I Am Not Going To Jail Today

Yesterday around the country thousands of criminal defendants went to court. Some were found guilty, a few acquitted, some pled guilty, and one, in Broward County, Florida, died.

Jon Ross, 29, did not receive the death penalty. He drowned, and left three young children without a father.

Because of a new arrest on drug charges while out on bond, Judge Cynthia Imperato revoked his bond and ordered him into custody. Instead of taking a seat, he ran down 7 flights of stairs, out the door, into a canal, and drowned.

When I heard this, I didn't know who the judge was. My first thought was to write some sarcastic piece about what I assumed happened. I of course assumed that upon the judge hearing about he death of the escapee, the reaction would be "next case."

After 15 years of practice I am often too quick to assume that judges are cold hearted robots who only care about clearing their dockets.

As I was getting ready to write about this - this reality of emotions that sometimes accompany the factory of criminal justice - I heard it was Judge Imperato, and saw a video of the scene. There was the canal, the boats, the cops, the witnesses, and in the corner of the screen, Judge Imperato on the dock.

I know Judge Imperato. I've never appeared before her and have no pending cases in her court, but I sit on a couple Bar committees with her, and know her as a human being. When I saw her standing there, I wondered why she was there and what she was thinking as she was standing there.

Was she asked to come to the scene? Did she go voluntarily? What was going through her mind? Will this affect her rulings in the future? I think it has to.

There are those who will say this is her fault. There are those who will defend and criticize her decision. The truth is, pick up a new case while out on bond - bond revoked - tough judge or not.

The comments of course to the story in the online version of the paper are riddled with just pure stupidity. I haven't read them all, but I know those over 100 comments include happiness that the "scumbag" is dead, criticism of the judge, questions of why anyone cares, and a few about how terrible this is. I often wonder who writes these comments and whether many of these people are just looking for reaction or are just unemployed and retarded as I assume.

You may be asking, "what is the point of this post?"

I don't know.

I guess there are too few moments where we in the system, and those outside the system see raw emotion and overwhelming desperation result in the ultimate price.

I don't know if Jon Ross was trying to escape or die, but he died. He didn't want to go to jail, and he won't, ever.

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



Post to Twitter

Civil Lawyers, Come Here, Closer, Listen Up

Every so often criminal lawyers have the "joy" of interacting with a civil lawyer in the course of a criminal case.

Now look, I don't like to generalize. There are good and bad lawyers in every field, on every side. In general though, civil lawyers have a method of practice that is very different from criminal practice.

So civil lawyers, come here, closer, listen up:

[1] I went to law school too. There was nothing I read in school or in the last 15 years that mandates "confirmatory letters." I know you get .3 in billable time for writing and sending them, but I won't read them. I won't write them either. When you tell me something, I may scribble it somewhere, but that's for me. See, in criminal law if a prosecutor or defense lawyer doesn't keep their word, it gets around the courthouse in about 23 minutes. I know you come from the school of thought that every lawyer is a blood sucking not-to-be-trusted liar. That's your problem, not mine.

[2] I don't care about your schedule, just like you don't care about mine when you call and give me a deadline to call you back (followed up by a confirmatory letter) "or else."

[3] Court scares you, not me. So don't threaten me with "going to court." I love going to court. I love going to civil court where all the former criminal judges ask "are you lost Mr. Tannebaum?" "What are you doing here?" Trial? please. When we starting big guy?

[4] Cut the crap with telling me every time I ask for a courtesy that you "have to talk to my client." I don't care how "impatient" or "upset" your client is. My client may go to jail and the fact that your client wants a check isn't my priority. I'll try to help, but stop trying to make me believe that your client has to approve of you acting like a normal human being.

[5] Stop telling me you either "used to do some criminal," or "don't know anything about criminal," (with that holding-your-nose attitude). The fact is, you're not a criminal lawyer, and I'm not really interested in hearing about your distant history or lack of knowledge about what I do as if it makes you a better person.

And to those of you that don't do this stuff, call anytime. (I put that in writing for you)

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



Post to Twitter

But Won't I Look Guilty?

The second step for those non-indigent defendants post-arrest, is to one or 12 lawyer's offices. There is no question at this point that the defendant is in need of criminal defense counsel, and the only issues are money, money, can the lawyer guarantee me a win, and money.

The second step for the pre-arrest-under-investigation type is often a trip inside their mind. This is where they determine that they've done nothing wrong, don't know why there was a business card with an FBI or Secret Service logo left on their doorstep, and that they will "handle this."

After Mr. pre-arrest talks to too many people about this (which is any person other than their wife or priest) someone convinces him to speak to a criminal defense lawyer.

He does so reluctantly.

