Of Porn And Charity

A South Florida businessman has racked up some impressive donations to the community.

According to the Miami Herald, he's donated tens of thousands of dollars to charities for at-risk and underprivileged children. He has helped keep parks open, bought uniforms for a high school football team and supported bands across South Florida. His recent golf tournament raised $82,000 -- 90 percent of which will be donated to causes such as sending disabled kids to Dolphins games, money for Toys for Tots, police charities, Haiti relief, the American Cancer Society and the American Red Cross, he said.

But his business? He runs a couple strip clubs.

Lap dance anyone?

Now an elementary school in Palm Beach County is considering returning a $20,000 gift because the district learned that the donor, Rodriguez, is not just a wealthy businessman who gives to charity.

No, he also runs a legal business.

Rodriguez has always donated anonymously. Now the word is out, and he doesn't understand:

I've been doing this for years and I always do it quietly, Rodriguez said. Now, for some reason they want to make a big deal out of it.

Yeah. So much for trying to be a nice guy.

So Rodriguez used $20,000 made off of businessmen and college kids looking at naked women and gave it to a elementary school in a low income neighborhood.

Thankfully the media found out and not "citing policy," it looks like the school principal will have to give it all back.

Rodriguez still doesn't understand:

I think it's very small-minded, he said. If you ask someone who has cancer if the money to help them is coming from a strip club, I don't think they would care.

Depends on who has cancer I guess.

Cue the Christian Family Coalition, an organization I believe is not affiliated with the public school system:

The school district should consider what the decision will teach its students, said Anthony Verdugo, executive director of the Christian Family Coalition.

Praise the Lord.

Fearing the school would make a big announcement at the elementary school, naked women and all, Verdugo lays out the tenuous argument:

It came from someone associated with the exploitation of women -- and that demeans half the population, Verdugo said. If you do that, where do you draw the line? That's not the message to send to kids -- that it's OK to exploit women.

And of course if we take these donations, the terrorists win.

Let's not mention that Rodriguez has his own idea of morality - he's a former Marine that has been married 30 years and has six children.

Not everyone objects to Rodriguez' money. He also gave $50,000 to keep a park open for at-risk teenagers. The mayor of that city said while he didn't "condone" Rodriguez' career choice - the donation kept 300 to 400 kids off the streets.

He also makes this shocking statement:

One has to look at the broader picture, Jones said. This is a business that is legal, even though, in a lot of circles, it isn't fully received by society. But we're not living in a world where anyone is on a perfect pedestal. You have to ask Does the good outweigh the bad?

Oh boy, where's the leadership? "Look at the broader (no pun intended) picture?" The business is "legal?" Does the good outweigh the bad?

There are so many messages here, many lessons.

I remember when the newly incorporated city I live in started it's own police department. They were going to have a picnic to welcome the police officers. I spoke to a city official and then followed up with a letter offering to sponsor the event. No response. Yes, I live in the community, raise children in the community, support business in the community, but then again, I do defend criminals for a living.

We see these separations of our citizenry daily. We white people lock the doors in black neighborhoods, we stay away from people who do things of which we don't approve, legalty aside. We cannot comprehend that someone who pays taxes, raises a family, but runs a risque business, can do wonderful things for the community. It says more about us then it does about guys like Rodriguez.

At least we have clean corporations like insurance companies to make donations to schools and parks - when they're not denying life saving procedures to their customers.

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

We, Not They, Lost Two Great Cops

I hesitated to write about this, not wanting to engage the "yeah, shut up, you hate cops," ignorant crowd, but here goes.

Yesterday two Miami-Dade Police Officers were murdered in broad daylight. They went to arrest Johnny Simms on a homicide warrant. To the relief of every defense lawyer in Miami, he's now dead too. Simms was where they thought he may be, and came out of a room, shooting.

As I sat in an airport waiting to come home, I saw the national breaking news on my phone. I told the prosecutor I was traveling with, and we both reacted the same. Yes, a prosecutor and I traveled to a meeting yesterday to discuss changes in the criminal rules - changes which we were on opposite sides. We sat together on the way up, argued intently against each other at the meeting, and then had lunch and did the "same" seats thing on the way back. There's a point to that, some of you got it, for others I'll explain later.

The two officers killed for knocking on a door leave 4 kids. Officer Roger Castillo is a father of 3, and Amanda Haworth a single mother of a 13 year old. Both officers have been on the force for over 20 years, Ms. Haworth's father never wanted her to become a police officer due to his fear she would be killed.

Johnny Simms was a career criminal. He was typical of the "I'm not going to jail today," type that no law or bulletproof vest can prevent. In the days to come, Simms' record will be scrutinized, his 11 arrests, the reasons he was placed on probation, and some legislator will craft a new type of statute that will pretend to prevent this from happening.

The statute will be convoluted, be named after the officers, and will say that someone like Johnny Simms must be sentenced to something, reports must be filed, things must happen.

And a few years from now it will happen again.

There is no law, no sentencing scheme that can prevent a Johnny Simms from murdering police officers again. I trust in Simms' cases there were witness problems and therefore proof problems. No surprise that there were probably certain witnesses not wanting to walk in to a courtroom and testify against this killer.

But first is the tension. Our courthouse will be filled as usual with police officers. They will all have black strips on their badges, all mourning the death of a colleague. The tension will be around for a little while. It will be around in the courthouse, and in traffic stops. Hell, these two were just serving a warrant. They knew Simms was dangerous. Traffic stops, the other site of police murders, are more of a roulette game today then they've ever been. The violence is mind numbing.

Events like this rock not only the police community, but the criminal justice system as a whole, and that includes defense lawyers. Back to my day with the prosecutor.

Those who take a superficial view of the criminal justice system believe that the only way defense attorneys operate, is under the notion that all cops are bad. We spend our days questioning everything they do, and place questions and arguments before judges and juries that evidence their mistakes. In the system many prosecutors believe we hate cops, out of the system, it's the general public.

It's always comical when a prosecutor watches from afar while a police officer slaps the back of a defense lawyer, or comes down to the coffee shop to see a group of officers having coffee with some defense lawyers.

Yes, we spend our days questioning the work of police officers. Some officers will say we make them better at their jobs. We also represent them when they have an internal affairs issue, or worse, get arrested. There are police officers who ask defense lawyers for referrals to other types of lawyers, and there are defense lawyers who are married to officers.

I remember in 1997 when a beloved highway patrolman was killed by a drunk driver. The funeral looked like congress (before they agreed last week to "sit together.") Defense lawyers on one side, prosecutors on the other. I also remember the looks from prosecutors - as if to say "what are you doing here, this was our officer."

It was sad yesterday to see a defense lawyer comment on a local blog about the murders that "I know we criticize the cops, but....." It was as if to say "I know some of you can't understand that everyone does their jobs....."

It's like saying "I'm a Republican, but I'm still upset over the attempted murder of Democrat Gabrielle Giffords."

It's at the heart of the problem with society today - we are unable to understand, accept, and behave in a manner that teaches our children that while people may argue, and disagree, and fight, and battle in an arena, whether that is a courtroom or political chamber - there is another side of life. There are relationships that transcend our profession(s).

I think in small towns this notion of prosecutors, defense lawyers, and cops having personal relationships outside "the office" is more prevalent and accepted. In the big city, there's more of an "us against them 24/7" mentality. I know cops that hate "all" defense lawyers, defense lawyers that hate "all" prosecutors, and so on. I think it's ingrained in us at a young age here. I remember being a young public defender and being told not to be seen in the coffee shop socializing with prosecutors.

I mourn the loss of Officers Castillo and Haworth, regardless of the prosecutors and cops that may say I have no right to do so because I represent criminals and therefore somehow I'm part of the problem. I do not support crime, I don't support violence, and I don't feel better knowing two officers are dead. There are people out there though that can't understand that a criminal defense lawyer would feel this way. It's too bad no one can help them.

