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

Thursday, November 05, 2009

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?"


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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  1. Yes, this is outrageous. The deputy stole a defense document. The deputy should be fired & prosecuted for theft. Anyone actively involved with him (apparently 2 others) should have similar punishment. Defendant's right to due process of law has clearly been violated & client's right to counsel has been interfered with. If our Constitutions mean ANYTHING our courts must take this extremely seriously. If the courts are to be respected our judges must rail against such injustices happening in open court.

    I am curious what happened in the ensuing hearing. Hopefully the judge either found criminal contempt or referred the matter for prosecution. Seeing the judge's reaction to this video would tell us a lot about justice in that Court. Yes, I want to see the NEXT video.

    Ron Cooley
    Hillsborough, NC

  2. SickOfCorruption5:45 AM

    Notice that the second deputy still has paper in his hand when he supposedly handed it all back. He did not have any paper in his hand when he took the swath. He stands off to the left and signals to the first one that he has it. He was off camera for 5 minutes, enough time to duplicate whatever was taken. This time was eaten up by the judge, and they ushered the attorney to the bench instead of allowing her to focus on the papers. Even the defendant's attention is focused on the judge, not the accomplice. Nice slight of hand. Any crook can learn this on the streets of any major city. The old 3 card Monty. I wonder if the defense attorney has caught this?

  3. Mike Foley5:30 PM

    The hearing was held - and the judge wouldn't find the deputy in contempt without the defendant waiving privilege and letting the court see what the document said. Since the defendant wouldn't waive privilege, the judge said he couldn't find the deputy in contempt without a full opportunity to defend himself.

  4. This is outrageous. I think the video showing the way this was done, it is often done. There has to be even more misconduct of this type for the officer to be this brazen. I think there is a pattern of this that is nationwide. For a judge to call this "leeway" means judges' behavior needs to be examined and monitored nationwide. I re-posted this above post on my blog called "Judicial Abuse", posted [here], and I have added additional comment, video links, etc showing this has been common practice for years.