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

Monday, December 24, 2007

Bullshit

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


Poll: Bullshit Is Most Important Issue For 2008 Voters


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

Wednesday, December 19, 2007

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

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

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

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

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

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

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

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

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

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

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

Thursday, December 13, 2007

Want To Hire Me, Fire Your Other Lawyer, First

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

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

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

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

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

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

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

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

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


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

Tuesday, December 11, 2007

Bless The Divorce Lawyers

"I could never do what you do."

I hear that weekly.

I have always said the same thing about divorce lawyers.

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

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

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

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

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

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

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

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

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

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

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

Then I went back to being a lawyer.

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

Sunday, December 09, 2007

A Lying Cop

Our criminal justice system is totally screwed up. No, I didn't just realize that, it's what keeps me doing what I do, defending the constitutional rights of those who are drawn into the system through arrest, or investigation. It is getting worse though.

Last week brought us this story about a teenage suspect who secretly recorded his interrogation on an MP3 player. The detective has been charged with perjury because he, oops, didn't know the kid was recording this interrogation and went into court and testified under oath that that the suspect "wasn't questioned" about a shooting. A transcript of the, hmmmmm, different facts, showed that he tried for more than an hour to persuade the kid Erik Crespo to confess.

During the false testimony of the detective, prosecutors asked for a recess and advised the lying cop to get a lawyer to represent him in his 12-count perjury indictment.

The kid's lawyer comments "I couldn't believe my ears."

Really?

This is in no way an indictment of police officers, most who take their oaths seriously, but c'mon, our system is full of liars. This type of conduct occurs daily. Lawyers lie, cops lie, witnesses lie. All in the name of conviction or acquittal, not justice.

For whatever you think of him, Harvard Law Professor and Author Alan Dershowitz spoke about this to Congress 10 years ago.

He said, in part: "I believe that no felony is committed more frequently in this country than the genre of perjury and false statements.

"Police perjury in criminal cases - particularly in the context of searches and
other exclusionary rule issues - is so pervasive that the former police chief of San Jose and Kansas City has estimated that "hundreds of thousands of law-enforcement officers commit felony perjury every year testifying about drug arrests" alone.

"Clearly, the most heinous brand of lying is the giving of false testimony
that results in the imprisonment or even execution of an innocent
person. Less egregious, but still quite serious, is false testimony that
results in the conviction of a person who committed the criminal
conduct, but whose rights were violated in a manner that would
preclude conviction if the police were to testify truthfully."


By the way, prosecutors offered Crespo less than the 25 years he was facing upon conviction. His mp3 player got him a plea to 7 years.


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

Thursday, November 29, 2007

Traffic Ticket Court

Yesterday I ventured into traffic ticket court. I don't go there all that often anymore. I know some of you "big criminal defense lawyers" scoff at traffic ticket lawyers, but they've got the greatest gig. They don't charge much, they have a steady stream of volume business (even though they continuously undercut each other by $10 just to get the edge), no one goes to jail, and for the most part, there's no prosecutor in court. What could be bad?

But yesterday I had one of those clients all of us criminal defense lawyers have; the old client, great client, client who wont walk into any courtroom without us, or just that client for which we have a soft spot.

Such was yesterday, and I was shaking my head at what I saw and overheard.

I'm not one of those criminal defense lawyers who "hates cops," or "hates prosecutors," but yesterday I saw some pretty sad behavior.

There were only 4 officers in court, but 3 of them were acting like they had arrested mass murderers, instead of merely handing over a citation for a minor traffic infraction.

I first heard one say "I had a great Thanksgiving, gave out a ton of tickets." "Yeah, I like to park by the high school the Wednesday before Thanksgiving every year and give tickets to the kids leaving."

He then went on to brag about arresting a doctor who refused to sign a citation. Truth be told, it is an arrestable offense. The officer has discretion to take the person to jail, or give them an additional ticket for refusing to sign. The officer was enjoying telling his story about taking the doctor to jail, and explaining how he listened to him apologize over and over again.

Another officer was getting annoyed answering questions from a lawyer who was trying to verify whether the officer was the one who gave the tickets to his various clients, for the purpose of advising his clients to plea guilty. At one point he said "now, I'm done talking." I could see a detective on a serious felony cutting a conversation short with a defense attorney, but this was a traffic ticket. When the lawyer walked away, he bad mouthed him for about 5 minutes in front of me, complaining about his behavior which was nothing more than conversational.

This was the same officer who told the judge that the woman who was ticketed for an expired registration and came to court with a new registration, should not be found to be in compliance because she had no proof the registration was valid on the day of the ticket.

Seriously.

The judge did not call cases out of turn for lawyers, but for officers. He explained that he does this because he "wants these officers out catching bank robbers, not sitting in an air conditioned courtroom on traffic tickets."

When I left after resolving my case, I saw the result of the judge's efforts to return these officers to the streets, as one of them was handing out a traffic ticket to someone outside the courthouse.

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

Tuesday, November 20, 2007

Thanksgiving Redux

Because I have to leave for the airport 6 hours before my flight to get through the throngs of media reporting on the throngs of people, I will be lazy and re-post my Thanksgiving post from last year. Enjoy!

This Thanksgiving I am thankful for:

1. Families Against Minimum Mandatories (FAMM). A real organization, with real goals, and the most promise of achieving some of them.

2. Prosecutors who sincerely respect the role of the defense lawyer.

3. Prosecutors who don't sincerely respect the role of the defense lawyer and quit being a prosecutor to do insurance defense.

4. Judges who realize there is a whole world outside their courtroom. This world includes traffic, kids, vacations, clients waiting in the lobby, and trials that aren't ready to be trials, yet.

5. Cops who walk out of court after you cross-examine them and slap you on the back and say "good job."

6. Clients who appreciate, well, anything you do.

7. My kids, who don't see what I see everyday.

8. My wife, who loves what I do, because she loves me.

9. The fact that I do not have to advance an argument because "my supervisor" says so.

10. Any prosecutor who understands the gravity of their position.

11. Public Defenders

12. Public Defenders

13. Friendly clerks, bailiffs, and corrections officers.

14. Clients who have payment plans with their family, and pay you up front.

15. Any legislator, state or federal, who doesn't use the criminal statutes or sentencing guidelines as their focus for legislation, solely for the purpose of their re-election.

16. Anyone in government or the courts who believes we have gone WAYYYYYY overboard with minimum mandatory sentences, and is willing to do something about it, other than shake their head.

17. Defense lawyers who are in this business for something other than money.

18. Judges who exercise the independence they so covet.

19. Members of the public who think protecting the constitution is a noble profession even if they think the police "can search my house anytime, I've got nothing to hide."

20. Practicing the only law that really matters.

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

Monday, November 05, 2007

Unhappy Criminal Defense Lawyers Get What They Ask For

This morning, one of our courthouse resident complainers was asking me how I handle clients that don't pay after I get them a great result.

I told him that doesn't happen to me. He chuckled until he realized I wasn't kidding.

He couldn't understand how I get paid up front or within 30 days in "tough times" like these.

I told him I insist, and yes, people walk out the door (probably to his office).

Think about it for a minute my colleagues. What would your practice be like if all fees were payable up front, or in a short period of time? What would you do if you never concerned yourself with deadbeat clients, or waiting desperately for the mail or a visit from a client or two with some money?

I know, you'd have less cases.

So?

I know, "you don't understand my clientele."

Yes I do.

We in the criminal defense bar get what we ask for. If we ask for very little, we get very little.

Isn't it time we concentrate on practicing law, instead of begging for money?



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

Tuesday, October 16, 2007

Dear Prospective Client, Sitting In My Lobby

Welcome to my office and thank you for considering me to represent you in your case. Prior to our meeting, I thought it would be important for you to have some information about my practice.