RIP Officers Castillo and Haworth.

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

Shame On The Texas Bar, And Us

A 47 year old Texas man, husband and father of two young children, steps on an airplane and goes from 37,000 feet to the bottom of the Atlantic Ocean. Recently promoted to CFO of his multi-national corporation, he leaves us at the height of his career, with his current salary of $1,500.000.00.

His family hires a personal injury lawyer and signs a retainer agreement. The Texas lawyer will receive 33% of any recovery prior to filing a complaint, and 40% thereafter. The personal injury lawyer has a stellar reputation and several 7 and 8 figure verdicts under his belt.

The lawyer writes a "demand letter," and seeks $5,000.000.00. Three days later he receives a call offering $3,000.000.00. Turns out there may have been some safety issue involving the engine, which was discovered by the lawyer doing a quick Google search. With the lawyer having done about 4 hours work, the family agrees to take the $3,000,000.00.

For that four hours of work, the lawyer will receive approximately one million dollars, or $250,000.00 per hour.

And there is nothing unethical or illegal about that.

A 47 year old Texas man, husband and father of two young children, receives a knock on his door from the FBI. Turns out the investment scheme he was promoting is just that, a scheme-to defraud. Recently promoted to CFO of his multi-national corporation, he imagines the inside of a jail cell at the height of his career.

He hires a criminal defense lawyer and signs a retainer agreement. The Texas lawyer will receive $50,000.00 prior to the filing of an Indictment, and $250,000.00 if an Indictment is returned by a grand jury or an Information is filed. The criminal defense lawyer has a stellar reputation and several "stunning" victories under his belt. He has the respect of prosecutors, judges and law enforcement throughout the community. The client happily writes a check for $50,000.00.

The lawyer calls the prosecutor and arranges a meeting. Three days after the meeting, the prosecutor offers to subpoena the client as a witness rather than file charges. With the lawyer having done about 4 hours work, pursuant to his "non-refundable" "earned upon receipt" retainer agreement, the client files a complaint with the Texas Bar, claiming he has just paid his criminal defense lawyer $12,500.00 per hour.

Pursuant to the proposed changes to the Texas Disciplinary Rules of Professional Conduct, he may get the refund to which he agreed he was not entitled.

Scott Greenfield muses about the "right to contract freely" in his post describing the practice of criminal defense."

But he knows we don't have that right. He is probably thinking of Thomas v. Anderson, 861 S.W.2d 58, 62 (Tex. App.-El Paso 1993, no writ). (As a general rule, the court has no authority to determine what fee a litigant should pay counsel, that being a matter of contract). Texas lawyers clearly don't have that right (When interpreting and enforcing attorney-client fee agreements, it is “not enough to simply say that a contract is a contract. There are ethical considerations overlaying the contractual relationship.” Lopez v. Munoz, Hockema & Reed, L.L. P., 22 S.W. 3d 857, 868 (Tex. 2000).

We have the right to do what our State Bar says we can do, because as I've said before, State Bars exist today for the sole purpose of protecting the public from lawyers. "Pay your dues, and keep the clients perfectly happy" is their mantra. While one Bar prosecutor once told me "there are two types of complaints, complaints against lawyers, and complaints against criminal defense lawyers," more and more the civil lawyers who Scott refers to as "Bar types," show their lack of love for us. The love only comes at 1:30 am when the partner who "can't stay in jail or he will die," must be released, and his case dismissed immediately, needs "the best" - for a reduced fee of course because while civil lawyers play like they're rich, they are cash poor and Lexus rich, or don't see the monetary value in criminal defense lawyers. (But get him out now and be thankful that a civil lawyer called you to represent a civil lawyer).

The issue in Texas, that Mark Bennett wants criminal lawyers, no, all lawyers to oppose is the proposed rule that addresses "unearned" fees.

The comment to the proposal states:

Fee agreements sometimes state that the fee is a flat fee, advance fee, nonrefundable retainer, or some other kind of fee. But without regard to the label, if the fee is a prepayment for services, paragraph (d) requires a lawyer to deposit the fee into a trust account until it is earned. Applicable law, not these Rules, determines when a fee is earned.

Dallas lawyer Michael Sawicki writes about the 41 year old seminal case on contingent fee agreements, Mandell & Wright v. Thomas, 441 S.W.2d 841, 847 (Tex. 1969) which contains an interesting dissent. In Mandell, the court held that a lawyer hired on a contingency fee basis, that is discharged without good cause before the representation is completed, may seek compensation in quantum meruit or in a suit to enforce the contract by collecting the fee from any damages the client subsequently recovers.

But as Sawicki notes, "any attempt to apply the 'strict contract' approach will be subject to substantial scrutiny." He also notes the power contained in the disciplinary rules," reflecting "the trend away from Mandell & Wright seen in other states."

The dissent (where most opinions in favor of anything criminal defense lie), "felt the focus on evaluating the contract should center on the facts at its inception, not when the contract terminated."

Here's where it gets interesting for criminal defense lawyers:

Fee arrangements normally are made at the outset of representation, at time when many uncertainties and contingencies exist, while claims of unconscionability are made in hindsight when the contingencies have been resolved . . . Except in very unusual situations, therefore, the circumstances at the time a fee arrangement is made should control in determining a question of unconscionability. Agreements are unconscionable when they are not or cannot be proper, not when it is merely possible for them to be improper.

Criminal defense lawyers understand this dissent without exception, the word "hindsight" sending chills through every advocate of the criminally accused.

As stated in the comments to the Texas rules: ...“unconscionable” adopts a
perspective to give the lawyer the benefit of the doubt of the uncertainties at the outset.

Texas lawyer Roger Hughes, author of Drafting Appellate Fee Agreements and Handling Fee Disputes: A Defense Perspective, writes about "unconscionable" legal fees.

Apparently, back in the 1940's, freedom of contract was paramount, kind-of:

Back then, except for fraud, breach of fiduciary duty, or if the parties to the contract were mentally incompetent or minors (did we prosecute minors back then?)if the contract was valid when made and the parties are mentally competent, it is enforced without court review of the reasonableness of the fees agreed upon. Polybutylene Plumbing, 23 S.W.3d at 436; Parker v. Boyles, 197 S.W.2d 842, 849 (Tex. Civ. App.–Galveston 1946, writ ref. n.r.e.).

When I said "kind-of," I was referring to this language regarding the exceptions:

There are two recognized exceptions to enforcement once the attorney has performed:

Performed? Cue the circus music.

Have I "performed" if I resolve your case, and return you to your life in 3 hours instead of 3 months? I, like anyone else, sometimes get the question at the end of the case: "So, I get any money back?" "No, you agreed the fee was earned upon receipt." Yes, but you didn't do much."

And then I'll ask this question: "If I told you at the time you hired me, that for that fee I would resolve the case in a matter of a day or two, would you have paid it?"

(Shrugged shoulders).

The terms "unconscionable," and "reasonable," when talking about attorney's fees are determined by a collection of theories, definitions and statutes.

"The ultimate litmus test for unconscionable under Rule 1.04 will be a comparison of the lawyer’s time and effort with the fee and the results." See Walton, 149 S.W.3d at 844. Results? Well since contingent fees in criminal cases are prohibited, of course Texas wouldn't use the standard of results for us criminal defense lawyers. So we're left with time, efforts, and fee.

But who determines our time and efforts in comparison to the fee? State Bars claim they don't participate in "fee disputes," which we all know is horseshit, because the dispute invariably revolves around "I paid too much and want some back." As the question is always whether the fee is "unconscionable" or "unreasonable," State Bars do involve themselves in fee disputes. It is only a fee dispute for which the Bar refuses participation when the fee is determined to be reasonable, therefore leaving the issue to a civil court if the client chooses that route.

