A Criminal Defense Lawyer's New Year's Resolutions

I resolve:

To my clients:

[1] To never concern myself with your attempts to make me believe that somehow I am responsible for your current situation.

[2] That I will listen to you when you tell me what your lawyer friend in New York said about your Florida case. Once.

[3] That I will continue to tell you what I think, regardless of how much it may bother you.

[4] That I will continue to meet all my obligations to you, as long as you meet all your obligations to me. This isn't about money. It's about being on time, showing up at a scheduled meeting, getting me that witnesses' name and phone number that "saw everything," and returning phone calls.

[5] That I will continue to cut you off as soon as you begin the "isn't prosecuting me a waste of taxpayer's money," crap.

[6] That I will continue to be the one in our relationship who decides whether "this is a good case" for me, and whether it's a "simple case."

[7] To continue my policy of not rescheduling a missed initial consultation (save for emergencies). One of the best decisions I've made.

[8] To continue to quote "ballpark" fees over the phone in an effort to prevent a wasted hour of being told that "this is a good case" for me, and that it's a "simple case," and I should basically do it for free, because you have no money, and you're innocent, and the government is out to get you and, well, you know.

To judges:

[1] That I will always call when I am going to be late to your courtroom, and appreciate you doing.......nevermind. Next.

[2] That I will "file a motion" for the unbelievably simple thing I am asking for that no one cares if you grant. I just ask that.... you read it.

[3] That I will respect your vacation schedule, time needed for family obligations, need to be out of town for conferences, and the fact that you have other cases you need to get to. I just ask that...... You know, this section is not getting very far.

Let's try:

Prosecutors:

[1] To stick to my code of ethics, especially the part that requires me to give you a free shot to not be the horror that everyone claims you are.

[2] To continue to abide by whatever I tell you, in writing, over the phone, in court, in the bathroom, cafeteria, or ballgame. I trust you'll do the same.

[3] That while we are both "just doing our jobs," I will never tell you that I am "just doing my job." Because people who say that are usually in the process of pissing someone off.

[4] Even if you are a complete jerk, I will continue to never object to a continuance because you need one for personal reasons. Everyone has a car accident, fight with their wife, family member sick, kid issues, and just generally the need for time off. Everyone.

[5] I will continue to respect that your job is different than mine. You do the same, please.

Fellow members of the criminal defense bar:

[1] I will continue to not disparage public defenders, ticket lawyers, DUI lawyers, lawyers who only represent clients charged with petit theft of food on a Tuesday night when there's a full moon, or any lawyer who is competent to accept representation of a person whose liberty is at stake. I will continue to get business because of who I am, not because of what I say about you.

[2] I will always let you cut in line at the podium. Even if you say no to me because you "gotta get somewhere." I have no problem quietly making you feel like a putz.

[3] I will continue to never accept a referral fee from you. Just take care of the client for me.

[4] I will continue to act as if we are all on the same team, even if you don't conduct yourself that way.

Non-criminal defense lawyers:

[1] I will continue to practice law like a human being. You want a confirmatory letter - write it yourself. Threaten me with trial - just tell me when. Give me unreasonable deadlines, they'll be ignored.

[2] I will continue to be respectful when I tell you that I could care less about your civil case against my client. Really, I could care less, but I wish you luck.

[3] I will continue to be respectful when you tell me how good your civil case is against my client. If it is that good, you should win. Again, good luck.

Happy New Year.



Brian Tannebaum is a criminal and Bar defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com



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Charlie Brown Terrorist Has Linus' Blanket Taken Away

On September 10, 2001 that some dude tried to light some liquid with a syringe and caused a small fire on board an airliner would have been an interesting story.

That it happened after September 11, 2001, makes it a 24 hour "developing" "unfolding" story affecting everyone traveling throughout the world, or thinking of traveling throughout the world.

Terrorists have one goal - fear. After September 11, 2001, that goal was met. We are in fear, permanently. As evidence, we spent the last 8 years hearing people support an American President for one main reason, the perception that he "kept us safe." As another example, there is rarely a candidate for office these days that does not tout "public safety" as their number one goal.

We are unsafe. Believe it, join the chorus. It's generally all we care about, or so we are told.

So over the holiday weekend some 23 year-old Nigerian student and son of a banker allegedly tries to blow up a plane bound for Detroit during the last hour of the flight. He fails miserably. And here come the buzz words - "Yemen," "Al-Qaida," "Terrorist."

He'll be tried, convicted and sentenced to life. That's the beginning and end of the discussion of the criminal defense angle of this story.

As more information was learned this weekend, more buzz words - "blankets," "pillows," "no taking a leak within one hour of landing."

Now I'm going to assume that this Charlie Brown terrorist went to the airport, had his one carry on and one personal item, took his shoes off, took his jacket off, had his boarding pass in his hand, showed his ID 4 times in 5 minutes, had his 3 ounces of liquid in a clear plastic bag, took his laptop out, and had his seat back and tray table locked and in their upright position upon take off.

But he caught on to a major security flaw - the ability to go to the bathroom within the last hour of flight, had have a blanket and pillow on his lap.

What were we thinking?

Now that's all gone.


Last hour of flight - no blanket, no pillow, and hold the bladder.

