"We Have No One In Custody, Legally."

That was the Sheriff of Escambia County, Florida yesterday during an interview on cable TV regarding this horrific murder of the parents of 16 children in their home.

The three people arrested yesterday will be prosecuted for this unexplainable brutality, and if they are guilty, there is no doubt they will receive the maximum penalty for whatever they are eventuallly charged with.

But I'm tired of the semantics. I'm tired of the bullshit.

Let's review.

When I was growing up, both as a kid, and in the criminal justice system, there was no such creation as a "person of interest."

Everyone knows Miranda, you know, what we hear on Law & Order every 3 hours? "You have the right blah blah blah?"

Miranda applies to persons in custody.

In custody?

We defense lawyers litigate that every day.

In custody is determined on a "totality of circumstances." Was the person "free to leave?" (No one is ever free to leave while with a police officer, but we like to say that they are sometimes.) Was anything said to the person to lead them to believe they were a "suspect?" Were they in handcuffs, in the back of the police car, put in a room, taken somewhere, and on and on and on.

How do we take someone into custody, not arrest them, knowing they are a suspect, and not have to read them their "rights?"

We call them a "person of interest."

Person of interest=suspect.

But not legally.

When the Sheriff said yesterday that "we have no one in custody, legally," he was saying this:

"We have the murderers in custody, they are going to be arrested, but we are getting a "rights" free confession out of them before all that damn constitutional crap comes into play and we have to tell them they don't have to talk. So please lady, don't ask if we have anyone in "custody" 'cause we don't."

Legally.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com



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Someone Get Me A "Former Federal Prosecutor."

I often joke that there are criminal defense lawyers and "former prosecutors" (practicing criminal defense). Some laugh. The ones that don't, know I'm talking about them.

I am not, a former federal prosecutor. I am not a former prosecutor. I am a criminal defense attorney. I formerly worked as a criminal defense attorney at the public defender's office, and I make sure I always let the appropriate person, reader, or audience know that I am a former public defender.

I do not, though, identify my basic existence with that former position of which I am very proud.

When I have appeared in print or on radio or TV, I never ask to be identified as a "former public defender." Again, I used to work at the public defender's office doing what I do now, criminal defense. I am a criminal defense lawyer. If I ever was a prosecutor, I would not want to live in the past and tell the world at every opportunity what I used to do.

Former federal prosecutors, and former prosecutors to a lesser extent, seem to find themselves using that title in curious situations.

This week on the Today Show there was a segment discussing what will happen to Michael Jackson's kids. Jeanine Pirro, former New York Judge and DA was commenting perfectly on California family law, never leading the audience to realize she knows nothing about California law besides what the person she called in California before the show told her. (Sorry to blow the secret that lawyers and judges know nothing about law in other states)

And there was this other female lawyer on the comfy couch. I didn't hear the whole segment, but I saw across the bottom of the screen: "Former Federal Prosecutor."

There are only two possibilities here. This woman is a former federal prosecutor now practicing family law, or she is, well, just a former federal prosecutor doing something else. Either way, who cares? Is there some theory that the custody of Michael Jackson's kids will become of interest to the U.S Attorney? I know we're upset no one's been arrested yet in MJ's death and no Law & Order episode has been "ripped from the headlines," but do we really need to suggest that a former prosecutor, sorry, former federal prosecutor is the only person to comment on....custody?

Why was this woman referred to as a "Former Federal Prosecutor?" Did she ask, or did the Today Show think it sounded good.

It doesn't end there.

One of the dirty little secrets of this title is that it is used to mask the terrible things that "Former Federal Prosecutors" and Former Prosecutors do after they stop being Prosecutors," like become defense lawyers.

That, they refer to as "Private Practice."

Look at any candidate for judge or state or local office. Look at their resume. "Former prosecutor now in private practice?" BINGO - defense lawyer. Criminal defense lawyer. Shhhhhh.

I've always wondered what the media's love affair is with "Former Prosecutors." To me, they simply perpetrate the notion that these are the lawyers who know everything and are best suited to answer questions in any situation, because they used to prosecute criminal cases.

It has long been the mantra that being a "former prosecutor" is a better pedigree than being a former public defender. That's absolutely true. Former prosecutors are more likely to be hired at big firms who believe that clients will want to hire them to defend. They are more likely to be appointed to the bench, elected to office, and of course, plastered on TV to answer questions, about anything.

Even if they are now, "in private practice."

