have the tools"), politicians find it much easier to increase a penalty from 5 years to 10 years than to revamp the state's health care system, or figure out a way to provide economic incentives for corporations to move to the state.

Particularly this year, we will deal with the issue of state employees contributing more to their pensions and health insurance - what is more typically referred to as "benefits."

"Benefits," are the lynch pin to public employment. The hook, the reason many stay in the public sector. Over the years I have tried to hire a secretary or two from the prosecutor or public defender's office, and even with an offer of more salary, been turned down. Sure I offer health insurance and a retirement plan, but it's not as good as the state plan, and there's no guarantee of 9-5 with two breaks, or an occasional weekend session preparing a case. There's also no guarantee of employment in the private sector. It's well known that unless you kill someone, getting fired from state government is nearly unheard of.

In the private sector, people are fired for poor performance. In the public sector, well, one time I had a secretary in the public defender's office that couldn't do anything right. As an example, she would set depositions of witnesses, not put it in my calendar, and when I was out of the office, angry witnesses would call wondering why I wasted their time.

I was asked what I wanted done about it. "Fire her."

"We don't fire people here."

There are different types of people who seek public sector work, particularly when it comes to prosecutors and public defenders.

There are those who know they will be there for a few years to get experience, and then leave. There are those who want a career as government lawyers, and there are those who aren't sure, but "wind up" staying either out of passion for the job, or a lack of desire or fear of private practice.

When I was a public defender I paid $93 a month for health insurance. Now I pay, well, not $93 a month. I don't remember paying anything into a retirement plan, now I pay a percentage of my income every year. There were other benefits offered for a few dollars a month, benefits for which I now pay hundreds of dollars a month.

So while the salaries are lower in public life (but not always) the benefits are what keep people there, even those who complain about the lack of raises.

Now our state governments plan to gut benefits, making public sector lawyers contribute more to pensions and health insurance.

And there's lots of complaints.

State budgets pay a majority of their monies to three entities - education, health care, and of course, corrections (jails). Courts are generally a small percentage, but prosecutors and public defenders are part of the state employment system and are included in pension and health costs.

States can't afford it anymore. And I think the message, while subtle, is clear - government service is no longer a welcomed career.

They want you there for a couple years, and out. It's better to pay a prosecutor or public defender $40,000 for 3 years than keep them there for 25, with increases in salary and benefits every year, eventually paying a yearly pension upon retirement.

I was there for three years. I began accumulating a pension from day one, but because I left before 10 years, I forfeited the money. If I ever went back (not likely for most) I would recapture those years and they would count towards an eventual pension amount, but again, the state usually wins that bet.

Long term state employees cost long term money. It used to be that the message was "stay here, make less money, and we'll take care of you in the long term."

Those days are gone.

The effects are many. We will lose those experienced prosecutors and public defenders that handle the large and complicated cases. The private sector will be better positioned to compete for new hires as the lure of "benefits" will no longer be as impressive.

This is where we are going. Our state governments are entering an age of conservativism that brings with it a philosophy that the state should not compete with the private sector where the result is to take business away from private business.

Prosecutors and public defenders believe that both salary and benefit cuts are the proverbial "straw," but I think this is the government's intention.

They want you out soon. You cost too much money.

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, February 11, 2011

Melendez-Diaz, Not Just A Case Name, An Acquitted Defendant

Although I now can't remember the name, when I was a young lawyer I remember seeing a crowd outside a misdemeanor courtroom. I walked up and asked someone what was going on. I was told that a defendant, who I only knew through the name of the famous case, was in the courtroom. His appeal unsuccessful, he was taking a plea. It was an odd moment, names like "Miranda" "Brady" "Gideon," and "Allen" always existed as cases, not real people in real courtrooms.

Yesterday, Luis Melendez-Diaz, was acquitted in his re-trial.

We in the criminal justice system know him as "Melendez-Diaz."

His previous appeal went to the United States Supreme Court on the issue of whether the Sixth Amendment required forensic experts were required to testify in court

Yes, said the Court. This overturned the law in Massachusetts law permitted the admission of reports in lieu of testimony.

