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

Friday, September 17, 2010

A Survey On Indigent Defense Training

No, this isn't a post about the results - I want you to take this survey if you provide indigent defense services as a PD or private lawyer.

A curriculum is being developed by the ABA, NACDL and the Spangenberg Project at George Mason University for an upcoming indigent defense training and technical assistance project funded by the Department of Justice Bureau of Justice Assistance. This comprehensive curriculum will be developed to present four regional training programs across the country for lawyers representing indigent persons in criminal cases. The survey closes on October 4th.

The survey is anonymous and your answers will not be linked back to your e-mail or identity.

The link is here.

Thanks.

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

Sunday, September 12, 2010

A Disgruntled Prosecutor Seeks Advice

In this "tough on crime" "Law & Order" world we live in, there is a notion that prosecutors and cops (except the ones who are taser happy) are the good guys, and defense lawyers are "the problem." It is assumed that all prosecutors are in the right, doing the right thing, and committed to the concept of convictions and jail.

And then a defense lawyer (me) receives an email like this:

I apologize for the anonymity of this e-mail. I am indeed a disgruntled prosecutor.

I’m writing to you because I need some advice.

You see before I became a prosecutor I was a defense lawyer. I built my practice the old fashioned way – one client at a time with a healthy dose of referrals from other lawyers.

After a while the frustration of criminal defense work got the better of me and I applied for and was given a position as a prosecutor.

The truth is that I took the job for all the wrong reasons: financial stability and to have a shorter workday and not because I had a burning desire to prosecute people.

Well, I’ve been at this for a few years now and my dislike for what I do has gotten so bad that I can’t look at myself in the mirror anymore without seeing nothing but a fraud. I don’t believe in what our office does, I cringe at the arguments I make in court and I spend most of my days fantasizing about how I will quit.

I want to return to defense work. If anything, my time as a prosecutor has shown my just how defense minded I really was (and still am). I would leave my job tomorrow but my wife and I have young children now, a mortgage and bills. The economy is not the greatest and as much as I hate my job, walking away from a job that pays me over 100K a year with benefits and a pension so I can hang my shingle – essentially jumping into the unknown – leaves me scared shitless!

If anything this e-mail is a cry for help!


Any credible defense lawyer wants a prosecutor that, while doing the government's work, has some concept and respect for the defense function. I've always said that any prosecutor that has no respect for the other side of the courtroom, should quit or be fired immediately. (don't laugh).

But my anonymous friend is so committed to the defense function, that he needs to quit, tomorrow. He doesn't believe in what he is doing, and although there is no evidence he's not doing his job, he is being both unfair to himself, and his office. There are too many on both sides of the criminal justice system, that are just "doing their job" without any concern for the lives they are affecting.

There are those out there in this social media lawyer world that will scoff at my notion that this guy should walk away from his six figure job, but he should. He doesn't have a job, he is part of a profession, and within that profession he is working each day to convict people and possibly put them in jail. He doesn't want to do that, and he shouldn't.

But he should be smart about his future. He needs to give sufficient notice, and make sure he has enough funds to keep him fluid for a couple months. He needs to go back to building his practice as he did - one client as a time. He needs to stay away from the online snake oil salesmen who, for a fee, will claim to teach him the secrets of practicing law by laptop. And he needs to know that the economy is not what it was 2 or 3 years ago. Clients are not able to tap into lines of credit for legal fees, and there are more unemployed lawyers claiming to be "experienced" criminal defense lawyers - even though they are really experienced real-estate lawyers, without any real estate on which to work.

I trust he welcomes your advice as well.

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

Tuesday, September 07, 2010

A Public Defender Rants

Many many years ago, like 5 years ago, the blogosphere was different. Lawyers came here to write, to express opinions on the issues of the day, to pass on other posts and news items from other blogs. Sure there were marketers, but it wasn't like it is today, where lawyers race to start a blog for the sole purpose of getting the phone to ring, evidenced by the cheesy style of the poor-content, heavy links to the firm, blog.

But the blogs of "yesterday" still exist. Some look fondly at them like that vintage car riding down the street on a Sunday, others, the marketers, look at them as they do their elders when they give advice - like they don't know what they're talking about.

Daniel Partain is a public defender in Georgia, and he has one of those old style blogs. He writes what he thinks, and isn't here to market his free services to the indigent. He doesn't have hundreds of readers, not many comment, and the posts don't exactly go "viral." But that's mostly because today's blogosphere isn't looking for important thoughts, personal perspectives, or controversial statements. People here today are looking for link-love, Google juice, and the coveted SEO (search engine optimization for those who haven't gone desperately to a social media marketer claiming to be able to find you wealth and fame with a keyboard.)

Shortly after midnight, he went off.

Daniel appropriately titled his post A Very Poorly Constructed Rant. Then again, rants are not meant to be anything but "poorly constructed."

Daniel says, in part:

I hear from fellow lawyers and laypeople about how noble it is to be a public defender, and how we do is gallant or a true public service. When I hear this bullshit, I want to vomit.

Guilt or innocence is reduced to probabilities and percentages. Sentences are just a range of numbers. Confinement is seen as a cakewalk. It is three hot meats and a cot or a vacation from the cares of the real world. Or in the eyes of certain jurists, sentences are seen as an instrument to enlighten the masses as to the repercussions of committing a criminal act, and to alter their behavior. However, in this era of Twitter, Facebook, and other social / mass media that produces more sound than fury, and makes all of us sound like blathering idiots, this jurist's pronunciations are lost in the static, the white noise. The collateral damage that comes from the system is ignored.

The bar may pontificate about the flaws in the public defender system, but they quietly expect us to keep going beyond the limits of intellectual endurance. If we snap or break under the stress, it is of no loss. We are expendable. No, we are interchangeable and easily replaceable cogs in the meat grinder that is the system. They would never treat the vaunted private attorney like the way they treat us.

However, there are days where I hear of something so fiendish or so deprave that it pierces even my hardened heart, and it causes me to recoil in horror and disbelief. Yet, within in a few days, if not less, I return to my callous state, where I am numb to the suffering of others, and I find myself capable of telling a joke about any depraved act without a second thought or without any malice in my heart.

Over the years of doing this line of work, I find that my mind and my body are in constant warfare with each other. My body wants to collapse from the emotional and psychological wreckage that I must wade through. My mind ignores it, and pushes through it. Yet, there are days where my mind breaks down. Some days it will drop into neutral, and I find myself suffering from the 1,000-yard stare.

The despair that I feel overwhelms me and it comes over me like a wave against an ocean shore. With each wave that comes over me, the man that I was is slowly worn away.

These are the words of a real lawyer, a man in the arena every day. He sees and feels the weight and power of the criminal justice system, and chooses to put his thoughts in writing. Few people read this post, and the tough-on-crime-why-was-Law-and-Order-cancelled crowd feels nothing when reading it.

