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

Wednesday, December 28, 2005

The White House Official Statement On Criminal Defense Attorneys

Those who have not had too much egg nog this holiday season may know that there is a big to do about the National Security Administration (NSA) spying on phone calls between domestic and foreign locations, without warrants.

While many are debating the legality of this practice, some defense attorneys, including Kenneth Swartz (of my own backyard) want to know if the NSA was spying on their clients.

Today, The White House announced their official position on the questions being raised by criminal defense lawyers:

From The Miami Herald:

White House spokesman Trent Duffy said Wednesday that the administration would not comment on pending cases. "I don't think it should serve as any surprise that defense attorneys are looking for ways to represent their clients," he said. "That's what defense attorneys do."

Meaning what, Mr. Duffy?

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 click the link: http://www.tannebaumweiss.com/our_lawyers.php

Saturday, December 24, 2005

Merry Christmas To The Public Defenders

The maximum penalty for contempt almost anywhere, including Dallas, Texas, is 6 months in jail. Walter Mann, spent an extra 9, for a total of 15, by mistake.

He was never convicted of contempt, never even had a hearing, never saw a lawyer. He just sat, until his cellmate told an attorney about Mann.

Mann, oh man! What a disgrace.

The last 9-month mistake I heard about was an unplanned pregnancy.

You can read the story from cnn.com here

Walter Mann Sr., 69, was released the week before Christmas.

Why was he in jail? Mann's son was arrested in 2002 for assaulting him, and Mann was ordered to pay $50 per month for his son's housing.

Mann refused.

Prosecutors got an order to have Mann held in contempt, and the judge put Mann in jail pending a contempt hearing.

The court docket shows that the contempt order was lifted in October of '04. But the sheriff "didn't get the memo."

Mann, asked by his cellmate why he didn't want to make some calls to get out of jail said "Nah, I don't want to bother them with anything."

Mann's cellmate told his own lawyer, public defender Shoshana Paige, who had Mann released the same day.

Paige said: "This one seems to be pretty egregious."

Paige also wanted to say: "Twas the night before Christmas, and all through the can, many inmates were stirring, but not Walter Mann.

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 click the link: http://www.tannebaumweiss.com/our_lawyers.php

Tuesday, December 20, 2005

Confession of a Criminal Blogger

The always-on-top-of-things DRUDGE REPORT picks up a story from the AP that a teenager has plead guilty to manslaughter after it was discovered he confessed - on his blog. The story is here

This 18 year old genius was a passenger who pulled on the steering wheel, causing a fatal crash.

He plead guilty to DUI manslaughter after prosecutors discovered a confession on his online blog.

His next blog post will not be until 2011, when he gets out of prison.

Not realizing that the blog/client communication is unlike the attorney/client communication, i.e., not privileged, and obviously thinking his on-line blog was not so popular among the prosecutors of the world, now convicted-by-his-own-keyboard Blake Ranking wrote "I did it" on his blog three days after the crash that killed his friend.

According to the article, "he had previously told investigators he remembered nothing of the crash and little of its aftermath. He should have gone to his blog to refresh his memory, or done a Google search, by typing "Blake Ranking confession I did it."

Ranking got specific: "It was me who caused it. I turned the wheel. I turned the wheel that sent us off the road, into the concrete drain ..."

Ranking later retracted his words, deleting them from the blog and penning an explanation. "People say I 'contradict' myself since I 'already admitting pulling the wheel.' I didn't 'ADMIT' anything. I went on a guilt trip, and I posted the story that I WAS TOLD . . . Nicole told me I pulled the wheel, I believed her," he wrote.

There is a lesson here, but I'll keep that to myself.

You never know who's reading, you know.

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 click the link: http://www.tannebaumweiss.com/our_lawyers.php

Friday, December 16, 2005

Big Brother Bush: "Listen, Do You Want To Know A Secret?"

The New York Times reports that President Bush secretly lifted some limits on spying in the United States after 9/11 by secretly authorizing the National Security Agency (NSA) to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying.

The story appears in the New York Times here

The President apparently signed an order in 2002 allowing the NSA to monitor the international telephone calls and international e-mail messages of people inside the United States without warrants (pesky little things they are)

The reason?

To track possible "dirty numbers" linked to Al Qaeda.

So listen to this! - According to the Times: "Some officials familiar with the continuing operation have questioned whether the surveillance has stretched, if not crossed, constitutional limits on legal searches.

Good question.

And this from the Times: "Nearly a dozen current and former officials, who were granted anonymity because of the classified nature of the program, discussed it with reporters for The New York Times because of their concerns about the operation's legality and oversight."

Water cooler conversation at NSA: "Hey, uh, Bob, you think this stuff's legal, chuckle, chuckle?"

The White House asked The New York Times not to publish this article, because "it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny."

Here's the funny part of the article - you can read the rest for yourself:

"It is not clear how much the members of Congress were told about the presidential order and the eavesdropping program. Some of them declined to comment about the matter, while others did not return phone calls.

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 click the link: http://www.tannebaumweiss.com/our_lawyers.php

Thursday, December 15, 2005

Florida Governor Bush Says "Sorry" To Innocent Man

Wilton Dedge, once a convicted felon who served 22 years in prison, is today a millionaire, twice over.

He could give a crap.

He was innocent. The Florida Legislature honored his wrongful conviction by writing him a check for 2 million dollars, and today he received a personal visit from Florida Governor Jeb Bush, with an apology. The story is here

He still wants an apology from the prosecutors who convicted him, and publicly stated that although the Governor apologized, it wasn't his fault.

The Governor knew that, and he also knew he didn't have to apologize personally. in writing, or at all.

But this conservative republican governor who is no fan of criminal defendants, and routinely signs bills making sentences tougher and prosecutors jobs easier, believed he, as the steward of the State of Florida, should personally apologize.

Nice Going Jeb.

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 click the link: http://www.tannebaumweiss.com/our_lawyers.php

Wednesday, December 14, 2005

Pardon Me? - Prosecutors Use DNA To Seek "Absolute Pardon"

It's the same old story. Defendant convicted. Defendant proclaims innocence. Cops say right guy. Prosecutors say right guy. DNA says wrong guy. Prosecutors stammer. Cops say still right guy. Motions filed. Prosecutors seek plea to lesser charge and immediate release. Defendant takes plea to avoid prolonged trial.

Or, what happened in Virginia today.

Prosecutors, in the face of DNA clearing 2 wrongly convicted men of rape, sought an "absolute pardon" of both men according to the story here at cnn.com.

They've already served their time, but I trust their lives will be a bit better with the world knowing they served time for nothing.

I wonder how they were convicted? Probably "rock solid" eyewitness testimony.

I have no knowledge of whether Stanley "Tookie" Williams was actually innocent or guilty, but he did say something just prior to his execution that is pertinent to this story.

When asked why he wouldn't apologize for the crimes which he was convicted, he said that a conviction by a jury does not equal guilt.

But I guess if you believe a conviction means guilt, than you believe an acquittal means innocence.



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 click the link: http://www.tannebaumweiss.com/our_lawyers.php

Monday, December 12, 2005

The Terminator "Agonizes" Over Tookie

Stanley "Tookie" Williams will not be granted clemency. He will die for the crimes for which he has been convicted.

On any Vegas sports book, that's where my money goes - all if it, in fact.

According to myway.com Actor and California Governor Arnold Schwarzenegger said he is "agonizing" over the decision.

That makes me feel good, really.

No one, not even if a fan of the death penalty, should take lightly the power of deciding whether someone lives or dies.

He could have said nothing, or some legal-ese type statement like that he was "reviewing the case and will make the appropriate decision." Instead, he expressed the raw pain of this decision - that while simple to the "eye-for-an-eye crowd," is of epic proportion.

In the end though, even with a strong liberal base in California, Schwarzenegger will decline to grant clemency.

If he does grant clemency, it will be a bold move for a conservative politician. If he doesn't, well, at least he handled it with great debate, something not left to your average girly man.

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 click the link: http://www.tannebaumweiss.com/our_lawyers.php

Tuesday, December 06, 2005

Tom DeLay's Christmas - "Later On, We'll Conspire"

Right of the right-wing Congressman Tom DeLay......had a criminal defense lawyer get him off on a technicality. Fox News has the story here

The conspiracy statute that DeLay was charged under, didn't cover the criminal activity he is alleged to have committed.

Not that he didn't conspire to violate the Texas election law, that the "Conspiracy to Violate Texas Election Law" Statute covers criminal activity occurring after December 2003, after DeLay's alleged behavior.

The prosecutor argued that the laws against conspiracy were on the books, so it didn't matter that the more specific "Conspiracy to Violate Texas Election Law" Statute wasn't in place.

The judge said, "Bah, Humbug."

The judge was right. Delay got off because the law he was charged under did not prohibit what he did. Therefore, he shouldn't have been charged under that statute, and cannot be convicted under that statute.

It's what the public calls "getting off on a technicality."

It's what I call the correct application of the law.

