On Labor Day, Celebrating Our Hated Profession

From Dan Zak of the Washington Post. (Free sign in required to view entire article)

"It's Labor Day weekend, so we paused to think about work. Then we started thinking about people whose work attracts the suspicion, dismissal or loathing of the general public.
The auditor: pickpocketing our hard-earned money.
The used-car salesman: passive-aggressive liar with a glinting Rolex.
The criminal defense attorney: slimeball in a suit, standing up for nefarious creatures.
The ballpark umpire: blind, deaf, clearly on the other team's payroll.
The parking enforcement officer: For the love of God, $40 for going two minutes over the meter?

Prejudiced generalizations, surely. Auditors and umpires are merely convenient targets for our personal frustrations. Car salesmen and defense attorneys are stock villains in pop culture, not necessarily bad guys in real life. And without parking enforcement, our streets would be jammed with scofflaws' cars.

Instead of appreciating our work today, we're going to appreciate their work and the nonsense they have to put up with by virtue of their titles.

The Criminal Defense Lawyer

A cartoon framed in William Moffitt's Alexandria office shows 12 jurors acquitting Sami al-Arian, the Florida professor accused of supporting Palestinian terrorists in 2005. The title of the cartoon is "The Real Patriot Act." Moffitt was al-Arian's attorney, perhaps his most recent visible assignment.

Moffitt, 59, grew up in New York, went to law school at American University, was hired as a clerk at the first racially integrated law firm in Northern Virginia in the early '70s and now runs his own practice. His client list has ranged from the high profile (controversial political activist Lyndon LaRouche Jr.) to the local (a clinically insane man who went on a stabbing spree in Alexandria). Moffitt, a Reston resident, takes pride in often being the lone person to stand up for the accused in the face of a powerful government and judgmental public.

Why did you become a criminal defense lawyer?
My mother raised me on "Perry Mason." Seven-thirty in New York every Saturday night. I always wanted to be a criminal defense lawyer. For some reason that always attracted me. You know, defending people against the power of the state is a very, very heady experience.

Does hostility toward a client ever turn into hostility toward you?
It sometimes does. Not always. I've seldom had a case where people were particularly angry at me. We got some pretty angry stuff on e-mails when we were doing Sami's case.

Like what?
"How could you represent this guy?" "He's a known terrorist." "How could you do that?"

How did you respond?
Most of my defense was that he was exercising his First Amendment rights. I wasn't calling anybody names; I wasn't calling the U.S. government crooked or anything like that. I was essentially raising a defense that people could understand. . . . We took the position -- as defense attorneys often do -- that we're educating people. One of the greatest things about what I do is my opportunity to use the courtroom as a place to educate people about things they don't really know about.

What's the worst part of the job?
The frustrating part about the system is that it isn't always right or always fair. Innocent people are sometimes convicted. Guilty people sometimes walk away. And you have to adjust to the notion that you are a participant in an imperfect system.

Is there anything you want the general public to know about your field?
Most of the people who are involved in the practice of criminal law are involved because they love people. The idea is that in order to get justice in an imperfect system, someone has to fight for it. And that's what thousands of people are doing every day -- many of them court-appointed, underpaid, overworked and what have you. But their dedication to the system of justice is what ought to be exalted, not the fact they represent a particular individual who may or may not be accused of something very serious or difficult to understand.

Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

I Smell Marijuana!

Ah, the smell of marijuana! (Criminal defense lawyers are already laughing at this post, some prosecutors too.)

The smell of marijuana opens many doors to the life of law enforcement. Smell marijuana and open comes doors of homes, stopped are countless vehicles that "smell" of that prohibited substance, and searched are "persons" who upon them have that "smell."

So today went my motion to suppress a traffic stop. Arrest affidavit was pretty simple - my hero is observed with what appeared to be a marijuana cigarette in hand, is seen "inhaling" from it, and then his car is stopped. After the stop, officer smells marijuana and arrests my client, seizing the additional marijuana in the car.

Problem is that's not proper under the Fourth Amendment and applicable case law. Smell of marijuana has to come BEFORE the stop.

Not a problem. Put the officer of 8 whole months on the stand, and today, he says he smelled the marijuana BEFORE the stop. Why wasn't that in his detailed arrest affidavit that he testified included "exactly what happened in the order it happened?"