We have gone from a society where we looked forward to Perry Mason and Matlock winning the case, to the demand that for hours on end every day, legal dramas on TV reminded us that the cops always get the bad guy, and the defendant is always convicted, regardless of his scumbag defense lawyer. We ingore that the system is broken, while lauding the creation of "Innocence Commissions" and "Innocence Projects." We fail to recognize that the system itself should be an Innocence Project, instead, feeling better about ourselves that we are now trying to right wrongs that are the result of our zeal to prosecute and convict, justice be dammned.

So Daniel goes back to work today, processing through the dozens of defendants that will enter his courtroom. Nothing he said in his post will matter to anyone important, nothing will change. He ranted for the purpose of a rant, for the purpose of expressing real thought about a real topic. He wrote to write. His post will bring him no business, no money, no love from the marketing lawyers on the internet.

And that's the end of my rant.

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

Sunday, August 29, 2010

The Stale Anonymous Argument Against/For/Criminal Defense Lawyers

My post below on The Core of a Criminal Defense Lawyer was about recent thoughts I've been having about the genesis of my career and a desire to spend some more time going back to basics and representing indigent clients. That was the point. The point was not that I am tired of private practice, or that I want to go back to being a public defender, or as my anonymous commenter thought, that I had a conscience problem and was maybe thinking about not being a criminal defense lawyer.

But to my anonymous commenter, referred to as a "dickwad," by a fellow criminal defense lawyer, and more appropriately nicknamed as "typical uninformed but opinionated pontificator," the post was me questioning my role in society.

This is what we call a "teaching moment."

Let's look at anonymous' thoughts:

First, he suggests a career change for me may be a good thought:

Nice way to assuage the old conscience. I have a friend who spent some time as a defense attorney. He then became a prosecutor, taking a major pay cut in the process, but he can look himself in the mirror far more easily.

You know, I've been doing this for a while, and I've seen plenty of mirrors. Never had an issue taking a quick look. (The "sleep at night" comment is below, don't you worry readers)

Anyway, the comment generated some strong words from fellow criminal defense lawyer Mirriam Seddiq:

Anonymous is a dickwad. His friend wasn't making a dime which is why he went to be a prosecutor. Probably sucked at working for a firm, or for himself. Probably was a shitty defense lawyer since he didn't have anyone barking out orders or telling him what to do. Probably fucked up his clients rights on a daily basis, hence the inability to look himself in the mirror. Clearly didn't believe in our constitution. We are better off without him on our side.

Mirriam colorfully makes the point that criminal defense is not for everyone. For that matter, either is being a mortician, window washer (watching them certainly gives me the heebee jeebees), or prosecutor (there are some who can't see spending their days trying to put people in jail.)

All of this is OK. I can't remember a week where someone didn't read from the script and say "I could never do what you do."

I could never be a divorce lawyer - spending my days hearing bullshit complaints about kids and furniture and money, and being responsible for splitting a family apart. I could never be an insurance defense lawyer - spending my days trying to deny sick people medical care due to technicalities in policies.

It's really OK. Not everything is for everyone.

After Mirriam's comment, the bold Anonymous said (in part):

I can't tell you how successful he was in defending his clients, as we moved to different cities when we started work. I can tell you what he said to me a social gathering, that since he became a prosecutor he makes far less money, but has a cleaner conscience. His problem was that most (not all) of his clients were factually guilty of what they had been charged with. If that makes me a dickwad to say, that is your opinion. If you want to believe that every one of your clients, or even a majority of them, are factually innocent, then I have some desert swampland to sell you.

Now let's stop right here.

Mirriam never said anything about factual innocence, or her belief that all her clients are innocent.

Here we realize that Anonymous has missed the point, not that this should stop him from opining.

Let the teaching begin.

Anonymous (not sure if that's your first or last name), factual innocence is not an issue in most cases. See, what we do is investigate the case and determine whether there are grounds to argue that the Constitution (which I'm sure you've read) has been violated. Most defendants are found or plead guilty. Many guilty defendants that plead guilty, do so with the advice of a criminal defense lawyer - the same people you claim may have issues with their conscience or looking in the mirror. Sure, there are defense lawyers that believe that all their clients are victimized, but there are also prosecutors that believe everyone they charge is guilty. Really, it's true.

Anonymous continues:

I understand the need to have rationalizations for what you guys do. We all need to sleep at night peacefully. Heck, I even support having criminal defense lawyers do their best for their clients. It keeps the state honest and makes the government really prove guilt. That still doesn't prevent innocent people from going to prison, but it hopefully slows the process. But, really at the end of the day, if you perform brilliantly, and get someone who you know actually did commit some heinous act acquitted, does that make you feel good? Especially if your client had an innocent victim who will now not get justice through the legal system? Yes, your job as defense counsel IS needed, but there are a lot of unwholesome tasks that need to be done in our society. That they are needed doesn't make them good. But heck, if you can make a fortune at it, then rationalize away about government tyranny. Just remember that some of your clients have real tangible victims, with lives destroyed or damaged by the people you defend. Those victims are not "the government". Those victims are little children, raped women, or people who have died because of something your client did. The state doesn't always charge your clients just because it is amusing or politically expedient, although that DOES happen sometimes. Sometimes your clients get charged because, amazingly enough, they actually DID hurt or kill another human being. And if you are successful, that harmed human being will never get justice within the legal system. That sure is something to be proud of.

Rationalizations? I have none. I do what I do because I believe in the Constitution, I believe in this country, and I believe that anyone charged with a crime deserves a good defense - even you Anonymous who thinks that we serve some purpose when we think and do what you deem appropriate.

And he (or she) continues, having re-written the same comment, but with some changes:

Yes, you can make vast sums of money defending guilty people who can afford your fees. No, not every crime has a victim who is badly harmed. Not every suspect needs to get hammered with prison time. But, there are cases where if you do succeed, an innocent victim who your client raped, killed or otherwise assaulted, does not get justice. That isn't "the government" against your client as the rationalizations you have says. That is innocent human being, harmed or killed by your client, who has no legal recourse because you did your job well. I doubt if I could sleep well at night knowing that because I did my job well at 200$ per hour, a rapist or killer walked free. If fact, I would need a very strong fortress of moral excuses. But then again, I am not a defense attorney either.

"Vast sums of money." That's funny Anonymous. I know plenty of poor criminal defense lawyers. A small minority of people in every profession make "vast sums of money," but I know it makes you feel better to wrongfully think that we do this for the "vast sums of money." People don't like people who make "vast sums of money," so if you can throw that into your argument, it riles up the folks out there that think "all lawyers are rich greedy bastards."

And yes Anonymous, we know you are not a defense attorney. We all sleep better at night knowing that.