Shhhhhhhh.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com



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Releasing Prisoners, Fear Mongering, The Predictable Public

As soon as I saw the headline for this story this morning: "Up To 10,000 Illinois Prisoners May Be Released"

I dead-bang predicted word for word the tone of the story.

1. There would be mention that this is due to the depression (I know some call it a recession).

"Up to 10,000 convicted criminals could soon be released early from prisons across Illinois. It's all because of the state's budget mess"

2. The prisoners are all non-violent inmates but the writer will make some crack that questions this premise:

"The state's making a list of thousands of so-called non-violent inmates..."

3. The words "public safety" would be included to begin the fear mongering:

Rep. Jim Durkin. "Public safety? Not the place to cut. That is the last place you should cut the budget is public safety. The greatest responsibility of the governor and the legislature is to keep the citizens safe. And I don't agree with this approach."

Good job Jim, three times.

4. Oh, and Jim used to put people in prison and thinks that at least some of them actually belong there:

"I threw a lot of those guys in prison back in the '90s, and they probably, a number of them, belong there."

5. The public would be hyperventilating:

"Oh, my God. I don't agree with that at all," one woman said."

Oh.my.God.

6. Another member of the public would make an absolutely brilliant statement:
"I don't like that at all," a woman said. "You know, because I think people have been placed there for a reason."

You know, yeah.

7. The inmates would have little time left, making it irrelevant whether they served another few months:

"with less than one year left to serve...."

8. The fear mongering article would claim that the proposal is being done just for the putpose of.....fear mongering:

"What it's being done for is to try, through fear-mongering, cause people to support an income tax increase," said Bob Schillerstrom, Candidate for Governor. It's the wrong thing to do."

I agree, Bob.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com



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Sarah Palin: An Unfairly Treated Woman In Need Of A Makeover

I know, it's not about criminal law, but I just got back from vacation and am fascinated with the hypocrisy surrounding Sarah Palin.

I'll admit, like many others, when I first saw her (and the first time many saw her was when she was nominated VP), I thought "cute." Kill me, but that's what I thought.

Then she opened her mouth.

I have to believe that any 45 year old who ascends to the governorship, of any state, has to be somewhat intelligent.

While she may be "smart," she didn't present herself as qualified to be President. And no, I don't "hate" her because she's a "strong powerful woman." I just think she's not qualified to be President.

The Conservative republican machine has been quick to deter any attention from the fact that Palin is to the naked eye, "cute," but not qualified to be President.

They blame the "liberal media" for focusing on the truth. If the liberal media would just "leave her alone," she would appear qualified.

If the liberal media would stop commenting on her looks, the way she talks, or the fact that she really doesn't know anything about the world outside of criticizing the current administration or anything "democrat."

I understand the partisan game. The purpose of each party is to show the public that the other party is worthless, anti-everything the other party is for, wrong, and going to kill us all.

What I don't understand, is this column today by Cal Thomas. No liberal is he.

Thomas says that Palin was "treated unfairly and in ways that no liberal woman would have been..."

He then says that "anyone running for national office must traverse a media gauntlet -- with the notable exception of Barack Obama and his worshipful media disciples. While Conservatives can expect worse treatment than liberals, they can prevail with the right strategy."

Ok.

But Cal,the strategy you speak of is as follows:

"If Palin is to have a future in national politics (assuming she wants one) there are several steps she must take.

"First, she needs a complete makeover. The big media will never admit they were wrong in their judgments, but they might write stories about the ``new Sarah Palin.''

She should hit the books and learn as much as she can about the modern world, history and court cases. She should read newspapers so that when future interviewers hit her with questions, she can dazzle them like a Jeopardy champion."

"Palin should hire a speech coach and follow that person's advice. She has a pleasant enough speaking voice, but the tone needs to be adjusted, as do her word choices."

"Lastly, she needs a hair, makeup and wardrobe makeover. She is a beautiful woman, but appearance should not be the first thing one reacts to when people look at her."

He concludes with this: "Sarah Palin can be 'born again' in a political sense and excite beyond her base if she allows herself to be 'baked' (ha ha, good one Cal, baked.....Alaska....) at the proper temperature and for the right amount of time."

So let me understand.

We have treated Palin unfairly. We have focused too much on how she looks, how she talks, and what she doesn't read? The solution is not to find a better candidate, but to prop Palin up with a makeover, speech classes, and reading advice?