"I forgot to put it in there." (A gasp is heard from the back of the courtroom.)

During a small break in the hearing I leaned over and asked the prosecutor "you think he's being honest?"

Answer: "That's what he said happened."

Motion denied. Judge had no issue with testimony.

Public defender seen shaking her head.

Another day......

Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

Training Prosecutors: Garbage In, Garbage Out

It happens very rarely, a prosecutor reads a motion to suppress in a small drug case or misdemeanor, finds it to be well taken, and agrees to dismiss the case. And no, I'm not talking about the routine b.s. motions that are not well taken, but debatable.

I'm talking about the one where the officer basically says he had a "hunch" the client was selling or possessing drugs, and conducted a search. The ones that law students look at in criminal law class and know right away that the Fourth Amendment has been excoriated.

Then yesterday I realized why this rarely happens, and again, I'm talking about dead-bang obvious motions, so spare me the "most defense motions are worthless......" argument.

Simple facts: some unidentified person tells the officer my client is smoking pot. Officer sees my client driving through parking lot normally, does not see him smoking pot. Pulls him over, finds pot. Pretty obvious. Differing minds could not disagree on these set of facts.

The prosecutor told me incredulously "we would never dismiss a case because a motion was well taken."

Now she didn't learn this in school, she was trained to conduct herself this way. She was told: "let the judge decide." Senior prosecutors will deny this, but then tell me, where did she get her training? Where did she learn that her position is an effective use of resources?

I know the answer, she was seeing if I'd take a plea.

No need.

Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

Does Anyone Really Know What Time It Is? Does Anyone Really Care?

What a perfect end to the day today. I called a judge's assistant to ask about his procedure at arraignments. "Don't know, she said. "I've only been here 4 months."

The day began with 2 detectives at my client's door. They had a pick-up order for him. Said he failed to appear in court at his trial. Problem was I was at his trial, the prosecutor told me she was dismissing the case, and the judge told me I and my client could leave. After I left, the prosecutor forgot to announce the dismissal, the judge forgot he told me I could leave, and issued the arrest warrant for my client. After I begged and convinced the detectives not to take my client to jail, I went to court and listened to a new prosecutor tell me "I don't know why you would have been told the case would be dismissed." Two hours later a senior prosecutor found notes from the other prosecutor reflecting that the case was to be dismissed.

A few weeks ago I was on vacation and sent another lawyer to court to accept a diversionary program for my client. I didn't give him the emails and faxes evidencing that I had already accepted the diversion program, because I didn't expect the "other" prosecutor in court to deny that I ever accepted diversion and seek an arrest warrant for my client.

And this is the last few weeks.

Is it summer, laziness, little of both, or a trend?

I'll tell you what, it's pretty damn annoying. I never want to have a practice like civil lawyers where nothing is based on anyone's word, rather "confirmatory letters," but I'll tell you what, it looks like we may be headed that way.

Sad.

Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

Stewart

While sitting in my office yesterday, the cell phone rang. Caller ID said Stewart was calling.

Some background:

Before the ink was dry on my Bar license, Stewart, and his mother became my clients at the public defender's office. Stewart had his 2nd DUI, and Mom had either a DUI or some traffic issue, can't remember.

They were unlike a lot of public defender clients. They came to my office several times for meetings, and we always had nice conversations. Mom claimed to be a painter and said she was going to paint me something.

I resolved both their cases, no jail, just some probation, etc...

Mom gave me the ugliest painting I think I ever saw, but it was her painting and the first gift I ever received as a lawyer from a client. I remember getting some crap from my supervisor about receiving a gift, and as a result, hung it right in my office.

Stewart continued to get into minor trouble. I left the PD's office and helped Stewart for little or no money. Mom came to me with an occasional "can't pay rent can you talk to my landlord" problem.

When I was in the PD's office, they were clients with a case. When I left, I realized they were alcoholics and Stewart as well a drug addict.

Stewart got his 3d DUI, it involved a minor fender bender. He went with the public defender, but when Stewart showed up 9 minutes late to his trial and the judge took him into custody, forcing a waiver of his speedy trial right, he came up with a little bit of money and hired me.