Then, Anonymous looks like she (or he) may actually be thinking while typing (a rarity amongst anonymous blog commenters), he, (or she) does the 'ole "hey, I respect what you all do and so......:

It isn't that I don't see a place for a high quality defense bar. I would like to see public defenders with far more funding and manpower. Without you guys, far more innocent people would face legal sanctions. What I object to is this pious "noble paladins defending a bunch of doe eyed innocent victims targeted by the evil government for no reason" rhetoric. Your job is to make the state prove every element of its case or at least to obtain the best deal possible for your client, but the fact remains that most of your clients ARE guilty. To rationalize otherwise is just to assuage your own conscience.

If you're still wondering when anyone said anything about factual innocence, the answer is still, never.

Now let's make something clear - Anonymous has a line of thinking. One we're heard before, probably 3 days ago at a cocktail party. Anonymous thinks we need good defense lawyers to make sure the government does their job. He thinks this is an important part of society, except when we win and people who rape and murder walk free. He thinks the system should provide trials and due process, as long as no guilty people go free.

In a perfect world, all guilty people would be convicted and all innocent people would go free. In a further perfect world, police officers wouldn't force innocent people to confess to crimes they didn't commit, wouldn't violate the Fourth Amendment (I linked to it Anonymous in case you wanted to take a gander), and eyewitnesses would never mistakenly identify the wrong guy.

What makes Anonymous a pillar of society is that if he was arrested and committed the crime, he would immediately plead guilty, even if a lawyer told him that the police made a mistake and due to that mistake he could go free instead of spending his life in prison for the harm he caused his victim.

Anonymous does make exceptions. Rape and Murder are crimes for which we criminal defense lawyers should be ashamed to take victories when the client is guilty. But when a client is guilty of getting into a 4,000 pound moving machine and driving drunk - getting people off is something to cheer:

Let me cite an example of a good criminal defense attorney I know. He was a cop who was an absolute wizard at racking up many airtight OVI (drunk driving) arrests. He retired, went to law school...and now has a practice that mainly defends drunk drivers. He is very good at it and makes a boatload of money. He has a good success rate defending his clients as well. I once charged one his clients with OVI and he got it reduced to a 100$ traffic fine for a non-OVI moving violation. This client was wasted and even blew a .10 BAC, but that is good legal talent at work. It was awesome to behold. If I am ever charged with OVI I know who to hire. But he is under no illusions about his clients' guilt if you talk with him "outside of school." If you are charged with OVI, this is the lawyer you want to hire. Not because he believes all the pious BS rhetoric about his "client being victimized by the state for no reason", but because even if he knows you were totally wasted behind the wheel, he has the legal skills to give you a great defense. If you pay him enough he will use those skills at your behest.

This is a perfectly honest and mercenary way to make a living, and it avoids the rationalizations.


Anonymous believes we rationalize, that we do our jobs by believing our clients are innocent and that the government is victimizing our clients. He is like that juror who says they "can be fair," but is really looking at the defendant during jury selection and saying "can I have the verdict form now?"

I appreciate people like Anonymous. There is no better way to educate people about the role of a criminal defense attorney, then to debate those who claim some understanding of what we do, when they have none.

Old, stale, transparent.

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

Thursday, August 26, 2010

The Core Of A Criminal Defense Lawyer

Something's been happening lately. Questions have been swirling around my head about my role as a criminal defense lawyer.

I started as a public defender, my mornings all the same - rows of mostly men, in jumpsuits green or orange or hopefully not red, walking amongst the sounds of chains entering the courtroom and sitting in the jury box. They would sit, some would yawn, some would look around for that family member who "said they were coming." Some would indicate in a feeble attempt to raise a hand that there was urgency in speaking to me. They either had a question, a note with case citations, or just wanted to know, "am I going home today?" Some would wait until the judge arrived to announce that they wanted another lawyer, again.

Some days I knew what case or cases were going to trial, other days I would be surprised. This client didn't want probation even though he was facing 30 years, and that client found a witness named "shorty," or "pooh-boy" or "I don't know his name but here's his friends beeper number."

I tried the cases, I pled the clients guilty, I argued motions, I sought continuances to try and find a hole, or a prosecutor in a merciful mood.

Then I got bored, so I left. Yes, there was "more money" in private practice, more clients that weren't 3-time losers, more clients who had professional licenses and ways of paying legal fees.

After some time, I was lucky enough to be able to refer out cases I didn't want - cases that were good for a young lawyer starting out, cases that included clients who would suck the life blood out of me and my desire to enjoy my wife and kids.

And if I ever get to the point where I don't have to work anymore, I may consider going back to that life of being a public defender. I loved it, I just became bored and wanted to handle other types of criminal cases, do federal work, and have the luxury not to have 150 cases.

But lately I walk into a courtroom. I stand in the well and I look at that same jury box, with (some of) those same inmates.

I think they look at me differently these days. maybe its the suit, maybe it's the one file in my hands, maybe it's the way the judge greets me as opposed to "go talk to your client," or "have you made these plea offers yet?"

I think they know I'm not a public defender, and think (wrongfully) that my entrance into their case would be their ticket out of the system. I look at their tired eyes, their agitated faces, and I wonder if they think I'm some big shot private lawyer who has no use for them, or if they wish they could gather up some money to have a lawyer like me. A private lawyer. A "real" lawyer as they mistakenly think.

I don't feel guilty that most of my clients are first time offenders, and that most have a suit like mine, or can get one to wear to court. I don't think I've done something wrong by being a private practitioner. I'm not apologetic for my career.

But I look at these inmates, and I think back to a time when my life was dedicated to them, and only them. Sure, I know I could take court appointments. I take court appointments in federal court where the respect for appointed lawyers exists. In state court, it used to be easy to take an appointed case. Now it's better to do a case pro-bono in state court than deal with trying to get paid.

Dealing with incarcerated clients is a world apart from those that come in and say "I just can't go to jail," in a way that they think they are the first client to make that statement. Incarcerated clients with prior convictions are a bit more realistic (not all) about their situation and are sitting across from maybe the only person in their life who has tried to do anything for them in recent time, or ever.

We criminal defense lawyers know too well about the poor client we were appointed to represent who gets convicted and sent to prison that says "thank you for fighting for me," and the private client who paid a fee, had his case dismissed, and wonders out loud why they ever needed a lawyer.

What I write about here is not something I'm "struggling" with, or something that is causing me to re-think my practice. I do plenty of pro-bono work. I give plenty of free advice.

I think I am just reaching the point in my career where I'm starting to think about my "core," and how I can spend a bit more time there.

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

Re-elected Bond-Duty Judge Gets Standing Ovation

Support for good judges comes from all kinds of places.