The Texas Bar has painstakingly tried to convince criminal defense lawyers that "oh, we're fine, don't worry." And this comment to the rule seems to lead a reasonable lawyer to believe them:

Applicable law, not these Rules, determines when a fee is earned

Applicable law? Meaning Texas Law?

TEX CP. CODE ANN. § 38.003: PRESUMPTION

It is presumed that the usual and customary attorney's fees for a claim of the type described in Section 38.001 are reasonable. The presumption may be rebutted.

Ok, so we assume all fees are reasonable, but clients can rebut that presumption.

TEX CP. CODE ANN. § 38.001:RECOVERY OF ATTORNEY'S FEES

A person may recover reasonable attorney's fees from an individual or corporation, in addition to the amount of a valid claim and costs, if the claim is for:

(1) rendered services;

(2) performed labor;

(3) furnished material;

(4) freight or express overcharges;

(5) lost or damaged freight or express;

(6) killed or injured stock;

(7) a sworn account; or

(8) an oral or written contract.

Or an oral or written contract? Is that the "applicable law" of which the Texas Bar speaks?

Wait a minute, if this is the "applicable law," that a lawyer can recover fees simply based on a contract, then are we saying lawyers are governed by this statute and not the Bar rule? Of course not, because this "applicable law" speaks of freedom of contract, which we lawyers do not have. The Bar will determine whether a fee is reasonable, whether the client agrees to it, and even if there is a clear contract.

The Bar committee proposing these rule changes notes that as to flat fee agreements, it should be clear (to the lawyer, as well as to the client) and agreed to by the client," and that criminal defense lawyers should find some other term to use or not use a term and simply be descriptive in a written fee agreement with the client).

The Texas Bar's focus on the criminal defense lawyer's "flat fee," is disgraceful. But it is symptomatic of what Scott Greenfield refers to as the "Bar types" that mill around state bar committees when they are not in their offices waiting for someone to bring them coffee in embossed ceramic cups (with a saucer Goddammit, and now).

And so Mark, I have some bad news for you. Your criminal defense colleagues may vote against this and all the new proposals. More likely, they will remember after the deadline that the ballot went in to the garbage, and they didn't have time to vote because they were "in trial." You are screaming from the rooftops, maybe others are joining you, but the masses won't pay attention until they receive a letter a year from now from the Texas Bar about their non-refundable $2,000.00 fee.

I am a Bar-type. I mill around those Bar committees in my khakis and blue shirts (no-tie) while the masses of civil lawyers in suits with briefcases tagged with their initials in gold who "tolerate" us, cast us off as part of the problem in the profession - disregarding that their precious billable hour is the definition of fraud. I am a Bar-type, I pay my own way to meeting after meeting, speaking up when I hear our criminal defense bar malinged, and constantly trying to convince my colleagues there is a good answer to "why do you go to all these meetings?" They all think I'm doing it for my resume, or some judicial aspiration, and are still wondering why after 16 years, neither has been true.

Until the criminal defense bar infiltrates state bars, gets on every committee, and participates at the same table as the manicured civil bar, we will continue to beg for our constitutionally mandated existence.

Good luck Mark, and good luck my brothers and sisters in the Texas Criminal Defense Bar. May the rights of clients to be guaranteed a flat fee and not be nickel and dimed for every .2 conversation, or charged for when we are "thinking about the case" throughout the representation, be protected.

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

A Weekend Of The First (Not Second) Amendment

I don't remember what we were discussing before Saturday. Health Care? Unemployment? North Korea?

We've now spent the last two days watching the aftermath of the attempted assassination of a member of congress. We've learned in the path of this attempt, died 6 people including a respected federal Judge, a staff member of Congresswomen Giffords, and a 9 year old girl recently elected to student council, a girl who went to the Safeway grocery store for the sole purpose of meeting a government official she could imagine becoming, Congresswoman Gabrielle Giffords.

Now Jared Loughner sits in federal custody as the suspect, charged with a slew of offenses including murder, and we await the (truthful) updates regarding the recovery of Ms. Giffords.

Now let me get one thing out of the way for you anonymous snipers. Yes, if I was an attorney in Arizona and I was asked to represent Ms. Laughner, either by appointment or retention by the family, but for a conflict of interest, I would accept representation. So stop typing your simplistic "oh sure, I'm sure you're all broken up about this but you would represent that monster wouldn't you, huh? huh? Yes. So shut up and go find another blog to anonymously spew your lack of intelligence. I'm not interested in that debate right now and the First Amendment doesn't apply to this blog, even though the ignorant believe it does.

Looks though like Judy Clarke, former counsel to unabomber Ted Kaczynski, will competently represent Mr. Loughner. So go yell at her, tell her you believe in only parts of the Constitution, the parts that allow you to live free because "you'd never be a defendant in a criminal case."

Mr. Loughner needs a lawyer more than anyone in this country right now. You want him to have a good lawyer, because if he doesn't, oh never mind. Let's move on.

I was stunned Saturday. I was told I shouldn't be. because this was bound to happen. I explained it's like knowing a hurricane is coming and then seeing the damage. Reality is always different than the idea of reality.

I don't know who's fault this is, and I'm not all that concerned about it right now. All I know for sure is that somebody shot, wounded, and killed a bunch of people and a congresswoman is in the hospital recovering from brain surgery.

Between Saturday and now, I knew many different things. I knew about the shooting. I knew 5, no 6, no 9, no 3, no it's 6 people died. I knew 15, no 19, no 30 shots were fired.

I knew Congresswomen Giffords died.

I knew that the current state of the media, is in complete disarray.

I took journalism in high school. I learned about the "2 source," rule. Always make sure you have 2 sources. Then, with CNN, MSNBC, and FOX, talking to 2 sources became too time consuming. One person was enough, even if that person was a crank caller trying to get Howard Stern's attention.

The definition of "source" has even changed. It's no longer a public information officer, or assistant, or family member. It's SDOT (Some Dude On Twitter), or a kid with a cell phone at the scene. It doesn't matter who is giving the information. Being wrong doesn't matter, it's being first that matters.

I saw little restraint. Actually, I saw one instance of restraint. FOX's Shepard Smith was hesitant to announce the name of a member of Congresswoman Gifford's staff because he wasn't assured the family knew of his death.

Reporters and anchors have become creative in violating ethics at every instance in the race to be first. Over and over again we hear speculation in the form of non-speculation - "we have no evidence that this is terrorism." Ok, so why mention it? Because "terrorism" attracts viewers. Journalists guess how investigations will proceed, bring on psychiatrists to "evaluate" the suspect, and of course, bring on lawyers to discuss how "they" would handle the case from their TV studio stool.

All of this is ok. That's my point. This weekend was not about the Second Amendment. Congressional events will have more security, people will talk about gun control, but that's about all that will happen as a result.

What I haven't seen is deep, sincere apologies regarding all the bad information that was put out this weekend. We all saw the press conference from University Medical Center where the doctor said Congresswomen Giffords was alive and he was optimistic. I guess that meant (oops) she wasn't dead.

We've heard a lot about "discourse," and "rhetoric." Someone said that we live in a country where when it comes to politics "you either agree with me, or you're evil." I believe that, but I believe that the bigger issue is the proliferation of communication. People can talk all day, all night, in the middle of the night, every day, and do it anonymously. Most important - none of it has to be true. The days of a half hour news (real news) program in the evening, is long gone. News is 140 characters, or less, all the time. John Doe from Tupelo can tweet something and in 10 minutes it's on CNN as news, our new definition of "unconfirmed sources."

I was embarrassed this weekend. I think some people in the media were as well, but their voices are being drowned out by talk of whether this is the fault of one person or another. The media has a way of moving on from mistakes, especially in these days of blaming others for your lack of ethics.