I appealed on some pretty weak case law and a stronger argument in my mind that what the judge did, "just wasn't fair." An appellate judge agreed, and dismissed Stewart's case.

Stewart's Mom died, I found out a few months later when Stewart called about some leak in his condo. He didn't tell me about Mom, I had to ask. He was in and out of labor type jobs, setting up convention halls for meetings and shows.

Finally, he caught a break. He sold his condo and made a $70,000 profit. He took it easy, his new found fortune in hand, and didn't work, for 4 years.

A possession of cocaine case made him a convicted felon after all these years of me helping him to dodge even the hint of a misdemeanor on his record. He didn't hire me for that case, not wanting to spend some of his fortune on a decent attorney's fee.

After that conviction, I didn't hear from Stewart. He was tired of me yelling at him about being a "loser," even though he always called, and always told me "I need to hear this."

When he called yesterday, I didn't pick up. I knew I'd listen to the message later and hear either about his new arrest, or legal matter not worth pursuing under any theory.

So I listened to the message.

It wasn't Stewart.

It was his drug addict girlfriend calling to tell me she found him dead.

Overdose.

She told me about his last few months of life. I felt like I was watching the movie "Leaving Las Vegas" all over again.

Stewart's at the medical examiner's office. No family. No money. Awaiting an autopsy.

Stewart died a junkie.

I always liked him though.

Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

My Big Fat Pig Colleagues

So today a potential client calls. Her whole family is arrested in a RICO case. Two family members are represented by one lawyer (something I never do). The third, is my potential client.

Appointment set. Time? After she goes to the other lawyer's office with her two other family members. (Criminal defense lawyers can stop reading here, as they know the end of this story).

At a restaurant, I see the other lawyer having lunch with a former judge. I mention to him that I received a call from the third family member, I know he's going to see the other two, and that I don't want to interfere with his representation, but family member three wants to hire me.

He comments to the judge "oh, we we're just talking about professionalism, how professional of you!" He also mentions that he's spoken to the prosecutor and that "all these cases can be resolved." (Should have been my clue).

Client just called to say she "can't make it." Wants me to call her back.

I do.

"I'm going to go with (other lawyer) because he says there's a plea deal."

Oink Oink my "colleague."


Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

When It's More Calls Than Cases

Sometimes I wonder if people want to talk to attorneys rather than hire them.

Today's one of those days. Girl calls, arraignment is today, actually it was 2 hours before she called from out of state. Wants a lawyer, a free lawyer, but won't of course say that. So I engage her in conversation. Small case, but a problem for her if she doesn't resolve it and instead waits for the arrest warrant to be executed. I can handle the case without her here, but I have to get to court today to be at the already-missed arraignment.

I quote the fee. At that point I realize her husband's on the phone because he starts yelling at me. He wants to know how I can charge her when "it wasn't her." I explained that this was unfortunate, but I didn't know that, and even so, she still needs a lawyer, and SHE CALLED ME!

He continues yelling at me, and finally says "WE'RE COMING DOWN THERE TODAY TO TAKE CARE OF THIS OURSELVES." Before I could say 'Ok," he hung up.

Then mom of another client calls to ask about her son's case. She has a lawyer but is concerned about the process and wants some advice because her jailed son is telling her what he's being told by the jailhouse lawyers, and she's anxious. She wants to hire me, so I ask why he's in jail. "Can't afford the bond." Short conversation there.

I always live with the knowledge that "you never know," who's on the phone or where it will lead. I just sometimes wish there was a way to avoid playing phone lawyer somedays.

Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

So Much For Terror Watch Lists....

UPDATE: JIm Robinson said in an interview that he applied to be removed from the terror watch list 3 YEARS AGO, and is still on the list.

WASHINGTON (AP) - The Justice Department's former top criminal prosecutor says the government's terror watch list likely has caused thousands of innocent Americans to be questioned, searched or otherwise hassled. Former Assistant Attorney General Jim Robinson would know: he's one of them.

Read more here

Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

What If We Federalized The Entire Criminal Justice System?

It's heartwarming to know that when you have a blog and stop writing for a while, you get treated as if you haven't called your mother, and she's worried you may not be eating, or dead.

Since I've been observing and not blogging, some significant things have happened.