After spending the weekend hearing about this new "safety" policy, I finally heard someone say it - FOX's Greta Van Susteren said the policy was "almost insane." Fascinating to hear that on a network that spends most of it's time accusing the new administration of coddling terrorists and rolling back the War on Terrorism. The response to her comment was that a pilot thought it was done for the sole purpose of:

"Doing something."

And there we have it.

After the failure of the "shoe bomber," we were handed the policy of taking off our shoes and carrying small amounts of liquids in a clear plastic bag.

At the time, Comedian Bill Maher said something to the effect that one day someone with a blue hat would attempt a terrorist act on a plane, and the result would be a prohibition of blue hats on airplanes.

Our new policy of no blankets, pillows, or pissing in the last hour of flight, is that ridiculous. Why not include that Nigerian students that have bankers as parents are prohibited from flying?

On a holiday weekend where we were led to believe we were again "unsafe," our leaders had to "do something." And they did.

Just one question.

What if he tried to blow up the plane at the beginning of the flight.

Exactly.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com



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Maricopa County Rallies

They came, they spoke, they rallied.

Jeff Gamso, who I believe has owned this story in the blawgosphere, has the story here.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com



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Going The Maricopa County Lawyers Rally Today?

Certain events cause a groundswell, or as we call them in internet language "go viral."

That lawyers in Maricopa County, Arizona, have had enough and will meet at the courthouse today to show their solidarity, is unfortunately not one of those events.

I wonder why.

Googling this event brings up a few blog posts, and a brief clip from the Phoenix New Times.

I checked the website again for the Arizona Attorneys for Criminal Justice, but their event calendar doesn't mention it.

This is a bad time to expect a big crowd at any event, other than a holiday party or deep discount flat screen TV sale, but I do hope that the lawyers of Maricopa County, civil, and criminal, take their lunch hour and drop by the rally.

Having a large number of lawyers attend this event will make a big statement.

Having a small number of lawyers attend makes a bigger statement.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com



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The Constitution Makes An Appearance In Federal Court

There is too rarely a case in the criminal justice system that causes the collective public to react in amazement at what really goes on in the "no cameras in the courtroom" federal courts of America. I have always said that the reason cameras are prohibited in federal courts is because the government does not want people to see "what really goes on."

This order, my bedtime story last night, will have three reactions. The public will read in amazement that this conduct occurred, defense lawyers will cheer the judge for bringing to light a tactic as common as the sunrise, and prosecutors will call it an "isolated indident."

As usual, Scott Greenfield woke up earlier than me today and said it best.

Read the order. Make copies for your friends. If you haven't send holiday cards, send this instead. And read Scott's post.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com



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A Voluntary Surrender Becomes Another 6 a.m. Knock On The Door

A little while ago, while dreaming about nothing, thinking about nothing, and enjoying a rare sleep past 4 or 5 a.m., I heard it - the slight vibration on my nightstand.

The caller ID said it all.

It was the client promised a voluntary surrender months ago, weeks ago, and hours ago when the prosecutor called me yesterday late afternoon to say "it's time."

We agreed that this middle aged man charged with "white-collar" fraud would today walk himself into the jail at 11 a.m. It was all he wanted from the beginning of the representation. He knew he would be arrested, and he just wanted to surrender. From day one my first conversation with the prosecutor ended with "of course, no problem."

At least he now got a free ride, I guess.

Faithful readers of this blog, and those who spend more than 5 minutes with me talking about the criminal justice system know that this is a major pet-peeve of mine.

This time, I don't blame the prosecutor, I blame the cops.

Rule #1 or maybe 2 in criminal law is that when there is a warrant, there is an arrest. There is no explaining that it was issued in error, there is no nothing. A warrant means an arrest, period. In 15 years I've only had one client not arrested on a warrant (that I can remember) and it was a juvenile whose case was dismissed, and instead of that being entered into the record, a warrant issued and the cop was kind enough to give me a couple hours to go to court to clear it up with the judge.

But that was it.

This morning was the typical mindless script:

Cops come to door, client jumps in shower. Wife runs downstairs with me on the phone and says "he knows he's being arrested, he was told by the prosecutor (whose name is mentioned) to be at the jail at 11 a.m. We know the bond is $______, can you talk to his lawyer, he's on the phone?

The response was equally mindless: Deny knowledge of name of prosecutor (whose been there for many years and is well known), announce that "we have an order from a judge to arrest him," ignore that the person on the cell phone seems to know a great deal about this, (including when the cop said "the bond is," the wife said the exact amount), and at 6 a.m. is likely actually a real, living and breathing defense lawyer, and refuse to speak to me.

The cops relied on the rules, and to them, I'm just some scumbag defense lawyer who is trying to break them - probably trying to see if I can get my client out of the country on a case that he's known about for months and hasn't as much left his neighborhood.

So today will go like this: My client will get out, the prosecutor will apologize and tell me he never meant for that to happen. He may even contact the Sheriff's department, but probably not. No need to ruffle feathers with your friends. I'll write a letter to the Sheriff which, if responded to, will say that "I must understand" the seriousness of the task, and basically everyone will point fingers, if they even bother to use the energy to do so. Someone got arrested today, someone is in jail, that's all that matters. The public is "safer" because my client was picked up 5 hours before turning himself in.

It seems like the more I practice, the less I get this voluntary surrender down to a science. We live in an endless bureaucracy of "nobody told me," and "I didn't get the memo," and those will be the excuses that fly today.