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 click the link: http://www.tannebaumweiss.com/our_lawyers.php

Friday, November 25, 2005

999 Executions, And Counting

CNN.com reports here that the 1,000th execution is scheduled for next week.

Hopefully this news will not knock the Jessica Simpson/Nick Lachey split off the front page.

We've executed one person every 10 days since the moratorium was lifted in 1977.

The 1,000th will be 41 year old Robin Lovitt. He was convicted of stabbing a man with scissors during a pool hall robbery in Virginia.

CNN.com opines that "The focus of the debate on capital punishment was once the question of whether it served as a deterrent to crime. Today, the argument is more on whether the government can be trusted not to execute an innocent person."

Pretty gutsy thing to say for a news organization. Gutsy, meaning "liberal" to many.

In comes Thomas Hill, an attorney for a death row inmate in Ohio who recently won a second stay of execution.

Hill says: "We have a criminal system that makes mistakes. If you accept that proposition, that means you have to be prepared for the inevitability that some are sentenced to death for crimes they didn't commit," Hill said. (Author's note: a post on possibly innocent but executed Ruben Cantu appeared previously on the blog. It can be found here)

Mistakes? Thomas!, you're upsetting the establishment. People don't want to be confused with the facts. We may have, and may again, kill an innocent man.
But again, that's a "liberal" thing to say.

In fact, CNN reports that "advocates of the death penalty argue that its opponents are elitist liberals who are ignoring the real victims."

You're right, an innocent person executed cannot be a victim. They probably did something else anyway......

Caring about or even talking about innocent people being executed is not a staple of the conservative bunch.

Michael Paranzino, president of Throw Away the Key says that "Since 1999, we've had 100,000 innocent people murdered in the U.S., but nobody is planning on commemorating all those people killed."

Who's commemorating anyone?

And speaking about throwing away the key, I don't think anyone on death row who may be innocent is looking for a key- a heartbeat maybe, but not a key.

By the way, since 1973, 122 prisoners have been freed from death row.


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 click the link: http://www.tannebaumweiss.com/our_lawyers.php

BREAKING NEWS - Robin Lovitt's sentence was commuted to life in prison today by Virginia Governor Mark Warner. The story is here

Wednesday, November 23, 2005

The Fear Of Justice Forces Justice

The Fifth Amendment says in part that "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger;.... nor shall any person.... be deprived of life, liberty, or property, without due process of law...."

This pesky little amendment (of course not as important as Amendment 2 that allows you to own and possess a gun) is what kept Jose Padilla behind bars for 3 years without being charged, and it is what required him to be charged yesterday.

The fear of Padilla being brought to justice, forced the hand of the Department of Justice.

Jose Padilla may be a terrorist. Then again, in today's day and age, everyone who walks through airport security may be the shoe bomber, but probably isn't.

Jose Padilla may be innocent.

But there can be no determination of innocence or guilt without the opportunity for a trial. There can be no trial without charges being filed. You think it's ok to keep someone behind bars indefinitely because he may be a terrorist or because we're at war? My question is, for what reason? What has Jose Padilla done in the eyes of the law? Not in the eyes of angry people who believe anyone accused of being a terrorist is in fact, a terrorist.

The day we keep people behind bars just because the government accuses them of being criminals......., well, wait, that day has come.

Yesterday though, the Justice Department, fearing that the US Supreme Court would force the release of Padilla, indicted him here in Miami.

Now "Justice" can commence, whatever that Justice may be.

For a wonderful read on this story, with links to the indictment and other tidbits about the judge, go to Criminal Defense Attorney David Markus' critically acclaimed Southern District of Florida Blog, the best place for information on the ever interesting federal court system in South Florida.

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 click the link: http://www.tannebaumweiss.com/our_lawyers.php

Sunday, November 20, 2005

Oops! - We Executed An Innocent Guy

CNN.com reports here that we may have executed an innocent man. The original story appeared in the Houston Chronicle on Sunday, November 20, 2005.

Apparently, the sole witness recanted and a co-defendant said he allowed our dead friend to be falsely accused under police pressure, the Houston Chronicle reported Sunday.

The fried former alive and possibly innocent Ruben Cantu was 17 in 1984 when he was charged with capital murder for shooting a man during an attempted robbery in Texas.

According to the Chronicle, the eyewitness Juan Moreno told the Chronicle that it wasn't Cantu who shot him. Moreno said he identified Cantu as the killer during his 1985 trial because he felt pressured and was afraid of authorities.

As comedian Dana Carvey's church lady character from Saturday Night Live used to say: "Well, isn't that special?"

Oh, and the Chronicle also reports that Cantu's co-defendant, David Garza, recently signed a sworn affidavit saying he allowed his friend to be accused, even though Cantu wasn't with him the night of the killing.

Nice friend.

Cantu was executed at age 26, all the while proclaiming his innocence.

Sorry Ruben. Really, we're sorry.

In comes the prosecutor, Sam D. Millsap Jr. He told the Chronicle he never should have sought the death penalty in a case based on testimony from an eyewitness who identified a suspect only after police showed him Cantu's photo three separate times.

Oh well, things happen.

Let's not beat a dead horse, I mean human being.....

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 click the link: http://www.tannebaumweiss.com/our_lawyers.php

Saturday, November 19, 2005

Justice"DeLay - ed"

Tom DeLay is in trouble.

I'm not talking about the indictment last month, I'm talking about what will happen Monday, November 21.

The New York Times reports here that Michael Scanlon, former top aide to Congressman DeLay, is cooperating with federal prosecutors and will plead guilty to conspiring to defraud Indian tribes of millions of dollars as part of a lobbying and corruption scheme.

The allegations are that Scanlon and indicted lobbyist Jack Abramoff sought to "corruptly offer and provide things of value, including money, meals, trips and entertainment to federal public officials in return for agreements to perform official acts."

I know, you're shocked, shocked to hear that this goes on.

According to the Times: "The deal reveals a broadening corruption investigation involving top members of Congress." (By the way, every member of Congress is up for election next year. Better start practicing that baby kissing.)

I wonder how many lunch cancellations DeLay has had in the last month. "Uh, can't make it, gotta, uh, got something else Tom, sorry."

Scanlon is a former spokesman for DeLay. I bet he's speaking about DeLay more than he ever has when he was working for him.

According to the Times: "News of his cooperation with law enforcement officials sent a jolt through the Republican majority in Congress."

That's one way to put it.

It will be interesting to see how far this goes.

The conservative right may have to stomach new found relationships with the criminal defense bar, who will attempt to save their careers so they can continue to pummel our clients with bad legislation.

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 click the link: http://www.tannebaumweiss.com/our_lawyers.php

Monday, November 14, 2005

Unindicted Karl Rove Says We Should Execute Kids

Remember Karl Rove? He's President Bush's pit bull - commonly referred to as the "architect" of, well, everything the President has ever done.

Rove recently escaped indictment in the Valerie Plame CIA leak investigation. He's now focused on other important things - executing kids. Rove is determined to help get more conservative judges appointed that are more in the mainstream of America.

In his first public appearance last week post non-indictment, he cited last year's US Supreme Court decision in the case of Roper v. Simmons, which banned the execution of children, as one that is "fundamentally out of touch with our Constitution."

No, I'm not kidding. You can read it here

Must be an interesting way to think: "Wow, I just skated from a career-wrecking criminal indictment, now I can focus on why we don't execute children"

The Founding Fathers must be so proud.

Saturday, November 05, 2005

Sentencing In Black And White

A white teacher able to hire one of the best criminal defense attorneys in Florida gets house arrest for leaving the scene of an accident that killed two black kids.


A young 29 year old girl who panicked after a hit and run accident that killed 2 kids and then came forward and confessed to leaving the scene, receives house arrest.

Pick a headline. Read the story in the Tampa Tribune, or cnn.com

Former dance teacher Jennifer Porter, 29, of Tampa, was sentenced yesterday to 2 years of house arrest, 3 years of probation and 500 hours of community service, for leaving the scene of the accident that left 2 kids dead. She's white, the 2 kids were black.



Jennifer Porter was not charged with killing these children. She had no prior criminal record, for that matter, either did those kids.

So what am I saying?

First let me say that I think leaving the scene of an accident is a terrible crime. I understand why people panic and leave, but know that Porter also did not come forward immediately, and initially lied about the accident.


Jennifer Porter was offered 3 years in prison by the prosecutor. She took her chances and pled guilty without an agreement, leaving it up to the judge.

He took 12 hours of testimony, until 1:30 in the morning, and felt that jail was not appropriate for whom he saw as a remorseful defendant. Trust me that this will be another instance for politicians to attack the judiciary for, well, making a decision that they don't agree with. Some idiot will argue that this judge has "run amock."

Most wanted Porter to go to jail, because most cannot fathom that any other kind of criminal sentence exists. You think Porter will do this again, you think she doesn't think about those kids every day?

What's sitting in a jail cell going to do, besides make you feel better?

