Where Are The Criminal Lawyers In State Bar Associations?

We have 85,000 lawyers in the Florida Bar. Someone once did some research and found that 4,500 of those lawyers had filed notices of appearance in a criminal case. I've always heard that "less than 10%" of lawyers practice criminal law, so the numbers make sense.

In terms of committees that are relevant to criminal lawyers, the Florida Bar has a Criminal Law Section and a Criminal Procedure Rules Committee. There's also a Traffic Court Rules Committee, Rules of Evidence Committee and Appellate Rules Committee.

Over the past few years, the Florida Supreme Court has given more power to the Rules of Judicial Administration Committee to make rules regarding criminal practice. There are about 30 members on that committee - 3 are criminal lawyers.

I've been on a Florida Bar committee for over 10 years. I started my Bar involvement on the local young lawyers board, joining as the only criminal lawyer among 17 lawyers. When I was on a Florida Bar Grievance Committee, I was the only criminal defense lawyer. There were 3 prosecutors, and the rest, civil lawyers from BigLaw who never had a client, and didn't understand how criminal law worked.

Bar associations are overwhelmingly made up of civil lawyers. No surprise why - BigLaw loves to have their lawyers involved. Criminal lawyers are either prosecutors, public defenders or solo or small firm. There are time factors, cost factors in traveling to these meetings, and most prevalent, a feeling that the Bar is the government. We are required to be a member of the bar, and we have to pay our "taxes" (dues). It's just another "thing" to advocate "against."

When I go to the Bar meetings, the divide between civil and criminal lawyers is immediately apparent. The criminal lawyers are the ones who realize they are not in court, and dress accordingly - open collar, no jacket, an occasional suit on the lawyer who ran to the meeting from court. The civil lawyers, dressed to the hilt.

Due to dwindling attendance, the Florida Bar recently combined the annual criminal awards luncheon with the civil lawyers luncheon. In this, the second year, the luncheon began with a quip from a prosecutor at the podium that the criminal lawyers "are all seated over here, and you can talk to them, they don't bite." Cute comment, but that's how the room was seated - criminal lawyers amongst themselves.

Even in the criminal defense lawyers associations - less than half the criminal lawyers are members, except in Oregon, where they have 100% membership, and have more power in the legislature than the prosecutors.

Civil lawyers get it. They know that being involved in the process, at every level, only helps their Bar. Criminal lawyers are divided. There is the group that believes a criminal lawyer's job is to go to court, all day every day, and do nothing else. They believe the legislature and the Bar are governmental agencies that are to be avoided. They believe that anyone involved is a "self-promoter," only looking for something. What has always made me giggle a bit, is that this is the group that sends mailers to people's homes when they get arrested, buys the big yellow pages ads, advertises themselves on bus benches and billboards, and yet says those that join a Bar committee are "self-promoters."

I often wonder what the Bar would look like if every committee had a few criminal lawyers. I often wonder what the legislature would look like if there were a few real criminal defense lawyers - not the ones who are former prosecutors and call themselves "white collar" lawyers at BigLaw.

I know, we don't get elected, we aren't welcome at the Bar.

It's not true, it's just a self-fulfilling prophecy. We're criminal lawyers, we don't need an invitation - we need to barge in and speak up.

Do we really want civil lawyers making decisions on criminal practice?

The state bar associations will dump on criminal lawyers if they are not more active. It only takes one voice to stop a bad idea, to stop a new rule from changing how we practice law.

This notion that we need to just deal with what comes down the pike and fight our cases in court is ridiculous. We need to be at the table, we need to stop trains from leaving the station.

I have examples of criminal lawyers, one, criminal lawyer making a difference in legislative and Bar proposals. I won't mention them here, but suffice to say, it's happened, more than once.

You can say "screw the legislature," and "screw the Bar," all you want.

But as you sit back and tell them to screw you, they are.

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

Inmates Want Phone Calls To Lawyers Recorded, Says...Sheriff

Cops hate criminal defense lawyers and criminal defense lawyers hate cops.

That's not a true statement, but it is what most people think.

Sheriff Grady Judd of Polk County, Florida, in his defense of his new policy to record inmate calls to their lawyers, didn't use the word hate, he used "lazy."

Judd also admits that he is now getting complaints from inmates that their lawyers are lazy.

Now let's stop for a moment. Here we have a sheriff, claiming that he's doing inmates a favor by recording their conversations to their lawyers.

Truth be told, Sheriff Judd says he's abiding by the law, and he's right. It is now legal to record attorney/client telephone conversations if the attorney and client know the conversation is being recorded.

Completely legal.

As a recent client told me though, "this isn't right, it's just legal.

Sheriff Judd also says he spoke to many inmates (I hope who weren't represented by counsel) who told him they were relieved to hear they will now get to meet their attorneys before their court date.

The Polk County public defenders claim the increased visits to the jail will cost taxpayers millions. They want money for gas and extra video conference links. They want two million dollars.

Sheriff Judd, unfazed by any notion of overworked public defenders, has a solution to the concern about client contact:

"We're not telling them you can't have unfettered access to your clients. You can, and it's really simple. Come to the jail 24/7," Judd said.


Sheriff Judd says if the inmates "say something illegal," he will use it against them. "We're allowed to record these conversations, and why wouldn't we record the conversations in order to make the best prosecutable case to protect the victims and prosecute the criminal defendants. Why wouldn't we do that," the sheriff said.

Why wouldn't we do that?

Well.

I don't practice in Polk County, but I assume the decision to use evidence against a defendant is up to the prosecutor, and decided upon by the judge.

And the state attorney? What's his position?

"As a lawyer in the criminal justice system, I value the attorney client privilege. While I know I can use conversations between attorneys and their clients in criminal cases, I will not ignore the importance of the attorney client relationship for the purpose of gaining an advantage in a criminal case. I may be a prosecutor, and entitled to use this evidence, but I will not forgo my commitment to the profession and the ideals upon which it is based. The Sheriff can record all he wants, I'm not going down that road."

I'm just kidding, he didn't say that.

He said this:

The state attorney's office says that as of July 1, they will consider all calls made via the jail house recording system as potential evidence.

There are many questions surrounding this new policy. One is, why? Other than it's legal, what's the point? To gain evidence in a criminal case?

Most jail calls go like this:

"Hey, what's up with my case?"

"Can't I get a better deal?"

"Are you the prosecutor or my defense lawyer?"

"When are you coming to see me, again?"

"Can you send me what you've already sent me 3 times?"

"Did you get a hold of Roy, my defense witness?" "No, I don't know his last name."

Are the police going to sift through the approximate 600 phone calls a day from the Polk County jail to try to find evidence? Who is going to do that? Who is going to pay for that?

There has been discussion for a long time that if the Bill of Rights were before Congress today, only the Second Amendment would pass.