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com



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Another Criminal Defense Conference, Another Few Minutes Of Dreaming

Over the past two weekends I've attended two different criminal defense conferences. In 15 years I've probably attended 30 or so. Each one includes talk of new case law, good and bad. They include war stories of that case, or those cases, where a judge, a jury, or a motion led to victory for the defendant. There's that new case that the police will learn to "get around," and there's the judges who tell us what they like and don't like in court.

And at the end of every conference we are led to the same belief, that we can win more cases, that we can win every case.

These conferences bring defense lawyers together within a state, a federal district, or a country. We learn we all have the same issues, the same cases, and the same clients. We leave and return to court Monday with a renewed sense of "what if?"

And then there's Tuesday.

Yes, if we tried every case, we'd control the system. If all our clients had the money to hire the best experts, or even a mediocre investigator, we could learn things that would cause a jury or judge to think twice about whether our client was guilty.

But we don't. Private lawyers don't, public defenders, don't

It is a system, and as we defense lawyers hear in court from the bench, "we have to move things along."

The economy is making things worse. More desperate lawyers practicing criminal law, taking fees to "pay the bills" that aren't enough to do a competent job. Take the client to court and tell him you got a great deal. He doesn't know. He'll spend 30 seconds thinking about whether to become a convicted felon, which is 30 seconds less than he spent thinking about who to hire.

We leave these conferences with a renewed sense about Monday, only to be faced with the inevitable Tuesday.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com



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Being Pro-Life, And Pro-Death

Abortion.

I know, I shouldn't write about abortion.

Abortion is not something we debate, its something we accuse others of supporting, or trying to prevent women from obtaining legally. Abortion is something that intelligent people refuse to debate, and wack-jobs kill people over.

Killing doctors who perform abortions is nothing new. But the advent of 24/7 conversation via the internet causes the news, the reaction, and the incendiary hypocrocrits to be heard all in one.

There are two types of "pro-life" schools of thought: Those that think there is only one pro-life school of thought, and those that make exceptions. The former have no use for the latter, but the former have some explaining to do post-assassination of Dr. Tiller this weekend in church.

If you are pro-life, you do not believe in killing an unborn child. I'm not going to get into the debate here about whether a fetus is a human being, I'll assume for purpose of establishing hypocrisy, that it is.

Hypocrisy, being pro-life, and pro assassination of a doctor who is performing legal abortions.

Thou Shall Not Kill?

Or "Thou Shall Not Kill Those That I Believe Should Not Be Killed?"

I know, true pro-lifers believe he was a "mass murderer." But he wasn't, because for whatever you believe about what Dr. Tiller did for a living, and are at least a wee bit knowledgeable when it comes to law, it was not illegal.

Case in point, did any pro-lifers call the police anytime they heard Dr. Tiller performed an abortion?

But they believe that someone who does something legal, yet against religious and moral beliefs, is properly assassinated in church on a Sunday.

Those who believe it was OK to blow Dr. Tiller away last Sunday are good at throwing darts, but generally won't engage in a debate. I've read some comments from those "no one should be crying over Dr. Tiller's death," people, responded with a question, and received no answer.

Maybe the solution for these supporters of murder can try to get an asterisk after Thou Shall Not Kill*

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com



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Miami Airport Cop: Did You Know My 9 Year Old Was There?

Good thing about having a blog is that writing a letter that will be answered with some condescending bullshit about "public safety" is no longer necessary. I can just write it here.

Saturday night my wife goes to Miami International Airport to pick up her parents from a 3 week trip.

She entered the "arrival" section at 9:30 p.m. Like most Saturday nights at that hour, there was no one else there. No one.

My wife stops in front of Delta amid a sign: "No Parking Active Unloading Only." Pre 9-11 that meant you could park in the no parking zone, leave your car, go inside and meet your party. Post 9-11, take 2 steps away from the car, and it is obviously a bomb.

But in all seriousness, that sign mean you can be "actively loading" luggage and people while the car is parked, just don't take more than 10 seconds to do it. Eventually it will be required that the car keep driving while the people are trying to get in and load their luggage. Hey, there's a war on terrorism, get with it.

My wife stops, her parents walk out with some luggage. They load the luggage, and walk back in to the airport to retrieve more luggage. Three week trip, lots of luggage.

Officer Friendly appears. His greeting: "I'm sure you can read."