[1] You are here today because someone, a former client, attorney, family member, friend, or just someone you trust gave me your name. I know this because I do not advertise or mail brochures to those "recently arrested." What this means to you is that I do not have a "volume" practice. A "volume" practice is one where the attorney advertises and has many clients. A lawyer who has a "volume" practice is able to charge lower fees based on the number of clients. There's nothing inherently wrong with a "volume" practice, it's just not my practice.

The difference between my practice and a "volume" practice is comparable to the difference between public and private school. The question being, would you like your child in a class with one teacher and 50 kids, or one teacher and 20 kids? If you want more attention, you need to pay for it. By the way, I went to public school and did just fine, but the consequences of not doing well weren't a conviction and jail.

[2] I may decline to represent you. I will most likely decline to represent you if you tell me that "this would be a good case for you." This means you may think it is a privilege for me to represent you. It may be, but I'll determine that.

I may also decline representation if I "just don't like" you. I enjoy my life. I'm not one who works 7 days a week, has no relationship with their kids, considers a vacation to be taking a Friday off, tolerates clients who believe that I am "on call" 24/7, or otherwise believes that the focus of my basic existence is clients. If I take your case, you will learn quickly how important you are and receive a great deal of attention, but if I believe we are not a good fit, I may do us both a favor and refer you to another criminal lawyer.

[3] When you called, if you asked about fees, you were told my minimum fee. The fact that you are here indicates that you either didn't ask or that this possible minimum fee is not as important as the quality of the lawyer you choose. If you didn't ask, I will let you know now that my minimum fee is ________ for a misdemeanor, ________for a felony, _________ for a federal case (feel free to insert other types of cases). If this is out of range for you, please thank my receptionist who greeted you today, give her back the coffee mug or glass, and drive safely.

[4] Regarding fees, they are not negotiable, and I do not arrange payment plans, except in very limited circumstances. Even in those limited circumstances, it's not a payment plan that includes more than 2 payments. What this means is that you should avoid asking me if I can "make it lower," "give a bigger discount (especially if I've already discounted the fee for some reason)," or "how is it paid?" Again, you may consider it a privilege for me to represent you, but it is not a privilege for which I am willing to pay.

[5] One last thing on fees. The fee I quote you is good for 24 hours. Based on my experience, if a client hasn't retained me in 24 hours, they are "shopping" for the lowest bidder, or have no intention of retaining me. I'd rather not think about it for more than a day. It just annoys me.

[6] Finally, there will be no taking of notes. It's more important that you listen to me and that we can talk without any distraction. In the end, your notes will only provide a method to remind me, and the Bar Association of things I said that may not come true. Such as me telling you that your "case can probably be resolved quickly," or that "your case is complicated and will take a lot of work." My predictions are merely that, predictions. They are not spoken for you to memorialize my words so that every time we talk in the future you can remind me of what I said.

Thanks for coming, I'll be with you shortly.




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

Wednesday, October 10, 2007

A Call For Larry Craig To Stand Up For Defendants (Cue The Crickets)

Richard Cohen of the Washington Post writes this great editorial today on why Larry Craig should speak out for those that are coerced to confess.

I'll hold my breath......

Some quotes from the editorial entitled "When a person is arrested and coerced to confess"

"Having been arrested in a Minneapolis airport men's room, having been compelled (or so he says) into a false confession, having been roundly ridiculed and ostracized by many of his colleagues -- et tu, McCain? -- he has neither the gumption nor the integrity nor the wit to question some of his former positions that made him, without a doubt, a law-and-order conservative par excellence. Craig wasn't exposed as gay. He was exposed as uneducable."

"Along with almost everyone else outside the Republican Senate Caucus -- when the door opens the blast of toxic hypocrisy is enough to deck the average person."

"....why doesn't he say he learned something from the incident? Maybe he wants to reconsider his votes in favor of restricting death-penalty appeals because he now knows that the cops can arrest the wrong person and get him to confess. Look, it happened to him."

"....surely if a three-term U.S. senator can be pressured into confessing to a crime that he insists he did not commit, then something similar can happen to a rattled, undereducated kid who thinks the deck is stacked and is promised a reduced sentence."

"Craig and others who voted to restrict penalty appeals and for mandatory sentences and for one penalty for crack and another for cocaine ought to ponder what happened to him -- what he said happened and what actually might have happened."

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

Saturday, October 06, 2007

Am I The Only Criminal Lawyer This Happens To?

Where have I been?

Getting angry. Going through that occasional "what's happening to our criminal justice system?"

In the past few weeks I've both personally and in the news seen the following:

1. A Texas inmate on the verge of execution denied an appeal and then executed because the Court of Appeals told his lawyers who were running late due to a computer malfunction, "we close at 5."

2. A man pardoned after being sentenced to 25 years in prison for possessing too many pain killers. 25 years!

3. Two separate prosecutors, federal and state, completely ignore polygraph results. (When are we going to get right with this polygraph thing?)

4. A man arrested at his home by 2 police officers who knocked on his door on a Sunday night while he was with his family, did the whole "we got a 911 call from this residence can you step outside" thing, and then took him to jail for.........missing his arraignment on the charge of failing to display the proper commercial vehicle markings on his truck.

So I haven't had the passion to write anything. Although these are individually things I could write all day about, combined, they cause me to shake my head and wonder if anyone's watching.

They are, they're all on the newspaper websites. You notice this? Every news story now has a comment section, and when it's a criminal law story, the opinions fly. They are mostly of two schools of thought:

1. The defendant should "fry" for his crime; or,
2. The defendant should go to jail forever.

That gets me into the phrase my dear friend said at a recent seminar. He said something to the effect that in our criminal justice syttem today only two things happen, they either kill you, or leave you alone.

I'll be back next week, still a bit "annoyed" by it all.


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

Friday, September 21, 2007

"Who is OJ Simpson?"

This is what my 8 year old asked repeatedly the other night as I was discussing the case with my wife. After asking a couple times, I looked at her and realized she was born 5 years after the not guilty verdict in the murder case. She wasn't just doing that "I need to know everyone you are talking about" thing that little kids do, she really had never heard of OJ Simpson.

This has nothing to do with what I will write here, it's just an anecdote that puts some things in perspective.

Here's my thoughts on the latest "OJ."

[1] In my legal opinion, looking at the media reports, reading the police report, and having no working knowledge of Nevada law (as do not a one of the "legal experts" pontificating on TV), the case is in a word, stupid.

[2] It's as much an "armed robbery" as a burglary with assault is when an ex-boyfriend is prevented from going into his ex girlfriend's house to "get his shit," and as a result, he pushes her away from blocking the door.

[3] Anyone else, and hotel security would have walked in the room and made everyone leave.

[4] The case has revived the "talking head" market on cable television. I have one question, can they not find a single criminal defense lawyer from Vegas who actually knows the law and procedure there, instead of lawyers from California, New York, Florida, and every other state? Do they not want to hear what "IS" going to happen, instead of playing the guessing game? "Well, I don't know the law in Vegas, but in Tupelo Mississippi, OJ would........."

[5] OJ will not go to jail. The case will fall apart. He will plea to a misdemeanor and be on probation, which he will violate by doing something stupid, for which he will also not go to jail.

[6] The case is only important because the vast majority of people think he got away with murder.

[7] I am one of those people in [6].

[8] Now that OJ is back home (10 minutes from my house), the media will begin their "are we covering OJ too much?" I know this because yesterday's big story was......."who is OJ's girlfriend?"

[9] People are annoyed by the accusation that we are obsessed with celebrity justice, because the truth is that as a society, we just can't help ourselves. What else are we going to pay attention to, health care? Education? All that other stuff? GIVE US MORE OJ!!!!!

