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

Sunday, August 31, 2008

On Labor Day, Celebrating Our Hated Profession

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

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

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

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

The Criminal Defense Lawyer

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

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

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

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

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

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

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

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

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

Monday, August 25, 2008

I Smell Marijuana!

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

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

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

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

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

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

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

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

Motion denied. Judge had no issue with testimony.

Public defender seen shaking her head.

Another day......

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

Thursday, August 14, 2008

Training Prosecutors: Garbage In, Garbage Out

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

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

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

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

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

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

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

No need.

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

Wednesday, August 13, 2008

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

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

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

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

And this is the last few weeks.

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

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


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