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

Wednesday, August 25, 2010

The Right To Remain: Judge Version

Florida's state court trial judges are elected every 6 years. In most rural and smaller areas, there are no contested elections. You don't run against a sitting judge. Period. In South Florida, mainly Miami for a long time, things are different. Judicial races are crowded with ethnic politics (a term that gets me in trouble) where the hypothetical Judge Joe Smith, a long-time respected jurist, can be defeated by the hypothetical Marisol Gonzalez, a 5 year lawyer with little experience. Contested elections have been creeping up the coastline over the past few years, and now include the opposite result in Broward County (Ft. Lauderdale), where the large Jewish population can saunter in the hypothetical Rachel Goldman to defeat the well-liked hypothetical Juan Gomez.

And so we had our elections yesterday.

Some judges, not liked by lawyers, mainly criminal defense lawyers, were soundly defeated. One was defeated by a no name no experience candidate.

The pundits can dissect the election and tell me why this happened, but I'll go through my day today thinking that both judges were defeated because they violated Rule #1 (my rule #1, not necessarily anyone else's rule #1): Be nice. (That's a cleaned up version of the real rule, by the way.)

The judges that lost were rude, short, and showed little respect for the lawyers before them. I saw this first hand, and then heard of it on almost a daily basis. While the public may think this is a good thing, because of course all us lawyers deserve a beat down from judges on a daily basis because we all suck, and, well, you know.... yesterday's election made the point that the public giveth, and the public taketh away.

Again, people will say that this election had nothing to do with whether lawyers liked the judges, but it is lawyers who contribute, and lawyers who are asked by the public to recommend candidates for whom they should vote. Lawyers play a huge role in judicial elections, because most other people have no idea what these judges are like on a day to day basis. They don't even know their names.

I don't know if these judges are thinking today, "maybe I could have been a little nicer to the lawyers in my courtroom, a little less quick to embarrass them, a little less quick to build my reputation as a judge who 'keeps lawyers in line.'" Actually, I don't think they are. I think they are being told and convincing themselves it was a "turnout" issue, or an issue with "who" voted.

I am always happy it appears the system worked. And it does. Just sometimes.

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

Thursday, August 19, 2010

How's Your Practice?

"Things are slow" It's almost the required response these days to the question.

As most criminal defense lawyers go, "business development" or "practice management," are things we ignore, except to complain about. We can talk to a client about their case, read case law, and argue in court, but the business side of the practice is something we either do terribly wrong, or think we are doing right.

Either way, I find criminal defense lawyers complaining about the same things - chasing (non) payment plans, clients choosing other lawyers for the wrong reasons, and a complete lack of interest in the concept of doing something else besides going to court, going to the office, and going home, every day.

We'll jump at the chance to go to the 20th seminar we've been to on the topic of cross examination and expert witnesses, but won't spend 5 minutes in a room full of our colleagues learning about having a better practice.

One of my priorities this year as President of the Florida Association of Criminal Defense Lawyers is to turn some attention to our private practitioners. The majority of our members (as I assume most criminal defense associations) are private practitioners in practice over 10 years. We spend a great deal of time on indigent defense issues, death penalty issues, filing amicus briefs in important cases, and hosting seminars on the nuts and bolts of criminal law.

Now it's time to offer some help to the criminal practitioner who goes to work everyday and in addition to practicing law, has to buy paper for the copy machine, pay a secretary, advance costs for clients, and comply with trust accounting rules.

The perception that all private lawyers are "rich," is a joke, and if our private members can't keep the doors open, we lose. Society cannot continue to rely more and more on underfunded public defender offices to take on more cases then they can handle. We need private practitioners, and we need to provide continuing legal education that helps private practitioners (and those that want to be private practitioners - you're welcome to attend as well) learn something else besides the latest junk science. If you have no clients, stuff like that won't matter.

So I invite all criminal defense lawyers to come to Miami Beach October for an all day seminar devoted to something we spend little time discussing - The Practice.

The Practice

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

Monday, August 16, 2010

ICE Takes Page From Len Berman: "And Nobody Got Hurt"

Last week ICE Agents went looking for a drug suspect. Rule #1 in searching for a drug suspect: assume they are armed. Law enforcement need no information that the suspect is armed, just an assumption. It's somewhat understandable. When we read more and more that law enforcement can't even pull someone over for a traffic citation without being blown away, there is no sense in assuming that any suspect is unarmed and will go guietly.

Once the assumption is made, and it always is, the method of going out and finding the suspect, looks like this video where they entered into a home, broke a bunch of shit, scared the crap out of a family, only to learn that the suspect was in jail - for the last 10 months..

The Boveda family said federal agents raided and ransacked their home Thursday morning. Even the front window was smashed. Broken glass was scattered across the floor and nearly every door in the house was busted open. Even their closets were cracked.

Mr. Boveda, attempting to reason with the "no, we'll do it like they do it on Cops," offered the following unaccepted invitation:

I said don't break the window, I'll open the door for you, but you got the wrong house, you got the wrong house.

The wrong house. Yeah. Sure.

The family, including a 14 year old girl, were all held at gunpoint. Mr. Boveda was thrown on the floor, and the other family members were all pinned down. I don't know if the 3-year old dog came back after running away.

Now to save the ICE apologists some time, to help the comment authors who wish to explain to me that "nobody's perfect," and "hey, this is the price we pay to be safe and lets just say thank you to those keeping us safe," let me help here.

This isn't that case.

This is a case where some $10 an hour clerk could have pressed a few buttons on a computer and learned in seconds that this suspect was in jail over in the next county. When I can go to court first thing in the morning after an overnight arrest and be handed a list of my client's prior record that includes the date of every arrest and the sentence, don't tell me that federal agents can't determine whether a suspect has been in jail the last 10 months before they bust down someone's door.

We live in a society though where these "mistakes" are all forgiven. No one's busting down our door, killing our dog, scaring our children, so who cares?

ICE released a statement after this raid:

"We screwed up. We should have known our suspect was in jail for the last 10 months. We've asked the family to send us any repair bills for the damage we did to their home, and we've offered them $25,000 as an apology for our lack of dilligence." We are truly sorry."

No, wait, that wasn't the statement, it's here:

There were no injuries to the occupants of the house nor to police officers on the scene. The case is still under active investigation, and we are currently seeking additional members of the organization.

No one got hurt, and we are still looking for other suspects.

So there.

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

Wednesday, August 11, 2010

"To Seek Justice" Does Not Include An Acquittal

Several years ago I moderated a panel on ethics in criminal justice. A former senior prosecutor-turned judge said that he believed professionalism had diminished due to the atmosphere in "the office" that it's all about winning.

From The National Center for Prosecution Ethics National Rules and Standards:

3-1.2(c): The Function of the Prosecutor
The duty of the prosecutor is to seek justice, not merely to convict.


Seeking justice is a broad term, but attaching it to my trial last week, it appears that it means the prosecutor's duty was to present evidence to a jury and ask them to convict, because she believed the 6 Defendants were guilty beyond a reasonable doubt.