On the federal side, Guantanamo detainess now have the right to contest their detention in federal court. Most people have never been to federal court, where contesting detention these days of any defendant is a long shot, but cue the fear mongering war on terrorism types who claim that this of course means they will all be released into the streets of America and we should all be afraid, very afraid.

On the state side, budget cuts are causing public defender's offices to cut staff and refuse to take cases. Judges are screaming about the lack of court funding, caused by legislators who believe a properly funded judiciary is somehow a "bad" thing.

Escaping any criticism are the district attorney's offices, who refuse to prioritize the prosecution of cases.

Hence, my question whether we should consider federalizing the entire system.

Now, I practice state and federal defense, and I know the first response is "OH NO, not the feds!"

But wait.

Federal judges and the United States Attorneys are appointed. State judges and district attorneys are elected. When's the last time you saw a victims rights group on the steps of a federal courthouse?

Now I have no issue with crime victims. I do take issue with the new way of prosecuting state cases of: 1. arrest, 2. file charges, 3. find out what the "victim wants," 4. Offer that.

The fear of state prosecutors and judges over what the victim will do if they don't get what they want is often paramount to what should "really" happen to the defendant and the case. Restitution has been dumped into state criminal courtrooms as if they are bill collection courts.

Not in federal court.

Yes restitution is mandatory in federal cases, and victims are consulted, but they don't run the place nor does the media. You can't vote out federal judges or prosecutors.

Additionally, the feds prioritize what they prosecute, states and counties don't. A recent comment from a district attorney is proof. In response to severe budget cuts I read "unfortunately, we're not going to be able to prosecute every case."

You mean every fight between two people? Every DUI where the defendant had a breath alcohol level below the legal limit? Every first time offender who deserves a break? Every child abuse allegation and domestic violence violation where there is a pending divorce and it's clear the allegations are "suspect."

Anyone walk into a misdemeanor courtroom lately? Or watch a felony prosecutor struggling with a case because she knows what should happen, as opposed to what the victim wants?

Victim's have taken over the system in state court. And before all you victim's advocates start typing, I'm not talking about murder, robbery, rape, and sexual battery. I'm talking about that grand theft case where your car was stolen, and you want the death penalty. The mantra of "criminal's have more rights than victims" has turned the tables on how our state system runs, and we don't have the money to do what every victim wants in every single case.

But we won't stop acting that way.

Think about it, what if the feds took over?


Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

The Neutering Of The Private Criminal Defense Bar

What happened to us? What are we all so afraid of, and when did we become so afraid of, everything?

This includes me, although I'm growing tired of being "careful" about everything. What I say, what I say here on my blog, who I represent, how I represent them, speaking the unpopular truth.

When I first started this blog I wrote a post about judicial elections. I wrote about how some judges suddenly become "nice" during campaigns. It was full of sarcasm and the "truth" about the politics of electing judges.

I received calls from judges - "very disappointed Brian." "Were you talking about me?" The buzz became loud. Lawyers began calling me. "Judges are upset, Brian...." At this time there was no local blog like there is now (run by an anonymous blogger who several judges still think is me). My post was tame compared to whats out there now.

But I took the post down, not interested in developing an uncomfortable relationship with the judges who had a problem with what I wrote. Why prejudice my clients should a case fall in front of them?

I regret taking it down. I actually don't have it anymore. Wish I did, because today, I'd put it right back up. I'm embarrassed I fell to the pressure of a few judges who for some reason didn't like my commentary.

But this is all over the place. We have blogs where lawyers and everyone else can anonymously comment on judges, prosecutors and fellow defense lawyers. Few defense lawyers would dare publically say that judge so and so did something they thought was wrong, or that a prosecutor is chronically unreasonable, or that one of their own stole a case from them by undercutting their fee just to pay the rent. Sure we have our rules of professional responsibility, but what about our obligation to be advocates and not just businessmen and women.

And those of us who practice in federal court, we've been smashed into submission on many fronts.

The recent indictment of a prominent criminal lawyer brought many of us to his defense, but still found a fair amount saying "be careful," "wait till the evidence comes out."

What happened to us, the criminal defense bar? Is it our job to stand up for justice, or merely to make sure we don't piss anyone off while representing those that the "Law and Order TV Generation" feels don't deserve more than an hour of legal process (including a confession to the prosecutor in his office)? Has it become all about the business of our profession?