He calls the office and will not tell the receptionist or the lawyer's assistant, anything. Not even his last name. They of course, are not to be trusted. They have never received a call like this.

The annoyed criminal defense lawyer takes the call with no knowledge of the facts leading up to the call. Does the lawyer represent a co-defendant? Is the lawyer otherwise conflicted out? Is the potential client a lunatic?

The conversation ensues. Answers are more opinion than fact, and generally not helpful.

This potential client may make an appointment, but whether it is there or on the initial phone call (which is getting more difficult to take as the client is now whispering from the empty office outside the conference room in which he was just meeting), the question is asked:

"But won't I look guilty if I hire you?"

That's not the full question, really. The full question is:

"I think I've done nothing wrong and I don't want anyone else to think I think I've done something wrong because if I appear to think I've done something wrong then others will assume I've done something wrong, and that's just wrong."

But to your question: "But won't I look guilty if I hire you?"

The answer is:

You already do, look guilty."

You may not look guilty to the general public because they don't yet know about the investigation. You may not look guilty to your co-workers, friends, or family because you've told them every time you've seen them or spoken to them since "the visit" or receipt of the subpoena that you are "innocent."

But you do look guilty.

You look guilty to law enforcement, the people investigating you. To them, you either look guilty, or are guilty.

They are the people that matter.

Everyone else will make up their own mind whether you hire criminal defense counsel, or continue trying to game the system with your stupidity.

There will always be a perception of guilt for someone who claims innocence and hires a criminal defense lawyer.

There will also be a perception of sickness for someone who claims to feel OK, but goes to see a doctor.

Me, when a potential client under investigation asks "but won't I look guilty if I hire you," I say, "you already do, otherwise you wouldn't be 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



Post to Twitter

I Think Blagojevich May Be Getting Screwed, Somewhat

Never want to kick a man when he's down, but there is something hysterical about a politician calling a press conference to announce that the system under which he is being prosecuted is unfair.

Now Illinois Governor Rod Blagojevich is not complaining about the criminal justice system (yet), he's complaining, loudly, about the administrative rules governing his impeachment. He wants the legislature to change the procedural rules so that he can call as witnesses everyone except Jesus, Moses, and Britney Spears (I think). He is doing the classic "I'm going to drag everyone who ever spoke to me into this and embarrass as many people as I can until either the system apologizes to me or I have a nervous breakdown."

So I read the rules.

Blago says he can't challenge the evidence.

Rule 8(b) The House Prosecutor or the Governor or his counsel may object to the admission or exclusion of evidence. Any objection must be addressed to the Chief Justice. No objection, however, may be made against all or any part of the House impeachment record filed by the House Prosecutor with the Secretary.

Now I don't know if he's right about this, because I don't understand what this rule means. Who wrote these?

Blago also says he can't subpoena the witnesses he wants to appear. I think he's right.

Look at this crap:

Rule 15(f) "It is never in order to request a subpoena for the testimony of any person or for the production of documents or other materials from that person if the U.S. Attorney for the Northern District of Illinois has indicated that the person's testimony, or inquiry into the subject matter of that person's testimony, could compromise the U.S. Attorney's criminal investigation of Rod R. Blagojevich, as exemplified by, but not limited to, exhibits 10, 24, and 30 of the House impeachment record, unless the U.S. Attorney subsequently indicates otherwise.

So the U.S. Attorney has to bless Blago's right to call a witness? No question that requires the impeachment be stayed pending the outcome of the criminal trial.

What fascinates me is that these rules were drafted specifically for the Blago impeachment trial. Read them. These are not rules of procedure for impeachment, these are rules governing the impeachment of Blago.

The problem is that Blago has no friends, and now, no lawyers. His criminal lawyer resigned because he can't control Blago and his big mouth.

Blago's biggest problem? His message gets lost in the messenger.

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



Post to Twitter

What Obama Should But Won't Do For Criminal Justice

[1] Create a policy, like a real policy regarding immigrants and crime.

Recently a friend was deported. He was convicted in federal court over 20 years ago. Back then, people were released without detainers. My friend started his life, went to school, started a business, lived under his real name, got credit cards, married, and a couple weeks ago at 6:30 a.m. ICE came and took him into custody.

In law we have something called "laches." In simple terms, if a party doesn't execute a right within a reasonable period of time, that right expires.

There's a difference between hiding out, hoping not to get caught, and just living your life while the government ignores you.

We need to have a policy that isn't just, "get 'em all out of here."

[2] Encourage Congress to roll back or remove all minimum mandatory sentences, except for life in prison for murder.