If anyone questioned the strength of the First Amendment, you saw it this weekend. You can basically say whatever you want, and while as the Sheriff of Pima County said there are "consequences" that come with the First Amendment, he was speaking of the consequence that is death and destruction.

For those unfamiliar with the First Amendment, here's a familiar face reading it last week on the floor of Congress.



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

Ha Ha Ha, A Prosecutor Got Arrested

That's not the reaction of every defense lawyer.

But recently, a Texas prosecutor, tough on DUI cases, was arrested for DUI. Former Houston prosecutor Murray Newman got upset at the reaction, calling it a "double standard."

The entire situation sent the criminal defense blogosphere in to a frenzy, as noted by Scott Greenfield:

Taken from a particularized instance to a generic battle, this blew up into a seething animosity lurking just below the surface between prosecutors and defense lawyers. It spawned posts by Matt Brown and Jeff Gamso about the relative nature of our work, our relationship with legal concepts and human reality, and the philosophical foundation for irony. These are all big concepts.

It all started with Houston's own Mark Bennett responding to former Houston prosecutor turned defense lawyer Murray Newman's post:

The presumption of innocence exists and applies to Murray’s friend as much as to anyone: if he is punished for DWI when the government hasn’t proven its case beyond a reasonable doubt, that will be offend our senses of fairness. Any criminal-defense lawyer, called upon to represent Murray’s friend, would set aside personal feelings and fight like hell for him, or—if she finds that impossible—decline the case.

But there is irony here that cannot be ignored: not only did Murray’s friend faithfully serve for years the system that now has him in its clutches, but he also has, more than once, argued for harsh punishment in alcohol-related cases to “send a message.” When he has done so, he has hurt human beings. Did they deserve it? Murray and his ilk think they can tell; I’m not so sure, especially when the difference between a maximum of six months in jail and life in prison is—as in Howard’s case—nothing more than dumb luck. I think that knowing what a person deserves would require a godlike wisdom that no prosecutor I have ever met has had.

Blizzard and Allen thought that Howard deserved life in prison. I think they might well have been wrong. Right or wrong, Blizzard and Allen harmed Howard, as prosecutors harm human beings every day. They think—how could you do the job and not think this?—that the people they are harming deserve the harm. And they may be right; the harm they do may be justified … but some of the risk that they are wrong falls on them. If they are wrong, and there is Justice, there will be consequences.

Mark then makes the point regarding the reaction when someone on the "other" side of the criminal justice system winds up a defendant:

A criminal-defense lawyer might feel schadenfreude at a cop’s or a prosecutor’s unfortunate encounter with law enforcement; this is entirely natural. When we feel it, we should note it, think about its roots, and not be ashamed: criminal-defense lawyers are allowed to have feelings, emotions, and even prejudices.

Murray says that when he was a prosecutor:

I never relished in the misery of a defendant that I was prosecuting. I was always keenly aware of the repercussions prosecuting somebody had on collateral matters such as a defendant's family, his job, etc.

That's not the philosophy of every prosecutor, and Murray makes the point:

Somewhere along the way, people picked up the erroneous perception that prosecutors, and by extension, police officers do their jobs because they just truly enjoy ruining people's lives. They enjoy the power trip. They enjoy the chaos.

I am sure that there are probably some prosecutors and police officers that fit that description. And maybe I'm naive, but I truly believe they are in the small minority.

Problem is that those on that power trip are in the same courthouse as Murray. The defense lawyers that went up against Murray, went up against those he calls the "small minority."

Murray is mad at the defense bar. He says that:

Those same defense attorneys, who will gladly stand by any accused murderer, rapist, or pedophile, will vocally celebrate if a police officer or (fingers crossed!) a prosecutor gets arrested for anything. Die-Hard civil libertarians who will (rightfully) proclaim any citizen's Presumption of Innocence, suddenly forget that standard if the person accused is a public servant enforcing the law.

He goes on to say that:

The irony of the situation is stunning, because as members of the Defense Bar celebrate and rebroadcast the arrest of a prosecutor or police officer, they are abandoning the most sacred principles of the Constitution.

But I will never think that they are bad people deserving of trauma in their lives simply for being prosecutors, because that is nothing short of absurd.

And I would never take pleasure in the troubles.

Anyone in the criminal justice system for a few years has seen a colleague, prosecutor, cop, arrested. Hell, when I was an intern in a state attorney's office in law school, a public defender was arrested for his third DUI.

And there was a feeding frenzy. Happiness abound.

Let's not dance around this - anytime someone who enforces law, or defends alleged criminals is arrested, there is a certain "see how that is" reaction.

The reactions, however, depend on two things:

1. The maturity of the lawyer; and,
2. The character of the arrested.

I've known a bunch of prosecutors and defense lawyers arrested, many cops - even judges.

Bad things happen to bad people, and bad things happen to good people.

Upon hearing of the arrest of a prosecutor, my reaction may be, "damn, that's too bad, he was a good guy, always fair, always professional. Or my reaction may be "damn, that's too bad, and too bad the guy's an asshole."

It's real simple for me. It has nothing to do with it being a prosecutor, cop, or judge. It has everything to do with my knowledge of the hell that is the criminal justice system, along with my thoughts on the person arrested. Even the most mature lawyer, upon hearing that the "toughest, meanest" prosecutor was arrested for something, is going to have some sense of Kharma. Some may even wish for jail for a prosecutor that never considered giving anyone a break.

Any defense lawyer that relishes in the mere fact that "a" prosecutor is arrested, better hope they never step off a sidewalk when a cop is around, or have one too many ar the bar on Friday evening.

I've seen some of the most aggressive prosecutors, after arrest and on their way out of the office for good, become different people. It's a humbling experience. While I don't hope for the arrest of any prosecutor, I hope that every defense lawyer out there has the chance in their career to go up and shake the hand of a tough nose prosecutor after they were arrested and wish them luck and watch them almost driven to tears.

I've done it, several times.

The lesson here is that if you are seen as someone who uses what power they have, to the fullest extent, then when you are on the other side of that power, people are going to want to see you incur the wrath.

It's just the way things are, in criminal justice, in everything. We want celebrities to fall so we can say they are just like us. We want people who we perceive as abusing their power, to get abused. When people fall, there are those who want them to get up, and those that want to push them down. Some of this is revenge, some is of the person's own doing.

Kind of all comes down to the Golden Rule, huh?

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

Embracing Michael Vick

The other day I saw a criminal defense lawyer promoting a petition against President Obama's words of thanks to Philadelphia Eagles' owner Jeffrey Lurie for giving Michael Vick a second chance. This criminal defense lawyer spends a great deal of time advocating against animal abuse. I think that's wonderful.

But I disagree that criminal defense lawyers should be raging against Vick getting a second chance.

Now to discuss this, I need to go back a few steps. You can't discuss anything relating to animal abuse without making a few things clear. So to all you animal rights activists, stop typing, for a moment.

Certain crimes are more emotional than others - crimes against children, the elderly, the disabled, theft of money from charities, and yes, animal abuse.

Animal abuse is one of those crimes that is defenseless. Stealing food, for example, while a crime, can be understood if the person is starving to death.

Abusing defenseless animals is something for which there is no excuse.

Michael Vick abused defenseless animals. Call it "dogfighting," call it whatever you want - he put dogs in an environment where the goal was for them to kill each other. Disgusting, pathetic, criminal.

So before you type line 6 of the talking points "you support dog fighting, I don't.

I support Michael Vick getting a "second chance," and encourage all criminal defense lawyers to do the same.

Let me continue.

When the ink was still drying on my law degree, I was appointed to represent a Santeria priest charged with slaughtering animals. His defense - religion of course, but the way he slaughtered these animals was not in accord with religious methods.