I think the attorney client privilege would also be legislated out of society, or diminished to the point of irrelevancy.

In Polk County my client can't call me as his lawyer and talk to me on the phone without the police listening, and using it as evidence. So me, and any lawyer who has a case there will either not be able to talk to their client as often, or cases will be delayed because "judge, I couldn't get to the jail this week."

I look forward to the first jail call to an attorney that is seen as potential evidence in a criminal trial, and I look forward to watching what the judges do about it, and have to say about it.

To those that think this is a good thing, I'm sure you do - you're not sitting in jail.

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

Will We Ever Fully Understand Clients?

I assume all private criminal lawyers go through the same thing; a string of great calls and clients, followed by a string of mind numbing annoying calls from those that will never become clients, or if they do, will suck the life blood out of us.

I've had a week, well, a couple days, of the latter. Calls from people in terrible, desperate situations that I'll never get to resolve, either because the client doesn't have or won't pay the fee, or because I've politely declined based on something that caused me to think I'd regret taking the case.

I've reached the point where although it costs me money, I don't want to take on the clients that think a retainer buys them not only representation, but my full attention all day every day, my use as a tool for their strategy, and my cheerleading for them when I know the truth to be not so bright.

After 15 years I think I have it figured out, but I don't. In some ways I'm glad. There's still that caller who seemingly will never become a client, but becomes a great one. Then there's that seemingly great client I take on who at some point in the representation decides that I am the reason he is in this situation.

One thing that never changes is the rough and tumble at the point of resolution. Most clients want their case dismissed. If that's not what they want, they "just don't want to go to jail." I've never met a client that told me the opposite.

But what will never change is the thought by some clients that whatever result you obtained, there is something better. Even when a case is dismissed, I'm often asked if the prosecutor will pay the attorney's fees, or if we can sue. When the client is facing a minimum mandatory prison sentence, and receives an offer of probation, I'm often asked "can we do better?"

There's nothing wrong with wanting better. I was taught as a young lawyer to ask (the prosecutors) until they say no, and mean it. But I've tongue in cheek developed a theory that a criminal lawyer should be careful about doing something good for a client, because it won't be good enough.

Sure, there's the appreciative clients, the one's that know they dodged a bullet, the one's that understand compromise is when both sides are unhappy. But I still don't know what to say to a client that "just wants the felony dropped," and after it's dropped to a misdemeanor, asks if we can do better. Sure, I'll keep fighting, but they dropped the felony to a misdemeanor as a compromise. A compromise takes both sides. The only way to "win" outright in criminal court, is a dismissal or acquittal. This is why when someone asks about my "win/loss" record, I respond with "what do you consider a win?"

My job in every case is to get the best result for my client. I have no problem telling my clients that tell me about how the case is going to affect their job, family, life, and other collateral aspects, that no one cares. I care, but the state generally doesn't care. Many people have families, jobs, status in the community. A particular prosecutor may care, but in general, the government doesn't care.

There are other things that never change - the client who says you never told them something you've told them ten times over, the client who wants to make sure you tell the prosecutor something that won't have any effect on the case, and the client who says it sounds like you're "not fighting" for them because you tell them something that can only be described as brutal truth.

Clients are not to be judged. This is something I learned in my first days as a public defender. Being judged is not the same is being honest. Some clients don't know the difference. It is my job to be honest with clients, regardless of that article I read years ago that said in white collar cases, always be positive when speaking with the client. Why is that? Should I say everything will be OK when I know it won't? Should I tell the client I don't think he's going to jail when I know the judge he's before always puts defendants in jail for the same crime? Should I tell him he has a great, defensible case, when there is a box full of of wiretap and video evidence?

Representing clients in criminal cases is never dull. While experience as a criminal defense lawyer helps in dealing with the different personalities and "buzz words" and phrases that indicate a certain issue has arisen, I don't believe I'll ever fully understand each and every type of client.

In a strange way, that's what makes this job fun.

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

A Perfect Game: The Criminal Justice System

Bud Selig did the right thing. Sometimes life sucks and you get screwed. You don't go back and change things.

It's too easy to compare the missed call that robbed Armando Gallaraga of only the 21st game in Major League Baseball's history to the criminal justice system, but what the hell.

Gallaraga pitched a perfect game. The replay shows it, the ump admits it, even Jason Donald, the hitter called "safe" admits it.

Gallaraga pitched a perfect game.

But we will write down that he didn't. He will receive no credit for this perfect game. According to the law, it never happened.

My friend who made the quote at the beginning of this post makes the point. He's got support. Yes it happened, but sometimes the law steps in and poof, it didn't happen.

Any criminal defense lawyer who felt his client was wrongly convicted, has stood at sentencing and heard the judge and prosecutor say over and over again "but the jury found him guilty." Yes, a group of people looked at the evidence and made a judgement call. Human beings came together to decide whether someone committed a crime. Most of the time it's easy. There's a confession, along with witnesses, along with physical or scientific evidence, and the combination of all of it is proof beyond a reasonable doubt

But it's the cases like the missed call that resulted in a "non"-perfect game, cases where there is one witness, who may have gotten it wrong.

Most people will say that a guilty verdict means the defendant "did it," but that an acquittal doesn't mean he didn't do it. That makes sense only in regard to the fact that an acquittal can be the result not only of a jury thinking the defendant didn't commit the crime, but that they don't believe the government proved the case beyond a reasonable doubt. The latter is less likely, as juries are told to use common sense, which is a way for them to disregard the burden of proof. In sum, if a jury "thinks" the defendant did it, he's guilty.

We've seen a lot of innocent defendants released over the past few years. In a slew of post-verdict cases, there was a prosecutor announcing that "a jury found him guilty." This is spouted even in the face of DNA evidence (our instant replay) proving innocence. The public hears only of the exoneration, not all the hearings where the state tried to maintain the conviction despite evidence of innocence.

We've even had arguments as to whether factual innocence is relevant.

Today the country is crying foul - a man pitched a perfect game and the law prevents us from doing anything about it. It's wrong. It's not fair. But my friend is right - we in this country love law & order so much, that we can say with a straight face that Bud Selig did the right thing. Sometimes life sucks and you get screwed. You don't go back and change things.

And nobody will, regardless of the truth.

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 Comment I Was Waiting For

After my last post on the juvenile system, railing against children being able to determine sentences for other children, and incidences that used to be handled elsewhere flooding our courts, I waited for the comment.

It didn't come right away. Then, last night, it showed up. The reason the system is filled with what used to be "things kids do," appeared on my blog:

But the client, no matter how much we all hate to say this, assaulted someone. Your client hit someone. They struck the first blow. If someone had hit you, you would want some sort of revenge or justice. I agree that while parents are no longer raising their children to be as respectful as they should be, and that some parents are checking out of raising their children, but we do still need to make children understand that they will be accountable for their actions.

