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

Thursday, January 08, 2009

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


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  1. I always learn more from the guilty verdicts. Analyzing, agonizing, re-living. It's tough to let them go. My old boss at the PDs office told me "If all your clients are found not guilty, you're not trying enough cases."

    Clients are scared - certainly a reason many don't go to trial. The thought process of some criminal lawyers is that trials are bad for business. That's time you could be back at the office signing up new clients.

    However, trials are the best part about being a criminal defense lawyer. They can be good for business too. If you walk a client, he'll refer all his friends. Even if you don't walk him, if you bust your ass and he knows it, he still may refer you business.

  2. Reading your post helps me remember why I became a criminal defense attorney.

    I've often told clients that if they plead guilty there's a 100% chance they'll be convicted, but, if we take the case to trial there is at least a chance of walking away.

  3. Anonymous10:05 PM

    I agree particularly in the use of more demonstrative evidence. As a nurse I work on medical malpractice and negligence cases. The bulk of what I do is to explain, in layman's terms, the medical information. Blowing images up in huge formats, showing video, bringing in more equipment, etc seems to not only help to really explain the evidence, but also to get the jury interested in the case. They can suddenly find themselves awake after dozing off with some of the technical mumbo jumbo of the expert witnesses.

  4. My friend Norm Silverman just won a federal drug case involving 150,000 tabs of ecstasy and 15 kilos of cocaine. Most lawyers would have pled it; Norm won it in cross-examination. His phone is ringing off the hook with big federal drug cases.

  5. Anonymous12:21 PM

    I have a great story like that, Mark, about a big case in SDNY called the "Golden Pill" case, with 78 defendants, where only mine went to trial and we beat the felony.

    Afterward, my phone rang off the hook with all the other defendants who had already pled to the felony, plus forfeiture, plus all sorts of additional collateral damage. They all wanted to know if I could take them to trial, now that they knew it could be beat.

  6. I think you should definitely go to trial. It's better than giving up and you might win the case. The odds may be against you, but you never know. Great post.