Monday, October 31, 2005

Speed Is Justice For All

A great editorial in the St Petersburg Times viewed here criticizes the sure passage of the Streamlined Procedures Act of 2005.

I know, you're saying, "not the Streamlined Procedures Act of 2005 again?!"

This legislation takes away the right of felons convicted in state court from seeking redress in federal court.

The Times says "this assault on due process should be stopped in its tracks." I agree.

According to the Times, "supporters of the Streamlined Procedures Act of 2005 say that changes are needed to move along executions and make the court system more efficient.

What the legislation does is reduce federal habeas corpus review and prohibit federal courts from addressing whether defendants constitutional rights were violated in state court.

So, as the Times says "the act would expedite executions, but it also would make it nearly impossible for people whose convictions resulted from incompetent counsel, fabricated evidence or a racially stacked jury from seeking redress in the federal courts. It would make claims of actual innocence extremely hard to bring, increasing the risk of error and speeding along the execution of those who didn't do it."

Killing innocent people? Don't bring that up again. That's like talking about your crazy uncle again.

The Times reports that according to the Death Penalty Information Center, more than 100 death row inmates have been exonerated as innocent of their crimes since the mid 1970s. I know, you don't care. They're all guilty.

The Times closes by saying that "these measures are highly destructive to this nation's traditional due process guarantees. They would replace accuracy with speed, and justice with notches on a belt. A bad trade all around."

That's a great new slogan for the idiots supporting this garbage:

Instead of "Liberty, and Justice for All" -

"Speed, is Justice For All.

Conservatives Put Away The Tissues

Looks like a treat on Halloween for the right-wing conservative movement today.

No grim reaper - rather the vote that will overturn Roe v. Wade.

Today, President Bush appointed 3rd Circuit Court of Appeals Judge Samuel Alito.

A brief biography from scotusblog.com:

Judge Alito currently serves on the U.S. Court of Appeals for the Third Circuit. Prior to his nomination to the Third Circuit by President George H.W. Bush, he served as U.S. Attorney for the District of New Jersey (1987-1990), Deputy Assistant Attorney General (1985-1987), and Assistant to the Solicitor General (1981-1985).

Judge Alito was born in 1950 in Trenton NJ. He attended Princeton University and Yale Law School. He clerked for Judge Leonard I. Garth on the Third Circuit.

He will be overwhelmingly confirmed, even without saying the obvious: "Thank you Mr. President, I will overturn Roe."

Can I just ask the right-wing conservative movement to stop crying and whining like the entitlement-driven liberals they scream about daily? You right-wingers have been whining for months that our, not YOUR President owes you a Supreme Court nomination that will "do what they need to do." You all are such babies. The fact that you think abortion is the biggest problem facing this country is an embarrassment.

He owes YOU nothing. This is not your country, nor your court, regardless of what you listen to on TV or radio.

By the way, Samuel Alito will also be confirmed because he has always been on the side of government, never representing a criminal defendant. What's his position on the death penalty, the Fourth Amendment, and the right to counsel?

None of you really care.

Friday, October 28, 2005

WWWWWWhat Did W Say????????

I know I still do not have power from Hurricane Wilma, but can someone please tell me that I was dreaming when I heard the following comment from President George W. Bush on the indictment of Scooter Libby?

In our system, each individual is presumed innocent and entitled to due process and a fair trial.

NBC singled out this comment in the lead sentence of their on-line report of the President's comments by writing:

President George W. Bush said Friday that individuals are presumed innocent in the American legal system and he hopes people take that view in the case of vice presidential aide Lewis Libby.

I hope he realizes that his base supporters are breaking out in hives right now.

Listen To This Dick

Vice President Dick Cheney said today in response to the federal indictment of his chief of staff "Scooter" Libby, that he was....... entitled to a presumption of innocence in the case.

I trust that comment was meant just for Libby, and not the other guilty criminals charged daily in America.

Wilma Stops The Wheels Of Justice - Upsetting Some

It's not that I've had nothing to say in the last week - it's that Hurricane Wilma knocked me out of my home, and off the internet.

Now I'm back on (not home yet), and have a lot to say.

State and Federal Courts are closed in South Florida. Most saw this as an easy decision - watching the lack of power, lack of gas, food, water, public transportation, and almost everything else that makes life normal and bearable.

I'll tell you what made the decision difficult.

Not the thousands of civil suits, divorce cases, personal injury, medical malpractice, and small claims matters that may be delayed a week or so.

It was the dreaded thought that for a meaningless few days, suspected criminals would not be brought to court. Heavens forbid.

Heavens forbid.

The decision was not as much about letting lawyers clean up their own mess, it was about angry jurors and staff showing up to court (probably walking due to the lack of gas) wondering what was so damn important that they had to step out of line waiting for ice and water.

In the end, the courts did the right thing - not using the "OUR lights are on, so court's in session," but "YOUR lights are off, so take care of your family." Didn't happen immediately though, leaving lawyers, court staff, and EVEN JUDGES to wonder whether they could take their family out of town for some air conditioning and hot food.

I say r-e-l-a-x. One stupid week or even two won't make a difference. Being human does not make the court system less powerful. In fact, I'm willing to sign a document acknowledging the all-mighty power of the courts in exchange for a few more days to get my family settled.

The Florida Supreme Court will suspend or "toll" the Speedy Trial provisions of Florida Law, so countless criminal defendants cannot say they did not receive justice swiftly due to Hurricane Wilma.

And..................Life will go on.

Trust me, I'm a lawyer.

Thursday, October 20, 2005

When A Criminal Defense Lawyer Becomes A Crime Victim

While sitting here waiting to see whether Hurricane Wilma will be visiting us here in Miami, I note two recent stories where criminal defense lawyers have themselves become crime victims.

Prominent California Criminal Defense Lawyer Daniel Horowitz' wife was murdered last week. A 16 year old described as "gothic," and "troubled" is now in custody.

Also, the lawyer for one of Saddam Hussein's co-defendants was kidnapped today. The story appears here. UPDATE: The kidnapped lawyer for one of Saddam Hussein's co-defendants has been found murdered. The story appears here

So what does a criminal defense lawyer, who toils daily defending those accused of crime, do when they find themselves victims of crime?


How do they feel?


Why. Because we're human.

(I use the word "human" as a tribute to the moron who called Larry King the other night and said that she "agreed with everything Nancy Grace says, and disagrees with almost everything that Daniel Horowitz (a frequent commentator on her show) says, and therefore found it difficult to digest her new found thoughts on the murder of his wife that he is a "human," just like everyone else. If the caller is reading this, congratulations, you have now said the absolute stupidest thing I've ever heard.

So steal my car or vandalize my mailbox, and I'll probably agree to give you a break as long as you apologize.

Hurt me or my family, and you can join some of my other clients who weren't so lucky at trial.

Sunday, October 16, 2005

Another Innocent Guy Gets Released And Disturbs Our "Everyone's Guilty" Theory

CNN.com reports here that a man who spent 19 years in prison was released after it was discovered that he was framed.

The detective who put Barry Gibbs behind bars was arrested himself on charges that in his spare time, he was a mob hit man.

A judge threw out the 1988 murder conviction and released Barry Gibbs based on new evidence that the same detective coerced a witness into identifying him as the killer.

The now arrested detective located a witness who testified he had seen Gibbs dump the body of the strangled victim near a bridge.

He hadn't. It was a lie. But Gibbs was convicted.

Under questioning by the FBI, the witness recanted, claiming the detective bribed and intimidated him into identifying Gibbs.

The Brooklyn district attorney's office sought Gibbs' release after it determined the witness' trial testimony was "suspect," which is a nice legal word to use when you're about to be sued that is interpreted to mean "lied."

A jury convicted this man.

He was innocent.

But who cares? Everybody's guilty, everybody.

Monday, October 10, 2005

Anthony's Dreaming...

Anthony Lorenzo is out of prison, and you all are not making him feel very welcome. He was angry enough to pen a well written editorial to the Miami Herald that can be read here (at least for a while until the link expires)

Anthony was released from prison after serving about 2 and 1/2 years for trafficking in cocaine.

He says he can't get a license to work in many fields, from massage therapy to being a lawyer to cutting hair.

He says that the Department of Corrections mission should change from punishment to rehabilitation, "making it a priority." He says "job training, education and economic opportunity are the biggest reducers of recidivism statistically. Yet Florida makes none of these parameters a priority in our prisons."

Anthony, please stop confusing people with the facts. No one wants to hear that if people in jail were better treated and educated, they would not commit future crimes, saving the taxpayers millions of dollars. Just stop saying things like that.

He "realizes that people think those who commit crimes, even nonviolent victimless crimes, deserve to be punished for our indiscretions. But they should think about this, Anthony says: 'I was treated like an animal for 2 ½ years; I worked at gunpoint on a chain gang because authorities refused to send me to work release. I was sent home with only $100 cash. I'm not allowed to work, am denied financial aid to go to college and may not even be able to get licensed in the field that I have gone to school to learn -- acupuncture.'"

"Is it any wonder that ex-convicts end up back in prison," he asks?
Funny, I ask the same question also.