I know, this is the "liberal" in me. Minimum mandatories were invented for one reason, disrespect for judges. We no longer let judges be judges. We have politicians, many who have never entered a criminal courtroom (yet) determine sentencing schemes. We throw out numbers like 10, 15, 20, 30. We are ridiculous.

[3] Stop the lip service about drug addiction.

We yawn when we hear how many people are in prison for drug use. We ignore the economic issues related to filling up our courtrooms with cases of marijuana and possession of small amounts of cocaine.

I know, drugs are bad. Drugs kill our kids. But I'm not talking about the traffickers. I'm talking about the users. Stop acting like there's not a difference.

[4] Tell DOJ that the prosecution of criminal defense lawyers by use of expansive theories of laws meant for drug dealers is over.

I don't need to get into that issue too much. Just Google "Ben Kuehne."

[5] Host a conference entitled "What We Prosecute In Federal Court."

There's a lot of garbage in there these days. Let's get it out in the open.

[6] Appoint more federal judges that have real experience as lawyers.

I can't remember the last time a stellar federal prosecutor or criminal defense lawyer became a federal judge. Sure, those that started their career as assistant U.S. attorneys, 20 years ago, get appointed and have to leave their silk-stocking BigLaw job, but what about plucking judges out of the U.S. Attorney's office or Federal Defender's Office, or private criminal defense practice?

None of this will happen, but as we are all into this thing about "hope," this is mine.

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



Post to Twitter

Hey Martin, Happy Birthday! From the White House And The Big House

There was a heightened buzz about the prison population when the stats came out that over 2 million people were in American prisons.

Then I think American Idol came on a few hours later, and led us into the evening news of lottery numbers and tomorrow's weather. I think there was a small warehouse fire that night as well that made the top stories.

So anyway, about 10.4% of the entire African-American male population in the United States aged 25 to 29 is incarcerated. Hispanic men make up 2.4% and 1.2%, white men.

According to a report by the Justice Policy Institute in 2002, the number of black men in prison has grown to five times the rate it was twenty years ago.

Today, more African-American men are in jail than in college.

In 2000 there were 791,600 black men in prison and 603,032 enrolled in college. In 1980, there were 143,000 black men in prison and 463,700 enrolled in college.

MSNBC.com reported in 2006 that "about 16 percent of black men in their twenties who were not college students were either in jail or in prison. African Americans are seven times more likely to go to prison or jail than whites. Almost 60 percent of black male high school dropouts in their early thirties have spent time in prison. The percentage of young jobless black men continues to increase, part of a trend that generally hasn't abated in decades. In 2000, about 65 percent of black male high-school dropouts had no jobs, either because they couldn't find work or because they were in jail. By 2004, the studies found that number had grown to 72 percent. The numbers for young black men were higher than for whites and Hispanics similarly affected.

A study of nearly 1,500 private employers in New York City, found that black job applicants with no criminal records weren't any more likely to get a job than white applicants who were just out of prison.

So today we bar-b-que, we stay home, we "take the day off." We "celebrate" the birthday of a man who said this:

"But one hundred years later, the Negro still is not free. One hundred years later, the life of the Negro is still sadly crippled by the manacles of segregation and the chains of discrimination. One hundred years later, the Negro lives on a lonely island of poverty in the midst of a vast ocean of material prosperity. One hundred years later, the Negro is still languished in the corners of American society and finds himself an exile in his own land. And so we've come here today to dramatize a shameful condition.'

Well, we don't have segregation anymore, not legal segregation anyway. But we have a problem. Things are getting worse, and other than lip-service, we really don't care, do we?

As a great friend told me years ago, "racism is economic." I understand that. It's not just being "scared" of or "not liking" black people. It's taking that fear and dislike and turning it into a lack of desire to integrate. When we take our fears or dislikes of people and translate them into economic hardship, it kills our society.

This is the response to those that say more black people are in prison because they commit more crime.

People commit crime for various reasons, but one is that they have to. You can make all the arguments you want, but when a young black man can't get a job and needs to eat, he will find a way to eat. If that way is stealing, robbing, selling drugs, or even killing, he, like whites and hispanics, will eat.

You say blacks should "get a job like everyone else." Are you hiring black people, or do you expect "us" to do it?

The face of America will change tomorrow with the Inauguration of the first African-American President. I hope this change trickles down to the neighborhoods of American and into the hearts and minds of all Americans.

We need to stop ignoring our growing prison population, our willingness to accept the hoards of black men shackled and taken before judges each morning. It is a disgrace, it is economic based, and it is "our" responsibility to grow up and not only usher a black man into the White House, but into our house, or business.

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



Post to Twitter

Message to Prosecutors: We Can Advise Clients. Really We Can

Over at the 2nd best criminal defense blog in the country, Simple Justice, Scott Greenfield brings us this story about yet another lawyer indicted for, uh, being a lawyer.