If the prosecutor had let your client off with no punishment, what's to stop them from hauling off and hitting the next person who teases them? Your client needs to understand that people aren't always nice, but you have to deal with what they say.

Teaching a child to hit someone who teases them just causes more fights.

Let me summarize: "we need to let our children know that if they get in fights at school, they will be arrested, jailed, sent to court, and sentenced." "If it happened to your kid, you would want it that way."

No, I wouldn't. No, we don't.

While I appreciate the honest comment, it only reaffirms that generation of adults we have out there that believe the criminal justice system is there to resolve all of our disputes, to help us with our "revenge," that "justice" exists only in courtrooms, with cops, judges, and prosecutors.

If my kid got into a fight, I'd hope it could be handled at the school level. If it couldn't, I'd teach my kid about forgiveness and second chances. This was a fight with no injuries for God sakes. Have we no ability to use these opportunities to teach our children about resolving disputes? Or should we just teach them to call 911?

I will say it again, this is our failure, not the failure of our kids.

That we as adults can't see any other way to resolve a dispute between two children says more about us, than it does about our kids.

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

Our Failure: Juvenile Court

Today I will walk into Juvenile Court and accept diversion for a client who was involved in a misdemeanor battery. She will do her 15 hours of community service. The case will be dismissed.

And I couldn't be more angry, for two reasons.

First, when did a scuffle in school become an arrestable offense? Answer: When we as adults admitted our failure to and lack of interest in raising our children. That we can't take two fighting kids into the office and discipline them without having the meeting end with officer friendly (maybe the real officer friendly) snapping on the cuffs, is our disgrace. We suck. We failed. We are to blame.

Second, my "child" is getting diversion because the "victim agreed." Victim's rights are a big things these days. The mantra of "criminals get more rights than victims," has resulted in, well, victims gaining the right to run our system. Another failure of leadership.

In Florida, we have a Constitutional amendment that allows victims to be heard and notified of all court appearances. Prosecutors have interpreted this to mean they can offer plea deals. It makes things easier for the upcoming story in the paper or on TV to say that the "victim approved the plea," or not.

Sometimes, a prosecutor who has some guts, will ovcerride the vindictive victim - the one who won't agree to diversion or probation because they "want jail" for a minor offense or first time offender. Maybe the prosecutor knows the victim is looking for an advantage in a pending or soon-to-be-filed civil case.

My "child" and the victim hate each other and have for a long time. Reason? My client is a foreigner, and her "victim" has been taunting her. So one day my "child" hauled off and hit her.

Good. That ended that.

The prosecutor, overworked with other "why is this in juvenile court" cases, told me my "child" could not get diversion unless the victim agreed.

Seriously?

"She hates my client," I said.

"What if she doesn't agree and gives you no reason?"

"Sorry, I don't think I can override (this 15 year old) her."

"Sure you can."

"I don't think so."

The prosecutor tried, initially telling me that the victim was "waivering." Still, there would be no diversion until this victim agreed. The prosecutor was paralyzed by bad training, and a system that has succeeded in giving crime victims more rights than defendants.

Congratulations.

I don't know why this victim finally agreed. I would like to think her mommy and daddy told her about forgiveness and second chances. Maybe the prosecutor did a good job convincing her to agree.

That this is how we are resolving disputed between our children, is disgusting, in so many ways.

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 Cop Lied, To Me

IN 1994, Alan Dershowitz coined the phrase "Testilying." The practice of giving false testimony against a defendant in a criminal trial, typically for the purpose of "making the case" against someone they believe to be guilty when legal technicalities weren't followed to the letter during the arrest of the suspect, or while searching the immediate area.

So cops lie. We all know that. It's something we don't like to talk about because it brings out the "so what, they're guilty anyway" crowd. Of course everyone will say "that's terrible," and "that's just wrong," but deep down inside those that wonder why we even have defense lawyers, there is the thought that it really doesn't matter. These are the same people who believe that a 1% error rate on the death penalty, is the "price we pay for having the death penalty." (Yes, someone actually said that.)

So in a Miami courtroom last week, it happened in one of my cases. No, this wasn't a high profile case where the public was screaming for a conviction. This was an old misdemeanor case that no one cared about, except my client, and the 4 prosecutors clamoring to object to all that was being asked. (Tip to a young prosecutor: When you've been practicing about 5 years, you'll realize that if it's that irrelevant, there's really no reason to object so much.)

This case involved two officers that pulled over my client. During a chance encounter with one of them, this officer told me they did not observe the same driving pattern observed by the other officer.

No, I didn't have a witness standing next to me. Just me and the officer.

I ran back to my office and on the same day, filed a motion laying out the details of the conversation.

It would be a few months before the motion was heard.

"Do you remember having a conversation with me?"

"Yes."

"It was out in the hallway."

"Yes."

"You said he wasn't weaving."

"I never said that."

Not, "I don't remember," or "I'm not sure exactly what I said," "I never said that."

"You never said that?"

"No."

This went on for a little while.

In the end, the testimony of both officers was enough for there to be reasonable suspicion for the stop. I don't disagree,

But this cop lied.

What struck me was the fact that not the judge, who knows me well, nor the four prosecutors, who haven't been practicing a year and don't know me at all, acted like anything was amiss.

No one thought to ask "is Mr. Tannebaum making all of this up?" "Is Mr. Tannebaum lying?" I kept looking around the courtroom, and noticing that everyone was carrying on as if there was nothing out of the ordinary.

I'm glad this happened. These are the things that reinvigorate my passion for the practice. It reminds me that for every prosecutor and police officer I respect and may even be friendly with, there is an undercurrent of shit in our system that affects defendants everyday. This is why defense lawyers must remain vigilant.

And that's the truth.

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

Cruel & Unusual: Kids Version

Few have noticed the lines blurred between child and adult in the criminal justice system. With an increase in "youth" violence over the last 30 years, the response of has been typical: throw 'em all in jail.

And we have. You're welcome. Thursday I will go to juvenile court to represent an otherwise good student from a good family who got in a fight with another girl resulting in no injuries. The days of these "school fights" resulting in a visit to the "office" and a grounding from Mom and Dad, are long over. We prefer handcuffs, jail, court, sentence.

It is our failure. Visit any juvenile court and watch your childhood missteps be adjudicated by men and women in robes, argued by prosecutors, one after the other.

Justice Kennedy says that "as compared to adults, juveniles have a “‘lack of maturity and an underdeveloped sense of responsibility’”; they “are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure”; and their characters are “not as well formed.” Yeah, yeah, yeah. But they can walk, and talk, and think?