And so recently I've begun to counsel clients to forget about voluntary surrenders and worry more about the case. Cops and prosecutors use voluntary surrenders as leverage and if the client "doesn't care," the leverage is gone. If the voluntary surrender happens - great. If not, let's move on.

Everyone did their "job" today. The prosecutor agreed to the surrender, the cops made their 6 a.m. arrest. The human component of all of this is buried under notions of defendant's fleeing the country, and an unwillingness to trust anyone, or even listen.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com



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The Arizona Association Of Criminal Defense Lawyers Is Here For You, Somewhere

After learning about the rally next Monday in Maricopa County, I began discussing the situation with a lawyer over there.

I had a basic question - what is the collective criminal defense bar doing?

I heard crickets.

Then: "I think there's been a couple comments in the paper."

I was also told I "didn't understand" the environment there, that lawyers were scared.

That's scary on various levels.

So I took a gander.

I checked out the Arizona Association of Criminal Defense Lawyers, (called Arizona Attorneys for Criminal Justice.

There it was! A link - "What has AACJ done for me lately?" Here, is where I was going to read what the association was doing about events in Maricopa County.

Except it was written by the president 12 months ago.

OK, well, Sheriff Joe was up to his antics 12 months ago - let's see what it says:

"The concerning part is that AACJ is as needed as ever: the county attorneys grandstand, the legislature panders, and the courts cower. Indeed, the same people who ask why we are relevant in almost the same breath recognize we are needed. So, what are we going to do?"

Yes, since that exact situation is going on now - what are you going to do?

Here's the call to action:

In the next year (editors note: meaning right now) this question should be both our focus and goal.

So, let's begin to tell people what we have done for them lately and what we are going to be doing in the future.

There being no update on the website on this mission for this year, I went to the next best section - "News."

No question what's going on now in Maricopa County is news.

Here's the latest news on the website:

Apr 21, 2009
U.S. Supreme Court Limits Vehicle Searches Incident to Arrest

So OK, maybe they're not on top of it when it comes to the web, but how are their members receiving information from an association that wants to "begin to tell people what we have done for them lately and what we are going to do in the future?"

I extend an invitation to the AACJ to provide me any information on their participation in recent events in Maricopa County and I will post it here. I'll also encourage my fellow blawgers to do the same.

Where are you AACJ? What are you doing?

Tell us.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com



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The Lawyers Of Maricopa County Announce A December 21st Rally

I received the following e-mail today from a lawyer I know and who is a co-organizer of this rally:

On December 21, 1946, the United States Supreme Court reversed the conviction of Irene Morgan for refusing to give up her seat on a bus in violation of Virginia's segregation law. This is just one example of the courage of one person standing up against power wielded with evil, unjust, and self-serving intent. I personally do not plan on sitting down any more in the face of this incompetent, thin thinking, petty little tyrant. On Monday, December 21, 2009, at 12:15 p.m., I would like to rally as many people as we can to the patio in front of the Central Court Building to protest the illegitimate, despicable, and cowardly actions of Andy Thomas and to demand that he be suspended from the State Bar of Arizona. Please circulate this email to as many people as you see fit.

(I am not the author of the e-mail but I am passing this on and I will be there. I wanted to let those of you who have written to me about your sympathies for our troubles here in Maricopa County that we are not sitting around anymore.)

Denise M. Quinterri

We'll be watching.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com



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Maricopa County: An American Embarrassment

I've watched, but other than posting the video, haven't written about the garbage coming out of Maricopa County, Arizona. I've left it to those who have taken this deflated and disgusting ball, and run with it. Those like Jeff Gamso, who has marvelously written on the disaster that is the judicial system in Maricopa County.

After yesterday's "indictment" of Judge Gary Donohue, I just can't take it anymore.

This, is a disgrace, playing out daily, and evidencing who is really in charge over there.

Cops.

I'm glad this is all happening. Really, I am.

Because this issue of who really runs our judicial system, everywhere in America, is rarely discussed.

Walk into any legislative committee hearing on criminal justice and you'll see it - a smattering of prosecutors, defense lawyers, maybe a judge or two, and then rows and rows of uniformed police officers. One will speak, 25 will be there for effect.

There is no question but that our "first responders" - police, fire, ambulance, need the support and funds of elected officials. But since 9/11 everything has changed. Whatever power police ask for, they usually get. Blind support of law enforcement's desire to pull over more people for more reasons for more searches is what gets votes. The public is tired of crime, and tired of talking about civil rights.

So Judge Donohue held a police officer in contempt. He asked for an apology. He got an indictment. An indictment, signed by the county attorney. This is no longer about justice, it's about taking sides. It's about the cops versus the judges, lawyers versus judges on the issue of police power, and citizens divided on how they feel about their most trusted fellow citizens, cops. No surprise that there are those who didn't know cops couldn't just pilfer through a defense attorney's file in court. There are those who think the defense lawyer should be sanctioned for representing someone who would write a letter that would raise the suspicion of the police. (Not really, but you know what I mean).

In the end, this dust up will cost the taxpayers of Maricopa County, Arizona, millions.

It's time for the feds to swarm in here. This is getting out of hand.