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

Thursday, September 06, 2007

"As appalling as it sounds, in Ohio a mistake is not a crime"

This is what I heard this morning from a reporter on the Today show regarding an Ohio mother who left her 2 year old child in the car for 8 hours, and found her dead at the end of the day.

The mother went to buy doughnuts and thought she had dropped her daughter off. She went to her job as an assistant principal, and came out to her car at the end of the day to find her child dead in 150 degree heat inside her car.

So I hear this, and get a deep pain in my stomach. I have 2 young children. I can't imagine. How dreadful. This mom, who has a reputation of being a good person, left her kid in the car and now she's dead.

In Ohio, a prosecution for this only occurs if there is "recklessness," not just "negligence." So as the reporter said, "In Ohio, a mistake is not a crime."

But that's appalling to some. In fact, there is outrage in Ohio that this mom is not going to jail. The child welfare office is investigating whether she is fit to take care of her 5 year old.

Guess who's speaking out in her defense? The prosecutor who decided he could not prosecute.

But there's outrage. Why? Because we live in a society where we've been conditioned that every human failure should require jail. It makes me sick. Every single time there's a mere car accident reported on the news, the story ends with "no word on whether the driver will face charges," or "charges are pending." Pending what? Your next report? Charges aren't pending until they're filed. The fact that a police officer was called to the scene doesn't mean "charges are pending."

My thoughts here are not really about the media though. They're about those in Ohio, and maybe around the country who are "appalled" that this mother won't be charged.

Let me ask you something? You think she cares? You think she needs to "learn a lesson?" How about a judge or jury telling her she's "guilty?" Maybe she needs someone or some body of people to advise her that she is "guilty" for leaving her baby in the car. Maybe the system should teach her to "never leave her 2 year old in the car by mistake again."

Maybe, as the prosecutor said this morning, the fact that she will have to live everyday of her life knowing she did this," isn't enough for you.

Put yourself in her shoes, if you can stomach the thought.

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

Wednesday, August 29, 2007

Thank You Senator Larry Craig

"I am not gay" Senator Larry Craig, conservative anti-gay rights Republican, of....Idaho? (it just doesn't get worse on the hypocrisy front) has given criminal defense lawyers a 3 word perfect answer to those potential clients who ask one of the most recurring and dumbest questions I hear:

"If I hire a lawyer, won't I look guilty?"

See, Senator Craig was arrested for, ahem, some fancy hand and foot signals in a public restroom in the Minneapolis Airport in June, indicating he wanted sex with who later become known to him as, damn, an undercover cop. Oops.

Craig quietly went in to court pro-se (without a liberal criminal defense lawyer) and pled to a reduced non-sex charge of disorderly conduct.

People are screaming why an innocent man would plea guilty. That makes me laugh, hard. Happens every day folks. He said he "wanted to make it go away," and it did. For a while at least.

Now he says he wasn't guilty, shouldn't have pled guilty and is, hey, hiring a lawyer to withdraw his plea. I don't know the law in Minnesota, but I bet it's too late.

Too late Larry.

So when a potential client asks that ridiculous question about whether "hiring a lawyer makes me look guilty," answer "Remember Senator Craig?"

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

Friday, August 24, 2007

The Failures Of Our System

Prosecutors, defense lawyers, judges, and those involved in the criminal justice system, all have different thoughts on what I refer to as "the failures of our system." But more and more I find agreement.

I believe the failures are:

1. That we are a victim of the notion that we are all unsafe (This isn't my quote, I heard it from a doctor sitting on a panel discussing the state of our system. It is truth at its finest), causing;

2. Our system to be based on a media driven perception of "what the public wants" by congress and legislatures, many of whose members have never set foot in a criminal courtroom, causing;

3. Lawmakers inability to separate those who should not be labeled, and creating;

4. A lack of discretion previously held by judges and prosecutors, causing;

5. A lack of desire to exercise what little discretion is left due to the fear of the media, bloggers, and the general public, causing;

6. A lack of desire to resolve disputes and cases outside the criminal justice system, resulting in more people incarcerated, which creates;

7. A complete lack of concern or attention regarding jail and prison conditions, and too much concern and attention to the perception that;

8. Our system is or should be just like the show "Law & Order," which helps add to;

9. A continued narrowing of the presumption of innocence, to the point where it only applies to the actual jurors sitting on a case, and that;

10. Criminal Defense Lawyers are the root of the problem.



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

Tuesday, August 21, 2007

Dear Michael Vick

Dear Michael:

I'm not writing to blast you for your conduct, which you have now admitted. I am writing to ask you that same question Jay Leno asked when Hugh Grant came on his show after being arrested for solicitation of prostitution while dating the beautiful Elizabeth Hurley.

"What were you thinking?"

That's what I really want to know. As criminal defense lawyers we are taught not to judge our clients. I am not judging you, I am merely wondering what brought you to this point.

I assume you spent your childhood dreaming of being a star in the NFL. Many kids do, but few accomplish what you did. Not only did you become a star in the NFL, you became the starting quarterback for a team in a large metropolitan area. You had endorsements, a major contract providing you with more money that you could ever need for you, your family, maybe your friends, and anyone else who you wanted to help. I bet you rarely had to pay for a drink, meal, or many things you went out to do, and I know that you had many fans, including children.

Ever heard of golf, tennis, skiing, hunting (the legal killing of animals), collecting art, reading, do-it-yourself home repair? Those are hobbies. I guess dog fighting and killing dogs is a hobby as well, but again, what were you thinking?

Seriously, did you think no one would find out? Did you think it was no big deal? Michael, people care more about animals than they do people. Not sure about that? Do you ever see huge protests after a story about a murder on the news? But when there's a story about animal abuse, look out. I'm not critical of this notion, it's just the way life is, and you should have realized this when you murdered those dogs.

Dogs Michael! Man's best friend! When people were listening to the stories about your case, they were in bed with their yorkies and poodles, or on the couch with their labrador retrievers and mutts.

This is why you will never play in the NFL again. Hell, I doubt you will ever coach a kids sports team in your life. "Daddy, who is Michael Vick?"

Prison will not be the worst thing for you Michael, nor will never playing in the NFL again. It will be that you will forever be known as a dog killer, by everyone.

I am one who will hope that society gives you the benefit of understanding that you will pay a debt to society and be entitled to move on with your life. But that is a pipe dream in today's world.

It just makes me wonder, what you were thinking.


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

Sunday, August 19, 2007

Legislating Away Murder

In last year's first legislative session for Florida Governor Charlie Crist, the "Anti-Murder Bill" became law. The running joke was "are you for or against murder?" The bill passed the first day of session, and was signed into law immediately.

Seems to be a question about what it says. The Anti-Murder Act says in sum, that a judge has to make certain findings before letting a "violent offender of special concern" who has been alleged to have violated their probation, out on bond. I ask everyday whether there are any "violent offenders" that are not of "special concern."

Recently, a guy with a lengthy criminal past was let out on bond in Florida and subsequently killed a police officer. Now Governor Crist is publicly questioning whether the judge failed to follow the Anti-Murder Act.

He didn't.

The suspect was arrested at least 20 times by age 24 and violated probation in the past, but was not on probation at the time of this arrest, as required by the Anti-Murder Act.

He followed the law, let a guy out on bond, who then killed someone. Not just anyone, a cop, with a family.

It's every judge's fear. It happened, and there is no law that can prevent this tragedy from happening. None.

Why, because people arrested for misdemeanors, even first time offenders, have subsequently bonded out and killed people.

We will never legislate away murder, unless we amend the Constitution to remove the provision entitling the criminally accused to reasonable bail.


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

Friday, August 17, 2007

Lessons From Padilla - We No Longer Have To Fear... Defense Lawyers

So Jose Padilla was convicted here in Miami yesterday. The community reacted with a big loud "whatever."