So now, today, as compared to yesterday, we can no longer incarcerate juveniles for life, the rest of their life, for non-murder cases. Apparently: “[i]t is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.”

So the reason we can't throw away kids for life is because while some just had a bad night, and others are hardened criminals, we can't really tell the difference, and because we can't be sure, we just shouldn't be able to sentence them to life. Kinda sounds like the framework of the argument against the death penalty - if we can't be sure someone is guilty, maybe we shouldn't have......never mind, that's for another day.

Until yesterday, America was the only Nation that imposes life without parole sentences on juvenile nonhomicide offenders.

No one else. America is the only place where we are unable to see the possibility of rehabilitation in our children. How proud we must to say that a kid at 14 or 15 will never be anything more than a criminal.

Make no mistake, this is a watershed ruling. This is a message that we are going in a different direction, if only on this one issue.

Most of us see the criminal justice system as a place for big guys with tattoos, and other strange looking characters we wouldn't invite in our homes. Walking into a juvenile court can sometimes make one think that there are kids playing criminal. It can't be that some fresh-faced 13 year old is there in chains and a jumpsuit. Yes, he's there, and so are his friends.

The over legislation of the criminal justice system is a tribute to us as Americans. The public only want to make it easier to put more people in jail, for longer sentences. There is little thought on the basics of our system. I have for a long time said that we should scrap the system and create one from scratch. We should sit down in a conference room with some judges, prosecutors, defense lawyers, cops, corrections officers, and a few crime victims, and a yellow legal pad.

If we did that, this, the abolition of life sentences for nonhomicide juveniles, would certainly be on that legal pad.

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

Supporting Arizona

Not a single happening in this country defines our broken political system more than Arizona's new immigration law.

Upon it's passage, a huge gasp throughout the nation. All those who had a microphone, ran to speak. This was a "show me your papers," "Nazi Germany," unconstitutional statute that caused even those who see the Constitution as a hindrance to law enforcement to cry foul.

Then, a couple weeks later, another story came out - a poll.

66% of the country support the law. 70% of Arizona residents are fine with it.

Ut oh.

One of the dirty little not so secret things a politician needs to do, is get votes. If the majority of people support something, and you want to win, you've got to get a majority vote. There's no better way to get the majority vote, than to pander to the majority.

So Arizona's immigration statute is now a Florida campaign issue. Sure, our education system sucks, we have high unemployment, people are moving out, but hey, we also have a lot of illegal immigrants, so why not make that the focus since it's now a topic on the national stage.

Those Florida candidates who were against the Arizona statute, are now, um, tightening up their ties, and want you to know they are with you, you good people of the 66%.

The Republican Party's front-runner for governor, Florida Attorney General Bill McCullom, threw his support Thursday behind a tough new immigration law in Arizona that he criticized as ``far out'' just two weeks ago.

Seeing an opportunity to grab that same 66%, after the city of Los Angeles declared a boycott of the state of Arizona, Attorney General candidate Holly Benson, as the newspaper says embroiled in a hotly contested Republican primary chimed in: Illegal immigration is a serious problem facing our country and it is unfortunate that the Los Angeles City Council came down in support of illegal activity, over the actions of Arizona's attempt to enforce the law.

Yes! Rally those Florida citizens by telling them Los Angeles is a bunch of poopy heads.

U.S. Senate Candidate Marco Rubio also abandoned his (principles) previous opposition. He and McCullom say they changed positions in light of amendments that aimed to outlaw ethnic and racial profiling by the police.

Because as lawyers, they know that if the police aren't able to racially profile suspects, they will not. Nope.

It's a joke. All of it. And yet we sit back and act like there's nothing wrong with it. It is a foundation of our system that leaders made decisions based on polls and their ability to "get elected."

It's empty, and it works.

I have more respect for someone that supported the Arizona law from day one, than someone who now supports it because supporting it is a good place to be.

Leaders are required to lead, to take stands, to support the minority against the majority.

But we as Americans are just as happy to have them follow.

Vote early and often.

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

Because I Have To Write About Elena Kagan....

One of the things that is inherent in having a blog, is that there is a faction of the internet audience that believes you must write about what they want to read. So to avoid the "why didn't you write about Kagan" question(s), here you go.

I was trying to put together my thoughts on this nominee, when I ran across them on Norm Pattis' blog. So since we live in a society where the most vocal are those who repeat what their favorite pundit said on TV five minutes ago, let me join in the dumbed down mentality of our country and feign original thought in favor of just reprinting my (some of Norm's) thoughts:

Elena Kagan leaves me as cold as can of processed salmon. Princeton, Oxford, Harvard, a clerkship on the Supreme Court, associate at a megafirm, law professor, dean of Harvard Law School, Solicitor General of the United States. Oh, and did I forget that she writes a mean law review article?

We need a trial lawyer on the Supreme Court, not a judicial tourist. As near as I can tell, Ms. Kagan has never set foot in a courtroom representing a person in need. All she knows about the courts' capacity to change a life is what she has read. She's a surgeon who can only describe a scalpel. In a nation chock full of lawyers who actually know what the courts do by experience, she is a rank outsider. I'd need to send an associate with her to handle a misdemeanor, just to make sure she didn't give the client's rights away.

Why graduate high enough in your class, and you might never have to sit with the hoi polloi and listen to their sorrows. Play your cards just right, and, wham, bam, thank you Sam, you just might get a seat on the Supremes.

Kagan once referred to the confirmation process as insipid and meaningless. I suspect appearing on just such a soulless stage has been the ambition of her professional life. Undoubtedly, she'll soon demonstrate the art of evasion in response to questions put to her by the Senate. Saying nothing is the judicial nominee's stock in trade.

Shame on you, Mr. President. Are the pressures in Washington so great that what was once the outsider's promise of hope has now, and so quickly, become little more than a tap-dancing mime? Any president could have appointed Elena Kagan. Her resume drips with prestige, power and privilege. She is a predictable and uninspiring choice.

There has been murmuring in the Senate that we need to break the Ivy league mold and look beyond the predictable corridors of power for a justice.

But, I digress. I am bitter because when I go to court tomorrow to face a sentencing judge in a capital felony, I know that the work I do, the lawyers with whom I associate, the client I represent, are just another set of statistics to those atop the law's vast pyramid. I will struggle to be heard and know that what I say is mere verbiage in the barrel of the law's broken promises.

I took Obama seriously when he talked about change. His betrayal of that promise and transformation of it into a cynical farce has me wondering how long it will be until old wine skins finally burst. Elena Kagan? I suppose she'll do as well as one hundred other high-powered legal academicians might have done. But I had hoped for something better. I had hoped for a trial lawyer. What I got was another harmless error of a choice.

Yeah, what he said.

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.

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First, Let's Kill The Dog

The thugs among us.