No, it's gotten out of hand.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com



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Ben Kuehne Wants To Say Thank You

BENEDICT P. KUEHNE
In Grateful Appreciation of the
Overwhelming Community Support of his Innocence

Invites the Community to his
APPRECIATION RECEPTION
On the Occasion of his Vindication

Sky lobby
Bank of America tower
100 S.E. 2nd Street
Miami, Florida 33131
Thursday, December 10, 2009
5:30 p.m. – 7:30 p.m.
RSVP to: RSVP@kuehnelaw.com



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Former Prosecutor's Side Business: Testifying Made Simple

With no fanfare, this story hit the South Florida Sun-Sentinel yesterday.

The headline?

"County commissioner's daughter paid to teach deputies how to testify."

The focus of the story? Well, it began with this:

The daughter of Palm Beach County Commissioner Jess Santamaria has received more than $56,000 in taxpayer money to teach sheriff's deputies how to testify in court.

Yes, rile up mom and pop taxpayer - the story is nepotism - the daughter of a politician got a gig at the expense of taxpayers.

Then we have the "oh, by the way:"

Sheriff Ric Bradshaw signed a contract with Michelle Santamaria last year, after she proposed the classes for deputies and sergeants. The office had never offered training in court testimony, Bradshaw said.

Of course continuing on the focus of the story being the use of taxpayer dollars, we have the typical and shallow denials:

Bradshaw and both Santamarias said Jess Santamaria's position as a commissioner had nothing to do with his daughter's contract.

Right, nothing. Nothing at all.

But maybe this had something to do with it:

Michelle Santamaria, a former prosecutor in the Palm Beach County State Attorney's Office, said she came up with the idea to start a company, called Testifying Made Simple, while working as a prosecutor. She left the job after securing the contract with the sheriff's office.

Her experience with witnesses is typical of the new social media types who have found a way to convince others they are "experienced:"

"I loved being a prosecutor, but with the case load and the volume, I had very little time for family and friends," Santamaria said. "After about a year, I already let them know I was on the way out. I had had this seed planted from being a prosecutor."

Santamaria, 32, said she called Bradshaw's office and requested a meeting with him. She later presented Bradshaw with a business plan.

The Sheriff was concerned: "We had several comments from different prosecutors saying your deputies just aren't doing well in court. They just haven't had the training. They don't get it in the police academy."

In comes the county attorney with the clearance: In a letter to the county, C. Christopher Anderson, the commission's chief assistant general counsel, said the contract did not create a conflict of interest for the commissioner.

Yep. No conflict of interest paying a county commissioner's daughter taxpayer money to teach cops to testify.

Did you see the elephant walk out of the room while you were reading about the mice?

The classes apparently are a big, big hit:

Since signing the contract in December 2008, Michelle Santamaria has held 103 training classes for the sheriff's office. She was paid $550 for each four-hour class, according to her contract. She will teach a final session this month.

And that's the end of the story. Nothing even coming close to questioning this practice. Nothing from a defense lawyer about whether this is fair ground for cross examination.

"So, officer, can you tell us about your participation in "Testifying Made Simple?"

"Well yes counsel, I was student of the week 3 times." "In fact, you see me always looking at the judge and jury, and not at you when I testify? I learned that. Did you hear me chuckle a little when you asked me about your client's confession? That brings me closer to juror #3 who seems to like me and not you." Do I look threatening and agressive to you? That's because I have learned to be a bit more laid back. I also learned a new answer, it goes like this: "the answer is whatever is in the report." See that, I don't have to really answer your question or let the jury know the truth, that I really don't remember.

This is a disgrace. That the paper doesn't even lead the reader to the question of whether this is appropriate is pathetic.

The issue is not taxpayer money being paid to the daughter of a politician. Shame on you reporters.

The issue is the manipulation of our criminal justice system, with taxpayer money.

There is no training in the police academy regarding testifying because testifying IS simple - tell the truth.

Although there seems to be less and less of that, and thus, the need to teach sworn law enforcement how to testify is the result.

Very few reading that story picked up on the left-out angle of that story. I doubt there will be a follow up cry to the editor about anything, and if there is, it will be about the taxpayer dollars issue.

The truth seems to be lost, on everyone.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com



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How Famous People Handle Problems, Like Car Accidents

When an athlete is arrested in my town I am always asked by some panting person -"So, you representing so and so?" I always say, "no," and "don't want it."

There is a notion that representing a celebrity will make the criminal defense lawyer, well, famous. That can be true. It can be exciting, and it can put a relatively unknown criminal defense lawyer on the map, but for the most part it's just a pain in the ass.

First, unless you know the athlete/celebrity, you're not getting a call from the suspect. You're getting a call from the agent. The agent has three goals - to convince you that the celebrity is doing you a favor by contacting you, to negotiate a low fee based on the favor they are doing you, and to tell you that you have to work with the civil lawyers and 4 other idiots who know nothing about criminal law.

Trust me, I know.

Then there's the other issue - the PR side of the case. The "I don't want anyone to know I've hired or spoken with a criminal defense lawyer."

Now let's get to Tiger.

The three scheduled and cancelled interviews tell me one thing - there were too many lawyers and handlers around.

This is all just a guess, but here's what I think happened:

Someone told Tiger he should talk to a criminal defense lawyer. He scoffed. "I didn't commit a crime, I had a car accident."