We complain about elected officials ignoring the law and creating laws that only serve to please those outside the system who don't understand that being "tough on crime" is not akin to turning every misdemeanor into a felony and telling the folks at the rotary club that a stupid crime that no one cares about now carries a minimum mandatory prison sentence (at $20,000 per inmate per year). But when election time comes up and the defense bar's screams get louder and louder, none of us (including me) file to run against anyone. We just go back to bitching at the coffee shop and our anonymous comments on blogs.

I know in the end this is me ranting and that nothing will come of it, but I end with how I began - "what are we all so afraid of?"

Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

For Any Federal Judges Who May Be Interested...

The other day I was listening to a federal judge talk about, what federal judges like to talk about - how we lawyers should treat them, practice in front of them, and the things they hate.

So I thought I'd return the favor: (WARNING - attempts at humor are below)

[1] I understand that your day sometimes frees up due to a trial that ended in a guilty plea, or some other scheduling issue, but can you understand that when I am scheduled to appear at 2p.m., it does not necessarily mean that I have cleared my entire day, making it possible for you call my office at 10 a.m. and request that I "come over now?"

[2] If I take the podium and mistakenly say "good morning" and announce my appearance before you've asked for "appearances," can you not make a big deal out of it by making it clear that I've spoken out of turn?

[3] There are no awards, bonuses, or monumental legacies left by granting no continuances. If the Government thought every case should go to trial 31 days after arraignment, they wouldn't have a 70 day speedy trial rule.

[4] If I had a year or four to investigate my case, interview witnesses, and speak with the agents, I'd always be ready at the first calendar call too, and be saying things like "we're always ready judge." Really, I would.

[5] Are lawyers really that rude to your staff that you always have to tell us to "be nice" to everyone? Have you ever thought that......nevermind.



Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

The Cold Pathetic Heart Of The American Criminal Justice System

LINCOLN, Neb. -- A 10-year-old Lincoln girl dying of brain cancer has one wish -- for her father to be at her bedside.

It isn't likely to happen. Her father is in a federal prison in Yankton, S.D.

Vonda Yaeger is pleading with the warden for compassion to grant her daughter's wish.

"She wants her dad. She goes to her room crying because she wants her dad," Yaeger said.

Jason Yaeger was convicted of methamphetamine charges nearly five years ago and is scheduled to be released next year.

"We've never asked them to release him early. Never asked them to change anything. We've asked them to just give him some time to be here," Vonda Yaeger said.

Jayci Yaeger has been allowed three escorted visits with her father, but each trip lasts only a couple of hours and costs the family hundreds of dollars. Requests for longer furloughs have been denied.

"They say it doesn't constitute an extraordinary circumstance," Vonda Yaeger said.


Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

Voluntary Surrender Shenanigans

Six a.m., the number one time for police, federal agents, to bust in the house, wife and kids woken up crying, begging, "no, no, no!" "Don't take my Daddy." The wife asks "where are you taking him?" "Shut up lady, he's a criminal," she's told.

The truth is, just like my 5-year old likes to "press the button" on the elevator, law enforcement lives for these moments. These are the moments where the investigation ends, and the prize is the arrest, the "perp walk," the embarrassing scene in the neighborhood.

Many times, the future defendant is well aware of the pending arrest. He's been under investigation for months or even years, defense lawyers, prosecutors, and law enforcement have spoken and met.

Even in these situations, the "voluntary surrender" is something for which we beg.

This whole thing is embarrassing. Enough already.

The purpose of an arrest is to take the defendant into custody and present them before a judge or have them bonded out immediately. It's not a damn prize or game.

And I'm tired of prosecutors telling me "I'm not going to interfere with their desire to arrest your client." What are you all so afraid of? Tell the officers/agents, I know this defense attorney, he keeps his word, let his client surrender. If they say no, so be it.

Right now I have a police officer client. The arresting agency, another police department, wants to arrest him at his police station. Nice way to maintain that "fellow officer" thing." (UPDATE - THEY'VE AGREED TO A VOLUNTARY SURRENDER!)