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 Terror Of Miranda

Faisal Shahzad, an American Citizen born in Pakistan, sits in custody charged with attempting to explode a bomb in Times Square. There is debate on whether this bomb could have caused any harm, but let's assume it would have hurt, maimed, or killed dozens, maybe hundreds.

I hope that if it is proven beyond a reasonable doubt that Shahzad was the driver of the SUV that contained the bomb, or created the bomb, or was attempting to kill people, or a combination of all three, that he is convicted and sentenced to life in prison.

Yesterday, like many others around the country, I wondered if he did it, why he did it, who he was trying to harm, and whether this will happen in other cities.

But that wasn't the main question being asked by our politicians or the general public.

The headlines:

Republicans Use Faisal Shahzad Arrest To Renew Miranda Rights Debate

Faisal Shahzad Was Read Miranda Rights After Initial Questioning

Miranda rights and alleged Times Square bomber: questions linger

Was It Right to Read Bomb Suspect His Rights?

Miranda Rights: Times Square Bomber Reignites Debate

Marco Rubio, Republican candidate for U.S. Senate and a Florida lawyer who apparently skipped Criminal Law the day they taught it in law school, opines that he doesn’t support any action that could interfere with the U.S.’s attempt to prevent terrorism – including giving Shahzad a Miranda warning of the right to remain silent and have a lawyer.

“If this individual has information that could help us prevent future attacks and loss of life nothing should stand in the way of that, including Miranda,” said Rubio, a favorite of the tea party movement. “If they stop talking, people can die.”

Marco, there is no evidence that Miranda stops suspects from talking. Seriously, I should know.

John McCain, who wanted to be President, and Rep. Peter King (R., N.Y.), "also expressed concern over the decision to read the Miranda warning to Shahzad before finding out as much information as possible about the plot and others involved."

McCain, said the immediate use of Miranda rights is a “mistake.” “Don’t give this guy his Miranda rights until we find out what it’s all about,” he said.

McCain was apparently also very busy reviewing the Federal Code:

There's probably about 350 different charges he's guilty of, he said.

350? Wow. Must be an exception to Miranda there.

King, who never misses an opportunity to appeal to hysteria and hate, said simply:

I know he's an American citizen but still.

So lets just throw in a little law.

"Miranda," comes from Miranda v. Arizona, a United States Supreme Court case. A case that every American knows because they either read it in law school, use it in cases as prosecutors and defense lawyers, or get giddy when they see it on T.V. 9 times a day on Law & Order.

So for fun, I re-read Miranda.

It begins with Chief Justice Warren stating that the cases before us raise questions which go to the roots of our concepts of American criminal jurisprudence: the restraints society must observe consistent with the Federal Constitution in prosecuting individuals for crime. More specifically, we deal with the admissibility of statements obtained from an individual who is subjected to custodial police interrogation and the necessity for procedures which assure that the individual is accorded his privilege under the Fifth Amendment to the Constitution not to be compelled to incriminate himself

Now, for all the lawyers, and you non-lawyers can play along too, where do you see the words "except," or "terrorism," or "Muslim," or "Islam," or, well, never mind.

In holding in 1966 that Miranda was entitled to know his rights before interrogation, the Supreme Court gave some bad news to our politicians of today who view the Constitution as a "problem:"

Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.

Aw shucks.

Ernesto Miranda wasn't told he had the right to remain silent, or that he had the right to a lawyer. He did. He did because of this little gem:

THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

And there's also this little annoyance:

THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

"No person."

"No." "Person."

Sure, bring up the public safety exception created in New York v. Quarles. But in Quarles, there was a missing gun, here, the bomb had already been found, the car impounded.

No person. That includes Shahzad. It's not about the crime, it's about the law. In Miranda, the Court said that:

...the prosecution may not use statements stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. Custodial interrogation is initiated by law enforcement after a person has been taken into custody or otherwise deprived of his freedom of movement.

Rep. Steny Hoyer weighed in:

This is a U.S. citizen, arrested on U.S. soil, and subject to the constitutional protections and constraints of every U.S. citizen. He is obviously suspected of committing a crime, of putting together a device to kill people and harm U.S. property. Even Glenn Beck says he's a U.S. citizen and deserving of constitutional rights," Hoyer said.

Even Glen Beck:

He is a citizen of the United States, so I say we uphold the laws and the Constitution on citizens," the bombastic Fox News host said to the stunned co-hosts of "Fox and Friends". "If you are a citizen, you obey the law and follow the Constitution. [Shahzad] has all the rights under the Constitution.

They were stunned. Stunning.

I don't know about you, but if Shahzad confesses, or gives information, I'd like a jury to evaluate it, instead of a court saying years from now that it's inadmissible and as a result the case is weakened to the point that there can be no adjudication on the merits.

But I'm about the law, I'm not about the grandstanding.

I fear terrorism. I also fear politicians who believe the Constitution has exceptions which do not exist, and that those who follow the Constitution and Supreme Court precedent, are anti-American.

Shahzad is an American citizen, being prosecuted in an American court.

The big secret, is that any cop worth his badge, reads Miranda to a suspect. The good ones get the confession, regardless.

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 Vacation Dilemma

When I started out as a criminal defense lawyer one of the first things I learned is that criminal defense lawyers don't go on long vacations. A "long vacation" being defined as anything longer than a "long weekend."

I understood. Potential clients won't wait more than a day or so to see most criminal defense lawyers, and missing the client, meant missing the case, and the fee. Not to mention that unlike civil lawyers, who seem to be able to set their hearings upon agreement, the criminal court system moves along by judges and clerks setting dates. We can't leave the setting of dates up to lawyers in criminal court, because of course defense lawyers would never set a court date.

As time goes on, a criminal lawyer may reach a level of reputation, where the client will wait for the lawyer to return after a week or two, assuming their office can handle preliminary matters, like the filing of a notice of appearance, or a call to a prosecutor. Still, most clients believe the lawyer needs to be seen, not just heard from, immediately, and will hire the lawyer who is in town.

So the dilemma ensues. Does practicing criminal law mean that there are no long vacations? Is the next case, the next fee, that important. Will the judge not move a hearing? A trial? Will the feds come busting in at 6 a.m. the day after you leave town on a case where you've been talking with the US Attorney?

In 15 years I've gone on a few long vacations, those that are more than a long weekend. Almost every time I came back to a "problem." Even on long weekends, I've left town on a Thursday, only to get a call from someone on Friday. Once it was a judge wondering where I was (then realizing I never received notice), then there was the client's family who were incensed I left town for a few days, and then there's the client(s) who "called someone else."

There will always be work. There will always be clients. There will always be schedules that some judge who never went on vacation as a lawyer will be inflexible. The dilemma will always exist.