Because the agent and civil lawyer(s) didn't want to piss off Tiger, they called 5 different criminal defense lawyers and asked them to keep this on the QT. A couple criminal lawyers were not told who the client was, as if they didn't know. "I got a guy who hit a tree and the cops want to talk to him....." None of these lawyers were paid, and none had face to face meetings with Tiger or even spoke to him. No criminal lawyer was going to THAT house.

Tiger wanted to talk.

Then he didn't.

Then he did.

Finally, someone, probably 2 of the civil lawyers, a young associate who "discovered" the law surrounding Florida's accident report privilege, the agent, and the PR firm, convinced Tiger not to talk through their conflicting advice.

Had Tiger spoken with a criminal lawyer of any caliber, the conversation would have gone like this:

"Mr. Woods, don't say a word."

UPDATE: While writing this, I learned criminal lawyer Mark Nejame was hired. Don't know at what point, but after he was hired, the interview with the police was cancelled.

A statement would have been prepared that "on the advice of counsel" there would be no statement, and something about the recovery and that this is a private matter and Tiger will pay any restitution if ordered to be paid by him for the damage to the tree and fire hydrant. and that would have been it.

Instead, it was more important to keep the criminal lawyer at a distance.

I may be wrong about all of this, but I doubt it.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com



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A Criminal Defense Lawyer's Thanksgiving - 2009 Edition

This has become a little tradition here at my humble blog. Here's 2008,2007, and 2006.

In 2009, this criminal defense lawyer is thankful for:

[1] Prosecutors that don't spend their time crafting interesting prosecutions based on statutes that were never intended to be used in "that" way.

[2] Judges who say "I remember standing where you are," and actually do.

[3] Judicial assistants who don't believe being rude to my office staff is part of their job description.

[4] Bailiffs who know how to keep order without telling everyone to shut up every 2 minutes and making every lawyer feel they are about to go to jail if they don't "shut up" as well.

[5] Secretaries at prosecutor's offices who don't act like my phone call to the prosecutor may be a terrorist act. "No really, we're actually friends." "It's about a case, that he's prosecuting." Pick one.

[6] Clients who don't pretend they're calling on Monday morning for any reason other then to remind me they're my client. (There are none).

[7] Clients who wait 'till Tuesday to call for a case update. (There are few).

[8] Fellow defense lawyers who don't tell a potential client that they've "never heard of" a certain defense lawyer, even though they have. (There are some).

[9] Clerks who don't act like just the mere notion that I would think of speaking to them is a blight on their otherwise miserable day.

[10] Reporters who don't walk out of court and ask "so, what just happened in there." (I know one).

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com



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Terrorist Aiding Criminal Defense Lawyers, Michelle Malkin Is Looking For You

This week, a federal appeals court ordered attorney Lynne Stewart to prison and asked the trial judge to review her sentence. It may have been too low based on his lack of consideration of whether she committed perjury.

Conservative blogger Michelle Malkin was relieved:

If there is a shining example of just how dangerous it is for America to give foreign-born jihadists the full panoply of American constitutional rights and all the attendant benefits of a civilian trial, it is Lynne Stewart.

Lynne Stewart was convicted of passing notes for her suspected terrorist client that prosecutors said could have incited violence in Egypt. She was facing 30 years, and received 28 months.

I wasn't in the courtroom. I didn't hear all the evidence. I don't know if Michelle Malkin sat through the trial, although I suspect not.

That's the first problem here, and not really the subject of this post.

Conservatives in America long ago lost their tolerance for "liberal" judges who make determinations that defendant's should spend less than the maximum time in jail.

If the maximum for a crime is 30 years, then damn the judge who takes into account the history of the defendant and other issues (like the evidence in the case) and determines that a lower sentence is appropriate.

That's from where "minimum mandatories" came.

So Malkin thinks 28 months was too low. I don't have an argument there. You can't argue with America's love for lengthy prison sentences. That's a waste of time. If Malkin ever was to read this, she would probably chalk up the mere discussion of judicial discretion as a signal that I am a flaming liberal terrorist loving communist.

Which brings me to the purpose of this post.

Malkin ends her blog post on the Stewart case with this:

How many more Lynne Stewarts are out there, ready to aid and abet their jihadi clients on American soil?

Really Michelle? You're on the hunt for American Criminal Defense Lawyers who are ready to aid terrorist suspects?

Well, if you're out there my colleagues, Michelle Malkin wants to know.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com



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Will Scott Rothstein Get A Voluntary Surrender?

The public takes for granted when they hear that someone "surrendered to authorities."

Surrendering to authorities means that either there is a mature, experienced agent or police officer on the case, or that heavy negotiations took place, or that there's some pissed off cop who didn'tget a chance to have his "fun."

I say "fun" because recently I asked for a voluntary surrender for a client and was told by the officer: "well, making those 6:30 a.m. arrests are really the only fun we have anymore."

There is no policy for voluntary surrenders, a topic about which I previously wrote.

Recently I developed my own policy after a client who answered some questions in an effort to cooperate with a federal agent was picked up 2 years later at 5:30 a.m. because the prosecutor rejected the agent's request for a voluntary surrender.

My new policy is that if a client chooses to cooperate, there will be an agreement to a voluntary surrender, first. None of that "lets see how it goes." You're holding jail over my client's head already, no need to hold scaring the shit out of his kids and embarrassing him in his neighborhood over his head.