"Working at a dead-end, minimum wage job is not a life he says. "Even Pizza Hut said that it couldn't promote me, no matter how great an employee I was."

I'm sorry about this Anthony, but our society has no compassion for you, even though you've done your time and are looking to better yourself. We want you to think about this indiscretion, this crime you've committed, for the rest of your life. None of us out here have ever made any mistakes, we are perfect.

We want you to suffer everyday and continue to pay this un-owed debt to society. Most people could care less about what you do and you're lack of success in trying to better yourself. They are saying "you should have thought of that before you dealt cocaine." They are wondering why you are out of prison.

They are angry when I continue to ask "you know, most people who go to jail, get out, so what are we to do with them while they're in to make them better citizens?

They hate that, and they hate you, Anthony.

Monday, October 03, 2005

Don't Mess With "Texas Cronyism"

Ah - the sound of raging conservatives and cheering liberals. What could it be?

The anxiously awaited nomination of President Bush's nominee to the United States Supreme Court to replace the retiring Sandra Day O' Connor.

Today President Bush nominated White House counsel (i.e. "his" lawyer and the person he consults with on nominations like these) Harriet Miers. "She will strictly interpret our Constitution and laws. She will not legislate from the bench," Bush said. Authors note: A post on "legislating from the bench" appeared on this blog back in July, and can can be viewed here

Miers has never been a judge, and said she was grateful and humbled by the nomination.

I'll bet. I've never been a judge. I'd be "grateful," and "humbled" to be nominated to the highest court in the land based on my job as counsel to the nominator.

Is she qualified? Who knows. What does it mean to be qualified? To conservatives, she's qualified if she stands on the top of the capitol today and says "Down with Roe v. Wade!" To them, she is now not qualified, solely because they do not know the answer to that question.

To liberals, she's a bit more qualified solely because she has not had any decisions that would indicate her position, therefore, hell, maybe she's not so conservative.


Both sides today are showing their shallowness. The Supreme Court is only about abortion to those making the most public statements on both sides.

Mind you, the Supreme Court recently held that private property could be taken for commercial purposes, sending everyone into a tailspin. "Hey, I thought the Supreme Court only handled abortion cases," you could hear them saying.

These are the people who represent the old phrase: "While you're watching the mice, the elephant walks out of the room."

This one will be fun.

Thursday, September 29, 2005

Tom DeLay's "Birdcage"

The movie "Birdcage" is a beautiful depiction of the inherent dislike and discomfort between ultra right-wing conservatives and left-wing liberals. In the movie, Robin Williams plays the homosexual father of a son dating the daughter of an ultra-conservative republican U.S. Senator played by Gene Hackman. At the end of the movie, the Senator dresses up like a woman and dances in a gay club to avoid being spotted by the media, all with the necessary help of his hated homosexual new friend.

Ultra-conservative republican Tom Delay finds himself today, partnered with the type of people ultra-conservative republicans target as "liberal," and "anti-American," (because they defend the constitution and the bill of rights - which sometimes gets in the way of convicting "obviously" guilty defendants).

DeLay hired a criminal defense lawyer, assailed the same criminal justice system he helped to toughen, (If someone can find one vote where DeLay didn't agree with toughening some criminal statute or sentencing guideline - dinner's on me anywhere in Miami) and assailed the prosecutor for having the nerve to seek an indictment.

DeLay is mad, he is lashing out, and he is now living in a system of tough criminal statutes that he most likely supported throughout his career.

I love it!

I don't think DeLay is guilty of a crime, mind you. In the end he will probably be acquitted, and the country will have a great opportunity to see the filth that permeates our political campaigns. What Tom DeLay is accused of doing is taking corporate money and having it find its way to individual candidates to help them win so they could rewrite district boundaries, making it easier for republicans, like DeLay, to stay in power (and toughen already draconian criminal statutes and sentencing guidelines.)

Its kind of like moving the line closer to the basket so the ball can go in easier. It's otherwise known as cheating.

I don't think what he did was criminal, just dirty.

Tom DeLay now has to enter the criminal courthouse, not as a proud observer of the unfair and pro-government anti-defense system he helped create, but as a potential inmate, a criminal defendant.

Tom DeLay has no respect for the courts. He said this Spring "We set up the courts. We can un-set the courts. We have the power of the purse."

Tom DeLay's purse is now going to someone like me, a criminal defense lawyer.

I just hope when his outstanding lawyer, Dick DeGuerin, finds a "technicality" to throw out the case, that DeLay says, "no thank you, I don't believe in criminal defendants being able to get off on technicalities."

Ha Ha Ha.

Wednesday, September 28, 2005

Making Our Parks Safer

What can I say?

Woman Ticketed for Sitting on a Playground Bench with No Kids
(New York-AP, Sept. 27, 2005) - It's an only in New York story. A woman was given a ticket for sitting on a park bench because she doesn't have children.

The Rivington Playground on Manhattan's East Side has a small sign at the entrance that says adults are prohibited unless they are accompanied by a child. Forty-seven-year-old Sandra Catena says she didn't see the sign when she sat down to wait for an arts festival to start. Two New York City police officers asked her if she was with a child. When she said no, they gave her a ticket that could bring a one thousand dollar fine and 90 days in jail.
The city parks department says the rule is designed to keep pedophiles out of city parks, but a parks spokesman told the Daily News that the department hoped police would use some common sense when enforcing the rule.
The spokesman told the paper that ticketing a woman in the park in the middle of the day is not the way you want to enforce the rule.

(Copyright 2005 by The Associated Press. All Rights Reserved.)

Friday, September 23, 2005

Taxpayers Love for Drug Dealers

Gilberto Rodriguez-Orejuela is in custody in Miami's Federal Detention Center waiting for a visit from his new lawyer.

Gilberto Rodriguez-Orejuela is accused of participating in the cocaine trade and making a mere 2.1 billion in profit.

You hired his lawyer for him today, and you're paying for it as we speak.

Ninety-dollars an hour. Tick tock, tick tock, tick tock, tick tock.

That's what you want, right?

No, I'm not kidding. You can read about it on the popular blog of top-flight Miami criminal defense attorney David Markus at his ever-popular Southern District of Florida Blog

Federal Law prohibits criminal defendants from using money they made in their criminal ventures, for lawyers.

So I can't take money from a criminal client if the money was made through a criminal act.

You agree with THAT - don't you? Of course. It sounds reasonable.

Criminals shouldn't be able to make money illegally and then use that money to pay the lawyer to defend them.

YEAH! - "I'll show them!" you say."

Yeah, you're "showing" them.... showing them the money that is.

Think about it for a couple hours

(That's $90 per hour, times 2 hours, times how many criminal defendants in America with tainted money????????????????)

Ninety bucks could buy, I don't know, a few bags of ice........

Saturday, September 17, 2005

Florida's Governor Looks For A Criminal Defense Lawyer

Florida Governor Jeb Bush is living the commonly heard phrase "everyone hates criminal defense lawyers, until their kid is busted for some minor offense, and then they want the best one they can find to correct an obvious huge injustice, and get him or her off on any technicality they can find."

John Ellis Bush, the youngest son of Florida Governor Jeb Bush, was arrested (read story here) in Texas for public intoxication and resisting arrest, both misdemeanors.

Big deal. He'll get some diversion program, like every other first time misdemeanor offender, pay a fine, and be able to seal his record.

But this is more important because of who it happened to, the son of a prominent "tough on crime" elected official.

In interviews following his son's arrest, Governor Bush became Jeb, the father of a kid in jail, and he acted as any typical father - who also happens to be governor of a state with 15 million people. He said: "It's a private matter. We will support him. We're sad for him. But I'm not going to discuss it on the public square with 30 cameras.

He deserves privacy. This arrest has nothing to to with Jeb as Governor. His 21 year old "kid" is a grown man and was 1500 miles away from the Governor's mansion when it happened.

So leave Jeb alone. It's really none of your damn business.

I just mention it because these are the times when people like the Governor have to step out of their political world, and live the reality of the effects of legislation.

I am sorry the Governor's son was arrested, but I do know that personal experiences with the reality of criminal statutes can't be a bad thing for someone who has to sign off on "tough on crime" legislation.

Jeb believes in longer sentences, more prison beds, and making the job of criminal defense lawyers tougher and tougher.

Except in one particular case.

Tuesday, September 13, 2005

W Pleads Guilty

So he should of done it a couple days after Katrina hit the Gulf Coast.

I don't care - he did it, and it was the right thing to do.

Today, September 13, 2005 President George W. Bush said the following:

"To the extent the federal government didn't fully do its job right.............,


Way to go Mr. President! Way to go.

He said - that he wants to find out if the nation is capable of dealing with another storm or a severe attack. I'd like to know that also.

He said, "I want to know what went right and what went wrong." So do I.

Republicans and Democrats have one unique goal - to prove that the other party should not lead. Republicans may be wincing that the President blatantly took the heat, and Democrats may be preparing their "gotcha" soundbytes, but this is not a time for either, regardless of whether you love, or hate him.