A few weeks after my appointment, I was called in to court. The judge was receiving letter after letter, call after call. On the record, the judge handed over all the letters that were received - everyone saying the same thing, word for word. "If the defendant is convicted he should receive the maximum sentence." Some letters varied. Some were downright nasty, particularly the one written by my aunt.

The letters to the judge kept pouring in. A leader in the Florida ASPCA made sure he went to the press and trashed my client. I responded with a letter to his boss. He responded with a letter to my (new) boss. I was told to apologize and back off - "we don't need to get in to it with those people." My boss was on the cusp of an election. I complied.

The point is that animal rights activists are not the easiest people with which to engage in debate.

I told this criminal defense lawyer that I didn't think criminal defense lawyers should be advocating that someone who pled guilty, served their prison sentence, and successfully completed probation, shouldn't be able to return to their profession.

Now I've learned over the years that the criminal defense bar is not homogeneous. There are conservative republicans, liberal democrats, devout Christians, and devout atheists (is that an oxymoron?) There are criminal defense lawyers who passionately believe in the death penalty, and those that believe every client is innocent. It's important as criminal defense lawyers that we understand this distinction. We may be on the same side of the system, but we are far from all being on the same team when it comes to many of life's issues.

When I pursued the issue of Vick getting a second chance, and how we as criminal defense lawyers should use this experience as a way to show people that being a convicted felon should not be the end of life, I was told to have a sex offender babysit my kids. I wasn't surprised, this is how this crowd rolls.

I explained that football has nothing to do with dogs. Of course I wouldn't let a sex offender babysit my kids, nor would I let a chronic car thief borrow my car - but Michael Vick should be able to play football.

Now when Vick was arrested, I said he would never again play in the NFL. It wasn't because I didn't think he should play, but because I thought that the animal rights advocates would make the world of the NFL a living hell - that they would attend every game, protest sponsors, yell things to fans entering stadiums.

There were some protests, but they died out. The objection now is clear: Vick is doing well, he's throwing good passes, running fast, making fans happy. This, is the objection.

I asked this criminal defense colleague to tell me what would happen if Vick was a plumber? What if Michael Vick was a plumber, got arrested for dog fighting, pled guilty, went to prison (by the way, how many people have gone to federal prison for dog fighting?), was released, and went back to plumbing? The answer is obvious - no one would care.

The caring comes from the fact that Vick went back to a career where the world can see him on Sundays, and his salary is not $30,000, but more money that most people make in a lifetime. Animal rights activists don't find this fair. That's ok, I understand. They wanted life, or death.

We live in a society where just getting arrested these days can end a career. Convicted felons have little chance of getting a job, much less returning to their former careers - even when their job has nothing to do with their crime.

The argument from criminal defense lawyers who despise Vick is that "none of my clients would be able to finish their sentence and return to making millions." It's the rich vs. poor argument that gets us nowhere. It's the "why did he get that sentence and my client got this sentence" cry that results in nothing.

The discussion of "celebrity justice" when it comes to Vick though, is non-sensical. Vick didn't get celebrity justice. He got indicted, he went to prison, he served his time. He killed dogs. No one thinks that's ok. But his job is to run and jump and throw, not to be a zoo keeper or a Veterinarian.

Sometimes the criminal defense bar needs to take the opportunity to use an anomaly in the system to their advantage - talk about how someone like Vick can return from the depths of conviction and be a productive person.

Or use your agenda to wail against what it is you really want - an opportunity for your client to be like Michael Vick.

Brian Tannebaum practices both Criminal and Bar discipline defense, and is the author of The Truth About Hiring A Criminal Defense Lawyer. Post to Twitter

Anyone Available To Cover?

Matt Brown over at Chandler Criminal Defense laments the crappy, lazy, too busy to represent their clients, lawyers who have their own definition of "coverage."

He recalls his early days of practice:

When I first started out, other attorneys would regularly take advantage of my willingness to help out. I was eager to meet lawyers and get into court. Other lawyers were eager to avoid work. Lawyers who had the same tribal indigent defense contract I did would ask me to cover hearings and tell me the hearings were just simple continuances. The clients were pissed no one visited them, judges were mad the defense had blown deadlines, and prosecutors were frustrated that the defense hadn’t returned their calls. One lawyer asked me to cover what she said was “a dismissal.” I appeared and it was a bench trial. She thought the victim wouldn’t show and it would just get dismissed. She thought wrong, and I was like a deer in headlights.

Criminal defense lawyers who are members of e-mail listservs know all too well the everyday occurrence of this:

"Is anyone going to be in (name courthouse) tomorrow?"

Or with the economy causing lawyers to take cases hundreds of miles away from home:

"Can anyone cover a case (name city at least 150 miles away) tomorrow at 9:30? It's the first pre-trial conference, just need a continuance, thanks."

Matt's post goes in to detail regarding one hearing he covered that turned in to a "disaster." Those of us who have covered know about these "disasters" all too well.

I caused a disaster for a lawyer once. I went out of town. (Rule #1 for criminal defense lawyers - you cannot go out of town when anything is set for court, period. It does not matter what is set. If you are not there, something will go wrong. Guaranteed.) A client was set for trial. There was some sense the victim was not going to appear and the case was going to be dismissed. The client made clear that if the victim appeared, he would enter a plea of guilty. The victim appeared, and the client changed his mind. My "coverage" lawyer spent 4 days in trial before the case was eventually dismissed. Yeah, terrible.

Matt Brown says: I can’t just refuse to help out other lawyers when they really need it. If I know they’re incompetent or unethical or there’s something else wrong with them, the case, or the situation in general, I say no. I have no problem disappointing people when it’s necessary. What happens when the lawyer asking me for a favor is an unknown though? Do I only help lawyers when I’m familiar with their work? How familiar? Or do I help anyone unless I have reason to believe they suck? Should I help anyone regardless of my opinion of their lawyering so long as they haven’t thrown me into a crappy situation in the past?

You're a good guy Matt, but you need to draw a line when it comes to stepping up to a podium to advocate for a client - even if it's not your client - especially if it's not your client.

First, never cover a "critical" hearing for a lawyer. I'll cover your motion for continuance, or "status" report. (or whatever you call a "judge, I'm here to advise the court that...... hearing). I will not take a plea for you. Most lawyers worth anything would never ask another lawyer to cover a plea - too many things can go wrong, like the client can decide not to plea and the judge can announce that a jury panel is coming down now and you are trying the case.

Second, I will not cover for those lawyers who, as a practice, take cases all over the state with the knowledge that they can seek coverage all the time. If you want to take a case 300 miles away, that's what we have airports and expressways for, not e-mail listservs. It's the same lawyers, sending the same e-mails, all the time. If you can't make money practicing close to home - move.

Finally, I'm not covering for shitty lawyers. Chances are, you're not telling me the whole story, like that your client is routinely late, brings his girlfriend and screaming baby in a stroller to every hearing, or will keep me outside in the hallway for 20 minutes asking me questions I can't answer. If I don't respect you as a lawyer, I'm not entering a courtroom and announcing that I know you.

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

Judge Roberto Pineiro

Judge Roberto Pineiro died today. He was 56. He had a stroke.

The death of a judge is a unique experience for a courtroom lawyer. Courthouses are like small cities, full of different types of people with different reputations among the various practitioners. There are "good" judges, there are "terrible" judges, there are judges that make people wonder how they ever became judges, there are judges who are "fine," or "OK," and there are "great" judges.

Rob Pineiro was a great judge.

I knew him as a intensely fair man who could spot bullshit better than anyone on the bench. Reading comments on various websites from both defense lawyers and prosecutors alike, I am not alone in my opinion.

That is how you determine whether a judge is "great" - when lawyers on both sides of the courtroom have the same high opinion. It indicates a judge who plays no favorites, allows people to be heard, and does the right thing.