He's going to prison, probably for the rest of his life. CNN reported this as a "huge victory for the Bush Administration." Padilla's mother disagreed. The prosecutors quietly left court, as did the defense lawyers, although they were heard to have voices cracking after the verdict.

One of the issues on appeal will be his lengthy stay on a Navy Brig without access to counsel or charges against him. We live in a country where that happens. We take people into custody, without charges, deny them access to lawyers, or file charges against them. They are enemies, enemy combatants to be exact.

Even speaking about this these days is deemed to be "unpatriotic" and "liberal." Bullshit.

I love this country, and hate where it is. Something wrong with that?

If anyone takes a minute to really examine this whole case, it is clear that Padilla was held without charges, and denied access to counsel, for one reason: The fear of a criminal defense lawyer.

This entire debacle was engineered to keep him away from....a criminal defense lawyer.

In essence, the government feared not terrorism, but........criminal defense lawyers.

Why? Because we do things like file motions, ask judges to look at government allegations, question law enforcement. These are things that the constitution requires, and what we have been taught to fear most.

In the end, Padilla got his criminal defense lawyer. Actually he got a few outstanding ones. In the end, the allegations against him were heard in a court of law, prosecuted by prosecutors, in front of a judge. A jury determined his fate.

And today, we no longer have to fear.......criminal defense lawyers.



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

Tuesday, August 14, 2007

An Open Letter To Prospective Criminal Defense Clients

Hello.

Thank you for making an appointment to meet with me and for considering me as your counsel.

The phone number you called, and will continue to call if I am retained, is maintained by the phone company. Every month they send me a bill. If you are in jail, I have to pay for the calls you make to me whether you pay me for them or not.

The person you spoke to on the phone works at my office. I pay her salary. I also pay her health insurance and parking. Every year I give her a birthday present and a holiday bonus and gift as well. Often times she tells me we need things for the office, and I purchase those items as well. Those include the legal pads I will take notes on about your case, the soda you are drinking, and the stamps that allow me to send you the documents you will want to review.

This is not the same person who is my assistant. I also pay her salary, and her health insurance and parking. Every year I also give her a birthday present and a holiday bonus and gift too. She will be the one who will give you the information you need immediately when I am in court on another matter, and will make sure I am aware of what you need from me.

The office you are coming to is rented. Every month I write a check for the privilege to maintain this space, and every year the price increases. I also had to pay for the furniture you will sit on, as well as the computer that I am using to write documents that may keep you out of jail. The books I am using to determine your fate were not free, in fact those paperback ones in different colors cost quite a bit. They are not as expensive though as the monthly on-line research service I pay for that allows me access to the most up-to-date case law that I will argue to help you maintain your freedom.

The suit I am wearing was paid for by me. I also had to pay for the shirt, tie, shoes, and belt. Every so often I clean these items and pay for that as well. It is important that I am dressed appropriately in court and in meetings to discuss your case, so I am taken seriously. I trust you agree. The cuff links and watch were a gift from my wife.

My wife is not working so that she can take care of my kids.

Which leads me to those pictures you will see on my desk and bookcase. Those are my kids. They wear clothes as well. I pay for them. I also pay for their food, as well as the food for my wife and myself. Kids are expensive. They like toys, entertainment, and lots of both. I like to make them happy. I also like to pay for other things they need like health insurance and educational costs. From time to time we all need prescription medications, which also cost money.

I also have other obligations you may be familiar with. I pay utilities for my home, sometimes have to perform repairs, and every month, like the rent on my office, I have to make a mortgage payment. I also have to pay for the car I drive to court, as well as the gasoline.

Although I believe this pretty much covers my major expenses, of course there are others.

After spending 3 years as a public defender over 10 years ago, I have chosen to engage in the private practice of criminal defense law. I do not handle divorce, personal injury, bankruptcy, or commercial litigation.

The point of all of this is to advise you that if you are looking for a private criminal defense lawyer, and not a "lawyer who handles criminal defense," be prepared to pay a fee.

If your intent is that at the end of the meeting you will advise that "the only problem you have is the money," please cancel your appointment at this time.

Thank You.


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

Thursday, July 26, 2007

Payment Plan Practices


I don't have one.

Why do you?

"Because most of my clients can't afford to pay me up front."

You sure about that? Really sure?

How do you know that, when you advertise "payment plans available?"

If I know I can pay in installments without interest, why wouldn't I? Is there anyone who hasn't bought their flat screen plasma or washing machine on a one-year no payments no interest plans? Why wouldn't you? I'll keep my money as long as I can.

So will clients.

People ask, "how do you get the money up front?

I insist.

Are there exceptions? Of course. Half up front, the other half next month. Or a couple clients with monthly payments because they are those "nice young kids" that I like to represent, and really can't afford a lawyer any other way.

But as a matter of course, absolutely not.

Try it. Try it today. After your consultation, announce the fee, and when the client says "how much do you need up front, say "all of it."

Then wait and see what happens.

Payment plan practices consume lawyers. They become such a part of your daily practice that it becomes more time consuming to get paid, then to represent the client.

And don't tell me "that's the nature of the practice."

We've made it that way. It's time to stop.

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

Monday, July 23, 2007

No More Get Out of Jail Free Cards

As a criminal defense lawyer who doesn't advertise in the yellow pages, I receive few early morning "someone's in jail can you bond them out" calls.

I don't want them anymore.

I don't mind the call from a great friend, or current client seeking some help, but the people who "got your name from.....," please don't call me.

Why? Because you waste my time.

[1] You get some sense that I am responsible for actually getting them out. I am not. I am merely giving you the name of a respectable bondsman for you to call. This does not give you the right to call me 6 times on a Saturday and ask me why he's not out. I don't know.

[2] You don't listen to me, you go down to the jail when I tell you not to, and you start talking to people who tell you different things. You believe all of it. You then call me and tell me that "so and so said........"

[3] You rarely hire me for the case, if you even bother to call me and let me know he's out (because then you may have to say "thank you.")

My job is not to "get people out of jail." That is the job of a bondsman. If you have some difficulty posting a standard bond (the bond normally set for the particular offense in each juristiction), then a lawyer may be necessary.

But from now on if you're calling because "someone's in jail," be ready to retain me, or call someone else.

(Yes, this happened twice this weekend)


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

Thursday, July 19, 2007

Federal Criminal Lawyers Vs. State Criminal Lawyers

I wish the title of this post could be something different, but this is where we are.

I practice in state and federal court. About half and half. I began as a state public defender and my federal experience is gained from working with other federal criminal lawyers, not from being a former assistant united states attorney or federal defender.

I am not a "federal lawyer." A self-proclaimed "federal lawyer" is someone who only practices in federal court (with the exception of many of them who you can find tripping over themselves in state court when "indictments are down.") There is a group of "federal lawyers" who have no use for "state lawyers," and I think it's time to have this discussion. Mainly because I'm getting tired of the bullshit.

I do not bemoan anyone for their type of practice. I am not a "DUI lawyer," "ticket lawyer," "death penalty lawyer," "white collar lawyer," or "federal lawyer." My practice is mixed.

I am a "criminal defense lawyer."

I am tired of you "federal lawyers" looking down on all your brothers and sisters in the defense bar. What is so special about you? Why are you so much better than someone who goes into court and defends someone against state or municipal government?

And I'm not talking to those of you who will respond with "I don't look down on other lawyers." I'm not talking about you.

Why are some of you so convinced you are such great lawyers?

There are so many reasons I bring this up.

Specifically, yesterday, an email went out from a defense lawyer looking for a "DUI Lawyer" in another city. The responses from the "federal lawyers" was referrals to a former AUSA who probably has never been to state court, and to a legendary mafia lawyer.