This is a time for every elected official around the nation to take a lesson from the countless criminal defendants around the nation - sometimes, you have to plea guilty.

Thursday, September 08, 2005

Tragedy: People Starving, Dying, and Most Importantly.....Looting?

You love to say you'll "kill for your family." But would you really? Who knows at this point in time? I now know that there are many who would do anything for their family, except loot.

All these idiots yelling and screaming about the looting after Hurricane Katrina need to take their moral compass and shake it a bit.

Looting is stealing during an emergency, and it is a crime. Whether someone steals a plasma TV, VCR, radio, toilet paper, toothpaste, meat, milk, or baby formula and diapers.

But let's get a grip people, a strong, tight grip on reality.

If I, and my wife and kids are stranded after a natural disaster, I will steal food if I cannot get any. I will steal diapers and milk for my kid and personal items that will keep me clean and sane.

I'd rather be guilty than dead.

I agree that no one in the hurricane ravaged area had any use for a TV, VCR, or other electronic item, but let's understand crime for what it is.

Remember that there is murder, and there is a killing in self-defense. In both scenarios, someone is dead. But we excuse self-defense, so let's excuse looting for food and other essential items.

Now let's move on.

Sunday, September 04, 2005

"Our Fellow Man" Much More Important Than 2 Men

Big news today in the criminal justice system. One we're trying very hard to care about, and the other, we are barely hearing about.

The Chief Justice of The United States Supreme Court, William Rehnquist, who was on the Court for 33 years, died Saturday, September 3 of Thyroid Cancer.

Joran van der Sloot, the lead suspect in the disappearance of Alabama resident Natalee Holloway from her Aruban vacation, was released from jail, making the case even colder than it has been. You remember Natalee Holloway is missing, right?

These would normally be colossal stories on any given day, but today, the big news is that the New Orleans Superdome and Convention Center are empty.

We're looking upward, not at heaven hoping Chief Justice Rehnquist is resting in peace, but at the sky hoping more helicopters are plucking people off their roofs in flooded New Orleans.

News broke of Rehnquist's death with split screens continuing to show the devastation in New Orleans, and the news of van der Sloot's release I read on the internet.

I think the lack of focus on these stories is a good thing. It shows a simple fact of American life - although statistics may show different, when our fellow man is suffering, we find it difficult to focus on anything else.

I think the Chief Justice is resting in peace knowing this.

Thursday, September 01, 2005

Hurricane Katrina: There's Even Sympathy For The Lawyers

Are you watching this stuff on the news? Of course you are - how can you not? You just stare and ask the same question everyone's asking - "What if this happened to me? Selfish? No - just a great question that helps you appreciate the colossal catastrophe that has occurred.

While some are asking who's fault this is, when the power will return, and what will be the future of the Gulf Coast, I have but one question: WHY ARE VICTIMS OF A NATURAL DISASTER, IN AMERICA, WAITING FOR FOOD AND WATER? That's my only question. I will ask no other. Can someone answer that for me please?

Today, I was honored. I was asked to participate in what turned out to be the best and worst telephone call I've ever experienced.

I was asked to join representatives of the Louisiana Association of Criminal Defense Lawyers and the National Association of Criminal Defense Lawyers in a conference call to discuss the short and long term needs of the criminal defense bar.

In the first few minutes of the conversation I joined the millions of helpless people around the world unable to do anything. I listened to the Louisiana lawyers ask each other if they've seen some of their colleagues, or know where they are.

They're looking for people. Lawyers, Judges. "Anyone heard from the public defender? someone asked.

Then they discussed other mundane issues, like the fact that they have no work, their files are destroyed, they have no office, they don't know where their clients are, and the ones in jail are being moved.....somewhere. They need a phone, a safe place to send their kids for a while, and things that we don't even think about, ever.

"When will the courts open?" I thought I heard a slight chuckle at that question.

Then the discussion of money came up. Time for me to chime in and discuss how I could.....send emails asking for money. I apologize to the starving people there, but that's about all I can do - ask for and send money.

But that's short term help. What these lawyers need now, is jobs. No one's getting arrested, no one's going to court, no one needs them. In fact, most people don't need anyone right now except someone with something to eat or drink.

Dear Anonymous

I would love to respond to you, all of you who choose to remain "Anonymous." But I cannot.

First, there is no reply option to answer your questions. Comments left on the blog can only be replied to by posting another comment on the blog, and I choose not to fill the blog with answers to individual questions.

Second, and more importantly, as you know, I am a criminal defense lawyer. Many of the so called "anonymous" posters are either defense lawyers or prosecutors. In fact, I am able to see the domain names from which the comments come, so I actually know who most of you are, but respect your "perceived" privacy.

I welcome all of your comments. But I will not respond to someone who does not disclose who they are. I do not do this in any forum, as I am sure you do not either.

You are welcome to go to "My Profile" and click the e-mail option. I'd be happy to respond to you individually.

Thank You.

Sunday, August 28, 2005

A Break From Criminal Defense For Some Thoughts On Hurricane Katrina

Miami is paradise.

Born here, never want to leave here.

Except after a hurricane. Even a Category 1 Hurricane like Katrina (which at the time of this writing is a Category 5 Hurricane on it's way to level New Orleans, and there's not even enough alcohol in the French Quarter to soften the blow they are about to take.) My heart is sick for the people there, including my friend Howard - hope you're OK bud.

There has not been an official announcement yet, but we in South Florida wlll never categorize a hurricane again. A hurricane is a hurricane. Category 1 Katrina did not cause structural damage that people see and experience with large hurricanes, but the power system was devastated. We were shocked and unprepared.

My power was turned on a hour ago, after 4 days of watching my home reach a temperature of 89 degrees. Others will wait another week in sweltering South Florida to enjoy breathable air, ice, and livable conditions.

A few people even died. Many will die in New Orleans, many. Those that live may never return, and if so, not until weeks or months of waiting to hear that they can drink the water.

I'll be back in court tomorrow. Should be lots of exciting stuff to discuss, like who's back living in their house.

Tuesday, August 23, 2005

My client gets bond, like everyone else

Accused killer of foster child Rilya Wilson granted bond

By Curt Anderson
Associated Press Writer
Posted August 23 2005, 5:44 PM EDT

MIAMI -- A judge ruled Tuesday that Geralyn Graham, the woman accused of murdering foster child Rilya Wilson, deserved to be released on bond after the key witness against her refused to testify.

Although Graham, 59, will remain behind bars until May at the earliest because she is serving a sentence for an unrelated motor vehicle fraud conviction, her attorney said the decision by Circuit Judge Andrew Hague to grant bond in Rilya's killing suggested the prosecution's case is weak.

``This additional murder charge is based on nothing _ absolutely nothing,'' said the lawyer, Brian Tannebaum. Bond on a first-degree murder charge in Florida is rare, but allowable.

Hague announced his decision after Robin Lunceford, 42, repeatedly invoked her Fifth Amendment right against self-incrimination when asked questions about Graham and the Wilson case. Graham was indicted for the child's murder after Lunceford told investigators that Graham confessed to her in jail of killing Rilya.

Lunceford, who has a lengthy criminal record, has since been convicted of armed robbery and could get life in prison when sentenced Sept. 9. Her lawyer, Ellis Rubin, said he advised Lunceford against testifying Tuesday because he intends to ask for a new trial in her robbery case.

``I don't want her to give any testimony that might jeopardize my arguments for a new trial,'' Rubin told reporters Tuesday.

Tannebaum, however, said Lunceford's refusal to answer any questions Tuesday indicates that she no longer is interested in testifying against Graham, now that she has less to gain because of the robbery conviction.

``I think that says a lot about this case,'' he said.

Hague set bond for Graham on the murder charge at $100,000, which would be added to the $150,000 bond previously set on a kidnapping charge for a total of $250,000. Graham, who sat passively in court in a maroon jail jumpsuit during the hearing, also would be subjected to electronic monitoring and other restrictions.

Assistant State Attorney Sally Weintraub argued against bond, pointing out that Graham had a list of 45 aliases with matching false Social Security numbers and should be considered both a flight risk and a danger to the community.

Hague showed some sympathy for that argument but ultimately decided the evidence was not strong enough to justify holding her without bond.

Also appearing at Tuesday's hearing was Pamela Graham, who described herself as Geralyn Graham's ex-lover and who is cooperating with prosecutors in the murder case. Pamela Graham, who is not related to Geralyn, was asked briefly about Geralyn Graham's ties to the community and whether she appeared likely to flee if released.

Police believe Rilya, whose body has never been found, was dead more than 15 months before the state Department of Children & Families realized in April 2002 that the girl was missing despite a requirement for monthly home visits. She was supposed to be under state supervision after being taken from a drug-addicted mother.

The Grahams claimed she had been removed from the home by a state worker in January or February 2001. The discovery that Rilya was missing triggered a search that extended nationally and to the Bahamas, but police claim the Grahams lied about the girl's disappearance to cover up her slaying.