I wrote recently that any lawyer who boasts that they never go on vacations, and there are many, is a miserable human being that I do not want to deal with on any level.

Right now though, I've having this dilemma. Upcoming trial, clients waiting to be arrested by agents, and prosecutors on those cases who are little concerned about my travel.

I don't know what the answer is here. I know part of it is something I've already done, and that is to not concern myself with the cases I won't get because I'm out of town and the client won't wait.

My dilemma has changed throughout the years. My dilemma now is leaving when I have things in the hopper, and working in a practice that is all about "me" handling the case. Clients who hire criminal defense lawyers don't want the 2 year associate standing next to them in court.

The dilemma becomes more difficult as the cases become more complicated. Trying to keep things from being set even for a 5 day period coming up is like a game of wackamole. It's almost comical watching notices come in to the office, and fighting off hearings for this upcoming 5 days away, in which 3 are obviously weekdays.

I've said before that the best way to plan a vacation as a lawyer is to do it 6 months in advance. As a criminal lawyer, it's more difficult. Judges are anxious to "close cases," court dates are sometimes "set in stone," and then there's the client who comes in after the plans are made.

Vacations are not the norm, unless they are when everyone else goes on vacation - spring break, Christmas, etc....

Taking off for a week takes armour, swords, and patience, unless you're a judge.

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

And He Represents Drunk Drivers

Lloyd Golburgh is running for judge in Broward County, Florida.

Do I know him? Yes. I went to high school with him, we worked at the same job together, I've known him for 25 years, and consider him a friend. He's also a damn good lawyer.

So I'm biased.

But this post is about something more than my friendship with Lloyd and his candidacy.

It's about the fact that Lloyd represents those accused of DUI. The media refers to this as defending drunk drivers - because they are all drunk, apparently. Lloyd's niche practice is now not merely a job description, but an accusation.

Yesterday, journalist Buddy Nevins wrote a story on an endorsement Lloyd received. Apparently there may be an issue over whether this endorsement, from the head of a Democratic organization, and not the organization itself, is appropriate in a non-partisan race.

That's a story, no doubt. Buddy was even fair enough to state that "strictly speaking, Golburgh is not endorsed by a political organization."

But he's concerned about the spirit of the rule against partisan endorsements because Lloyd has touted the endorsement as coming from the head of this Democratic organization. Fair enough.

Buddy has other concerns though about Lloyd, and turns the story in another direction:

Zucker’s endorsement is an example of what’s wrong with the Democratic machine. Apparently it is enough that Golburgh is a Democrat, even if he is not the best candidate for Broward County.

He's not the best candidate? Why?

She endorsed a DUI attorney over war hero and much-more experienced incumbent Judge Edward Merrigan Jr.

Now I don't know Judge Merrigan. I've never heard a thing about him. I can't tell you anything great or terrible about him as a judge. I respect the fact he is a war hero and that Buddy thinks he is a "more experienced incumbent judge."

But why is it relevant that Lloyd is a "DUI lawyer?" What does that mean?

Buddy explains:

Merrigan won The Bronze Star in September 2004 for running of over 100 operations in Iraq. The citation singled out his “leadership and professionalism,” which are good qualities for a judge.

He is currently on active duty and may be deployed again.

Golburgh is, ah, a guy who defends drunk drivers.

But don’t ask me about the merits of the two candidates.

Why not Buddy? In fact, I will ask.

Are lawyers who represent those accused of DUI unqualified to run for judge? What about a lawyer who does traffic tickets? Is a lawyer who devoted her career to helping illegal immigrants gain citizenship exempt as well? What about a prosecutor that put an innocent guy in jail - didn't Broward have one of those?

When a criminal defense lawyer wants to be a judge, the opposition drools. The opposition may be someone who personally respects the role of the criminal defense lawyer, but when it comes to campaigning, the public is all too ready to vote down the candidate who "defends the bad guys." On the appointment side, long time public defenders are more likely to get appointments than long time private criminal defense lawyers, because Governors can hide behind the "public service" aspect of the criminal defense lawyer's career. When former prosecutors run for judge, you will only see that they were a former prosecutor, and are now in "private practice," even if that "private practice" is criminal defense.

Fortunately for Buddy, the rules of campaigning for judge govern the conduct of the candidates, and discipline has been doled out to candidates who have seen fit to attack their criminal defense lawyer opposition for, well, being a criminal defense lawyer.

Buddy can say whatever he wants, he's a journalist, and the First Amendment protects him. He can use the power of ink to tell people that someone who represents people accused of a certain crime - DUI, are not as qualified to run for judge. Forget that DUI is the most arrested crime in America and that there are those arrested for DUI, that are, well, not drunk. Yes Buddy, it happens.

Should we not have lawyers who represent DUI defendants, or should they just keep moving along when an election comes around?

Seems Buddy went down this road with Lloyd before, and Lloyd didn't back down:

Mr. Nevins,

I have never met you, either, but I was a journalism major in College. The first thing I learned there was to write facts, not fiction.

I have been a criminal defense lawyer for over sixteen years working for people charged by the government with crimes. My job was to make sure they received what our constitution and our bill of right promised them.

And I do it very well.

I am not a friend of drunk drivers.

Maybe Judge Merrigan deserves to stay on the bench - that will be for the voters to decide. But Lloyd, nor any other criminal defense lawyer, should be ridiculed for what type of law they practice. There's plenty of experienced lawyers in those areas we find less controversial, that have become crappy judges.

This type of politics, attacking lawyers for the type of law they practice, is not limited to the media - lawyers do it as well in support of their candidate.

None of this will stop, but it should.

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

A Chick Criminal Defense Blogger

If you spend any time on the blogosphere, you'll notice a collection of women lawyer bloggers who appear to blog a lot about women's issues in law. They blog about how hard it is to be a women lawyer, how hard it is to be a mom and a lawyer, and how hard it is to be a woman lawyer around all us asshole men. I don't engage in these discussions, mainly because I find the writers only want to talk about the issue as they see it, without any questions, debate, discussion, or of course - joking around.

So it was refreshing to run in to criminal defense lawyer Mirriam Seddiq's Not Guilty blog.

Mirriam isn't one of those female lawyers who sits around Starbucks and complains about how men have kept her from becoming a partner somewhere, or pretending that any man jokingly using the word "bitch" is evil. Mirriam, is a real lawyer, with a real career who concentrates on what's important - lawyering, advocating, writing, maintaining a thick skin, and not worrying about "the way things are."

Mirriam also has no problem referring to women as "chicks."

While searching for other female criminal defense attorney bloggers, Mirriam ran into a book: Emotional Trials - Moral Dilemmas of Women Criminal Defense Attorneys.

She doesn't understand the dilemma.