Judge Pineiro's death is sad because he was young and well liked, but it is tragic because those that practiced in front of him all felt like they were in a courtroom where justice was doled out. I read comments today from prosecutors who often lost in his courtroom, and from defense lawyers whose clients received lengthy sentences. All comments included a deep affection for Judge Pineiro.

Judge Pineiro was famous for his involvement in resolving cases. Even after case law held that off-the-record conversations with judges about plea offers were a recipe for reversals, Judge Pineiro continued the old school way of clearing his calendar. He'd take the 28 year old prosecutors and 26 year old public defenders and a smattering of private lawyers in to chambers and tell prosecutors not to bullshit him, and defense lawyers that they were crazy to take the case to trial. He'd take a 3 year prison offer and reduce it to 6 months jail because we all knew that this is what the case deserved.

Judge Pineiro was unique. To go on would be a waste of time for those reading here, because unless you were in his courtroom, you cannot understand the impact of his presence on the bench.

But I do have two stories that define the man. Neither are my cases, for those I have my own stories.

The two stories happened recently, in fact on the same day.

It was a busy day in Judge Pineiro's court. Dozens of cases, way too many people in the courtroom needing to speak to the prosecutors and public defenders, and Judge Pineiro keeping things moving along like a conveyor belt. He was not an impatient man, but there was no need to spend 10 minutes on something when 3 would do.

The prosecutor told Judge Pineiro she was offering credit time served to a woman in jail on a probation violation. All she needed to do was admit the crime, and she'd be sent home. Someone noticed there was a co-defendant in the case, and the co-defendant's case was closed. The question was asked what disposition the co-defendant received. The prosecutor responded that the disposition was a dismissal. That someone who noticed there was a co-defendant and asked about the disposition was not the defense lawyer - it was Judge Pineiro, who then asked "well don't you think this defendant, who's charged with the same exact crime, should get the same exact disposition?" The defendant didn't care, she was going home either way - but Judge Pineiro wanted to make sure the right thing happened.

On that same day, the prosecutor offered a very generous plea to a defendant on a drug possession case. The defense lawyer announced that the defendant would accept the plea, and then walked away from the podium to talk to another client. The prosecutor also walked away to deal with another matter. The next words heard in the courtroom were "does anyone have a motion to suppress?" No one responded. Judge Pineiro then read aloud the arrest affidavit, which laid out a law school type scenario where the search and seizure of the defendant was a textbook violation of the Fourth Amendment. Judge Pineiro then asked the defense lawyer again - "would you like to move to suppress the search?" Like he was woken up from a nap, the defense lawyer said "yes," the motion was granted and the case dismissed.

Judge Pineiro paid attention. He had a sense of his duty that went beyond the factory type setting we often see in our courtrooms where the only goal is to close cases.

I don't know how many cases Judge Pineiro had on his docket when he died today. I know it doesn't matter, because tomorrow there will be more.

Unfortunately, those defendants, and the lawyers who prosecute and defend them, won't have the privilege of having their cases presided over by Judge Pineiro.

In 16 years of practice I've been in front of many judges. Many are memorable for both good and bad reasons. Judge Pineiro is one of those that I will forever be thankful that I was able to practice before, and I will count as someone in my career that I was incredibly lucky to know.

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

Our Addiction To The Flexible (Non) Payment Plan

"Get it up front." That's the advice from any experienced criminal defense lawyer.

But cash flow is slow, you need the case, and you're OK getting $1,500 down on a $5,000 fee, because you really need that $1,500 right now.

A month later that first of seven $500 payments doesn't come. You hope the judge will give you enough continuances to get paid, and you're looking for a way to convince the client to pay his fee. In the end, you've received $2,500, you hate your client, and most of the conversation with him is about "when" he's going to pay.

This isn't his fault, it's yours. There's no such thing as a payment plan. It's a non-payment plan. When clients don't have to pay all the money, they don't. Remember, you're representing people accused of crimes. Some of them are accused of crimes having to do with theft or fraud. Some of them haven't done so well fulfilling obligations, so why do you expect they'll fulfill their obligation to you?

But the flexible payment plan is here to stay. Criminal defense lawyers who run factory type offices are fine with them. They'll take the credit card for the $500 down, do that a few times a day, and in the end, it's enough to pay the overhead and take a little for yourself. The lack of payment of the rest is the cost of doing business. Maybe in a year you'll look at your receivables (if you even keep track) and want to (unsuccessfully) try to collect.

I listen to how criminal defense lawyers run their practices. I hear about all these things. Sure, there are the clients that pay, but more often it's about chasing the money.

There's payment plans, and payment plans. Taking half down, or even a third and accepting a few payments may work. If you have a real case and not some show-up-once-and-get-a-plea thing, it may be OK. But generally, payment plans are a recipe for getting the down payment and nothing more.

I know "your clients" can't pay all up front. You sure about that? Have you ever asked for it all up front? Is it so foreign to you that you would never even think of it?

If you have the type of practice where you spend your days "feeling bad" for your clients, I just hope you have the type of practice where not getting paid is not an issue. Maybe you don't have rent in your home office, maybe you have no assistants, and your only overhead is your cell phone.

Those of us that don't get paid the fees we quote, deserve it. We need to stop complaining about it. People will treat you how they are permitted to treat you. If you allow clients to pay over time, you are telling them you don't really need the money.

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

A Criminal Defense Lawyer's Thanksgiving - Tyler Weinman Edition

Unless you live in my neighborhood, you probably don't know the name Tyler Weinman. Yesterday the Miami-Dade State Attorney dropped all 19 charges against him. This happens - prosecutors dropping charges, dismissing cases, setting formerly accused defendants free.

But since last year, when Tyler was 18, he wasn't known as "Tyler," he was referred to as he was in today's headline:

Accused serial cat killer cleared of charges

Police and prosecutors -- who initially relied on the opinions of Miami-Dade's Animal Services department -- built a circumstantial and highly publicized case in the mutilations that terrorized pet owners across the upscale cities of Cutler Bay and Palmetto Bay.

Weinman was initially accused of slaying 19 cats in South Miami-Dade, was faced a slew of burglary and cruelty to animal felonies.

Why were charges dismissed? Lost witnesses? Contaminated evidence? Lazy prosecutor?

No.

Two scientific experts determined that an animal, not the teen, was to blame for a string of grisly feline mutilations in South Miami-Dade last year.

Actually, there were 3. Two of them worked for the state.

The important inaccuracy in the the article is the statement - That means Tyler Weinman, 19, is now a free man.

Free, as in no longer under conditions of bond, no longer facing prosecution or jail, but not free like me, or you.

Tyler is the accused serial cat killer. To the many commenters (unemployed illiterate morons who do nothing but type comments all day on newspaper websites) Tyler is guilty.

The lesson is that we live in a society where the government's accusation is paramount. Damn the truth.

If I could have anything today, it would be to be at Tyler Weinman's house tonight.

Other things I'm thankful for:

The prosecutor who this week dropped a charge that would have made my 18 year old client a sex offender for life. My only regret was not asking him to step outside the courtroom to see the half a dozen family members crying uncontrollably. The prosecutor didn't drop the charge because he couldn't prove my client had sex with his underaged neighbor, he dropped it because he thought it was the right thing to do.

To criminal defense lawyers everywhere, that phrase, the right thing to do, has special meaning. We rarely see it.

I'm also thankful:

That Kathleen Williams, the Federal Public Defender of the Southern District of Florida was nominiated to the District Court. I hope she is confirmed soon.

That I don't have to use the word aggressive, or the phrase fight for your rights on my website or anywhere else, because those who call for my services already assume that.

For the young (and older) lawyers who solely based on something I wrote, have decided not to spend a dime with some failed or former lawyer on social media marketing.