I hear other stories from prosecutors about why the defendant can't surrender - my favorite - "ok, he can surrender, but not to the jail, to the police department, because they want him to ride in one of their police cars."

Let me not leave out all the mature people in our system that when asked about a voluntary surrender, say "I don't care about that."


Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

Why Criminal Defense Lawyers Hate The Media

When I joined the public defender's office out of law school I was told: "don't ever talk to the media."

I haven't followed that advice, to the chagrin of my colleagues in the defense bar who believe we shouldn't talk to the media, or are just upset that the media has no interest in their cases.

I don't hate the media, I think many of them have a philosophy about the justice system more in line with "us, then with "them." I just don't understand why they continue to piss off criminal defense lawyers on a daily basis.

If I have an opportunity to have the media report that I said my client is not guilty, I'll take it. If they want the "other side's" point of view because the prosecutor's press conference attacked the client harshly, I may try to soften the blow. My philosophy is that if there's going to be a story about my client being the worst person in the world, someone, like his lawyer, should be heard to say otherwise.

So here's some tips to our media friends:

1. Don't waste my time.

I'm happy to spend 5 minutes on the phone with you because you are not a lawyer and don't understand certain aspects of a criminal case.

I'm not happy to spend 20 minutes on the phone about my case, explaining the facts and other things you don't understand, only to read a story about the case that repeatedly quotes the prosecutor and makes it appear like the client has no lawyer, and we never spoke.

2. "My editor cut you out" and "I had a space issue," have run their course.

Do all of you in the media know that we hear these excuses daily? We would more believe the dog ate your homework. And why do you not tell your editor that the defense lawyer was very helpful in the story and you would at least like the story to be fair to both sides (THERE'S a concept!).

3. Listen.

Stop going to court, listening to the proceedings, and then catching me outside and asking "so what just happened?" That's getting old too. Pretend like you heard something like "granted, denied, trial next Monday, Not Guilty."

4. "Calls to the defense lawyer's office were not returned."

Factual, yes, gratuitously critical, yes. How about "the defense attorney was unable to be reached?" Saying the defense attorney did not return the call makes it appear like it was intentional. Gee, maybe the defense attorney didn't get the message, was out of town, or something else happened.

5. Be accurate, really accurate.

A plea of "not guilty" is a formal pleading filed in court. Sometimes it's announced in court. A plea of not guilty is not claiming "innocence," and therefore when the client 4 months later pleads guilty, it's inappropriate for you to do the whole "he previously said he was innocent......." Additionally, a continuance is a staple of the system. Almost every case is continued, more than once. Stop with the "another delay." The public eats this up, and blames the defense.We both know that many times the case is continued because the prosecutor has a witness problem, hasn't turned over a document, or is unavailable.


Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

The Criminal Defense Bar's Dirty Little Secret

Those in the legal field often say that "criminal lawyers are the only civil lawyers." This comes from the notion that civil lawyers spend their days fighting over money, and when people fight over money, they get nasty.

Well let me clue you in: we do that too. Well.....some of us do.

The concept of "stealing cases" is rampant in federal criminal practice. Federal cases are more lucrative than state cases, and federal practice is where you will find some cut throat crap amongst your "colleagues."

In federal cases, you can file a "temporary appearance" until you are retained. Reason being, once you file a "permanent appearance," you can't withdraw unless you die, or have a conflict of interest that involves something having to do with you dying. A temporary appearance is legalese for "they're trying to get the fee together."

A temporary appearance though, is like a rug to many fellow criminal defense lawyers - they'll walk right over it and go meet with your "temporary" client. They'll say you suck, they'll undercut you, they'll do anything to get the case. Anything.

I come from the school of "I won't take food out of your kids mouth." This means that I won't take cases from my friends.

In federal practice, you will learn soon that there is a difference between a "friend" and "very very very good friend."

Last week I had a lawyer call to tell me he saw I filed a temporary appearance and although he got a call to see the client, he was not going to see him without my consent. This has happened to me exactly once in my career.

I handled the case, until the client's family went to meet with another lawyer, who thought nothing of taking the case. He actually told me that he did not consider me a "social friend." His justification. He still doesn't know, because I didn't tell him, that I considered him a friend, and would not have met with the client's family knowing he was the lawyer. He also told me the clients were leaving me anyway and going somewhere else. My response to the clients had it been reversed, would have been what I said above - "I'm not going to be the lawyer to take food out of his kids mouth."