What is it with some of you "federal lawyers" who think every single case needs to be referred to a "big" "federal lawyer?" I know, your answer is that you were referring these lawyers so they could make the proper referral. They can't, trust me. It's not just yesterday either, I see this all the time. Someone asks for a referral for a small state case, and recommendations come in for big Washington firms, or the white collar guy at the big firm who spends all day reading, I'm sorry, having other people read, documents.

Maybe if you took the time to learn about some of the other lawyers who also practice criminal defense, even though it's the criminal defense work you wont get your hands dirty with, you would be referring clients to the proper lawyers, or just staying out of it out of respect for "the rest of us."

Part I.

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

Tuesday, July 17, 2007

Thoughts On Our Criminal "Justice" System

I received this e-mail in response to the story below. It really is a comment on the state of our system in general:

"This is all a result of a system that is designed for pleas, in which 2% of cases go to trial. Therefore, prosecutors are judged on conviction rates and on percentage of nolle pross's and other nonsense like that. They should be judged on whether they act honorably and thoughtfully on what they do and don't prosecute. It is further the result of this country's CYA mentality. No one wants to be on the O'Reilly factor. Therefore, cops make arrests they don't really agree with and pass it up the chain, hoping the State will do the right thing. The State files and pursues the case, while making a decent plea offer to the innocent Defendant, because they have to "back up the officer". The judges deny motions to suppress and other defense applications, because there is never any political capital to be gained in siding with a Defendant. The underfunded and overworked lawyer pleas the client out, or he just might lose to a jury of citizens who assume that a guy couldn't be arrested, filed on, and have a Judge allow a trial, if he is actually... innocent.

Its all capped off by a PCA from the District Court of Appeals, if they are too busy to write an opinion on that particular case.

I, for one, personally think that the only way to combat this trend is for more defendants, and their attorneys, to be willing to go trial. If we can raise the percentage of cases that go to trial then more nonsense gets exposed and the judges will encourage the State to not waste their time and clog their docket.... instead of leaning on us."


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

Sunday, July 15, 2007

Rolling The Dice, As A Prosecutor

This morning's Miami Herald brings us a story that is the perfect example of why all of us should be mindful of the power of prosecutors.

Norman Borden was charged with murder for killing two of three men in a Jeep that tried to run him down while he was walking his dog. He shot his gun five times through the windshield, then moved to the side of the vehicle and fired nine more rounds.

From the Herald: "He thought the shooting was self-defense, but a prosecutor put him on trial in the deaths, despite a new Florida law that grants wide latitude to people using deadly force to protect themselves."

In Borden's case, a prosecutor filed charges against him, even though he privately thought Borden might have been correct to open fire.

Kentucky Judge Sheila Isaac, said about the no-duty-to-retreat law in Kentucky similar to Florida's "You just don't see cases where people are prosecuted when they are defending themselves,"

Oh.......Judge Isaac, welcome to Florida.

Our guy Borden faced up to life in prison without the possibility of parole if convicted of murder and attempted murder.

"One of his would-be attackers, 21-year-old Juan Mendez, admitted in testimony at Borden's trial that the three men in the Jeep planned to 'rough him up.' A baseball bat was also found in the vehicle.

Prosecutor Craig Williams argued that Borden exceeded justified force when he continued firing after shooting the driver and stopping the Jeep. But Borden's defense argued that he did not have to retreat, citing the new law."

Now here's where it gets good, real good:

Williams said he pursued the charges because he thought a jury needed to decide the case. But he privately wondered how he would have behaved in the same situation. When Borden was acquitted, the prosecutor was almost relieved.

The assailants 'were bringing an arsenal,' Williams conceded after the trial. "It was pretty clear what the right thing to do was here."

Then I read this from the ABA Standards on Criminal Justice:
Standard 3-3.8 Discretion as to Noncriminal Disposition

Illustrative of the factors which the prosecutor may properly consider in exercising his or her discretion are:
(i) the prosecutor’s reasonable doubt that the accused is in fact guilty;
(ii) the extent of the harm caused by the offense;
(iii) the disproportion of the authorized punishment in relation to the particular offense or the offender
(iv) possible improper motives of a complainant

Additionally, (not that I have any evidence this happened here, but it is a long-time concern of judges and defense lawyers:

(c) A prosecutor should not, be compelled by his or her supervisor to prosecute a case in which he or she has reasonable doubt about the guilt of the accused.

As defense attorneys, we often hear prosecutors say "hey, if you're guy wants to roll the dice and go to trial......"

"Rolling the dice" is something to be carefully considered, on both sides.

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

Saturday, July 14, 2007

"Hire Me Despite My Website"

A state representative in Florida was arrested this week for offering oral sex to a male undercover cop for $20.

He naturally hired an attorney, one whose website says he has a "general practice with an emphasis in family law," naturally.

I don't know this attorney, so I did what everyone will do, I went to his website.
I noted this at the bottom of his site:

"The hiring of a lawyer is an improtant decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications & experiece."

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

Tuesday, July 10, 2007

How NOT To Get Out Of Jury Service

From CNN.com

BARNSTABLE, Massachusetts (AP) -- A Cape Cod man who claimed he was homophobic, racist and a habitual liar to avoid jury duty earned an angry rebuke from a judge on Monday, who referred the case to prosecutors for possible charges.

"In 32 years of service in courtrooms, as a prosecutor, as a defense attorney and now as a judge, I have quite frankly never confronted such a brazen situation of an individual attempting to avoid juror service," Barnstable Superior Court Judge Gary Nickerson told Daniel Ellis, according to a preliminary court transcript of the exchange.

Ellis, of Falmouth, had been called to court with about 60 other potential jurors for possible service on a 23-member grand jury.

On a questionnaire that all potential jurors fill out, Ellis wrote that he didn't like homosexuals and blacks. He then echoed those sentiments in an interview with Nickerson.

"You say on your form that you're not a fan of homosexuals," Nickerson said.

"That I'm a racist," Ellis interrupted.

"I'm frequently found to be a liar, too. I can't really help it," Ellis added.

"I'm sorry?" Nickerson said.

"I said I'm frequently found to be a liar," Ellis replied.

"So, are you lying to me now?" Nickerson asked.

"Well, I don't know. I might be," was the response.

Ellis then admitted he really didn't want to serve on a jury.

"I have the distinct impression that you're intentionally trying to avoid jury service," Nickerson said.

"That's true," Ellis answered.

Nickerson ordered Ellis taken into custody. He was released later Monday morning.

Ellis could face perjury and other charges.


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

Friday, June 22, 2007

Nifong Going The Way Of Paris Hilton?

We can only hope...

FOX News has the story here

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

Monday, June 18, 2007

"A Clear Case Of Intentional Prosecutorial Misconduct"

That's how former DA Mike Nifong's conduct was described at his ethics hearing.

Read about his future here.

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

Friday, June 15, 2007

Good Riddance Nifong, You Disgrace

Mike Nifong is thankfully stepping down from the position he disgraced.

I hope he never is permitted to enter a courtroom as anything else but a defendant.


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

Sunday, June 03, 2007

Please don't call me if.....

[1] You want to get someone transferred to another prison within the state.

[2] You are a boyfriend/girlfriend of an inmate who has been convicted.

[3] Your first question is going to be whether I "do pro bono."

[4] You are unhappy with your second lawyer.

[5] You want to sue the police because they were rude to you or the handcuffs were too tight.

[6] You've been issued a "no trespass" warning and you want to....."trespass."

[7] You're the guy's brother.

[8] You are set for trial tomorrow and want to know if "it's a good plea offer."

[9] Your wife, girlfriend, or both threatened to call the cops, but you just want to "talk" to me.

[10] The only problem you will have in retaining a lawyer, is, well.... the money.