So back to the question: Will Scott Rothstein get a voluntary surrender?

He should.

As there is no policy, let me suggest we formalize one. One that prosecutors will probably say they already use. It's just a series of questions:

[1] Is the suspect aware of the investigation?

[2] Has the suspect cooperated?

[3] Has the suspect hired a lawyer? (This is not to put a suspect with money to hire a lawyer in a better place than a poor suspect, it's just one factor.)

[4] Has the suspect done anything to avoid the possibility of arrest? (Morocco?)

[5] Are the suspect's whereabouts known?

[6] Is there any evidence that the suspect will flee if asked to surrender?

Each of these are one factor to take into consideration. A balancing test (we in the criminal justice system all know about balancing tests) is done and a decision is made.

The problem is that recently I hear from the prosecutor: "I don't get involved in that. I don't want to interfere with the agent's/officer's investigation.

Punt.

Rothstein left the country. He came back. He has a lawyer who seemingly is in communication with the feds. Yes, his client is in an "undisclosed location," but I surmise the feds know the location. I trust Rothstein knows he will be arrested at some point and I trust if the feds felt he was still a flight risk they would file a complaint and have him picked up with an outrageous bond.

So I think the deal is done. Maybe it was done before he came back from Morocco.

The "perp walk" satisfies several purient interests. It allows law enforcement to do the early morning stake out, it allows the public to see a hated man walk in handcuffs, and that bodes well for, well, I have no idea.

So I think he gets his voluntary surrender, and in the end, it really doesn't change anything except to show our ability to be professional.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com



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David Letterman Wasn't Extorted

As a defense lawyer, the job is to defend. Defending means determining the appropriate defense to the charge. There are simple defenses: didn't do it, that guy did it, insanity, statute of limitations has run, charge is not appropriate, and of course the old "I wasn't stealing his car, I was just borrowing it for a while. I was going to bring it back."

While it appears that David Letterman was asked to pay $2 million dollars for silence on some scandalous allegations, we are learning now that, well, it was really nothing more than an everyday "commercial transaction."

Let's begin.

The relevant portion of the extortion statute of New York says that: a person obtains property by Extortion when he compels or induces another person to deliver such property to himself or to a third person by means of instilling in him a fear that, if the property is not so delivered, the actor or another will:

(v) Expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt or ridicule

According to John Eligon over at the New York Times City Blog: the defense lawyer's follow up to this classic interview, is that Robert Joel Halderman was simply trying to sell a story, not extort money, when he delivered a one-page screenplay proposal and other evidence to David Letterman in September about Mr. Letterman’s affairs with women who worked for him.

OK.

More from Eligon's article: “This was a commercial transaction,” Mr. Shargel said outside the Lower Manhattan courthouse surrounded by a horde of cameras and reporters. “It was nothing more.”

At the heart of the defense argument is that Mr. Halderman’s only intention was to write a book or a screenplay about Mr. Letterman’s affairs. But before going forward with the project, Mr. Halderman offered to sell Mr. Letterman the rights to the story for $2 million....

As a defense lawyer, clients come in all the time with theories of defense. Some are obviously crafted to see if the defense lawyer will "buy it," and some are novel ideas, such as this one that Halderman wasn't trying to get $2 million from Letterman to keep the story quiet, but that he was just engaging in the sale of his "screenplay."

Defense lawyers owe an obligation to their clients to be candid with them about the appearance of certain theories of defense. All of use as defense lawyers deal with the client who complains "I don't think you believe me, how can you fight for me?

I think I do a disservice to my clients when I buy into a defense that I just don't think a jury will take seriously.

Even if the media will listen.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com



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Why Life Without Parole For Juveniles Makes Sense

No, it doesn't make sense to me. But it makes sense that they remain in effect based on the fabric of our society, based on "what the public wants," says the government.

Yesterday, as every lawyer in the world knows, the United States Supreme Court heard argument on the issue of whether life sentences without parole for juveniles convicted of non-homicide offenses is a violation of the Eighth Amendment prohibiting cruel and unusual punishment.

There is no question but that we have lost any desire to reform children that have gone astray. Trying juveniles as adults, once a rarity, is now the norm. Seventeen year olds are frequently charged as adults because, well, they're 17.

We have no issue as a society locking up people and "throwing away the key. This is whether they are 35, 50, or 14.

The State of Florida argued that individual states should have the right to determine how to prosecute children. Florida has a big stake in this case, with 77 of the 100 juveniles imprisoned for life on non-homicide cases proudly calling the Sunshine State home.

Lock 'em up. Forever.

It's how we are, and who we are today. Politicians run on "tough on crime" agendas, convincing the public that they will "keep them safe." Turn a misdemeanor into a felony, throw in a minimum mandatory penalty, have the tool to be able to lock up a kid for life, and we'll all feel safer. Go against the agenda, and you're just cozying up with criminals and running the risk of abandoning everyones perceived top priority of "public safety."

Life without parole sentences for juveniles make sense because they keep politicians in office, and keep people believing they are safe(r).

Talk about putting money into education, helping kids on the "front end" rather than the "back end" when they are well on there way to prison, and you just "don't understand." The anger and hatred expressed by those who can't believe we as a country would even consider non-homicidal children in prison for the rest of their lives to be cruel and unusual, is deafening.