I've recently instituted a policy of not being anyone's second lawyer. Two reasons for this - 1. Most people who are not happy with their first lawyer will never be happy. 2. The others are being represented by my friends.

I have actually had colleagues argue with me about my practice and tell me that "we are in competition."

So maybe I'm a lone ranger in my philosophy, but I believe more in the notion of "what goes around....." well, you know, you, you, you and you - the thieves among us.


Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

Back From A Break: The Bench, My Friend Ben, And Bond

I haven't blogged here since Christmas Eve. I've been sitting back, and watching our system continue to deteriorate into a circus of bad clowns and elephant crap.

The Bench

During my break I noticed a lot of terrible things coming out of the judiciary, both locally and nationally. These robes must have some effect on otherwise normal human beings, or more likely they were never normal, and the robe brought it out.

I read about a first time offender sentenced to the maximum 15 years in prison after a trial where the prosecutor offered no jail pre-trial, a man denied bond on a misdemeanor for absolutely no reason, a man be told he cannot talk publically about his acquittal, an appellate judge at a cocktail party who responded to an acquittal in a terrorism trial by stating "well, some cases just shouldn't be tried to juries, and the best, a female cancer victim lawyer told she must take her hat off her bald head in court.

Nice.

My Friend Ben

Ben Kuehne was indicted by the "we don't target Miami criminal defense lawyers" DOJ. He was indicted for money laundering. Actually, he was indicted for providing an opinion to another criminal defense lawyer as to whether the money was clean. DOJ didn't like the opinion, and now they want Ben to go to prison.

Most people with a Bar card who know or know of Ben, are shocked, angered, and fully supportive. Others, can't get out of their own miserable world. You know, the "the Government is entitled to their day in court" folks? My opinion: the Government has enough days in court, they can skip this one. The fact that they didn't give Ben the benefit of the doubt is sickening, and will for a long time affect their standing at least in the South Florida legal market (both civil and criminal) and across the country.

Additionally, if you're one of those very few criminal defense lawyers who are saying "let's wait and see the evidence," keep walking when you see me. It's time to stand up and be counted in our profession, period. (See Resolution in support of Ben Kuehne by the Florida Association of Criminal Defense Lawyers)

As my friend Milt Hirsch said upon Ben's indictment: "It's official, it is now a crime to be a criminal defense lawyer."

Bond

Happy to report nothing ever changes in this business. Today I was continuing my audition in a federal case at a pre-trial detention hearing. The main issue was whether someone died as a result of some prescribed medications. This fact increased my client's sentencing guidelines from 5 years to over 20 years minimum. After a lengthy hearing the judge found the prosecutor did not meet his burden on that issue but that he may be a flight risk and reset the hearing to next week after announcing "I am going to set a bond." Next week she wants the family there to pledge assets.

Of course after the hearing I was fired.


So now I'm back, fully pissed off, and ready to resume writing.

Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

Bullshit

Something off-topic for Christmas Eve, a perfect assessment of how embarrassing we are as voters.


Poll: Bullshit Is Most Important Issue For 2008 Voters


Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

"This Is The Most Important Time In History To Be A Criminal Defense Attorney."

So said one of my hometown heroes of our profession, David O. Markus yesterday at the Miami Criminal Defense Bar's Holiday Seminar and Lunch.

As we end the year, we meaning criminal defense lawyers, (those of you who often come here after a google search of "criminal defense fees," or "how much does a criminal defense lawyer make," or more recently "michael vick," can take a pass on this post, this is for my colleagues.) many of us are beat, exhausted, hoping for a few days off without an irrelevant court hearing set in the middle of the next two weeks, and most importantly, thinking about our practices and the future.

I love what I do......about 28 days of the month. The other 2 are usually reserved for unfair judges, unreasonable prosecutors, clients who won't listen, and that case I didn't get.

But above all that is David's statement: "This Is The Most Important Time In History To Be A Criminal Defense Attorney."

It is. What is going on in the world, in our country, in Congress, the Supreme Court, our local courts, in state legislatures, the need for us as cornerstones of society cannot be questioned.