So here's what happened: Lawyer was hired by some nurses. The nurses were made some empty promises in order to get them to come to the United States to work for a company named SentosaCare.

Working conditions were abusive and the lawyer advised them to quit.

Let me say that again; "the lawyer advised them to quit."

He didn't advise them to kill people, traffic in drugs, steal things, assault people, break into homes, tie up people and pistol whip them. He advised them they should quit.

The nurses waited until the end of their shift when other nurses arrived, and they left.

The theory, with a capital "T," was that the lawyer caused the nurses to leave patients without care. It wasn't true, but I digress. The trial judge denied the motion to dismiss, and the appellate court, apparently more interested in the role of attorneys, said :

"We cannot conclude that an attorney who advises a client to take an action that he or she, in good faith, believes to be legal, loses the protection of the First Amendment if his or her advice is later determined to be incorrect,"


"Indeed, it would eviscerate the right to give and receive legal counsel with respect to potential criminal liability if an attorney could be charged with conspiracy and solicitation whenever a District Attorney disagreed with that advice," the panel said.

It continues:

"The potential impact of allowing an attorney to be prosecuted in circumstances such as those presented here are profoundly disturbing," concluded Eng, adding that the prosecution of any matter potentially involving the disclosure of confidential attorney-client confidences as a defense "is an assault on the adversarial system of justice."

Congratulations to lawyer Oscar Michelen for his wonderful work in this case.

Scott sums it up:

"In the scheme of prosecutorial abuse of authority in an effort to chill an attorney's ability to advise clients to take action against governmental or powerful corporate interests, this decision is huge. In exceptionally strong language, it makes clear that lawyers are protected from prosecution for providing good faith legal advice to clients, and that overreaching prosecutors cannot punish lawyers because they disagree with the advice."

This correct application of the law makes me think of my friend Ben, and his case. In Ben's case, prosecutors allege that Ben gave legal advice that was not the advice they would have given.

I have thought long and hard about the prosecution of lawyers, and I'm not talking about the prosecution of a lawyer for DUI, possession of drugs, taking drugs into the jails, tax evasion, or theft. I'm talking about arresting particularly criminal defense lawyers for doing their job. It's happening. It's denied, but it's happening.

It's disgraceful, but it won't stop. There is an arm of the prosecution in this country that figuratively and literally pops a cork when a criminal lawyer is indicted, I've seen it.

The word to young lawyers today going into criminal defense is not "defend your clients well," or "have fun, it's a great practice." The advice is first, "be careful."

It is unfortunately not always anymore the people sitting next to us that we have to be so careful of, as much as the people across the courtroom at the other podium.

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



Post to Twitter

I'm Nice Off The Bench Too

A standard description of judges is that he or she is "nice off the bench."

When you say a judge is "nice off the bench," it naturally means they are not nice on the bench.

Anyone in trial practice has seen this in action. See judge on bench, see judge lambaste lawyer. See judge at social event, see judge as a happy friendly person.

I think it's sad.

I think it's abusive.

I think it's another example of what we lawyers call "black robe fever."

I often wonder when I look at a judge: "do you remember law school, being a lawyer (any kind of lawyer)? Have you ever had a sick kid, something else going on in your life, a need for more time to investigate something, anything? You know, human being problems?

It's one thing to do your job and judge. It's another to use the power of the robe to embarrass people, treat people as if a mistake they made was intentional when it was not, or to cause havoc in another professional's life.

A judge is a public figure. When judges are no longer judges, through death or retirement, they leave a legacy. In today's courts I wonder if that desired legacy is "never granted a continuance," "always made lawyers cancel anything they were doing," "caught every oral and written mistake and made an example out of the lawyer, in front of their client, and the jury."

I love practicing law, I love being in court. I hate when the experience is so unpleasant as to mask the true meaning of why we are all there; to advocate, or to judge.

I never say that a judge is nice "off the bench." If a judge is nice, they are nice. Being "nice off the bench" is another term for, well, you can fill in the blank.

Just be nice.

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



Post to Twitter

Anyone Give A Crap What Prosecutors Think?

Except for a few like my buddy-ole-pal Ken Lammers who's celebrating his 7 year anniversary as a blogger, prosecutors are generally absent from the blogosphere. There are those double decade prosecutors who sometimes post comments with their own name, taking the position "what are they gonna do, I'm the only one who knows what's going on here" attitude.

I understand, you work for a public official, you spend your days avoiding any attention within the office for disturbing the apple cart. You don't want to be the reason the local paper is focused on the office, and you live every day hoping you do everything you are told, so not to get fired or disciplined. Advocacy at it's finest.