Prosecutors want this hammer. The people, are told by their elected officials that they want this hammer.

That's why it all makes sense.

And that's why they'll stay in effect, subject to some level of discretion that is virtually meaningless.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com



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VIDEO: Judge Calls Cop Stealing From Defense Lawyer's File "Leeway"

Required watching for every defense lawyer, prosecutor, judge, bailiff, defendant, voter, garbage man, teacher, citizen of the world, is this video where an in-court deputy is seen stealing a document from the file of a criminal defense lawyer.



There's almost nothing that needs to be said about this video.

Well, almost.

As usual, Scott Greenfield covered all the bases in this embarrassment of a scene in Maricopa County, Arizona.

Scott calls it "blatant, outrageous and yes, illegal." He analyzes it this way: "First, this happened in full view of the judge, Lisa Flores, who appears not to have noticed. Later, when confronted with what happened, her first reaction is that her court officers are entitled to "leeway." Her second reaction is to seize upon a statement by Cuccia that this isn't the time to deal with the situation. Her third is that she's got a busy calender and this isn't worthy of her scarce time."

Scott faults everyone, including the defense lawyer:

"On Cuccia's side, she fails to notice, despite a few backward glances as the officer is touching her papers, that something is seriously awry. Once informed of the problem by her client, she asserts herself, but allows herself to be told to "calm down" by the judge, and follows instructions well. Rather than go nuts, inform the court that this is outrageous, far more significant than anything else she has to do that day, and demand that the court address it immediately, loudly and clearly, she demurely allows the matter to be put off to another day."

It's clear the defense lawyer was pushed around, and relented. Scott didn't like that:.

"Rather than go nuts, inform the court that this is outrageous, far more significant than anything else she has to do that day, and demand that the court address it immediately, loudly and clearly, she demurely allows the matter to be put off to another day."

I didn't like that either.

But Scott lives in another world. The world of big time New York criminal defense. Scott suffers from what many of us defense lawyers suffer from: "What I would have done-itis."

Here's the problem: we all live in our own world when it comes to the practice of criminal law. We know judges, prosecutors, cops, and we know what we can and cannot do in certain situations. Maybe this defense lawyer operates in a world of fear of the court, maybe they all do in Maricopa County. I don't know.

She appears to be aggressive in certain areas, and less aggressive in direct confrontation with the Court. She let the judge do the "whatever, I'm busy routine," without putting on the record the seriousness of the cause.

Maybe she has a history with this judge. She did mention "retaliation" in the video. Sometimes doing your job as a criminal defense lawyer results in just that.

What I would have done, is to demand the judge issue a rule to show cause why the officer should not be held in contempt, allow him to obtain counsel, and have a hearing. Then I would have filed a complaint with Internal Affairs, and the state attorney's office alleging theft, obstruction of justice, and official misconduct, with the video attached.

After reading that last paragraph, the sad thing is the some defense lawyers are laughing. "Do that? In my town?"

Yes.

I often am taken to task by my brethren when they complain about situations and I wonder aloud why they don't do certain things. They tell me about the culture of the city, town, or village, and tell me I don't understand "how things are." Yes, there are many communities in this country where criminal defense lawyers "fall into line" because it's all about the business, and not about the system of justice.

Well, that's me, and what I would do here, in Miami, where I've been practicing criminal defense 15 years and feel comfortable asserting myself. There's been a lot of police corruption here, and a situation like this, here, in Miami, would be looked at differently than in Joe Arpaio's Maricopa County.

Some lawyers are just downright scared. And yes, that's shameful.

I'm not making excuses for this defense lawyer. I've just grown to learn that there are different types of communities with different types of attitudes.

Communities like Maricopa County, Arizona, where stealing a document out of a defense lawyer's file in court results in no contempt finding,

After all, these officers are there to insure courtroom safety. Safety from emotional courtroom observers, out of control defendants, and the file of a criminal defense lawyer.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com



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Scott Rothstein: Who Knew?

Keeping up with the latest news on the unraveling of Scott Rothstein is like watching the stock market ticker.

Here's what we know this morning:

Rothstein had $16 million transferred to Morocco. A country he spent the last few days "clearing his head," and according to NBC6 Miami, contemplating suicide. By the way, he's back. His first meeting, with the feds.

Nationally known political consultant Roger Stone thought something was up a year ago.

On Halloween, Rothstein sent this text message, neither a trick, or treat:

"Sorry for letting you all down," he wrote. "I am a fool. I thought I could fix it but got trapped by my ego and refusal to fail and now all I have accomplished is hurting the people I love. Please take care of yourselves and please protect Kimmie (Rothstein's wife). She knew nothing. Neither did she nor any of you deserve what I did. I hope God allows me to see you on the other side. Love, Scott."

All the news surrounds one question: Who knew?

Yesterday a prosecutor told me: "It takes two people to make anything happen."

We'll see.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com



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A Lawyer's Meteoric Collapse Sends No Shockwaves

I never met Scott Rothstein. He ducked out a few minutes before our lunch a few years ago. His secretary telling me and his colleague, who set up the lunch: "he went to lunch." There was no further inquiry as we were not entitled to even be standing by his office, an "off-limits" area of the firm. Instead I went to lunch with some other lawyers in the firm who felt they needed to take pity on me for my wasted 40 minute drive, all of them telling me in response to the unprofessional behavior of their king: "I'm not surprised." "That's Scott."