The jury disagreed. They acquitted 4 of the 6 Defendants.

That's justice.

But society disagrees. Our "Law & Order" society believes that an acquittal is not justice. Why is that? Because we thirst for the bad guy to be caught, and sent to jail. We are conditioned to believe that anything else is the result of a bad prosecutor or slick defense attorney.

We can't bring ourselves to believe that evidence is presented in a court of law and a jury determines that it's not enough, or God forbid, that the Defendant is innocent.

Helping this twisted notion of justice, is the Department of Justice and their method of announcing trial results.

The press release on my case:

"Jury Convicts 2, Acquits 4 in $21 Million Dollar Mortgage Fraud Scheme."

No, I'm kidding. Here's the title:

"2 Miami-Dade residents convicted in 21 million dollar mortgage fraud scheme."

Nowhere in the press release does it mention the acquittals.

Why? When the Defendant's were indicted a press release was sent to the media. Why aren't they entitled to a press release when they are acquitted?

Because that is not justice

Because the goal is not to seek justice. It is to seek convictions.

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

Sunday, August 08, 2010

3 Years And 14 Days to Justice

I don’t spend much time here talking about my cases. This isn’t a billboard for my practice. It’s a place for me to express thoughts, joke, and do whatever the hell I want to do. Lawyers who can’t have a conversation without telling their own “war stories” are annoying, and mostly full of crap. Lawyers who use their blogs to promote themselves, achieve success in “traffic” and little else.

But last Friday, after 11 days of trial and 2 and ½ days of deliberations, a federal jury said my client, I’ll call him “Jose,” (because his name is Jose), was not guilty of both conspiracy to commit wire fraud and wire fraud. Four of the other six defendants in the case received the same verdict. This ended a journey that began when Jose came to me three years ago.

An acquittal is of course not as common as a conviction. Most (97%) of criminal cases end in a plea, dismissal, or other type of resolution. Trials are the exception, and federal trials are an animal unto themselves. By the time a federal indictment is returned, often the feds have been working on the case for years.

Am I happy about the acquittal? Of course. Is it the reason for this post? No. I’ve won before. I hope to win again. The rule of the professional criminal defense lawyer, as opposed to the self-promoting “look how great I am” type, is that you take your acquittal and quietly move on to the next case. Most believe an acquittal is the result of “luck” or “technicalities,” or a jury gone wild. No sense in talking about the acquittal for too long, as it appears to be bragging, or garners the public’s “you got lucky with your guilty client” mentality. Few get acquitted on Law & Order, people don’t like it.

This case was different.

Jose is a maintenance man from Cuba. He started at his job 22 years ago making $6 an hour. He was laid off last year due to budget cuts. At the time he was making $24 an hour. In 22 years he never received a complaint, was never disciplined by his boss, and according to his employer, was a “good employee.”

When the real estate market was at its height, Jose and his fellow workers were approached about “making money in the real estate market.” As a maintenance man making $24 an hour and owning a modest home, Jose never thought of making money doing anything but fixing things. He was told by a fellow worker that because he had good credit, he could invest in homes that would be fixed up and sold, and when those homes sold he would receive $5,000 per home. The word “mortgage” was never used, nor was the word “fraud” or “scam.”

A fellow worker told him it was legal, so he handed over his driver’s license and social security card, put “no money down,” and sometime later, he received money.

A year later Jose received a visit from a federal agent. He made the rare decision to find a lawyer prior to talking to the agent, and that’s where I joined the party. Jose agreed to talk to the agent, who came to my office so Jose could tell him the story. The agent showed Jose mortgage documents with his signature. He had signed none of them, attended no closings, and the agent knew it. There was no doubt in my mind my client was going to be a government witness in an eventual case of mortgage fraud.

A year later a slew of government issued cars, agents, and guns descended on Jose’s house pre-dawn and arrested him. He had been indicted with 14 others. I called the agent to ask why there was no voluntary surrender. “The prosecutor said to arrest everyone, even the ones with lawyers who cooperated.”

At the center of the case was the already convicted leader and organizer of a $24 million dollar fraud enterprise – her homes, yachts, and sports cars already seized. In her effort to reduce her 10-year prison sentence, she laid out the entire fraud. Jose would face trial with other “straw borrowers” (those for whom mortgages were taken out in name only), as well as people who worked in the office whiting out loan documents, lying about who they were when lenders called, falsely verifying employment with fake phone numbers actually reaching cell phones of fellow employees of the fraudster, and a banker who created fake checks and false verifications of deposit.

The theory of prosecution of my client? He knew it was mortgage fraud.

The case was severed and 7 defendants went to trial first. There was a hung jury on all defendants. The straw buyers were acquitted on the wire fraud charge, but the jury deadlocked on conspiracy. The reason for the government’s stunning defeat – the jury hated the fraudster. The prosecutor, who called the result a “fluke,” would not be deterred. There would be no re-evaluation of the case, no attempt to make a deal with the straw borrowers in that case. Trial number two would proceed.

Now it was my turn, along with 5 other defendants.

This time the government would change strategy. No, not that strategy – they did their typical federal trial thing – turning over a witness list the morning of trial with 39 witnesses, leaving off a few others who sauntered in to testify. They also proudly had their case agents walk over to our table at the end of the first day of trial, and give us a few hundred pages of “Jencks Act” discovery – reports they’d had for months. They weren’t given out the morning of the first day because the prosecutor “forgot.” Throughout the trial other reports surfaced, and were handed out moments before the day’s witnesses would began to testify.

Here was the change: They would not call the fraudster, and they would lightly tread on the extent of the fraud – leaving it up to the jury to determine whether the clients signed any documents. They knew they were all false, but hey, maybe they weren’t…… Their theory would be that the clients handing over their driver’s license and social security cards started into motion this massive fraud – and they should be held responsible.

The height of the disingenuious presentation of evidence was a witness who did exactly what Jose was accused of doing, but wasn't indicted. The only difference was that the witness waited a while to accept his check because he had second thoughts. He did, eventually, take the check. In closing the prosecutor argued that he "walked away." I had to remind the jury that he actually "stepped away," for a little while.

The government screwed this case up from the beginning. Instead of working out deals from the bottom up, they went from the top down. The jury wasn’t buying it. How could the government claim that these people knew of all this fraud when it was clear the fraudster did everything to hide who she was and what she was doing, including filling out change of address forms for all the straw borrowers so that the mortgage correspondence went to a P.O. Box instead of their homes?

The government made some bets here. They bet on the environment out there – the anger over foreclosures, the understanding that the collapse of the real estate market is why the economy is tanking. They bet that the jury would convict anyone who had anything to do with mortgage fraud, even if in fact, they had no knowledge they were participants in a mortgage fraud scheme. They bet that the excused potential juror who claimed (as some potential juror always claims) that “if they were indicted, they must have done something wrong,” shared a similar thought with a few of the 12 who were seated to hear the case.