For a detailed analysis of the future of Melendez-Diaz, the case, not the defendant, go here.

So now the chemist testified.

...during Melendez-Diaz's retrial, a chemist from the state Department of Public Health testified that the substance allegedly found in the back seat of a police cruiser with Melendez-Diaz and two other men tested "positive for the presence of naturally occurring cocaine."

But the jury said no, not guilty.

Bittersweet for Melendez-Diaz, he's serving a 10 year sentence - for another drug trafficking conviction.

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, February 10, 2011

Forgive Me iPad, For I Have Sinned

Anyone following the advances in technology today cannot avoid the notion that the iPad is the future. Yes, the iPad is the future much like the rotary phone. Come upon a Starbucks dwelling lawyer, and in the time it takes to drink a tall coffee of the day, with room for cream, you'll be convinced that yes, this, the iPad is the future, of everything.

Whenever a new application comes out for the iPad, it's like an angel has descended from the heavens, blessing those with nothing else to talk about except how Apple has changed their lives.

The latest:

Confession: A Roman Catholic App

The text-based app takes the user through the Ten Commandments, with a slew of questions attached to each, a process known as an examination of conscience, which penitents undergo before confession.

Questions range from "Have I wished evil upon another person?" to "Have I used any method of contraception or artificial birth control in my marriage?" and users can check a box next to each sin they've committed.

Once that's done, the app lists the user's sins and displays a written act of contrition, a prayer recited by the penitent. From there, it walks the user through the rest of the steps of confession and even advises when to say "amen."

This is great. Instead of meeting with a priest in a church, in private, you can just type away your sins while picking out a new pair of flip flops or baseball cap.

Apple "apps" are so popular, that even the Vatican has weighed in on this one.

From Father Federico Lombardi:

It's essential to understand that the sacrament of penance requires a personal dialogue between the penitent and the confessor, and absolution by the confessor who is present," he told reporters. "This is something that cannot be replaced by any application. One cannot speak of a confession via iPhone.

One cannot speak of a confession via iPhone

You forgot the iPad, Father.

I also have one small concern, the Evidence Code.

Now talking about law and the iPad in one place makes some people uncomfortable, but let's give it a shot.

The priest-penitent privilege protects communications between a person and a clergy member acting in a professional capacity as a spiritual advisor from disclosure. A clergyman uses the priest-penitent privilege to refuse to divulge confidential information received from a person during confession or similar exchanges.

Meaning what?

If your "confession" is on an iPad, that confession is between you and the iPad, and your wifi connection, internet service provider, the world, and God.

Now I know, tech evangelists don't like the fear mongering - "it's just a toy, Brian."

Sure it is. Funny though how the Vatican felt the need to comment.

I know it's a toy. Until your iPad is delivered pursuant to a subpoena, to the office of a prosecutor, who doesn't know how to play Angry Birds.

So tell me, have you ever wished evil upon another person?

Tell me.

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, February 03, 2011

The Cheapening Of Our Profession: Who's To Blame?

When I first got a Blackberry, my father asked why I would want to "be in touch" all the time, why I would want people to be able to get a hold of me all day and night?

I explained that it wasn't that I wanted to be accessible to everyone all the time, but that if one other criminal lawyer was, and the client was not going to make that second call, I was out of a possible case.

Cue the whole "run faster than the fastest Lion" analogy.

Things have changed a bit, not totally though. I am lucky to have some clients who will wait a few hours or a day to reach me, and I've learned that those that usually hire lawyers immediately, aren't looking for a good lawyer, they're just looking for a lawyer. Any lawyer. True emergencies aside, most clients really need a bondsman, not a lawyer, at the time they are arrested. Most.

Back in the 1920's, here in Miami, the Dade County Bar Association printed a little book listing the fees that clients should expect to pay for lawyers. There were fewer lawyers and no advertising. I assume back then it was well known that a Will cost X and a Divorce cost Y. I remember seeing a line for "Felonies," but don't remember what it said.