It was hard not to follow the career of Scott Rothstein and his firm. They were everywhere, sponsoring everything. Charities, foundations, the South Florida Business Journal who enjoyed large advertising revenues and event sponsorship revenues for their "who's the best" this month ass-slapping luncheons, sports stadiums, everywhere.

Over the last year or so the chatter of how this firm, in this recession, was not only surviving but thriving like no other 7 year old firm, got louder.

Lawyers continued to flock to the firm.

Yesterday a legal marketer asked me why these lawyers "didn't do the math."

I responded that today's lawyer doesn't do the math beyond the paycheck.

Today's lawyer doesn't want to know that the average lawyer srtuggles to make $100,000 a year. A good lawyer, makes several hundred thousand dollars a year. Very few make seven figures. A miniscule amount hit the jackpot.

That's reality.

But there's no personal benefit to taking a hard look into how an employment lawyer who started a small firm 7 years ago now owns tens of millions of dollars in homes, leases a jet, owns several six figure cars, and has round the clock bodyguards.

Just give me the check.

I don't know if Rothstein stole the 100-200 million dollars rumored to be missing. I don't know if he committed a crime. I know he sent an email asking what countries do not have extradition treaties with the United States, and is rumored to be in one of those countries. I don't presume him guilty, I do presume him highly careless for sending that email. A search for his name on CNN.com doesn't serve him well either.

The big question going around, as this story develops by the hour, is "what did the lawyers in the firm know?"

They all claim to have known nothing, that Rothstein hid all the firm's finances from the partners and associates.

So maybe they didn't know about this investment scheme.

But there are things you know, and things you know.

You know?

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com



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Why Do Conservatives Apologize For The Government?

I don't know Randall G. Shelden, other than learning he is a criminologist at UNLV, but in searching for a definition of the Conservative philosophy of criminal justice I ran across his thoughts:

The conservative view of crime and criminal justice can be summarized very simply. People commit crime because they think they can get away with it, largely because the pleasure they get from committing the crime is greater than the potential pain they would receive if caught and punished. This is, of course, the popular “deterrence” perspective. From this perspective people refrain from committing crime mostly because of the fear of getting caught and punished. In order to reduce crime, the pain must be increased so that it is greater than the pleasure received from committing the crime. In other words, to reduce crime we should increase the odds of getting caught and the severity of punishment. This way potential criminals will think twice before committing the crime. To use a popular phrase, “if you can’t do the time, don’t do the crime.”

Having spent the past several years watching the Florida Legislature, and every other legislature, continue to increase sentences in an effort to distract the public from their lack of ability to resolve any other social issue, I think Mr. Shelden is on the mark.

But there is a more disturbing trend in conservative thought when it comes to criminal justice. Maybe it's not a trend, just more visible with the advent of blogs and online comments on newspaper websites, but it appears that conservatives have abandoned their desire for limited government.

I say this because more and more I read comments in response to innocent people being released, charges being dismissed, and not guilty verdicts that are written by conservatives apologizing for not rooting for the government.

"Hey listen, I'm a conservative, and I think they overcharged this guy."

"I think the government went way overboard in this case and I'm a conservative."

"I can't believe the prosecutors are wasting their time with this case, and I'm a conservative."

So, please, tell me, what am I missing?

My understanding is that conservatives, while chest beating their "law & order" philosophy that has turned our criminal justice system into political talking points for elected officials, believe in limited government and believe that a government with too much power is a "bad" thing.

So why do conservatives apologize when they believe the government has gone to far in the criminal justice context?

Are they hypocrites, or am I confused?

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com



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Trick or Treat: Scary Criminal Justice Statistics

From on of the various fact sheets on the website of Families Against Mandatory Minimums:

Race and mandatory sentences

Prison populations

•One in 20 African American men over the age of 18 is in state or federal prison, compared to one in 180 white men.

•Two-thirds of the 2 million Americans in jail or prison are African American or Hispanic.

•In 2001 the lifetime chances of going to prison were highest among black males (32.2 percent) and Hispanic males (17.2 percent) and lowest among white males (5.9 percent).

•At the end of 2003, black prisoners made up an estimated 44 percent of all federal and state prisoners with sentences of more than one year. White prisoners accounted for 35 percent, and Hispanic prisoners 19 percent. (Prisoners in 2003, Bureau of Justice Statistics)

Drug offenses

•African Americans make up approximately 12 percent of the population and are 13 percent of the drug users, yet they constitute 38 percent of all drug arrests and 59 percent of those convicted of drug offenses.

•Nationwide African American males sentenced in state courts on drug felonies receive prison sentences 52 percent of the time, while white males are sentenced to prison 34 percent of the time.

•In 10 states African American men are sent to state prison on drug charges at rates that are 27 to 57 times greater than those of white men in the same state.

•When sentenced for drug offenses in state courts, whites serve an average of 27 months and blacks an average of 46 months.

•African Americans are 59 percent of those convicted of drug offenses but, since they are less likely to strike a favorable plea bargain with prosecutors, are 74 percent of those sentenced to prison for a drug offense.

Enjoy the candy.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com



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