I understand.

So I was pleased to stumble upon this guest post appropriately titled "The Anonymous Prosecutor Vents," on the similarly appropriately titled Ft. Worth Criminal Defense Attorney Shawn Matlock's Blog.

Mr. Anonymous Prosecutor boldly begins by putting out there the reputation enjoyed by criminal defense blogs: "It seems that the purpose of blogging from the criminal defense bar is to complain about ignorant prosecutors that don't understand the lives of criminal defendants, or to talk about how great you are as a defense attorney."

He then lays out his "Top Ten Things Prosecutors Hate About Defense Attorneys."

Mr. Anonymous Prosecutor is dead on.

He talks about rudeness, defense attorney expectations, and the obvious lack of discretion,

He takes his accurate assesment to a bolder level of anonynimity by stating to you Mr. Big Shot Defense Lawyer:

"You're probably not as good as you think you are. Yes, there are those of you that are good at what you do, and there are those of you that shouldn't be let in the front door. We know who you are."

His number one thing that he hates about defense lawyers? Well, you're just going to have to read the post, but he's again, absolutely correct.

Mr. Anonymous Prosecutor, I respect your desire to speak from behind the frosted glass door, I just wish I knew who you were so I could shake your hand, and ask you for a better plea offer...like the other guy got.


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



Post to Twitter

Tomorrow Morning, There Will Be No Defense Lawyers In Court

Tomorrow morning, about 8:30, the bailiff will unlock the courtroom.

Enter the corrections officers, the cart-with-boxes weilding prosecutors, the other cart-with-files weilding clerk, and right before 9, the chain smoking, "damn I chipped a nail and almost got here late" court reporter.

As the judge prepares to take the bench, enter the 15 orange jumpsuits ready to hear the charges against them, and a gallery of out-of-custody defendants with a smattering of girlfriends, boyfriends, wives, husbands, and the parents of that one young defendant dressed in a suit, in town from college.

In the hallway, the detectives in ties, and midnight shift DUI officers in uniforms and boots conferencing with prosecutors and themselves, discussing whether the case will plea, and whether they will be getting their 4% cost of living adjustment.

But there will be no defense lawyers.

No private defense lawyers, no public defenders.

The police officers will have no one to ask whether "your client gonna plea?"

The prosecutors won't have to worry about some defense lawyer interrupting their inability to have a short conversation from the podium about the plea offer, or the amount of restitution.

The clerks won't have to worry about handing over a court file and having to say hello or smile, for a moment.

The corrections officers won't have to worry about being asked, anything.

The judges won't have to ask "why are you not ready?"

The defendants won't have to waste the normally requested "few minutes" of court time discussing a potential resolution.

No one will have to complain about having to spend time on a motion regarding whether the Fourth, Fifth, or Sixth Amendment to the United States Constitution has been violated.

There will be no delays due to the defendants wanting to "talk to my lawyer."

Judges won't have to ask whether the defendant is satisfied with his lawyer.

No one will have to wait a few minutes and handle another case because the defense lawyer is in another courtroom, or oh no, in traffic, looking for parking, sick but sending another lawyer to cover, or even worse, outside talking to his client.

There will be no long, drawn out trials with defense lawyers questioning witness, asking questions of jurors, or arguing that the evidence is insufficient based on case law.

Because tomorrow, there will be no defense lawyers in court, and nothing to worry about.

Nothing.

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



Post to Twitter

Thoughts After A Trial

I had the privilege to co-counsel a federal trial this week and now that the split verdict is in, just had some thoughts on what the first trial of 2009 looked like.

There are not enough cases tried.

None of us try enough cases. I certainly don't. My clients are scared like everyone else's. They may want to go to trial, but the economy of scale tells them otherwise.

With sentencing guidelines causing clients to believe that the 3 level acceptance of responsibility reduction is as good as it gets, or maybe some cooperation resulting in a 1/3 reduction, most clients decide to plead guilty and play nice with the judge, or the government, or both.

As criminal defense lawyers we can lament this all we want, but it is not us in the hot seat.

After being in trial this week I reaffirmed that trials are the only way we test evidence. Sure, we can file motions to suppress and motions in limine, and we should. The only way evidence is truly tested, witnesses are truly explored, though, is with a jury present.

We know that cops and agents won't talk to us, but when a jury hears that, it's different. We know that deceit is legally used to gain confessions, but when a jury hears this, it's different.

Evidence looks and sounds different to a lawyer than it does to 12 lay people. So many people plea guilty that the public is left with the notion that the system is working. When innocent people are released, they yawn.

We need to try more cases.

We need to use more demonstrative evidence.