The girl's unnoticed disappearance triggered a review of the state's child protection system and led to resignations by the DCF chief, some Miami administrators and caseworkers.

Sunday, August 14, 2005

The American Definition of Justice: A Guilty Verdict

When a defendant is found "not guilty," the first thing moronic pundits and reporters like to say is that there is "still no justice" in the case.

I'm sorry, I thought justice was served when jurors deliberated evidence and came to a verdict, whether that verdict is guilty or not guilty.

But that's not true, and the harsh truth is that most of us do not believe that "justice" has been done unless that justice includes a guilty verdict.

I can understand that the family of a victim believes there is no justice for them when a trial ends and the defendant is adjudged not guilty, but is there not justice for the defendant on trial? Is it not justice that a jury of her peers determined that the government did not prove their case beyond a reasonable doubt?



Because we expect jurors to find people GUILTY! We may say we believe in the presumption of innocence but did you know that 80% of all jurors that appear for jury duty are pre-disposed to guilt?

That's the way we like it though.

Isn't it?

Isn't that justice?

Tuesday, August 09, 2005

Michael Jackson Jurors Disgrace Themselves

On the MSNBC website the Associated Press is reporting that 2 jurors in the Michael Jackson case now admit they thought he was guilty. The story can be found here.

Eleanor Cook and Ray Hultman are making these assertions while also touting their upcoming books entitled "Guilty as Sin," and "The Deliberator" respectively.

You Ms. Cook and Mr. Hultman are disgraceful, shameful people who should be held in contempt and sentenced to jail for perjury.

After each jury verdict in this country, jurors are "polled," or individually asked "is this your verdict?" When asked this question, they are still under oath. Cook and Hultman said "yes" and are now saying they lied.


According to the AP story "Cook and Hultman said they agreed to go along with the other jurors when it became apparent that they would never convict the pop star. The two denied being motivated by money and tried to explain why they were coming forward now."

In a fit of irony, Cook, now admitting that he lied, says "I’m speaking out now because I believe it’s never too late to tell the truth.”

No Mr. Cook, it's much too late you jerk.

The story goes on to say: "Cook and Hultman also alleged that jury foreman Paul Rodriguez threatened to have them kicked off the jury." Cook added "He said if I could not change my mind or go with the group, or be more understanding, that he would have to notify the bailiff, the bailiff would notify the judge, and the judge would have me removed,”

Awwwwwww, they were threatened.

Hultman said he also felt threatened and didn’t want to get kicked off the trial.

I bet Hultman didn't want to get kicked off the trial - then his book would merely be a pamphlet.

Friday, August 05, 2005

My Role As A Guardian Ad Litem to a 14 Year-Old Accused of Murder

Fifteen year-old Michael Hernandez sits in the Miami-Dade County Jail facing first-degree murder charges in the stabbing death of his friend Jaime Gough. The crime occurred when Michael was 14, and he was immediately transferred to adult court, and is facing life in prison.

I am not his defense lawyer, but his his court-appointed Guardian Ad Litem. A role that carries with it the responsibility of assuring that Michael's case is being handled properly and that the decisions being made by his defense team and him, are in his best interest.

This week, Miami Herald reporter Fred Tasker wrote an expose entitled "Kids who Kill."

Below is my printed letter to the editor in response:

I thank Fred Tasker for his July 30 Tropical Life piece, Kids who kill. This heart-wrenching and devastating aspect of society affects families of both the victim and defendant in ways that other crimes do not.

What are we to do with kids who kill? And should we charge them as adults? When and how do we determine that a young person who commits an adult offense is now an adult?

Michael Hernandez was 14 when he was arrested and charged with the murder of Jamie Gough at Southwood Middle School. He was transferred to adult court. Later a judge ruled that Michael had a mental illness. He now sits in an adult jail where he receives an hour or two of school a day but no treatment for his mental illness. Now 15, Michael is deteriorating rapidly.

I am Michael's court-appointed guardian ad litem. It is easy to say that he should spend the rest of his life in prison if he is convicted because his crime was "adult." The hearts of everyone on Michael's defense team go out to the Gough family everyday for its unspeakable loss. This is not an issue about Michael as much as it is an issue of determining what we as a society are going to do with kids who kill.


I welcome your thoughts on any aspect of this case or issue.

Wednesday, August 03, 2005

Innocence after 26 years of "Guilt."

Today, the essence of why I practice criminal defense was achieved by the Innocence Project and a couple of civil lawyers from one of Florida's largest law firms.

A man named Jose Diaz was released from prison after serving 26 years for crimes he did not commit.

The details are in today's Miami Herald.

It is a story everyone should read, and know about, especially the "everyone's guilty" crowd.

Monday, August 01, 2005

Tannebaum Comments To Miami Daily Business Review on Interim S.D. Fla. U.S Attorney

Your author was asked to comment on the interim United States Attorney for the Southern District of Florida for the Miami Daily Businesss Review. This story was also cited on the popular Southern District of Florida Blog.


From the Courts: Justice Watch
Little-known U.S. attorney makes the rounds

By: Julie Kay

Who is Alex Acosta?

That’s the question South Florida attorneys are asking about the new acting U.S. attorney for the Southern District of Florida.

“No one knows anything about him,” said Brian Tannebaum, president of the Miami chapter of the Florida Association of Criminal Defense Attorneys. “I haven’t met him yet.”

Kathleen Williams, the top federal public defender in South Florida, said, “I have never met the U.S. attorney. He has not practiced in the area, so none of us knows him.”

Even heavyweight Republican lawyers in town aren’t familiar with Acosta.

“I met him once, but I don’t really know him,” said Thomas Spencer, a top GOP lawyer in Miami and chairman of the Miami-Dade County Judicial Nominating Commission.

But what South Florida attorneys do know is causing them some concern — namely that Acosta has never tried a case and has little experience in criminal law.

“The word on the street is that he has no criminal law experience,” Tannebaum said. “I would like a U.S. attorney who has experience in criminal justice … who has some working knowledge of criminal justice.”

Acosta, who came to Miami after heading the Justice Department’s civil rights division, notes there are 235 prosecutors in his office.

He said his job requires management more than courtroom skills, the ability to interact well with law enforcement and community groups, and high-level contacts to help the region.

Friday, July 29, 2005

Here's Something To Write About - Suicide At The Miami Herald

Only in Miami.

A recently convicted veteran former politician currently under indictment in both state and federal court walks into the lobby of The Miami Herald, and shoots himself in the head. Photographers are only steps away and gather to take tomorrow's front page photo of a dying politician in a suit laying in a pool of his own blood.

People in this country are charged, written about, convicted and quietly go off to jail every day.

But every once in a while, someone can't take it, and we realize the harsh reality of being in the claws of the government and media.

Veteran former politician Arthur E. Teele, Jr. couldn't take it anymore, and on a seemingly normal Miami afternoon this week, he entered the lobby of the newspaper that spent months writing about his public corruption investigation and arrest, trial and conviction on other charges, and the last 5 days writing about his recent federal indictment on money laundering and other federal offenses, and said figuratively "you wanted me, here I am, write about this."

Now, people question why. Was it the loss of a career, reputation, mounting legal bills, the possibility of prison for a 59 year old former king of the political scene and hero to many in Miami's blighted Overtown community? Was is the constant barrage of news stories about his criminal charges, personal life, and allegations of sexual affairs and drug use?

The answer is simple - yes, yes, yes, yes.

We all take falls from grace for granted. Living on the top of a mountain and then living at the bottom of a sewer while the media is watching is more than many can take.

The bigger they are, the harder they fall is defined by the suicide of Art Teele.

There is much discussion of who's at fault between the prosecutors and the newspaper.

Prosecutors are in the business of investigating and charging people with crimes, and newspapers are in the business of reporting news, or what is deemed news.

Someone mentioned to me that both these institutions should have exercised some "discretion."

That made me laugh.

But not too hard.

Tuesday, July 26, 2005

Sexual Predators - Welcome to the Neighborhood!

Sexual predators are sick people who generally re-offend. Some of them will actually tell you that.

Anyone who sexually abuses a child should go to jail forever. Period, end of story.

But they don't


Many reasons. One goes back to that silly little "proof beyond a reasonable doubt" thing we have in our constitution.

Many times a child is molested, but can not or will not, or their parents do not - want them to testify in court.

Forget that you think merely the accusation of being a sexual predator should be enough for a life sentence, when witnesses don't come to court, there is no live testimony to convict the defendant. Although child hearsay laws allow for testimony of the child to be admitted when the child is not in court, prosecutors normally offer less jail time to try and resolve the case, without leaving it to a jury to determine the strength of the absent child's testimony, and possibly acquit the defendant.

Scores of communities around the country are passing laws requiring sexual offenders and predators to remain 2,500 feet from schools, day care facilities, and other locations where children are known to gather.

Sounds great.

Kind of.

Let me get you mad - where are they all going to go?

"I DON'T CARE," you say.

"THEY SHOULD ALL BE IN JAIL." I know, but we already discussed that.