If a person, in this day and age, asked me if I felt I was betraying my gender by representing men accused of sex crimes I think I might throat punch them. We all get the question "how can you defend those people" and there are some great answers to that question, from "I have no soul" (courtesy of Carol from Public Defender Revolution) to various discussions about the constitution, rule of law, etc. Those come at you from a, I guess you could call it a gender-neutral perspective, everyone wonders how you can defend someone accused of rape, or murder or whatever. Or, do people really think "oh, you are a guy, you totally GET rape so its easy for you to defend someone accused of that.

No Mirriam, you're not doing what I think you're doing - you're stepping off the reservation. You are not supposed to propose that male and female criminal defense lawyers have the same dilemmas. You are supposed to separate men and women in every possible way, real, or imagined. Are you really saying that men and women criminal defense lawyers are both against rape?

Mirriam is going to read the book though, because I'm curious to see what feminists think of what it is we do.

Then she seals her fate as not a female lawyer, but a lawyer:

But I will tell you this much, I don't have a moral dilemma. I am not suffering. I don't hold my head in my hands and fight back the tears over my failure to hold up my feminist views. I don't lose sleep at night because I choose (hopefully someday again) to represent people accused of horrible things and I certainly feel that I do my gender a favor by playing this game with the boys.

Refreshing.

Mirriam wants to play with the boys. She doesn't want to spend her time, her career, looking for reasons why things are different for her. I've never met Mirriam before, but I assume she believes the difference between a male and female lawyer, is that one has a penis and one has a vagina. I believe if someone called Mirriam a "bitch," she would either say "thank you," or say something so vile and rude that her male accuser would throw up the white hankerchief. I don't believe she'd go crying into that good night.

I assume Mirriam is not the darling of her feminist colleagues, who she quickly walks by, on her way to defend her clients.

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.



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Roll The Tape, And Hold The Stale Defense

The onslaught of videotaped beatings of suspects has created the following script:

1. Beating is taped.
2. Tape is shown all over the world.
3. Outrage over police conduct is expressed.
4. Defenders of the police conduct proclaim that not everything is on the tape. (sometimes that's actually true).
5. Public is asked to withhold judgment.

Now watch this:



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.



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With Stevens Retirement, Rumors Spread Regarding Scott Greenfield

Since the announcement of Justice Steven's Summer Retirement, I've been receiving e-mails, a few texts, and a couple phone calls regarding the increasing rumor that New York Criminal Defense Lawyer Scott Greenfield is in contention for the next appointment to the United States Supreme Court.

Many know that Scott is a friend of mine, but when contacted today, he would only say that he "would seriously consider it."

Scott, while no darling of conservatives, brings 25 years of experience as one of New York's most well-known criminal practitioners. He has an AV rating, the highest possible, from Martindale Hubbell, and is recognized in “Who’s Who” in the world, America and American Law. He has served as a legal expert and analyst for television news shows from “60 Minutes” to “20/20”, and ABC, NBC, CBS, BBC, Court TV and Fox.

More from his biography:

"Scott’s cases have been the subject of a book, magazine articles and television shows. Scott is regarded as one of a handful of top criminal defense lawyers who excels in both trial work and appeals. His written work is considered some of the best in the nation, often writing Op-Eds, Amicus briefs and Editor Letters for Bar Associations and other well known lawyers.

Scott is admitted to the Supreme Court of the United States, United States Courts of Appeal, Second and Third Circuits, United States District Courts, SDNY and EDNY.

He is also a former Vice President, Director and Chair of Amicus Committee, New York State Association of Criminal Defense Lawyers.

While he may be considered a long shot, I wouldn't count him out. The Court needs a criminal practitioner, and Scott Greenfield may just be the one to get the nod.

If anyone hears anything regarding this, please let me know and I'll update the post.

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.



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A Really Long Rant About Liberty And Finality

I don't know where to begin here, so I'm just going to write.

I am a criminal defense lawyer. That means I represent people, sometimes entities, that are accused of breaking the law. Sometimes these clients are accused of breaking the law in ways that offends most people. Sometimes these clients are arrested for crimes that offend all people.

My job is not to judge what these clients have done, but to defend them. Not to defend what they have done, but them. That concept is where society in general and I, and those that do what I do, diverge.

Most cocktail party conversation is on two fronts. There are those who lie and claim they "understand" the role of the criminal defense lawyer and appreciate what "we" do in defending the constitution, and there is everyone else that hasn't realized that most of us glaze over at the "can I ask you how you represent people who tell you they are guilty," crowd of folks that find their inquiry of any interest or value other than to peg them as the mass of those who scoff at the presumption of innocence. They are the same people who have made Nancy Grace a TV star.

This all leads me to yesterday. In the Florida Legislature, Senate Bill 870 was voted out of committee. This bill amends the statute that currently provides victims of certain sex offenses, including "non-forcible rape" of children age 12 and older, until they are 21 to seek criminal charges. The new statute would abolish the statute of limitations.

As like all big criminal justice bills, this idea came from a horrific case. A Wisconsin priest died in 1999 after admitting he abused boys at a school for the deaf and blind. If he were still alive, he could not be charged in Florida.

The citizen proponent of the bill, Florida lawyer Michael Dolce, says he was sexually molested by a neighbor when he was 7 years old. According to the Palm Beach Post: Even as Dolce captivated the Florida Senate Judiciary Committee today with his first-person account of the horrific abuse that still haunts him, news reports about the Catholic Church scandal in Wisconsin were broadcast on national news.

Cue the legislators:

"That's why I voted for the bill. I think people who prey on children should be held accountable in a court of law," said committee chairman Joe Negron, R-Stuart, referring to the Wisconsin case. "I think it's appropriate and the evidence was very compelling that the minor victims of these crimes ... frequently wait many, many years into adulthood until they are disclosed."

The opposition?

The church objects because "of the passage of time and the very reasons that statutes of limitations exist, the inability to find any information that relates to it," said Mike McCarron, executive director of the Florida Catholic Conference. "It's just a very difficult thing to defend against when you go out without any time limit whatsoever."

And of course, us:

On Monday, the criminal defense lawyers' lobbyist, Jorge Chamizo, sent Aronberg an amendment that would have extended the current statute of limitations to 10 years after the victim reaches age 21.

Senator Dave Aronberg, a candidate for Attorney General:

"The Wisconsin case and recent news reports shows why we need to extend the statute of limitations to allow for justice in cases like this," said Aronberg, who is running for attorney general and also sponsored the bill last year. "I can't come up with a limit that's better than no limit at all."

And then there was this, a surprising statement on the concept of liberty:

Republican Senator Carey Baker objected to it because he said that there's no way to defend against false allegations after decades pass.

"I just Googled up a story about a man who was falsely imprisoned for 20 years. Got out when he was 61. He's not here today. He's not here to tell you about the 20 years that he lost from his life from false imprisonment. I don't know. There's no good answer."