People like to look at things. We all hear this. Courtrooms today provide technology that places pieces of evidence on screens and allows juries to see first hand more than ever before. We need to take advantage of this in defending our clients.

Granted, many times there is no evidence beyond our ability to cross examine witnesses, but I'm not talking about cases where the only defense is reasonable doubt (80%)

We need to ignore the petty crap.

The deck is stacked against us. The law is against us. The prosecutor is against us. The agents are against us. The judge, tasked as an arbiter of justice, is usually not interested in a week long trial where the government can't prove the case. They consider that a waste of time in my opinion. Sometimes even court staff, security, and other people not on the defense team just have an air about you and what you do.

Those that practice in court on a regular basis know what I'm talking about.

Sometimes everything you do is a "problem." Where you sit, where you stand, what you want to do. All this, while the prosecutor is being brought water and huddling with security.

Ignore it all, and always be the professional. You are there to represent a client, no matter how difficult others may make it for you.

Remember that you have a client next to you.

Talk to him. Explain things to him. Let him know what happened at sidebar. Ask him what he thinks. He may be dumber than a bag of rocks, but it's his case. He knows he's in trouble, and his family in the gallery (if he has any) knows it too.

When it's over, it's over.

There's always the question you didn't ask, the thing you didn't say, the reason you think the jury convicted. You can kill yourself mentally going through all of this, so forget about 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



Post to Twitter

Didn't I Already Say I Don't Pay For Clients?

The author of the below e-mail obviously didn't read my post a couple days ago about bullshit I don't do.

This is not the first time I've received this piece of garbage email:

Good afternoon,

I was just looking at your site, and I have a number of clients within our network looking for a DUI/DWI lawyer. I am seeking to work with one attorney exclusively. I do not work as a lead broker, referral agency, or pay-per click advertising. I'm simply looking to direct my clients to a relevant site when they're looking for an attorney. Your site looks like it could make a strong fit for them. I am looking to work with an attorney today, therefore give me a call as soon as possible.

So let me get this straight:

[1] You have a number of clients looking for a DUI lawyer?

"Clients" as in recently arrested clients? Because in a standard DUI case, a client has to apply for an administrative hearing regarding their driver's license suspension within 10 days. You have a "number of clients" who are currently looking for a DUI lawyer? That's amazing.

[2] You "do not work as a a lead broker, referral agency, or pay-per click advertising?"

Ok, then if you have these clients, why don't you just send them to me and I'll say thank you?

[3] My "site" looks like it could "make a strong fit for them?"

These are criminal defendants looking for a good "site?"

Are these clients, noe facing jail and other penalties, looking for a "site" that is a strong fit

[4] You are looking to work "exclusively" with "one attorney" and "today."

How many lawyers did you send this to?

Let me answer these questions.

You may not call yourself someone who is involved as a "lead broker, referral agency," or involved in "pay-per click advertising," but you are looking for me to pay for something, and it's probably not clients. It's probably placement of my site somewhere.

So why don't you re-word that email to reflect more honestly what you are doing?

Something like:

I was just looking at your site as well as the site of several other criminal lawyers, and I have a number of clients within our network looking for a DUI/DWI lawyer. These are not clients in the sense that you define clients, but I know how you lawyers react when you read the word "clients" so I thought I'd get one by you. I am seeking to work with one attorney exclusively. I do not work as a lead broker, referral agency, or pay-per click advertising. I do something like that, but know that those terms are frowned upon by lawyers who don't pay for clients. I'm simply looking to direct my clients (again, not real "clients") to a relevant site when they're looking for an attorney. Your site looks like it could make a strong fit for them. I am looking to work with an attorney today, therefore give me a call as soon as possible. (I say that to make you think you will immediately start to make money.)

Oh, and no thanks.

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



Post to Twitter

New Twist On Corruption: Bailiff Tampering

We've all heard of jury tampering, even bribery of judges. This though is a first for me - bailiff tampering, brought to us from Cincinnati via John Wesley Hall's Law of Criminal Defense Blog.

From the story:

Hoping to crack a federal drug case, investigators were listening in on telephone calls when they stumbled across a conversation that is sending shock waves through Hamilton County's judicial system.

On that wiretap, federal officials heard what they believe was an attempt by convicted drug dealer Charles Johnson to buy his freedom by arranging a meeting with a court bailiff he hoped would fix his sentence.

Johnson's case has investigators poring over thousands of court documents involving criminal cases before West over the last five years. They are looking at why some cases presided over by West never had their sentences carried out and why other cases before him had no activity for years.

In three specific cases, West acknowledged from the bench that the case files he uses to track each case's progress contained handwriting that wasn't his.