You should care, you should care a lot.

Because very soon, there is going to be a city that has no residence that is more than 2,500 feet from a prohibited location, and the court in that city is going to rule it unconstitutional to prohibit someone from living there solely based on their criminal past.

So what's the solution?

There is none.


Tuesday, July 19, 2005

Idiots Who Despise Criminal Defense Lawyers

That's right.

Only idiots despise criminal defense lawyers.

Criminal Defense Lawyers. The most important lawyers in the country.

Did he just say that?


No offense to my brothers and sisters of the civil bar, but here's what they do:

Fight for money.

And I respect all of them. What they do is important. But not as important as what I do.

Criminal Defense Lawyers fight to make sure that when the government seeks to take away someone's liberty (i.e. put them in jail), that their rights are protected. This is done by criminal defense lawyers forcing the government to meet their high burden of proof that is required by the constitution.

You may have heard the term "proof beyond a reasonable doubt." It actually means something in this country, it's written in to the Constitution - the same Constitution that allows you to have your precious gun and vote.

People are thankfully not found "guilty" because someone watching the case on TV "thinks" they're guilty, at least not yet. The government has to prove each and every element of the crime beyond a reasonable doubt, and criminal defense lawyers are required to challenge each and every piece of evidence against the defendant.

You got a problem with that?

I know, you do.

Your problem is that sometimes (not most of the time) we win, and a person who is actually guilty of the crime, is set free.

Why is that?

Maybe because the jury didn't believe the evidence proved the case beyond a reasonable doubt, or better yet, maybe a person's constitutional rights were violated and the judge dismissed the case.

Unfortunately, those rights apply to everyone, even "guilty" people.

So, sorry Mom and Pop Perfect - the Constitutional right to remain silent and the right to have a lawyer applies to everyone, not just to those out there that "wouldn't be in that position, " or better yet "wouldn't care if 5 cops came into my house to look around." These, by the way, are the same people who believe all of their rights are being violated by the mere fact of a police officer stopping them for a traffic violation.

So when did we, the defenders of ths Constitution become the enemy of society?

UCLA Law Professor Michael Asimow writes in his 2000 Law Review Article "Bad Lawyers in the Movies:

"Even more significant, lawyers are doomed to be unloved because criminal practice is their most public function. As lawyers see it, justice requires that an accused person have the benefit of appropriate process, such as the reasonable doubt rule or the privilege against self incrimination. This perspective is not shared by most members of the public, especially when it comes to criminal law. Most people think that justice means finding the truth regardless of the adversarial system, procedural technicalities, statutory loopholes, police or prosecutorial misconduct, or lawyers tricks."

In sum, many will talk a good game about constitutional rights, but they're mostly being dishonest about believing that they apply to all Americans.

So what did it for you? OJ? How dare an "obviously" guilty man walk free.

Guess what, I think OJ is guilty as sin, but I respect the fact that 12, not one or two, jurors selected by the prosecution and defense, all said he was not guilty according to the law. Should they have voted guilty, because you knew he was guilty?

Wouldn't you hate it if you were charged with a crime and walked free because some people actually read the law and said you were "not-guilty" because a great lawyer convinced a judge or jury?"

Yeah, I know, you don't like to have an intelligent conversation about your ridiculous views.

Although sometimes defendants are actually what we call "factually innocent," more often a "not guilty" verdict or dismissal is based on a lack of proof or violation of constitutional rights (what most refer to as a "technicality.")

From now on I want you to always say "Doesn't the officer have to read me my technicalities?, such as the "technicality to remain silent," or the "technicality to a lawyer" or "Hey, I have technicalities in this country!"

Unfortunately, although many of you don't need proof of guilt beyond the fact that a defendant was arrested, our constitution requires it.

It also requires criminal defense lawyers.

Thursday, July 14, 2005

Government's Hatred Of Judges

Government hates our judges in America. They don't trust them, and they blame them for the state of, well, everything. And it doesn't end there, come to Florida, whew! Our legislature has been in a battle with our Supreme Court that is only missing boxing gloves and a bell.

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

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

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

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

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

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

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

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

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

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

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

Monday, July 11, 2005

Hey Nancy Grace - Your "Objection" is Overruled

On my birthday a few weeks ago I received a personalized, signed copy of Nancy Grace's book Objection from a friend.

Boy, she is much angrier than I ever thought.

Nancy Grace is the most divisive legal pundit on TV today. She represents a faction of society that simply believes judges and defense lawyers are at the root of all problems in the criminal justice system. Although she personally "loves" the late Johnnie Cochran, she despises the fact that the Constitution protects both the innocent and guilty and allows defense lawyers to argue what Nancy doesn't want to hear - that the evidence submitted by the state is not proof beyond a reasonable doubt.

In Nancy's world, the tragedies in the system are not-guilty verdicts, and the fact that defense lawyers have their own set of ethics.

Don't take my word for it - buy the book.

I lost count of how many times in the first few pages of her book, including the cover, the former self-proclaimed "viscious" prosecutor mentions "defense lawyers" as the cause of her disdain and complete lack of respect for the American Criminal Justice System.

Nancy is angry. She lives every day waking up and going to bed angry at people like me who are on the side of the law actually written in to the Constitution. She is bothered by the Fifth-Amendment Right to Remain Silent, as well as that pesky little Sixth Amendment to the Constitution, which says:

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

Nancy even says she is "troubled" by guilty pleas. So what is it you want Nancy? You don't want a defendant to walk in to a courtroom and tell the judge they committed the crime and receive a lesser sentence for not forcing the state to spend days or weeks or months in trial? You want every case to go to trial? Talk about a waste of taxpayers money. (Nancy refers to a defendant in the book as having a lawyer paid with taxpayer money - we call that a public defender. They are routinely appointed for people who cannot afford a lawyer.)

Ninety-seven percent of all criminal cases do not go to trial. They either result in a guilty plea or a dismissal. The reason acquittals at trial are news, is the same reason everything else is news - it doesn't happen all the time. If it happened every day, it wouldn't be news. But Nancy is angry at even one acquittal - forget if the reason is that the jury does not believe the state proved its case beyond a reasonable doubt. If they didn't convict, its NEVER the prosecutor's fault - just the lousy judge, bad jurors, and the unethical defense lawyer.

In Nancy's world, only certain arguments by defense lawyers are acceptable.

Nancy, let me tell you what I do.

I review the evidence against my client and advise him or her what I think. They then determine whether to take a plea or proceed to trial. If they proceed to trial, I prepare a defense.

Although I advise what I think a jury may do, I do not determine guilt or innocence. If my client tells me he wasn't there, didn't do it, or didn't do what they said, I still prepare a defense because I do not know if my client is guilty or innocent. I do not take the state's word for it, nor my client's. My job is to protect my client's rights and force the state to meet their constitutionally mandated burden of proof.

I do not apologize for that to you, nor anyone else.

I do not lie in court or put on pejured testimony or false evidence, nor do I advance arguments that have no basis in fact. The ethics rules do not permit this. I do not harass, threaten, or otherwise abuse witnesses. I believe the system works when a good, ethical prosecutor, along with a good, ethical defense attorney, present arguments to a fair and impartial jury in front of a fair judge. You, Nancy, seem to think the system would work much better if a prosecutor was permitted to walk into a courtroom, tell the judge what happened, and have the defendant sentenced to the maximum sentence.

Most good prosecutors appreciate a good defense attorney, so that they do not have to deal with the defendant returning on appeal to argue ineffective assistance of counsel.

I am passionate about what I do. I exist because of the United States Constitution, and am proud to walk into an American courtroom each day and defend the principles this country stands for and lives by.

I am not just "doing my job," as you say Nancy, I am doing the job that the American People and Constitution demand.

Sunday, July 10, 2005

So you're not a terrorist - you DID buy marijuana!

I love stories like this.

In my quarterly column Random Jaded Thoughts published in Florida Defender Magazine, I recently penned "I will not sleep safely until every immigrant with a 20-year old pot conviction is deported."

In today's Miami Herald, appears a story along these lines:

It shows the desperation of our government to save face at all costs and find reasons to justify the application of draconian immigration laws in a way to bolster the war on terrorism.

The Herald reports that the deportation of Basuyouy Mamdouh Ebaid hinges on him buying a small amount of marijuana in 1999. In June 1999, Ebaid plead guilty in Miami-Dade Circuit Court to purchasing and possessing less than 20 grams of marijuana for his personal use that year. As part of his plea deal, he was sentenced to time served -- one day.

By the way, U.S. authorities have labeled him a suspected terrorist but have not charged him. Thank god for the pot conviction.

According to the Herald, Ebaid was on a federal terrorist watch list because he was overheard allegedly praising al Qaeda leader Osama bin Laden and suicide bombers. It is apparently illegal to do this in the same light it is illegal to criticize the President.

The Herald further reports:

FBI agents found nothing tying him to terrorists, according to his lawyers and wife, who strongly denied he ever said those things.