Why was the jury out for 2 ½ days? I don’t know. I think jurors are more skeptical when they are about to acquit, than when they are going to convict. I’ve heard many statistics, but one I believe is that 80% of potential jurors show up for jury duty prone to convict. Maybe when they hear a case and do not have proof beyond a reasonable doubt, especially in a case like this – with 8 boxes of evidence and dozens of witnesses - they second guess themselves. “Are we really going to tell the government they didn’t prove their case?”

My client didn’t just get lucky here, beat the rap, or escape justice. He was innocent. Yes, for all those who said after the trial “what did he do,” the answer is “nothing.” He was an unknowing participant in a scam. The government had to prove that at the time he handed over his information, he knew that it was fraud. No one came to court to testify to that. No one said “I told Jose it was a scam, that we would forge documents, that multiple loans would be taken out in his name.” Jose of course was approached because he wouldn’t know, because he wouldn’t ask questions, because he wasn’t as smart as the fraudster.

The government just wanted a jury to find beyond a reasonable doubt that he knew, because they are the government, and well, they only prosecute guilty people.

They wanted to send a message – don’t be an idiot, don’t get scammed, or you will go to federal prison.

This was not about an acquittal, a framed verdict form on an office wall, or an “attaboy” from my colleagues. This was about how the government can create criminality from stupidity, from naivety, from a desire to send a message to society that is mired in an environment of blame.

Jose was found not guilty because he was not guilty. The fact that he had to endure the possibility of being locked up in federal prison over his conduct is shameful. That the government brings cases to trial because they think they can craft a case that will leave a jury wondering about guilt, and forgoing the burden, is both scary and a derogation of their duty as prosecutors.

This was the first case I can remember where I said not a word to the prosecutor the entire time. No “good morning,” no “good evening,” no nothing that wasn’t necessary for the discharge of my professional duty. I could not bring myself to converse with a lawyer whom I believed was prosecuting an unjust cause. This was a case where the government believed they could prove guilt, whether it was there, or not. In the presentation of every loan, the question was asked: “how much was Jose borrowing here?” He wasn’t borrowing anything. The reports the government had of their multiple interviews with the fraudster and other witnesses, gave them knowledge that Jose didn’t take out any loans. Still, maybe they could get a jury to believe otherwise. Maybe then they could send that message that getting scammed is a crime. Maybe then they could prosecute every old lady and gullible American who buys into a scam.

This is a case where my joy over the acquittal is tempered with my disgust for the government in even bringing this case. The prosecution was a waste of time and money. The presentation of evidence was disingenuous. The government knew what happened here, but acted throughout trial as if “hey, we’re not sure.”

That this case ended in a not guilty is a tribute to the fleeting thought that the system, despite a prosecutor who tosses discretion in favor of an attempt to prove criminality, can still work.

As I said in my closing: “this case isn’t even close.” There was no knowledge, no intent, and no specific intent to defraud. None. Zero. Still, I engaged in a war with the federal government, who poured water on the jury and asked them to trust that it was raining.

They were smart enough to look up.

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

Friday, August 06, 2010

A Friday Musical Interlude



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

Thursday, July 29, 2010

A Crack

Yesterday Congress decided black people shouldn't go to prison for a significantly longer period of time that white people for using different forms of cocaine.

No, that's not a snarky way to describe what happened, it's what happened:

From the Washington Times:

Congress on Wednesday changed a quarter-century-old law that has subjected tens of thousands of blacks to long prison terms for crack-cocaine convictions while giving far more lenient treatment to abusers, mainly whites, caught with the powder form of the drug.

Gee, what a thought. Let's all celebrate.

The most significant part of what happened yesterday, is this:

The bill also eliminates the five-year mandatory minimum for first-time possession of crack, the first time since the Nixon administration that Congress has repealed a mandatory minimum sentence.

The first time in about 40 years that a minimum mandatory has been repealed. Unreal.

Minimum mandatory sentences were created to take discretion away from judges. It was the beginning of the Executive Branch telling the Judicial Branch they were not to be trusted. They would do what they were told. They would not look at a defendant as an individual, it would not matter how he otherwise lived his life. Sure, there's the "safety valve" that allows a judge to drop below the minimum mandatory, but we're still starting from a point of no discretion, unless certain factors come together like the sun, moon, and the stars.

About 10 years later, we had the U.S. Sentencing Guidelines, telling judges to become bean counters and add up a bunch of numbers to determine a defendant's sentence.

The issue from yesterdays historic vote is not the end of the 100-1 ratio for crack to cocaine, it's the fact that for the first time in 40 years, we're taking a different road, going back to a little discretion.

I wish I could say it's the start of some serious sentencing reform. I don't think it is. We talk about all the non-violent people in prison serving ridiculous prison sentences, while idiots claim it's not true.

So yesterday's vote was a great thing, but let's not get all excited as if it's the beginning of anything.

It's just a crack.

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

Monday, July 26, 2010

Is The Blogosphere Getting Too Personal?

There's been a recent shift in the blogosphere. From a place where we find way too much robotic marketing and self-promotion dressed as blog posts, now comes a slew of deeply personal posts from some well respected writers, and all very recently.

CBS's Andrew Cohen, one of the best journalists around for political news, writes about the love of his life marrying, someone else.

Fresno Criminal Defense Lawyer Rick Horowitz thinks the criminal justice system is broken and is thinking of taking down his blogs.

Another criminal defense lawyer, Norm Pattis, isn't sure he wants to come back from vacation (but he will).

These are all pretty personal essays. I wonder if it's a trend, if it's just the summer doldrums, or a trend in the blogosphere.

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

Wednesday, July 21, 2010

The Hatred Of Being In Trial

I never understood it.

A criminal lawyer is prone to try more cases than a civil lawyer. It's what draws us to the profession. Yet I hear every day lawyers bitching and moaning about being in trial. It's not because they don't like trying a case (which some don't), it's mainly the private practitioner that believes it's a burden on the "practice."

I disagree.

Why would you enter the profession of criminal law and not want to be in trial? Isn't the greatest part of the practice sitting in court and questioning witnesses, arguing points of law and facts of a case? Or is it sitting in the office collecting checks and interviewing potential clients?

Last night a fellow criminal defense lawyer lamented to me that being in trial meant "no new clients" until the trial is over. Really? Trial ends in the evening. Is meeting with a potential client after work or on a Saturday prohibited?

The treadmill of morning court - office - home - morning court - office - home, gets old, and it doesn't make anyone a better lawyer. There's nothing better for the "practice" then dusting off the "good" suits and going toe to toe with the government for a few hours, few days, or few weeks. It's not a burden on the practice, it's a benefit of the practice.

Being in trial just means things get shifted. I find myself more disciplined when I'm in trial - waking up earlier, not procrastinating, using the free time efficiently. If you have some friends that can cover other matters, life goes on.