Technology is such that anything we do is recorded. I love the navigation in my car, and now I know from talking to a federal prosecutor that where I go can be downloaded. If you get arrested today for a misdemeanor in rural Mississippi, it will be on the computer at New York's JFK Airport within hours.

Society as a whole, hates us. Yes, there are many who understand and respect, and even treasure our role in society, but most think the system is obstructed by our presence. They would learn quick the ignorance of their thoughts if for only one week, not a single defense lawyer went to court in America.

So to my colleagues about to hopefully enjoy a few continuances into the end of the year, I leave you with this from the criminal defense attorney of 59 years who spoke as well yesterday, the great Albert Krieger:

"There is nothing more important in the life of the lawyer than to represent an individual charged with a crime."

Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

Want To Hire Me, Fire Your Other Lawyer, First

There are certain things that go on in the criminal practice that none of us talk about. Undercutting each other to get cases,traveling to other jurisdictions to take a case because of desperation for fees when a fully competent lawyer or several that we know and like practice in that jurisdiction, and taking over cases from other lawyers.

For the most part, we hate getting those calls from our colleagues that our client "came and met with me about his case and I'm going to be taking over." We see it as a failure and question the client's loyalty and truthfullness. Candidly, we hope for the worst for the client now that he's left us.

While I scan the net and see that the colleagues I respect are making decisions about how they practice when it comes to taking cases, cooperating with the government (more on that in another post forthcoming) trials, and fees, I've made one myself:

I will not talk to clients who are represented by another lawyer, period.

What happens is that the client gets concerned about their representation, they feel "nothing's going on," or more likely, they can't afford to continue paying their payment plan lawyer. (I don't do payment plans so that knocks out those clients from signing up with me anyway).

I used to meet with them, advise them to try to work things out with their lawyer, explain that they'd be paying a whole new fee, etc.... Most of the time they just wanted a second opinion, i.e., to waste my time for free.

New policy, instituted this week with someone. Call me and tell me you have a case, you're represented and are unhappy with your lawyer, my assistant will tell you to fire your lawyer if you're serious about new counsel. No meeting or conversation will occur with me until then.

Now how many of my colleagues are willing to join me?

In that answer lies one of the basic problems within the criminal defense bar.


Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

Bless The Divorce Lawyers

"I could never do what you do."

I hear that weekly.

I have always said the same thing about divorce lawyers.

Some of the stuff you all argue over, not to mention the constant "he dropped the kid off 3 minutes late, I want to go to court" after hours phone calls, make me wonder if you have the most difficult job as a lawyer.

So yesterday I reaffirm this notion when I'm in court on a restraining order hearing that is traveling along with my clients arrest for battery.

We come to an agreement on a short-term injunction. We agree to stay away from her, her house, her parents house, her family, all the typical stuff. Then, comes the portion of the hearing where I try to keep from laughing, or crying, but the eye rolling is fast and furious.

Judge: "What about all these clubs and restaurants?"

Me: "Judge, they both frequent these places and she would like him to stay out of them, although when the initial temporary order was signed it said he must stay 25 feet away if he's there at the same time as her."

Her lawyer: "Judge, she would like him to stay out of those places."

Judge: (Starts naming each of the clubs and restaurants and asking who goes there on what night, this goes on for a minute or two).

My client is getting antsy because he goes to one of the clubs on both Thursday and Friday and doesn't want to limit his visits to one night. He also throws her a bone by agreeing to stay out of one of them. The Martini Bar comes up and he won't budge.

At this point I remind myself I have clients facing prison time and ask the Judge to keep the 25 feet rule in place for each of them.

The alleged victim objects, she wants 50 feet. The Judge says some of these places may be to small for 50 feet, while her lawyer mentions that 25 feet is "a little close." The Judge says 25 feet is the distance from her bench to the front door of the courtroom, and I'm starting to chuckle, loudly. the Judge looks at me, not chuckling, because she goes through this hourly. She's not finding me disrespectful, she just looks amused that I find all of this funny.

Finally, the alleged victim proposes a compromise - 40 feet. I ask, annoyed, to leave it at 25 feet, and the Judge has the last word by ordering "50 feet if possible, 25 feet otherwise."

Then I went back to being a lawyer.

Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com