When I started practicing, as it is today, there was no expectation of what a client would pay for fees. This is mainly because we as criminal defense lawyers have turned the practice in to a commodity for sale, rather than a profession.

The main culprit: Advertising. I hate it. I do it, on a small scale - black and white listings of my name in two publications. But no "mailers," no "brochures," no purchasing of the list of last night's arrests. Yes, I have a website, and my profile on various other sites, but if it was up to me, there would be no lawyer advertising. Why do I do it? Cue again the "running faster than the fastest lion" analogy.

Advertising does one thing - it publicises to the masses the services of the lawyer. The purpose of advertising is to convince others that you are the one to hire. Say you're "aggressive," "available 24/7," or a "former prosecutor," and you look good. Talk about the free consultation and jail visit, and listen to the cell phone ring.

With advertising comes the hook - "flexible payment plans," "affordable fees," and the ticket lawyers who offer "no fee" if the client receives points on their license. Most people don't get points, so it's a low risk proposition.

I've always been a fan of ticket lawyers. I think they offer a good service for a low price. But they've killed the practice - turned it in to a race to the bottom for fees.

I've seen fees on criminal cases range from $299 for a DUI (yes, $299) to several million dollars for a white collar federal defense. Most criminal lawyers today are happy to get their hands on $5,000.00 for the garden variety case. The clients who are willing to pay mid 5 figure and six figure fees are dwindling, and as a result, many of the former "I only handle big federal cases" lawyers are walking through state court trying to find the cafeteria.

Criminal defense lawyers routinely complain amongst themselves about clients who don't want to pay legitimate fees for a real defense. (I know my anonymous cop commenter is out there waiting to jump on this - he has never arrested an innocent person and thinks any attorney's fee is too much). We talk about the guy who cries about his life being over and that he'll "do anything" to resolve the case, except pay a decent fee.

No need to worry, our brotherhood is very willing to cut fees to get the case. Rent is due, staff (if any) needs to be paid, and if your buddy Bill down the street quoted the client $2,500, well, this is the client's lucky day - because (even though you normally charge $3,500 for this type of case) today you'll take $2,000.00.

Nothing wrong with that. Nothing unethical. Perfectly fine. This is America, capitalism is how we build business, and if the guy down the street gets the case because he can do it cheaper - so be it.

But what gets me is that we complain about "cheap" clients," and clients who don't know what they're getting when they hire "cheap" lawyers, and then we spend our days on our list serves asking for referrals to lawyers who are "reasonably priced." There is no such thing as reasonably priced. The term means "cheap." But no one asks. We see someone is asking for a referral and (most of us) don't even bother to ask what "reasonably priced" means. (I think it means $500, but that's just a guess.) When I do ask, I usually learn the client still owes his current lawyer money, is still in jail, can't afford bond, but yeah, wants a lawyer for his case in another state.

And it's not just lawyers we want. We want experts - cheap experts. We have clients facing serious prison time and we are looking for the "best" expert in a narrow field who will work for basically nothing.

We, not the clients, cheapen the profession. They're not the only ones out there looking for cheap - we are too.

Price fixing is illegal. It's a violation of the Antitrust Laws. When the ticket lawyer business first started (at least here in Miami) I remember they charged $99. All of them. The day someone charged $89, it was all over. Now, you can find $29. Congratulations ticket lawyers. Good job.

We complain about the status of indigent defense, that state governments pay so little for criminal defense lawyers. Yet we take the cases. Why do state governments pay paltry fees for indigent defense? Because they know there is no fee too low that would cause a serious crisis in client representation. There's always a lawyer who will take a case for next to nothing. Isn't there?

The economy doesn't help either. Many in our profession are just hanging on, and are willing to take "anything" to stay in business. I understand you need to keep the lights on, but are you really going to properly handle a federal case for $2,500? Are you really going to properly handle a DUI case for $300?

The problem is that in most cases the client doesn't know the difference. Hold their hand, tell them to answer "yes" and all is well. Next case.

I don't know what the answer is here. We've turned our profession in to a nice day for the lowest bidder.

And like an auction, eventually everything is sold, until the next auction.

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