In private practice the trials don't come as often as when I was in the public defender's office. This is why I embrace them. There is a peacefullness to being in a courtroom with no cell phone, no wireless access, no fires to put out in the office, no running from courtroom to courtroom or meeting to meeting. Just sitting in one courtroom, trying a case.

I love it.

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

Monday, July 19, 2010

Run Prosecutors, Run

Perusing the paper this morning, I see political endorsements are in full swing at three a day. Two of the three races mentioned today included prosecutors running for the spot.

Although neither prosecutor was endorsed, there was noticeably absent any other type of lawyer, including of course a criminal defense lawyer.

Currently, depending on who you ask, 17% percent of the Florida Legislature are lawyers (Cue the "that's too many, lawyers suck" crowd). Some say it's less. Of course this doesn't account for those who call themselves "lawyer" but don't practice.

Running for office as a prosecutor is like walking in to the dance as the pretty girl without a date. It creates automatic attention.

Former prosecutors are even more fascinating. If an estate planning lawyer is running for office, and worked as a prosecutor for 5 minutes, he's not an estate planning lawyer running for office, he's a former prosecutor. Hey, whatever it takes to get elected. Who the hell cares about an estate planning lawyer anyway? No one went to jail. Any lawyer who runs for office and spent some time locking people up, makes it a point to let the public know. The public has always found some correlation between prosecutors and good law, even though the country is broke, foreclosures are out of control, public schools are a disgrace, and state health care programs are failing, it's always good to have a former or current prosecutor in office. At least the masses wont be given the key to the jail. That would ruin everything.

And of course there's the criminal defense lawyers who run for office. The few. Right now there are three criminal defense lawyers running for the legislature in Florida. To their credit, they all mention criminal defense experience. They mention it. None highlight it as if representing people charged with crimes gives them some knowledge of how the constitution and statutes work in practice. That's a no no. One criminal defense lawyer/former prosecutor candidate headlines her bio with:

Distinguished Law Record- Tough on Crime

Having a legislature full of prosecutors, or those who believe their only relevant experience is that of a prosecutor or former prosecutor, is like having a courthouse where there are no defense lawyers, no one to balance the cry for more jails, more minimum mandatories, more criminal offenses for every known type of conduct. Would things be better if legislatures were all Republicans or all Democrats? Some say yes. They're ignorant.

Criminal defense lawyers as a group rarely run for office. The anti-government mentality of many of us means that we don't want to be part of the process. We feel better cursing the problem than trying to be a part of the solution. I wish more criminal defense lawyers would run for office. I wish the public would appreciate the presence of a defender of liberty.

But until criminal defense lawyers are included in two out of three elections in a day of newspaper endorsements, the public will continue to see a criminal defense lawyer running as the exception, instead of the norm.

And people don't like the exception. They like the norm.

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

Friday, July 16, 2010

My Cousin Vinny Meets A Houston Criminal Defense Lawyer

Jackie Carpenter, African American criminal defense lawyer in Houston, Texas, for a fleeting moment, is a suspect in an armed robbery case. Her story, while interesting to the criminal defense bloggers, was met with shock mostly by the non-lawyer readers, and of course the rationalization by law enforcement. We criminal defense lawyers read stories like Jackie's and know that they don't just occur in movies.



The issue here is not whether the officer's conduct was improper. Jackie probably shocked her readers by saying she won't sue, but she knows better - the only damage is to her perception of the world, so who cares. Her moment "in the client's shoes" is something that will make her a better lawyer, and her clients will appreciate the passion of a lawyer who can say "I've been there."

The issue is faulty eyewitness testimony.

Tonight (Friday) Chris Hansen will discuss the topic of faulty eyewitness testimony on Dateline NBC. I saw a preview this morning, and it looks like something everyone should watch that thinks eyewitness testimony means anything.

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

Saturday, July 10, 2010

To Kill A Mockingbird Turns 50

July 11, 1960, To Kill A Mockingbird was published. Look above, and it's obvious the story has great meaning to me. The Washington Post blog has a great post about the background of the book.

Author Harper Lee, known to be quite reclusive these days, sent me a message a few years ago. I had written an article for the Florida Association of Criminal Defense Lawyers (FACDL) magazine commerating the death of Gregory Peck. After it was published, the executive director of FACDL called me and asked if I was sitting down. She told me Harper Lee read the article and liked it.

The Death of Atticus Finch

As I sat in stunned silence, she went on to tell me that the house FACDL owns in Tallahassee, Florida was purchased from a relative of Harper Lee. This relative for some reason made a point to always read the FACDL magazine. When she saw the article, she sent a copy to Ms. Lee.

So other than being a criminal defense lawyer, that's my "connection" with the story, my "brush with greatness."

I found this video, it captures the essence of To Kill A Mockingbird as best as I've seen, although the music is a little misplaced.

Enjoy, and happy anniversary to a story that should be required reading, or viewing.



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

Monday, July 05, 2010

No Violins Needed

I don't know where or when it started. I'm sure it started its demise before I was around, hell, Atticus Finch was never the darling of society, but the criminal defense function, not just the lawyers, has reached a level that goes beyond "unwelcome."

I have been thinking about this for a while now.

At our core, we, the criminal defense lawyer, have the following philosophy:

We exist for the purpose of making sure that the government, law enforcement, and those who would advocate to take away liberty, do so by presenting evidence that proves each and every element of a crime, beyond a reasonable doubt. We study and investigate whether any search or seizure of our fellow man was, under the Fourth Amendment, reasonable. We try to discover whether our fellow man was advised of his right to remain silent, and if the government alleges that he waived that Constitutional right (number 5), we investigate whether that right was waived freely and voluntarily. We act as the Sixth Amendment, providing the required effective assistance of counsel. We do not draft contracts, wills, litigate monetary disputes, or assist in the breakup of families. We assist those who are required to have counsel under the Constitution. Finally, we advocate against cruel and unusual punishment, something we are all protected from by the Eighth Amendment.

Four of the first ten amendments, otherwise known as the Bill of Rights, were written for the criminal justice system. To sum it up, the criminal defense lawyer mirrored the philosophy behind the creation of America - a mistrust of government, a method of redress, and liberty. The criminal defense lawyer was given important powers to question government and assure that any attempt to take away liberty was done with strict scrutiny.

Now I know, back then they didn't have cocaine or ecstasy or airplanes or grow houses or terrorists. I know. They didn't have parents or teachers who relied on the juvenile justice system to raise their kids and teach them discipline. They didn't have 24 hour cable news, and they didn't have Law & Order running 6 hours a day teaching us that prosecutors and cops were angels, and criminal defense lawyers were the devil.

I wasn't sure how to write about this, and then of course, Gideon took care of it for me.

