A blog by Miami Criminal Defense Lawyer Brian Tannebaum. Commenting on criminal law issues of local and national interest.
Friday, July 29, 2005
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
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.
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.
AUTHORS NOTE - WITHIN SEVERAL HOURS AFTER THIS POST, THE CITY OF LIGHTHOUSE POINT, FLORIDA ANNOUNCED THAT THEY WILL CONSIDER AN ORDINANCE TO BAN SEX OFFENDERS FROM MOVING INTO THEIR CITY - STAY TUNED!
Tuesday, July 19, 2005
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
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
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
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.
"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.
I say let them become educated, watch CNN, and interact with others - THAT IS WHAT THEY WILL NEED WHEN THEY MOVE INTO YOUR NEIGHBORHOOD AND WORK AT THE BUSINESS YOUR PATRONIZE!
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
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.
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.
This entire debate about the next nominee (or more probable 2) is laced with an air of intellectual dishonesty.
The Supreme Court is not a body whose sole purpose is to address one issue.
Yet it is clear that the nominee(s) will have a "litmus test," regardless of statements in the media to the contrary.
I am a husband, father, taxpayer, businessman, and I can tell you that in my daily life, I, like most Americans, see many important issues facing this country. Most people care about safety, health, education, transportation, the economy, and their own family and other relationships - yet there is a faction of our society that believes there is only one issue of any significance to the United Supreme Court - abortion.
I have to tell you I give credit to the Family Resource Council, who has come out and clearly stated that they want an anti-abortion nominee. Why is the administration trying to maintain credibility by stating that the nominee will have no "litmus test." This simply is not true.
I respect those on both sides of the debate, but the decision over the next justice or 2, is not one that should be determined by any one issue.
I once heard that justice is easily defined, justice is fairness.
The next nominee(s) should be intelligent, experienced, and be able to issue rulings based on an interpretation of the constitution, while administering the simple concept of fairness, a word I've failed to hear since the retirement of Justice O'Connor.
He represents individuals and corporations in state and federal court in all types of criminal cases from misdemeanors to complex white collar federal offenses. He is a former Miami-Dade County Assistant Public Defender and is currently the managing partner of Tannebaum Weiss, LLP, a law firm practicing in the areas of criminal defense, commercial and employment litigation, and real estate.
In addition to practicing criminal defense, Brian represents lawyers and law students before the Florida Bar and Florida Board of Bar Examiners, and is active in the Miami community as President-elect of the Ambassadors of Mercy Hospital, member of the Dean's Advisory Council of the College of Law at Florida International University, and a member of the board of directors of several non-profit organizations.
Brian was recently recognized for the second year in a row by Florida Trend Magazine as one of "Florida's Legal Elite," and was recognized by the 2005 South Florida Legal Guide as one of the Top 250 Lawyers in South Florida.