The FBI isn't talking, and no terrorism-related charges are being filed. But federal immigration authorities still want to boot Ebaid out of the country. Not for alleged terrorist activities -- but for buying pot in 1999.

Although Ebaid's was not convicted in court because he was a first-time offender, U.S. authorities recognize it as an aggravated felony conviction, which is another law that exists unbeknownst to the general public. Did you know that even if you are not convicted in court, Immigration and Customs Enforcement can still consider that a conviction? Congratulations America.

Ebaid has being held at the Krome Detention Center since early March. He came to this country as a student in 1984, lives with his Mexican wife and two children, and works with his wife at their Middle Eastern restaurant.

It a bit of irony, Ebaid's lawyers are trying to stop his deportation to Egypt because they argue he would face persecution in his homeland after being branded as a 'terrorist'' in the United States. Way to go guys!

His Miami attorney, Linda Osburg-Braun, is attempting to have the whole case thrown out.

''The defendant entered a plea without any knowledge of the true effects of his plea upon his immigration status in the United States,'' Osburg-Braun told the court in March. Who cares, right?

''The defendant was not advised that his plea could subject him to deportation,'' she said. 'In fact, he was affirmatively told by the judge that it `was not a conviction of guilt.'" Yeah, whatever.

Legal experts said Ebaid's case is remarkable because he was tagged as a ''terrorist'' but is now being deported for using pot.

What's remarkable about that?

This goes on routinely, people.

God Bless America.

Blame Yourself For Repeat Offenders

Tom Barrett, editor of ConservativeTruth.org writes on his website in a well-reasoned article in support of faith-based prison rehabilitation programs:

"Many people re-offend over and over. Some adults in this country have spent far more time behind bars than on the outside. The costs to society are incalculable. Prison costs are staggering. We can't build prisons fast enough, so liberal judges release violent offenders before they have served their sentences."


Prisons are not being built fast enough, so liberal judges release violent offenders before they have served their sentences?"

Prisons are not being fast enough because legislatures are not doling out enough taxpayer funds to build them. Maybe we're thinking of ways to actually prevent crime, or other ways to deal with those who are not actually "criminals," but drug addicts (just kidding).

Legislatures are made up of Conservatives and Liberals. Here in Florida, where Mr. Barrett lives, there's plenty of room in the prisons - we can't convict people fast enough and sentence them to prison for such offenses as habitually driving with a suspended license, and possession of whatever minor amount of drug to which they are addicted.

But the problem is liberal judges?

No conservative judge has ever released a prisoner prior to the completion of their sentence according to Mr. Barrett.

We hear over and over again that prisoners are flying out of prison after serving small portions of their sentences. That is not true. Most prisoners today serve 85% of their sentence, and there is no evidence that letting someone out early is the reason they re-offend.

The problem is us. We simply don't care what goes on in prisons. We spent the 80's whining about prisoners receiving education, cable TV and playing basketball. We'd rather have them sit in their cell and "think about their crime," all the while becoming more adverse to society and ready to emit their anger on us when they are released.

Here's another fact - most people in prison are NOT sentenced to life. Regardless of the "throw away the key mentality," the key is available to MOST inmates. I know you don't care - but you should - because it is OUR problem once they are released.


And by the way - don't you think a prisoner is more likely to behave in prison knowing that if they accomplish something while inside - they can go home earlier, rather than knowing that no matter what they do positively - it won't matter?

Saturday, July 09, 2005

Professional Licenses and Criminal Cases

Many people arrested who hold professional licenses have no idea the consequences the criminal case will have on their future in their profession. Here's some information that any good criminal lawyer should know when representing someone who holds a professional license.

With the exception of The Florida Bar and the various Boards of Medicine, professional licenses are governed by Chapter 455 of the Florida Statutes.

Under this chapter, discipline may be imposed following a conviction, or a no contest plea regardless of whether adjudication is withheld. There is no statutory penalty for an arrest.

Discipline is also governed by the separate practice acts of each individual practice. For example, accountants, architects, auctioneers, and electricians (including alarm system contractors), are subject to discipline upon being convicted of, or entering a plea of no contest to a crime in any jurisdiction which directly relates to the practice or the ability to practice, regardless of adjudication.

If the client’s profession is governed by Chapter 455, the initial inquiry is whether the crime relates to the practice of, or the ability to practice the profession. Many of the specific practice acts, including those for employee leasing, funeral directors/embalmers, geologists, landscape architects, and land surveyors and mappers contain the same language as §455.227(1)(c), requiring that the crime relate to the practice or the ability to practice.

As for athlete agents, barbers, and cosmetologists, there are no specific prohibitions in the practice acts; however, these professionals are prohibited from violating Chapter 455. The state takes a different approach for Talent Agents, subjecting them to discipline upon being found guilty or entering a plea of nolo contendre to a crime involving moral turpitude or dishonest dealings under the laws of this state or any other state or government, regardless of adjudication.

Other professions have specific prohibitions that subject the licensee to discipline. For example Community Association Managers are subject to discipline upon being convicted or pleading no contest to a felony in any court of the United States.

A defendant who has a direct financial interest in a hotel or restaurant is not subject to Chapter 455, however the prohibitions in the practice act relate to specific crimes of prostitution, controlled substances, and those that relate to "professional character."

Yacht and ship brokers are subject to a license suspension or revocation if the licensee has been found guilty of a felony or a crime of moral turpitude.

For those representing businesses, non-profit charitable organizations, and individuals that hold alcohol beverage licenses, pursuant to Chapter 61 of the Florida Administrative Code, the licensees and their establishments are subject to discipline based on either a single violation which the licensee committed or knew about; or a pattern of at least three violations on different dates within a 12-week period by employees, independent contractors, agents, or patrons on the licensed premises or in the scope of employment in which the licensee did not participate; or violations which were occurring in an open and notorious manner on the licensed premises.

Under beverage law, violations are defined by those that do not "establish qualities of trust and confidence generally acceptable to the state." They include most felonies and any crime in the United States or a foreign country that is punishable by imprisonment for a term exceeding 1 year when the act is related to alcoholic beverages, failure to pay taxes, unlawful drugs or controlled substances, for which the defendant is penalized for a criminal act prostitution, or injuring another person in the preceding 15 years.

The Bureau of Alcohol, Tobacco and Firearms has their own version of habitual offender status, defining repetitive unlawful conduct as the same violations occurring within 36 months of the date of the first administrative proceeding notice.

Tobacco licensees enjoy statutory protection from any violation other than those in Chapter 569 of the Florida Statutes.

This information is a summary of the published article "Collateral Consequences of Criminal Cases," by Brian Tannebaum, published in Florida Defender.

Why a "Probably Guilty" Michael Jackson Was Set Free

Lesson in Jackson case: American Jury System Still in Tact

By Brian Tannebaum

Was there not a single shred of evidence that Michael Jackson had improper, possibly illegal relationships with children? Of course there was, in the form of testimony from many witnesses, including children, evidence seized from his home, and Jackson's own words in a British documentary. These witnesses testified to either personally witnessing Jackson with children, or having spoken to Jackson about his relationships with children.

There was only one problem, the jurors, a group of 12 diverse people chosen by both the prosecution and the defense, didn't believe there was proof beyond a reasonable doubt. No race card here, no bloody glove, just a slew of bad evidence that did not permit these jurors to find that the prosecution had met their high burden of proving the case beyond a reasonable doubt.

There are two lessons here. One, when jurors in a criminal case are deciding whether someone should be convicted of a crime, possibly losing their liberty, they want witnesses who are not liars. The mother of the accuser in the Jackson had a sorted past of lying under oath, and of attempting to extort money from celebrities. Two, the unconscionable rule of evidence that allows prosecutors to bring in "similar-acts" evidence is not to be abused.

Many may not be aware that prosecutors in our country are afforded the right to bring in evidence of other crimes or acts in order to prove that the defendant is guilty. For example, if a defendant is charged with stealing a car, prosecutors can seek admission of evidence that the defendant stole other cars in the past. Although this rule of evidence tries to mask what it is really meant to accomplish by stating it is not to be used to show that the defendant is a "bad person," rather that he had the motive, plan, or opportunity to commit the crime, the result is the same. Jurors are allowed to consider the defendant's past in determining whether he committed the crime in the present trial. Thus, the defendant is left to argue that he may have committed those crimes in the past, but not in this case.

It takes a courageous jury to discard this unfair and unjust advantage prosecutors have in criminal cases. We should all express outrage that our government is permitted to argue "he did it before," in criminal cases where someone's liberty is at stake. Prosecutors will argue that this rule of evidence is a powerful tool in securing convictions. That may be true, but it doesn't go a long way to providing the required fair trial to the defendant.

In the Michael Jackson case, it appears the jury did just that: they told our government to bring in credible witnesses, and not fill the trial with evidence that Jackson committed similar acts in the past. They were there to decide whether he committed the crime with which he was charged.

In the Jackson case, they simply decided that the government's evidence went astray of proving beyond a reasonable doubt that the alleged crimes were committed. That's what the American Jury System is about.