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

Monday, May 28, 2007

Memorial Day and Bobby Kennedy


Next week, June 4, it will be 39 years since former Attorney General, Senator and Presidential Candidate Robert F. Kennedy was shot. (he died on June 6). By the way, BOBBY, is a great movie.

This is part of a television interview with Bobby Kennedy on the Vietnam War

It sounds like some of what he might say today.

I think the course that we are following is in error. But, I am saying that as a United States Senator and want to have what I say analyzed on that basis. I've always said unless it is clear that its their war and we are over there to help them that we can't win.

Now they have had corruption and lack of land reform, They failed to put in the democratic procedures that we should have and the democratic processes.

Unless they change,unless there is a drastic change, the people of South Vietnam are not going to feel the loyalty to them to Saigon -rather to the Vietcong and feel that its worth while- they're making the sacrifice -they're making the effort.

I think they should do it. They should carry the burden. Now if they are going to do more of that and the North Vietnamese will not escalate which I expect they will. And the Russians can send them far more sophisticated weapons than they have already. If both of those things come true, I think we will be well on our way to winning the war.

I think there has to be a one hundred and eighty degree turn on the part of the South Vietnamese and there has to be a complete change of policy in North Vietnam.I haven't seen any indications of this up to the present time,

I would to see the South Vietnamese do more. I would to see them carry this burden I would like to see them doing the fighting and not just Americans. Because I don't think there is any alternative to that. We are not going to win unless the South Vietnamese do more, and make more of an effort. It shouldn't be just the United States and Americans doing it.

First we were making the effort there so that people had their own right to decide their own future and select their own form of government. And it wasn't going to be imposed on them by North Vietnam. We had the support of the people of South Vietnam . I think that's why we were involved in that struggle. That's certainly the way I looked at it when I was in President Kennedy's administration and in President Johnson's.

Now we turned. When we found that the South Vietnamese haven't given the support and are not making the effort. Now we are saying we are going to fight there so we don't have to fight in Thailand . So we don't have to fight on the west coast of the United States, so they won't move across the Rockies.

Our whole moral position, it seems to me changes tremendously. One we are in there- We are helping people. We are working with them. We're fighting for their Independence.

Second, we're killing the enemy and we are also killing many civilians. But we are doing it because they want it.

Now we changed, we switched. Maybe they don't want it but we want it. We are going in there, we're killing South Vietnamese, we're killing children, we're killing women, we're killing innocent people. Because we don't want to have war fought on American soil. Or because they are twelve thousand miles away and they might get to be eleven thousand miles away.

Our whole moral position changes it seems to me.

Do we have the right here in the United States to say we are going to kill tens of thousands of people, make millions of people as we have refuges, kill women and children as we have.

There is thirty-five thousand people without limbs in South Vietnam.one-hundred and fifty thousand civilian casualties every year. Thousands of children are killed because of our efforts.

Do we have that right, here in the United States to perform these acts, because we want to protect ourselves so it is not a greater problem for us in the United States.

I very seriously question whether we have that right. And I think other people are fighting it, other people are carrying the burden. But this is also our war. Those of us who stay here in the United States.


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

Wednesday, May 16, 2007

Report Suggests Raising Age For Criminal Responsibility

A report from the British Centre for Crime and Justice Studies (CCJS) suggests raising the age for criminal responsibility and also suggested children should no longer be sent to prison.

The story is here.

Imagine if we ever took a wholesale look at juvenile justice in this country?

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

Sunday, May 13, 2007

The Wrong Things Potential Clients Say To Criminal Defense Lawyers And Why

[1] How many cases have you won?

We all know there's those lawyers out there who say "I've never lost a case." If that's true, assume yours will be the first.

[2] My friend had a lawyer and he got the whole thing "quashed," "dismissed," "thrown out."

My friend went to the best doctor in the world and died.

[3] If I pay you this money I'm guaranteed not to go to jail, right?

Criminal defense lawyers aren't ethically permitted to give guarantees. If you talk to one who does, run out of their office as quick as possible, with your money.

[4] How much do you need to get started?

This is interpreted to a criminal defense lawyer as "what is the smallest amount I can give you now, and then make you chase me for the balance?"

[5] What do you mean by priors?

This means, "yes, I have been arrested, but I don't want to talk about that before you quote your fee."

[6] Can I get back to you, think about it, talk to my family?

Sure, but you won't.

[7] I didn't bring my checkbook today.

How funny, that happened to me the last time I went to buy something and I walked out with nothing as well.

[8] What's our chances of "beating this thing?"

No matter how many times I say "50-50," it never receives a different response than "I know, but what's our chances of beating this thing?"

[9] Can I be honest with you?

Honest is good, especially right now.

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

Saturday, May 05, 2007

Dear Paris,

Paris, actually, I should call you Ms. Hilton, as I don't know you personally.

I'm sorry you have to go to jail for 45 days. Jail sucks, it will suck for you more, as you've probably not had to stay overnight in a musty motel off some expressway for a night on your way somewhere, ever. My advice to you is probably the same as your lawyer's - keep to yourself, and lose the attitude. They will screw with you daily, just keep it together.

Speaking of your lawyer, he's a good lawyer Mr. Weitzman, been around a long time. I trust he didn't tell you to take the stand and blame your "handlers" for "letting you" get "caught" behind the wheel. I trust he also didn't tell you to say that you are a "very busy person," in response to why you didn't really understand that WHEN YOUR LICENSE IS SUSPENDED, YOU CANNOT DRIVE.

I bet he advised you to take the stand and just apologize and beg for mercy from the judge. Did you say "I'm sorry?" Maybe you did, I didn't see the transcript.

I just hope you now know that when you are a criminal defendant in criminal court, charged with not obeying a court order, you sometimes have to just take responsibility.

Responsibility is...... nevermind.

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

Monday, April 30, 2007

NOT GUILTY - A JUDICIAL ORDER LIKE NO OTHER

IN THE COUNTY COURT, IN AND FOR
PALM BEACH COUNTY, FLORIDA
STATE OF FLORIDA
CASE NO. 2007MM001698AXX
V.
BERTRAM WILLIAMS,
____________________________/
VERDICT -
ONE SMALL CASE IN THE WAR ON DRUGS