For public defenders who go to court everyday and deal with unappreciative clients, impatient judges, impossible case loads, and a salary that is little more than I made doing the same job 13 years ago.

That I do this work because I still love it, not because I find it "easy," or I couldn't make money in some other practice area.

For anyone who reads this blog. Some set up blogs for profit, for the promise of clients. I do it for myself, and that one person every so often who e-mails me and tells me they took something from it.

For the few people left in this country who say they appreciate and understand the importance of the criminal defense lawyer, and actually mean it.

For Families Against Mandatory Minimums.

For Frederick Banting.

For any judge who understands, really understands, that due process is notice and the opportunity to be heard.

That I can call as friends,

lawyers

who

wake

up

every day

and

do

something

that

affects a persons freedom.

Happy Thanksgiving.

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

This Isn't Burger King

Two recent calls to my office contained the same type of client - "this is how we're going to do things.

The first had an employee call and advise that the boss currently had a lawyer but was looking for someone else. The employee refused to disclose the bosses' name because the last (read: one of 12) lawyer contacted his current lawyer and now he thinks his lawyer is upset with him.

I advised that anything the boss told me in contemplation of representation was attorney client privileged, but at some point, if hired, I would need to speak to his current lawyer.

A couple weeks later, boss calls and begins talking to me. I stop him and ask his name. He refuses to tell me. I explain that I cannot determine whether I have a conflict in accepting representation unless I have his name. He says, "ok, here's what I propose..." I responded, "here's what I propose, the next two words out of your mouth are your first and last name." He apologized for "wasting" my time, and hung up.

Potential client two calls and advises she wants to meet with me - "today.". I explained that I didn't know if I could meet with her that day, but if she faxed me her documents, I would read them over and try and call her.

I do this in most cases. If the client has documents I can review before a face-to-face meeting, maybe look up the docket sheet and see who the judge and prosecutor are, maybe do a bit of research, the face-to-face meeting can be more productive.

"I don't feel comfortable faxing you my documents."

This is a potential client that believes my fax machine is in the middle of a shopping mall, next to the candle kiosk.

I explained that my office was small, and the fax actually went right to my assistant's computer and then to me.

"I just don't feel comfortable faxing it to you."

I told her if she wouldn't fax me the documents, there was nothing I could do.

She said thank you and hung up.

Neither of these clients are clients I want. They are people with serious problems, who believe their control of the situation is as important as hiring a good lawyer. Many other lawyers would succomb to their desire to control the representation - anything for a fee, right?

I don't like paranoid clients - the ones who will never answer their cell phoones because they believe the FBI may be calling to discuss their recent possession of marijuana, the ones who take copious notes in my office (I don't allow that) so their Bar complaint against me has sufficient detail ("Mr. Tannebaum guaranteed he would win my case, have the prosecutor fired, and return all my money.")

These clients were more than paranoid, they were ones who would second guess every single thing I did throughout the representation. My experience, knowledge, relationships with people would mean nothing to them, they would have a better way of handling the case, throughout.

Many in our profession say "it's all about the client." Our profession - that of the criminal defense lawyer - is a simple one - we represent clients who are in trouble, may be in trouble, or in rare cases, are trying to avoid trouble. Yes, it's all about the clients.

But just like going to a doctor and seeking advice on a medical condition, it is inappropriate for a patient to say "doc, I'm going to lay on my side while you do this, instead of my back."

Many in our profession are willing to let clients run their lives and tell them how to do their job.

I am not.

If you want to "Have it Your Way," I'm the wrong lawyer.

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

Now You Want Some Civil Liberties? Now? Too Late.

It's funny watching my fellow Americans bellyache, whine, and express shock over the TSA's new policy of "doing whatever the hell we want to anyone and there's nothing you can do about it."

For a criminal defense lawyer, this is nothing new. Anyone here ever try to tell a judge about something going on in the jail? First reaction: "I have no jurisdiction over (corrections) (Bureau of Prisons). Judges have much power, over a lot of things, except apparently where they send defendants. I'm not sure many are bothered by the fallacy that there's nothing they can do. Makes the job easier.

And so it is we do the same dance here. While TSA Chair Pistole continues his PR campaign of "the (beatings) pat-downs will continue," no one appears to be stepping in to claim jurisdiction over the TSA. We all know it's Congress, but they seem to be doing the "yeah, what he said" thing without any more. Our President supports the "enhanced security measures," which doesn't bode well for any significant change, and the media is doing their media thing where one story has 3 people who are outraged, outraged I say, and another story has 3 people who think everyone should have to fly naked.

Why I find it all funny, is that after 9/11, no one cared about civil rights, or civil liberties. If we needed to search every home in Topeka, Nashville, and Mayberry, (except yours, and his, and his) to find Osama Bin Laden, it was perfectly fine. If we needed to get every piece of personal information from everyone breathing on the planet (except yours of course), fine. If we needed to push aside the warrant requirement for recording phone conversations (I know we can record yours, you don't care, you don't say anything terrorist like), fine.

We drew no line. We accepted that fear was everywhere and anyone that would help subside that fear, even if it meant taking the clothes off our kids, was acceptable in the name of the war on terror.



I'm surprised it took this long for pat-downs at airports. The "Christmas Day" bomber carried explosives in his pants, so off with your pants. Remember, we take off our shoes (and now don't put them in a bin but directly - DIRECTLY I SAID - on the belt- in honor of the shoe bomber. Comedian Bill Maher once said that if someone tried to commit an act of terror on a plane while wearing a blue hat, blue hats would be prohibited.

No, I'm not a communist, and I don't support terrorism, and I don't have the answers. I do know that once we as Americans gave total and complete power to our government to move the line of acceptability when it comes to our civil rights, we lost any credibility in trying to move it back, or even keep it where it is.

By the way, Wednesday's "opt-out" protest, will be a miserable failure. Sorry but everyone's got to get somewhere, no time for taking a stand on anything this week.

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

Screw The Public Defenders

There's just no such thing about a stupid comment among friends. When it happens, blogging about it the next day is as timely as eating 4 week old bread.

My friends David Markus, Jeff Gamso, and Scott Greenfield reported the news yesterday that Aspen District Attorney Martin Beeson (great website by the way) said:

Public defenders are not defenders of the public. They are not serving the public good. They are taxpayer-funded attorneys for criminals.

The comment came in response to a reporter's question about the disparity between budgets for prosecutors and public defenders.

These are the kinds of stories for which little commentary is needed, but we discuss them anyway. The story is not just that a public official, the public official charged with seeking justice feels this way and said it, it's that many agree. The respect for the Constitution and its Amendments (see Amendment Six) has dwindled to nothing more than a demand that no one take their guns away.

Reaction was as expected. Disgust. Those who agree, quiet. Shawana Geiger, President of the Colorado Criminal Defense Bar, has asked for a retraction. There is also this blog post requesting an apology or resignation.

I'd request both.

I also think the Colorado Bar should investigate if there was a violation of Rule 3.8(f)

except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.

Beeson is unrelenting. I stand by my statement. The so-called public defenders do not defend the public. The law enforcement defends the public. The prosecutors defend the public. Public defenders are government-funded defense attorneys and should be called just that, government-funded defense attorneys.

What Beeson really wants, is defense attorneys to lay down. Most private defense attorneys in this district are men and women of integrity.” But he criticized some lawyers for meritlessly accusing him and his office of prosecutorial misconduct, attacking victims of crimes at trial, and frustrating the DA’s efforts with superfluous motions to suppress evidence.

Be sure, there are other elected and appointed prosecutors and their assistants that agree. Just like there are defense attorneys that believe all prosecutors are liars.

People like this don't belong in the criminal justice system. That's as simple as I cam put it. Anyone who believes the other side is by default, a "problem," has no concept of criminal justice, the adversary process, or law.

But they're around. They just know better than to express their true feelings to someone with a tape recorder.