Forgive the length, but it's that poignant:

These are the rights of individuals – all individuals and checks against the power of the large governmental entities. The Constitution drew a line and on the site that was protected were placed the flesh and blood individuals, the citizenry and on the side that was being warned and whose authority was being severely limited was the abstract, nameless, faceless Government.

What a beautiful concept: we are individuals first and as individuals, we have rights that will not be subordinate to those of an ever-changing abstract concept.

The concept is dying a quick and painful death. It took only 200 odd years for the pendulum to have shifted completely in the opposite direction. By attrition, or force of sensationalism, or crowdsourced fear, the line drawn by the Constitution has turned around and is now facing those very individuals it sought to protect. The idea of individual liberties is so foreign to most, that comes as a surprise to many that the founders fought and fought hard for them.

These protections and rights exist merely as a thorn in the side of the righteous who seek to punish the evil. US vs. criminals. Speeding this disaster is the learned hand of those who are in charge of interpreting and enforcing the august protections enumerated and implied by the Great Document.

Jurisprudence, over the years, has taken an increasingly narrow approach to individuals’ rights, especially those charged and convicted of criminal offenses. The scope of acceptable intrusion by the Government has increased dramatically over the years and the zone of protection surrounding each individual and his possessions has correspondingly narrowed.

Cops want to use collective knowledge to deem that someone carrying two cell phones is a drug dealer and thus about to embark on a baby-killing spree? Allowed. Cops want to use lies and trickery to trap individuals into confessing to things they may or may not have done? Allowed. Prosecutors make impermissible remarks to juries and comment on a defendant’s exercise of his rights? Frowned upon, but the guy was guilty as sin anyway, so it doesn’t matter.

I fear that if one were to embark on the task of writing a book that enumerated the remaining fundamental protections, it may be just long enough to fill Twitter’s 140 character requirement. The Twitstitution.

Really, what 4th amendment rights does one have anymore? Police have to get a warrant? Well, not always. And even in cases where they really should have, it’s mostly okay. What if the prosecutor circumvents the probable cause requirement and adds charges later that aren’t supported by the evidence? Too bad, prove it at trial.

The role of the defense lawyer has gone from Constitutional law expert to mitigation specialist. Cases are won and lost on the facts, not the law. The law is dead to us. A lifeless corpse that taunts us and obstructs us in our efforts to keep the Govermental power in check. There is no longer any confidence backing up an assertion that an act by the police is “clearly illegal”. Frankly, there is no such thing anymore. Courts will find a way to condone whatever improper action we complain about.

“But he’s only 16, judge”, “he didn’t really threaten the use of a gun”, “he’s only doing this because he has a massive drug problem”.

Go to any court and sit in on any pre-trial negotiation and you’ll hear most, if not all defense lawyers use variations of the above. Mitigation specialists.

That’s the only thing left to us: harkening back to the very individuality that the Constitution sought to protect. Each person is an individual, but instead of talking in terms of protection, we now speak of punishment. Each individual is different and must be punished differently.

Guilt upon arrest is but a foregone conclusion. All that remains to be determined is the term. We don’t practice law anymore; there is nothing noble left. We mitigate.

The law is dead and slowly, it’s killing us all too.


A frequent quip is that if the Constitution were to be drafted today, the 4th, 5th, 6th, and 8th Amendments would look much different, if they were written at all. More frequent is the cries of those who rail against the criminal defense function, until they are arrested, or worse, treated rudely by a police officer. At that point, they "know their rights." So they thought.

Sadly, I don't think we will ever go in a different direction. We see the criminal defense lawyer as an obstructionist, a delay tactic, and a waste of taxpayers money if it's a public defender. Newspapers relish their websites that immediately post the photos of the "presumed innocent" recently arrested locals, and the topic of going from 200,000 to 2,000,000 incarcerated in America, is a cocktail party "oh well."

With all this, the role of the criminal defense lawyer, while diminished by courts and the public, remains what it was always designed to be - an advocate for an individual for whom the government seeks to take away liberty. While we may lose the battle to convince society, other than a few who claim to understand, and do, of our importance, we will never have any less importance to the person standing next to us in an American courtroom.

One day society may catch up, and if not....

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

Friday, July 02, 2010

My Every So Often Rant On The Media

Somewhere in the archives of this blog are a few posts about the media. As a criminal defense lawyer, I read stories differently than Mom and Pop "did you see what that guy did!" do. I laugh at the buzz words that create anger amongst the public. Routine continuances are called "another delay," and defendants who are not required to appear at arraignments are reported to have "skipped out" on the 30 second hearing. A lawyer on vacation "did not return calls to his office," and any time two cars hit each other, "charges are pending,"

Former Florida Republican Party Chair Jim Greer was arrested recently. He had his arraignment. Get this - not only was he not there, his lawyers didn't bother to show up either! And, he has already decided he is going to trial and the iron clad date has been set.

Well, according to the newspaper:

Jim Greer, the former chairman of the Republican Party of Florida, will go on trial on charges of theft, fraud and money laundering.

The trial of Jim Greer on theft, fraud and money laundering charges is to begin Oct. 18. Greer, who has pleaded not guilty, wasn't at the hearing. Neither were his attorneys.


This type of writing is done for a reason - it creates the opportunity for a guaranteed follow up. A follow up that will say this:

Despite the judge setting a trial date of October 18, Greer's lawyers have asked for more time, a delay that will set the trial off for many months. Prosecutors said today they would "like to get to trial as soon as possible as justice delayed is justice denied."

Just once, I'd like to see the type of story above, written like this:

Jim Greer, the former chairman of the Republican Party of Florida, has a trial date for October 18. This is because every case, after arraignment, is given a trial date. It doesn't mean Greer will actually go to trial, or that the trial will be on that date, but it gives us an opportunity to make some assumptions in order to get the community all riled up over what will be a certain delay (we call continuances "delays" because people don't like "delays.") The "continuance delay" will be as a result of the same reasons in every single criminal case. Prosecutors probably have thousands more documents to turn over, depositions need to be taken, and much work needs to be done. Hell, prosecutors may even want some more time. Maybe a deal will be worked out. The reason a trial date was set for October is because there is a 180 day speedy trial rule in Florida, and this provides an opportunity for a waiver.

Greer wasn't at his arraignment, nor were his lawyers. This is because under Florida Law, and in fact in most states, written pleadings stating the defendant pleads not guilty, are favored over packing courtrooms with suits and defendants for 30 second hearings. We just say no one was there so that you can wonder why and maybe think the defendant is being rude or the lawyers are disrespecting the judge.

I understand the media has an obligation to sell its product. I understand the gritty details that cause people to say "oh, I see, no big deal," don't create a captive audience. But just once, once, I'd like to see a reporter go rogue and lay it all out.

Not just what's accurate, but the absolute 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.Share/Save/Bookmarkokdork.com rules Post to Twitter