THIS CASE came before the Court for a Non-Jury Trial on April 19, 2007.
Defendant, charged with possession of less than 20 grams of marijuana, representedhimself; the State was represented by Seth A. Kolton, Assistant State Attorney.
The Court took testimony from two police officers. Defendant testified in his own
defense.
The prosecution of marijuana cases continues to be a significant component of the war on drugs. For example, FBI statistics showed that the total number of arrests for marijuana offenses was higher in 1997 than in any prior year in this nation’s history. In that year alone, state and local law enforcement agencies reported 695,201 marijuana arrests, of which 87 percent were for possession only.
In his judicial indictment of the war on drugs, Judge James Gray citing this statistic, remarked as follows:
“Simple arithmetic yields the staggering statistic that someone is arrested for a marijuana offense somewhere in the United States every forty five seconds.”1
More recently, the New York Times estimated that marijuana arrests have reached three quarters of a million annually.
According, to the National Household Survey, about 18 million Americans used
marijuana at least once in 1997, and more than 71 million had used marijuana at some time in their lives.
The war on drugs has clearly been a bipartisan effort. Although President Clinton was the first President to admit having put a joint in his mouth, marijuana arrests continued to increase during his administration.
Nor have the events of September 11th, 2001, and the subsequent war on terror
diverted law enforcement resources away from the search for marijuana. As Judge Gray notes, it was Attorney General Ashcroft in the post 911 era who proudly announced the success of “Operation Pipe Dream,” a nationwide roundup of bong and roach clip manufacturers.
Oddly enough, Judge Gray reminds us that the first American law about marijuana, passed by the Virginia Assembly in 1619, required every household to grow it as hemp was considered a valuable commodity.
Notwithstanding the widespread use of marijuana, and the resulting arrests and
prosecutions, trials in misdemeanor marijuana cases are rare in Palm Beach County. In most cases, the accused is found in actual possession and the litigation, if any, in these cases centers on search and seizure issues rather than the issue of guilt or innocence.
The rarity of trials is also a product of the state’s lenient plea offers, most often involving court cost assessments, or deferred prosecution agreements that permit offenders to avoid an adjudication of guilt, thereby avoiding a mandatory two year driver’s license revocation which is triggered by a conviction for possession of any quantity of marijuana, no matter
how small.
Against this backdrop, we turn to the events of this case and examine the war on
drugs closer to home.
At about one o’clock in the morning on January 23, 2007, two deputy sheriffs were in a marked vehicle on Australian Avenue in West Palm Beach. It should be noted that these deputies are and were assigned to the “Violent Crimes Task Force.” From their testimony it is apparent that their main responsibility is “aggressive traffic enforcement” that can lead to the discovery of weapons, outstanding warrants, and contraband drugs.
There is no question that the officers appear to be honest and zealous in their
mission to take drugs off our streets. It is also apparent that their mind set appears to be that even minor traffic infractions are likely to lead to the discovery of narcotics. Australian Avenue is apparently perceived as part of the war zone, at least in the early morning hours.
At the same time, the Defendant, Mr. Bertram Williams, is driving down Australian Avenue in the area of 15th Street. He is a black male and is pulled over for a tag light violation. Although the legality of the stop in this case is not at issue, this judge, for sixteen years, in his courtroom has been haunted by the image of African American motorists being detained by police officers for minor equipment violations.3
Mr. Williams, it turns out, has worked as a sky cap for the past 17½ years at Palm Beach International Airport. He is well mannered and soft spoken.
The officers approach Defendant’s vehicle cautiously - one deputy on the driver’s side; one deputy on the passenger side. Defendant cooperates and produces a valid driver’s license. Allegedly, the officers detect an odor of marijuana emanating from the vehicle (an allegation that is omitted from the probable cause affidavit filed in this case).
The Defendant cooperates as he is frisked for weapons. He has no weapons or
contraband on his person. Asked for consent to search the vehicle, he gives it with no hesitation.
The police find marijuana in the vehicle. Defendant adamantly denies knowledge of it to the deputies at the scene.
The testimony is undisputed that Defendant was driving a family member’s vehicle, that Defendant did not smell from marijuana; nor did he exhibit any signs of being under
the influence of marijuana or anything else.
There is no evidence that any of the marijuana was warm to the touch or recently consumed.
Defendant testified rather credibly that he does not do drugs, smoke cigarettes or drink alcohol, that he coaches athletics in his spare time and wants to be a role model for his children.
Defendant had appeared in court three times prior to the trial and rejected offers to avoid an adjudication of guilt by merely paying court costs or entering the PTI Program.
In the words of the Defendant, he “was not raised to say he was guilty of something he did not do.”
As a general rule, where the state’s evidence of constructive possession is all
circumstantial, it is for the trier of fact to decide whether the evidence excludes every reasonable hypothesis of innocence. As the trier of fact in this case, the Court answers the above question in the negative. This Court believes it is reasonable to believe the marijuana butts belonged to and had been smoked by Defendant’s brother who routinely drove the vehicle. Defendant’s mere proximity to the contraband standing alone is not enough.
Undoubtedly, the officers in this case are well intentioned in their commitment to the war on drugs. However, the spectacle of two members of the Violent Crimes Task Force investigating a tag light violation warrants some scrutiny by our citizenry.
Drug prosecutions inevitably involve search and seizure issues that require courts to assess the credibility of police officers. Trial judges routinely remark to each other how amazing it is that so many drug users leave their drugs in plain view and voluntarily consent to searches that will incriminate them. More significant, however, are the comments by some experienced law enforcement officers regarding this issue. Joseph McNamara, the former police chief of both San Jose and Kansas City expressed his concern about the collateral effect of the war on drugs in a 1996 editorial comment entitled “Has the drug war created an officer liars’ club?” In this case, the Court does not find that the officers lied or misled the court in any way. However, as Chief McNamara notes, less honest officers can be easily tempted to tailor their testimony to meet legal requirements for successful drug prosecutions.
The prosecutor in this case argues that Defendant’s guilt was established when it was shown that he was driving a vehicle that smelled from marijuana. The tragic reality, however, is that notwithstanding the war on drugs, narcotics, including marijuana, are everywhere and one is not guilty of a crime merely because he or she is in a place where drugs are found. Remember, 18 million Americans used marijuana at least once in 1997.
The extent to which drugs have permeated our community was noted by the Chief Judge of Florida’s Third District court of Appeals back in 1991 when he wrote that trace amounts of cocaine may be found innocently on “almost everything in South Florida”, Jones v. State, 589 So2d 1001 (Fla. 3rd DCA 1991).
Fortunately, the appellate courts of this state have carefully scrutinized constructive possession cases. For example, it has been found that the mere presence of the odor of marijuana is not sufficient evidence of knowledge, Metzger v. State, 395 So2d 1259 (Fla. 3rd DCA 1981); that “mere proximity to contraband is not enough to establish dominion and control. Rather to prove dominion and control, the evidence must establish the defendant’s conscious and substantial possession, as distinguished from mere or superficial possession of the contraband,” Isaac v. State, 730 So2d 757 (2nd DCA 1999, at p. 758.
The State’s contention that the Defendant committed a crime because he operated a vehicle that smelled of marijuana is a dangerous argument. Applied literally, it calls for punishment for conduct that does not involve any criminal intent. And, as noted above, anyone adjudicated guilty of possessing a minor amount of marijuana loses his driving privilege for two years pursuant to Florida State law.
In publishing this verdict, the Court has included commentary that admittedly may not be relevant to the question of whether the Defendant committed a crime. This commentary should not be construed as an indictment of the officers who arrested the Defendant or the state attorney for prosecuting the case. This judge is deeply concerned about the threat that drugs pose to our society, and particularly to our children, and, therefore, appreciates the motivation and good intentions of the police and prosecutors who bring these cases to court. However, as Judge Gray so eloquently writes, “although the war on drugs makes for good politics, it makes for terrible government.”
In this one case, the Court finds the Defendant not guilty. Undoubtedly, the state
will prevail in many other marijuana cases that will come before this Court in the future if the accusation is proven. This judge is sworn to uphold the laws not to write them. The more important questions to be resolved are whether the war on drugs as it is presently being conducted is doing more harm than good and whether it is effective. Those questions can be answered only by the Legislature, not the Courts, and certainly not by this judge.
DONE AND ORDERED in West Palm Beach, Palm Beach County, Florida, this
________ day of ________________, 2007.
____________________________________
BARRY M. COHEN
County Court Judge

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

Sunday, April 29, 2007

Bush Administration: Gitmo Problems Caused By Defense Lawyers

When will they stop? Why do I ask?

As you probably know by now, there is a Justice Department proposal (i.e. Alberto Gonzales) to limit lawyers' access to Gitmo detainees. As reported by AP, the department said attorney access via the mail system has 'enabled detainees' counsel to cause unrest on the base by informing detainees about terrorist attacks. The New York City Bar calls the allegations false.

''This is an astonishing and disingenuous assertion,'' the association president, Barry M. Kamins, wrote Gonzales.

''Blaming counsel for the hunger strikes and other unrest is a continuation of a disreputable and unwarranted smear campaign against counsel,'' according to the letter.

On Thursday, American Bar Association President Karen J. Mathis criticized "arbitrary restrictions concerning the number of times and the ways that lawyers may confer with their clients in Guantánamo.''

I'm so tired of this.