But there's more:

Apparently a study commissioned by the Catholic Church found only 88 sex abuse cases out of 5,681 over a 52-year period were found to be false.

Only 88.

Well.

That reminds me of the time I heard someone on a "we have no idea what we're talking about" talking head show where someone said that if 1% of the people sentenced to death were wrongly executed, that would be a fair price to pay to keep the death penalty, being that nothing is usually 99% accurate. He said that with a straight face. I wish I remembered his name.

Michael Dolce's tale of abuse was taken to heart by the legislators, much like the emotional words of a crime victim in court, or even a defendant. These personal stories are what creates law, puts people in jail, and yes, keeps them out of jail.

But something is missing in all of this.

The concept of finality, and the concept of liberty.

The criminal defense function in America is now nothing more than the butt of "I was a prosecutor for 5 minutes" pundits and 9 episodes a week of Law & Order. The Bill of Rights is immensely important, assuming we are talking about the First, and Second Amendment. The Fourth, Fifth and Sixth are only for guilty scumbags, and moms and dads of kids who "didn't do anything wrong," or professionals who get speeding tickets and want the police officer fired.

What has happened over the last couple decades is that famous people have been acquitted, a few motions to suppress have been granted due to violations of the Fourth Amendment ("technicalities," for you with the mob mentality), and former prosecutors and even some defense lawyers have taken to the airwaves to play devil's advocate about all they know nothing about.

We live in a country where person after person after person is being exonerated by DNA evidence. People who were sentenced to death, and to life. Is this the time to abolish statutes of limitations on cases where a mere accusation can result in a criminal prosecution that can take away a person's liberty for the rest of their life?

Yet when we, the criminal defense bar, and members of the legislature even dare to oppose a bill like this, we are accused of merely attempting to "get pedophiles off." We are accused of this because it is easy to do so. It inflames the senses, it diverts away from the real issue, which is: why are the same people who scream for finality in criminal cases, passing legislation that abolishes it? With so much written about DNA and eyewitness testimony, why are we creating laws that allow someone to come forward, whenever, and make accusations?

I know, I don't understand. I don't understand the horror, and if this happened to me or one of my children, I would understand. That's always the way to create a different discussion.

What I am discussing here is why we are OK letting our elected leaders convince us that finality and liberty only matter in the types of cases in which they decide? Yes, there is no statute of limitations on murder. The reasoning is perfectly clear - you take a life, you have no protection from prosecution, ever. I know people will say that sexual abuse is "like taking a life," and I'm not going to argue with that. My argument is only that proof of murder is a lot easier than proof of sexual abuse - and that's exactly what Senator Baker was saying, alone.

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.



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Watching the "News"

Watching the news as a criminal defense lawyer is different than watching the news as someone who buys into the notion that it is actually “news.” Someone recently told me when it comes to reporting on criminal cases, it's editorial disguised as news. True.

So last week I was out of town watching one of those local news stations that have no network affiliation. All news, all the time. They need to make it interesting.

Seems a baseball player was arrested for prostitution. Ho hum. A semi-famous person arrested for picking up a prostitute. What is this world coming to?

Three things about the story caught my attention:

[1] The first line of the story: “We were the only news station outside the jail when the defendant was released.”

This was not a defendant arrested for killing someone, hurting someone, stealing from someone, a defendant who the police were looking for, or a household name. Are you proud you were the “only” news station standing outside the jail waiting for this misdemeanor defendant to post bond and walk out? Am I supposed to watch you from now on because you are on the cutting edge of important news? Of course the point is exactly that – watch us, we will give you news no one else will (because they don’t care and think you as the audience don’t care, but we will make you care.)

[2] The reporter said the defendant “ran away from our camera.” As this is stated, a video is playing showing the defendant normally walking down a sidewalk. No running. No running away.

But “ran away” sounds better. Even if it’s not true.

[3] At the end of the story the reporter becomes a PR agent for the police and in the same breath, tries to justify the reason for the story:

“Police say that crimes like prostitution often lead to crimes involving drugs and robbery.”

And driving cars often lead to fatal car accidents.

Embarrassing.

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.



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"There was ample evidence that Skinner was the murderer"

That was the ruling of the 5th Circuit Court of Appeals.

"Ample evidence."

But now, after the "liberal goons," as one online commenter put it, got their way, we may know for sure whether Skinner was the murderer.

Lost, entirely lost in this debate over Hank Skinner's execution, is the question of actual innocence. It is lost upon those that ridiculously argue Skinner should be executed now because the victims deserve justice.

The victims do deserve justice. But justice is not going to sleep and knowing the man you think committed the murders has been put to death. Justice is knowing the man put to death, is the murderer.

It is our shame, an American shame that we now have the ability to know for sure whether someone committed a crime, and some fight to prevent the answer from being discovered.

To those that can't see beyond their thirst for vengeance, you are no more American than those who passionately oppose the death penalty. That the argument whether to give Skinner a DNA test rests on whether you support or oppose the death penalty is beyond ridiculous.

If you support the death penalty, and I do not, then you should insist that those put to death, are guilty.

Hank Skinner woke up today because the U.S. Supreme Court has some questions.

Questions that need to be asked. No matter on which side of this debate you reside.

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.



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Hank Skinner Update: Stay Granted by U.S. Supreme Court

Here's the order:

Link

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.



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Is Hank Skinner Innocent? Who Cares? Execution Today

Texas is going to execute Hank Skinner today. Like any defendant condemmed to death, he's not a sympathetic fellow. He was convicted of killing his girlfriend and her two sons on New Year's Eve. Of course because a jury said he did it, he did it. Any scientific evidence to the contrary is just a nuisance.

But there is DNA that hasn't been tested.

Hank Skinner wants it tested, and he's asking the U.S. Supreme Court and Governor Rick Perry to intervene. Skinner asked the Texas Board of Pardon and Paroles, but they said "no."

Skinner's defense lawyer spits in the wind: "I can't think of any good reason why you would refuse to do DNA testing in a case where there is other strong evidence pointing to innocence," Skinner's attorney Rob Owen told AFP.

"If I were a prosecutor I wouldn't want to put someone to death before I was absolutely sure -- and in this case, the DNA testing is what we need to be sure."

Eh. We've got ourselves an execution today. Talk of possible innocence is distracting.

Some students at Northwestern looked at the case and compared DNA - they determined that although at his trial there was DNA showing he was in the house where the murders occurred, Skinner was innocent.

Add that to no confession or eyewitnesses, no motive or record of a violent past on Skinner's part, and it sounds like that pesky DNA should be tested.

Seventeen death row inmates have been released after DNA testing proved their innocence.

But hey, everyone catch Idol last night?

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.



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