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

What I'll Say To The Civil Lawyers

I'm watching the sunrise outside my hotel room window here in Jackson, Mississippi as I prepare to speak at a CLE conference sponsored by Ole Miss. They asked me to speak on the topic of civil lawyers practicing criminal law. Why not? I've never been to Mississippi, they were willing to pay the freight, and it's always good to meet other lawyers.

I prepared my talk without any guidance. I was simply told that the crowd would have a "good number" of civil lawyers. I knew I had to remember to be sensitive. Outside of big cities, there are few lawyers who only practice criminal law. My traditional hotel room review of lawyer ads in the yellow pages finds my theory correct here in Jackson.

My tone would be that criminal law is not as "easy" as cash flow hungry civil lawyers would think, and to remember Rule 1.1 of the Model Rules of Professional Conduct - Competence. I would go on to talk about all the things criminal lawyers have to think about - IRS 8300 forms, Padilla, money laundering, conflicts, etc...

Then last night at the speakers dinner, I was given more specifics - there are a bunch of registrations from BigLaw associates. I learned more - that BigLaw, at least here in Mississippi, is increasingly keeping things in house - including criminal cases. Now they just need to have someone competent to handle criminal defense.

My audience today will not be merely part-time criminal lawyers who also do divorce, PI, Bankruptcy and "18 Wheeler accident law" (lots of that here) who are looking to fine-tune their skills, it will also be lawyers who have never set foot in criminal court, and are now going to be their law firm's criminal practitioner.

They won't like my presentation. I won't be telling them it's OK to get a fee and immediately beg the prosecutor for a plea offer so they can close the case and get back to document review. I won't tell them they don't need to investigate their cases, talk to witnesses, research holes in the case, file motions to obtain additional discovery, or go to the scene of the crime.

There is no formula to practicing criminal law. There is no script. I won't be telling them to go from A to B to C to D. Cases ebb and flow, and while one day you're looking at a hopeless case, the next day you're picking a jury, in that same hopeless case.

I will tell these civil lawyers that unlike what they do on a daily basis - the useless motions to compel, the .2 review of court notices, the conferences (lunch) with the partner to discuss "strategy," representing a client in criminal court matters. I will tell them that people go to jail when they lose criminal cases, they don't just write checks.

When it's over, the criminal lawyers will say "thanks." The part-time criminal lawyers will take a new look at their criminal cases, and the civil lawyers will either decide they don't want to jump in the water, or tell me I don't know what I'm talking about.

Regardless, I've got a 4 p.m. flight home.

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

An Investigation Of Prosecutors

There is a notion deep within the criminal justice system that prosecutors, and those that assist them (police, investigators, witnesses) commit violations of ethical rules, and those violations are protected by judges, and the Bar.

We all saw the video of the Arizona cop who took a document out of a defense lawyer's file while a full courtroom looked on. We saw the judge's initial reaction of, "I'm kinda busy here."

That prosecutors rarely receive discipline is more than a lament, it's a fact. The public doesn't much pay attention to this, happier to believe that the defendant is "guilty anyway," and these violations are OK, as the greater good is served - the coveted conviction.

So yesterday's headline: California Bar Reviewing 130 Prosecutors for Possible Disciplinary Action, was almost embarrassingly responded to by lawyers across the internet.

Little will come of the investigation, other than the ruffled feathers of prosecutors everywhere. It's more symbolic than anything else. The investigation is more of a defensive move, as a result of a report that discipline of prosecutors who commit misconduct, is "lax."

The first line of defense? The report itself: The report by Northern California Innocence Project at the Santa Clara University School of Law noted the
majority of California prosecutors use fair methods
to prosecute those they believe are guilty.

Well, that's true, but does that mean that a little bit of misconduct is OK?

The numbers are a wake up call to the law and order types that believe that even with exonerations of the innnocent, everything is "just fine."

The study found that over a 13-year period,

600 prosecutors have committed misconduct
according to rulings by state and federal appellate
judges. They range from small technical mistakes to u
nfair and deceptive tactics to win cases, such as
hiding evidence. The study analyzed about 4,000
appellate court rulings from 1997 through 2009.

Sixty-seven of the 600 prosecutors committed
misconduct more than once.

Only seven of the 600 prosecutors whom the
courts found to have committed misconduct were
disciplined by the State Bar -- slightly more than 1
percent.

Prosecutors are not happy: Scott Thorpe, director of the California District
Attorneys Association, faulted the study for
exaggerating the problem of prosecutorial
misconduct.

"It dramatically overstates the problem," Thorpe
said. "They didn't quote one single prosecutor. It's
upsetting."

Upsetting.

They didn't "quote one single prosecutor?" Well, score one for us in the line publications and articles where defense attorneys are left out. Ever notice that? Read a few articles on a criminal case or issue - watch how many times a defense lawyer is quoted or mentioned, as compared to a prosecutor. It's an epidemic.

Even the Bar's appointed chief trial counsel sounds like he has little hope anything will come of this investigation:

Towery said most of the misconduct is
probably not serious enough to warrant public
reproval, suspension or disbarment.

I wonder what "not serious enough," means? Is it based on the amount of time an innocent guy spent in jail? Or is it based on whether the defendant was "really, really guilty?" Are we now applying harmless error to prosecutorial misconduct?

We'll see.

I wish the California Bar good luck in conducting a fair and throrough investigation. I hope something important comes out of it, even if there is no discipline because the allegations are too old or don't rise to anything more than allegations. These prosecutors deserve a fair and impartial investigation - their law licenses are on the line, and specious allegations are dangerous and career threatening.

Although the investigation may end with no formal discipline, the message from the California Bar is received - all lawyers are subject to the rules, even if they are only trying to put someone in jail.

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

Simple Blogging, 25,000 Comments Later

Last night, Simple Justice author "Surviving" Scott Greenfield announced the 25,000th comment had been posted on his blog.

Odd announcement from someone who feigns the hype of numbers in the social media world.

But the number, itself, is significant. Not that it's 25,000, but that it's 25,000 comments, written by humans (yes, some spammers) who have touched a keyboard for the purpose of responding to something written about a real issue by a real (lawyer) person.

Twenty-five thousand.

There will be no love for Scott Greenfield today due to this feat, and let's be clear, it is a feat. It's a feat because Scott violates all the new rules of blogging. He doesn't let (a marketer) someone else write his posts, he doesn't throw up all over his blog with links to his law firm, he doesn't spend his days blogging about how all the shiny new toys of Apple will change the lives of lawyers, he doesn't ask others for links, nor allow others to gratuitously link to their garbage marketing site du jour, and he responds to almost every comment left for him.

The social media marketers, the failed lawyers who (are broke) work daily to convince lawyers how to blog, stay clear of Scott. He has reached the success in the blogosphere of which these (scam artists) marketers can only dream. While they attempt to create blogs for their desperate lawyer clients who simply (no pun intended) "want to be on the internet," Scott wakes up every morning and types. Sometimes he types about criminal justice, sometimes he types about books, and sometimes he types whatever is on his mind, no social media strategy for this lawyer.

Scott's blog is read and appreciated and criticized because it has something the social media marketers will never understand - a point of view. Scott writes what he thinks. He is not blogging for profit, or trying to gain the love of the young pups who know everything, right down to the newest drink they're serving at Starbucks.

The same baby lawyers and marketing bloggers that privately comment to each other how much they can't stand Scott, comment on his blog, and wake up every day wondering if they'll ever have the practice, the blog, the respect of real lawyers and judges and prosecutors, like Scott Greenfield.

They curse the rain while they stand outside with rainbuckets trying to collect every drop for themselves.

So congratulations Scott. In an internet world where there are much less bloggers and many more marketers, thank you for keeping the real conversation going. Thank you for reminding us what blogging was meant to be.

That's my comment.

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