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

Thursday, April 26, 2007

Willie Nelson's On The Road Again

FROM THE MIAMI HERALD:


Willie Nelson and his tour manager were spared jail time Tuesday after pleading guilty to a misdemeanor count of marijuana possession.
Nelson and tour manager David Anderson, along with Nelson's sister, Bobbie Nelson, and two drivers, were issued citations on Sept. 18 after Louisiana state troopers said they found marijuana and hallucinogenic mushrooms on the country legend's tour bus during a commercial-vehicle inspection on Interstate 10.
State District Judge Paul deMahy fined Nelson and Anderson $1,024 each and put both on probation for six months. As part of a plea agreement, the citation against Bobbie Nelson was dismissed.



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

Tuesday, April 24, 2007

Dear Clients,

1. I am your lawyer.

You have my 24 hour phone number and I ask that you use it if you have questions before you try to figure out the answer yourself.

2. No one else is your lawyer. Your bondsman, significant other, good friend, boss, "friend in New York that's a lawyer," or person you know who “has a good friend that is a lawyer,” is not your lawyer.

3. If someone listed in #2 tells you something that causes you concern, read #1.

4. Calling me.

If you call my office looking for me in the mornings, you will quickly develop an opinion that I am never in the office. I am in court at least 3 mornings a week. Unless I am in trial, I am usually in the office after 2 p.m., Try me then. If you leave me a message on my cell phone voice mail, I will receive it. If you leave a message at the office, it will be sent to me immediately. This information is provided to avoid the occasional routine of calling every hour to learn whether I have received the message.

5. Me calling you.

If I do not call you back right away, it is only for three reasons:

a. Your message did not require an immediate return call, or;

b. I am not able to call you back right away, or;

c. I am on vacation and your message did not require an immediate return call.

6. Vacation? Aren’t you going to be in town every day during the pendency of my case?

No. I can assure you though that during any vacation there will be no hearings, depositions, trials, or any other significant developments in your case that will require my presence. You should consider a vacation as well.

7. Just because a certain result happened in your friend’s case, does not mean it will happen in your case. Even if you tell me 6 times.

8. There won’t always be something going on in your case.

Many times I receive messages from clients saying “What’s going on in my case?” Sometimes we are just in a waiting period. Waiting to receive evidence, waiting to take a deposition, or waiting for court. If you want your case over immediately, go plea guilty now.

9. I will never forget that you are my client and that you have a pending case.

I am not a part of a large law firm, and I do not have hundreds of clients at any one time. My goal is for you to think you are my only client, but you are not. If you cannot understand that I have to meet with other clients and do work on their cases as well, go to law school and be your own lawyer. You can spend all the time with yourself you wish.

10. There is one rule to follow that will relieve your anxiety.

Everything will take longer than expected.

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

Saturday, April 21, 2007

Gonzales & Nifong, Attorneys At Law

Attorney General Alberto Gonzales cannot remember, (known in congressional hearings as "I can't recall") the fact that he was intimately involved in the firing of 8 U.S. Attorneys.

Mike Nifong at least understands that he used the power of his office to prosecute innocent people. He says he's "sorry."

They are both "sorry."

Everyday I hear "that's what makes lawyers look bad." Sometimes that comment is made when lawyers actually do things that make lawyers look bad, like lie (see above), and, cheat (see above). Many times its made when lawyers do things they are supposed to do, like obtain not guilty verdicts or large monetary settlements.

Now we have two lawyers, the highest officer of the Department of Justice, and an elected District Attorney, that are the best evidence of what makes lawyers look bad.

Alberto, you're not being honest, we all know it, I hope next Saturday I'm writing about your resignation.


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

Monday, April 16, 2007

Wednesday, April 11, 2007

Glen Beck's Importance To The Duke Rape Case

So this is the criminal defense blog, and today because one of the biggest embarrassments in the criminal justice system ended, I guess I'm supposed to say something about it.

But I want to talk about Glen Beck, because besides the important statements of the North Carolina Attorney General, the officials at Duke University, and the former defendants, Glen Beck asked some important questions this morning on his radio show.

He passionately and repeatedly asked why the civil rights leaders of America are not more vocal about what happened to these students.

I laughed, and no Glen, I wasn't laughing at you, I was laughing at the notion that people really care enough about what happened today to do anything.

With the advent of DNA, innocent people are exonerated more and more, yet where is the outrage? There is some, but it is insignificant.

Today, we are all about Law and Order, both on and off TV.

I recently came back from a trip with my kids to Colonial Williamsburg. You know what the longest line was for? The restaurants? The re-enactments of battles and other historical meetings? The demonstration of how they made chocolate? No, the longest line was for the trial in the courthouse.

As a criminal lawyer, everywhere I go I am asked about whether I watch "Law and Order." Why is there so much excitement over Fred Thompson running for President? Is it that he's a strong leader, smart on policy issues? No, he's on "Law and Order."

We are all about Law and Order. Glen Beck, you know that it is the media pundits like Nancy Grace and others that have "taught" us that the Constitutional Presumption of Innocence is for the courtroom only. Not for the general public when watching TV, or out socializing. Many a time I have heard media pundits say "I don't have to presume him innocent."

We savor the downfall of people in this country. We are told that "guilty" means guilty and "not guilty" does not mean innocent.

We in America have no interest in the innocent, only the guilty. When someone is arrested, it is front page news, most of the time when exonerated, except in the Duke or other high profile cases, it is on the back page, if it is published at all.

You watch Glen, there will be people that will profess the guilt of these poor destroyed boys regardless of what happened today. Some in the media, who are the only "teachers" of law that some people have, will create an atmosphere that will allow a great deal of people to say "well, I still think they're guilty."

There is little respect for the criminal justice system in our country anymore. TV has taught us to believe that everyone's guilty and they are guilty in an hour.

I think I heard you Glen crying out for those who should scream at the top of their lungs about this case as an example of the horrors of injustice.

I'm listening, but I don't hear much.

Will Sanjaya win American Idol?








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

Saturday, April 07, 2007

Florida Governor Crist Keeps Commitment to Automatic Restoration of Civil Rights, Angers Conservatives

A few years ago, when the Florida Legislature was considering the abololition of the "withhold of adjudication" (a rareity in criminal justice, much like non-unanimous death verdicts that we have in Florida), then Attorney General Crist told me "that's ridiculous, everyone deserves a second chance."

I thought that to be a bold statement for a republican, tough on crime being part of the mantra. At the same event, another republican responded to me when I brought up faults in the death penalty system which have caused innocent people to be put on death row, "I think the problem is all these appeals they get."

This week Florida adopted the policy of automatic restoration of civil rights for all felons, except for criminals who have committed murder, manslaughter, DUI manslaughter, sexual battery, lewd and lascivious crimes, child abuse, treason and terrorism.

And man, are the conservatives mad. Wonder if it has anything to do with the fact that these restored felons may not vote for those who spent the last many years instituting draconian sentencing schemes.

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

Monday, March 26, 2007

A Criminal Defense Lawyer Goes On Vacation

I know, the headline makes the defense bar laugh.

No, not a long weekend, leaving on a Thursday afternoon, hoping to G-d that the world doesn't explode on Friday, I'm talking about a real, 10 day vacation.

Yep.

But what if a new case comes in? They can hire someone else.

What if it's a big case? They'll wait.

What about the clients? They're getting a letter or e-mail explaining that their lawyer is going on vacation, from them, and their case. They should take one too.

So to the county court prosecutor that objected to my request for a continuance on a DUI case I say, well nothing yet, the case is still pending. To the federal prosecutor that agreed to my continuance on a trafficking in heroin case where there is a 5-year minimum mandatory sentence, and to the federal judge who granted it without a hearing, I say thank you.

To all my brethren out there, I say, buy some tickets, rent a car, get the hell out of town for a while.

Why not?

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