This is the best:

Generally, judges write their notes from each case on a case file or card they keep for their records. Some judges, though, cede the responsibility of maintaining the case file to their bailiffs.

Now listen, I know things are done differently everywhere. In Miami, court files are noted by the clerks. Bailiffs usually are left to tell people in the gallery to "shut up," "take the baby out," "have a seat you're late, HAVE A SEAT I SAID," or "I don't know if the judge called your name HAVE A SEAT."

There's also the "cool" bailiffs who slap you on the shoulder, ask how you are, and bring up yesterdays ball game, or the trial that finished up last night.

Never though, do they write in court files, that I know of.

More:

In each of those three cases, the person charged with a crime had no action taken on their case in at least two years. In each, West insisted he knew nothing about why those cases were dormant and noted there were no legal documents - especially none signed by him - that allowed the cases to be continued or set for another court date.

Oops.

Then there's part two of the investigation:

"Some defense attorneys called us and said they loaned him money," Deters said.

"Loan?"

I sure hope so.

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



Post to Twitter

Link Exchange, Referral Fees, And Other Bullshit I Don't Do

Quid pro quo (From the Latin meaning "something for something") indicates a more-or-less equal exchange or substitution of goods or services.

The result of this post will be an email, calling me a "jerk," from the young lawyer who sent me the following (edited so not to embarrass) email yesterday:

"I would like to link my blog to yours in exchange for the same. Please let me know if you are interested."

No thanks. I'm not.

As we go in to 2009 let me remind myself as well as all that visit here, how I operate:

I don't give to get.

If you don't understand, let me explain.

BLOG LINKS

First, I link to other blogs for 2 reasons:

[1] I like the blog; or

[2] I notice that the blog is directing people to my blog through a link, and therefore see that the blog is something in which my readers are obviously interested.

When I link to a blog, it's not because I expect a quid pro quo. There are blogs I link to, that do not link back to me for whatever reason.

There are blogs that link to me, where I do not reciprocate. It may be that the blog is a "marketing" blog ("hire me, hire me"), is some "static" non-updated blog, or the blog just sucks. Some blogs suck. This blog may "suck" to certain people.

I sometimes will link to someone else's blog and tell them, because I want them to know I like the blog. I never ask them to link back. Be nice if they did, irrelevant to my life if they don't, even though I may joke about wanting to be linked to a certain blog.

REFERRAL FEES

They're illegal in Florida. Well, sort of. In Florida we have a provision in our rules providing for a maximum 25% of the fee to a lawyer who assumes "secondary responsibility," or "partially participates" in the case.

To the referral fee mongers, that means 25% for every phone call "referring" the case to a criminal lawyer. Who's going to dime anyone out if both people are making money, right?

Here's how I handle this:

[1] I provide lawyers who refer me criminal cases a total "referral" or "secondary responsibility" fee of zero ($0);

[2] If you call me to refer the case and ask about "working on it together," the answer is "no." You don't really want to work on it with me, you just want to second guess me, pretend to the client that you have any idea what you are doing, and get your money. So no; and,

[3] If you do the "I'd like to refer you this case but I'll need to get a 'referral' fee," the answer is "no." Go refer it to a businessman. I'm a lawyer.

I also have a better idea: Refer me the case, and I'll keep you in mind for the next call I get about a case in your area of practice. Maybe, just maybe, this can be the beginning of a great mutually beneficial relationship. Plus, I'll "send you something." Some wine, a gift certificate to a great restaurant, some movie passes. Maybe I'll even take you to lunch and we can discuss your practice and how I can help you.

You're not though, getting $2,500 of a $10,000 fee for making a phone call.

And to all the PI lawyers who routinely give 25% fees and are asking "what about us?" If I get a $100,000 fee, it's never because I wrote a demand letter and got a check.

But I digress.

As I said to a young lawyer several years ago who kept calling to refer me cases, always asking if I would give him a referral fee: "Are you looking for a check, or a relationship?"

Never did hear from him again.

OTHER BULLSHIT

TAKING FROM TAKERS

We lawyers get these types of calls often: "I have clients I want to refer to him," they tell the receptionist.

I always think, "wow, someone I don't know has client(s) who were recently arrested and he wants to refer them all to me?

No, it's a marketer.

Sure, he has clients, he calls them "leads," and I will pay for them if I want them.

These types of calls are no different than being asked "I would like to link my blog to yours in exchange for the same.

Now look, I don't blame this young lawyer. He doesn't think he's doing anything wrong, and he's really not. His blog is actually pretty good, but I do not play the quid pro quo game. Take a chance kid, just give. Who ever taught you that the law biz is all about the quid pro quo, is, well, someone who represents a crappy side of our profession.