My wife's a lawyer, she reads pretty well, and advises the officer that the luggage in the car was brought out by her parents and they went back in to get more.

"It says no parking, active loading only." "And don't tell me they went back in to get more luggage, I've worked here a long time and I know it all comes out at the same time."

Officer, I was born in Miami, and I can tell you, it is a requirement that all your luggage not come out at the same time. Many of us have memorized the last 6 bags coming around while we wait for that last bag. You know, you hear the truck pull up, and pray to God that your bag is coming.

He's not done, after my wife begs, begs him to just let her remain there, with no other cars around, he relents: "I'm going to be nice and give you 2 minutes."

After he leaves, my 9 year old daughter says "Mommy please, lets just go."

Go?

Yes officer, you scared the crap out of my daughter who was sitting in the car listening to you act like a complete asshole for no reason.

And no, I don't know your name, and I'm not going to waste my time writing a letter to your chief, who will tell me that I "have to understand the times in which we live." I understand that you are a power hungry piece of crap who has no regard for the badge you wear and the impression you leave on people. Did you have to be such a jerk? Could you have not just asked my wife how long she was going to be and if it was going to be more than a couple minutes if she wouldn't mind driving around? Maybe then said hello to my daughter.

You know, it's funny, even as a criminal defense lawyer who deals with an occasional jerky cop, I always encourage my kids to respect the police. Thanks to you, my 10 year old now has her own impression. The last cop she saw gave her mommy a hard time while she was picking up her grandparents from a long trip. Congratulations jerk off.

So I just wanted to say officer May 30, 2009 at 9:30 p.m. by Delta arrivals, grow up. Get off your power trip. We live here and are used to rude cops, but there's plenty of tourists here in Miami (you've been working at the airport "a long time" so you probably know that) who don't need to come here and have the first person they meet, be you.

And you owe my daughter an apology.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com



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The Sotomayor Debate: Why Conservatives Are Scared Of Judges

Conservatives don't trust judges.

This is why we have sentencing guidelines, minimum mandatories, reporting requirements on sentences, and the phrase that everyone likes to say, and no one understands: "legislating from the bench."

About 4 years ago, when this blog was in its infancy, I wrote about "legislating from the bench."

I said this: "Government hates our judges in America. They don't trust them, and they blame them for the state of, well, everything.

The problem is, governments define a bad judge as "one who does not rule they way they are supposed to rule."

The reason for this hatred is mainly because government doesn't understand nor respect the role on an independent judiciary, which has been significantly diminished in the last 20 years due to Congress believing they need to take hold of our court system.

Judges are supposed to be the independent arbiters of justice. Justice is a simple concept, it is fairness.

Fairness is what we determine it to be. If we think someone is guilty, then damn that judge who presides over the trial that finds him not-guilty (not to mention the obviously brain-dead jurors who were following instructions and actually applying the burden of proof).

If we think someone should receive a life sentence, then damn that judge that gives a 30-year sentence. And a judge better not find that a search of someones home was in violation of the Fourth Amendment, especially if there are drugs in the house. That's a no-no.

Most important, judges should never find themselves 'legislating from the bench.'

That is what extreme conservatives say when they are asked what type of judge they want on the Supreme Court. They all answer in the negative, like a church choir - 'we don't want a judge who 'legislates from the bench.'' Ever notice that there is no follow-up question? This is because no one knows what that phrase means. No one.

I do, "legislating from the bench" means to interpret the Constitution in a way that violates someone's political or religious persuasion.

See, the Constitution has been interpreted for years. But if a judge interprets it in a way that creates a right for someone, that is 'legislating from the bench.'

So if the judges on the Supreme Court interpret the Constitution as NOT prohibiting abortion, gay marriage, or the integration of our schools, then they are 'legislating from the bench.'

So it is not that Congress and state legislatures hate our judges because they legislate from the bench, it is because they interpret the Constitution to afford rights to those that 'they' believe should not have them."

In the coming days and weeks, this "legislating from the bench' crap will be a daily retort from those against Sotomayor. Want to end the conversation? Ask this question: 'What specifically do you mean by that?" The answer will be something like: "you know, legislating, from, the bench, making policy. legislating." Follow up with , "Ok, give me specifics."

You legislators ever wonder if the lack of respect for the legislative process brings this about? Respect for passed laws is based on the process in which they are passed.

I'll have respect for the process when I can ask a random sampling of legislators about a law that recently passed, and half of them can tell me what it says.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com



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