I'm just not a believer that every damn encounter between two people has to involve a quid pro quo, and I wish more lawyers weren't as well.

Now let me do something for you my young lawyer friend.

I want you to read this book:

Never Eat Alone

It says things like this:

"You have to stop keeping score."

"The more people you help, the more help you'll have and the more help you'll have helping others."

"It's sort of career karma. How much you give to the people you come into contact with determines how much you'll receive in return. In other words, if you want to make friends and get things done, you have to put yourself out to do things for other people."

"In connecting, as in blogging, you're only as good as what you give away."

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



Post to Twitter

A Math Formula That Determines Whether You're Getting Hired - A Scientific Analysis (Kind Of)

There is a formula for determining from the call about a new case, whether you will be hired.

I give it to you here:

Date of arrest (1) + number of days until call + 2 if call is made in afternoon + 2 if call comes from brother/sister/friend (+3 if girlfriend) + 3 if case is set for arraignment in less than 4 days.

Subtract 2 if appointment is made for same day or within 24 hours of call.

If the score is more than 5, you're not getting hired.

(This formula excludes federal "bond hearing auditions.")

So let's take Joe's arrest for possession of cocaine.

Here's how it works:

The date of arrest is always 1.

So Joe is arrested on a Friday.

Joe calls you Monday.

If he calls Monday morning, you add 3 for a score of 4.

If he makes the appointment for the same day or within 24 hours, subtract 2 and you score an even better final score of 2.

Congratulations, you're getting hired.

Now let's say Joe is arrested on Friday (1) and calls Wednesday afternoon.

Oh no, you add 5 for the Wednesday call and 2 for the afternoon call for a score of 8.

I'm sorry, you're merely another lawyer being asked about fees because Joe's Monday and Tuesday appointments charged "too much money."

You're not getting hired.

Now for a last example before you take this formula and put it on a "sticky" on your computer monitor:

Joe is arrested Friday (1).

Call comes Tuesday morning. (5)

You're still OK.

But, the call comes from his girlfriend.

I'm sorry, you now have to add 3 for the girlfriend call, putting you out of contention with 8 points.

Wait though, the appointment is made for the same day, allowing you to subtract 2.

Still, you are left with 6 and out of contention. (Makes sense, appointment made by girlfriend means client isn't showing up.)

So enjoy, play with it.

Works every time.

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



Post to Twitter

Go Find Another "Second" Lawyer

UPDATE: Prosecutor Ken Lammers explains his view of the "Second Lawyer" from the other side of the courtroom.

I believe the main reason many criminal defense lawyers hate their practices is not the stress of oppressive sentencing guidelines, case law that is mostly "against us," or trials that seem "impossible" to win.

I believe it is because we often let our practices manage us, rather than the other way around.

Translated, if you want to stop "running around," take fewer cases, charge fees that are in line with your value and not your need for "this month's rent." Turn down clients that appear to have a different idea of your role as criminal defense counsel, and get paid up front instead of chasing clients for unpaid balances.

Most of the time when I say these things to criminal defense lawyers, they act like I'm telling them to do the impossible. "You can't do those things in 'my town.'" "I could never do that." "I have to take every case that comes in." "I have to do payment plans."

No, you don't.

There's also something else you don't have to do, and that I do not do.

I will not be someone's second lawyer.

I began to follow this policy a couple years ago.

Yes, there is an exception.

But first, the rule.

I will not be someone's second lawyer.

Why?

Generally, if someone is not happy with their first lawyer, they will never be happy. Most of the time when someone calls me about their lawyer "doing nothing," I check the online docket to learn that depositions have been taken (yes, we have those in Florida), motions have been filed, and work is being done.

The call usually comes to my office after a "bad" plea offer. This is usually a plea offer that doesn't have the word "dismissal," or "time served."

Also, the call to be the second lawyer almost always comes with the cries of "no money," or request that you, the lawyer, assist in the request to lawyer 1 for the return of "nonrefundable" fees.

So when will I be the second lawyer?

When it's obvious that the client is not properly being represented. This determination is not based on advice given by the first lawyer. It has to be something more concrete. Something like the case is going to trial in one week, the lawyer has not returned any of the clients calls, refused to meet with the client, and no work has been done. This type of circumstance is rare.

Most of the time you are dealing with someone who is just never going to be happy.

So I usually refuse to even meet the client, and I will never pursue it when the call comes from a girlfriend or brother/sister (criminal defense lawyers know why). If a parent calls, I'll take the call, but probably not meet with the client.

In sum, there are people who will just never be happy, and I'm not going to spend my time trying to make them happy.

Oh, Happy New Year.

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



Post to Twitter