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

Wednesday, February 24, 2010

The Government's Press Conference - A Slam Dunk

I know I'm supposed to blog about the Supreme Court ruling in Florida v. Powell today, being from Florida and all. So here: I thought it was a silly case.

Now on to a pet peeve.

Yesterday in Miami, a well-known forensic accountant/lawyer surrendered to the FBI on charges of wire fraud. Word of the raid on his office came months ago. Everyone knew this was coming.

After he surrendered, his charging document was released. It was an Information, not an Indictment. Now to the non-criminal lawyer crew reading this - an Indictment is required in all federal cases, unless the defendant waives the right to an Indictment. A defendant only waives that right because he is going to plead guilty.

So it's the perfect resolution for the gub-mint. Investigation, surrender, guilty plea, sentencing. No preparation for trial, no interviewing of witnesses, no motion hearings, no litigation. Just a plea, and sentencing, and a bunch of cooperation (usually) that will help get victims paid and maybe others charged.

And this is what the government wants.

And of course they responded in kind:

"We appreciate the defendant surrendering as promised to these charges of wire fraud. No one is above the law, not lawyers, accountants, and especially those responsible for obtaining money for victims as trustees. We appreciate the defendant acknowledging his wrongdoing and look forward to advocating an appropriate sentence for his crimes."

Actually, they didn't say that.

As the Miami Herald reported:

Both the U.S. attorney and top FBI agent in South Florida slammed the 60-year-old Freeman, a familiar figure in Miami's legal and business circles, for violating the ``fiduciary trust'' of creditors and the courts.

"This is a classic case of how greed can slowly corrupt a person who started out with good intentions,'' said John Gillies, the FBI's special agent in charge. ``It turns out that the wolf was protecting the hen house for the last 10 years."

Great, name calling.

The guy committed a crime. He's taking responsibility for it. He's going to prison. If that is the chronology the government wants defendants to follow, what is the point of driving in the stake? What is the point of using the powerful bully pulpit to "slam" the defendant?

These press conferences are precious to the government. Defense lawyers try, unsuccessfully, to negotiate them out of any deals. That request is always met with wide eyes, and "absolutely not."

It's not as important to let the public know that this is the type of post-investigation conduct the government wants from defendants - acceptance of responsibility, contrition, cooperation.

It's more important for them to be able to express how they feel about the defendant as a person.

It's all about the slam.

For whatever reason.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer.


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Sunday, February 21, 2010

What Are Criminal Defense Lawyers Really Worth?

A lively discussion took place in the comments section of the post below regarding fees in criminal cases.

Seems an anonymous police officer takes some pity on defendants he arrests, because they will later encounter bankrupting criminal defense lawyers who are not sensitive to the fact that "most" people cannot afford to hire them.

I have always believed that the demise of respect for lawyers has had much to do with the fact that we charge "a lot" of money for our services. There is the old notion that a "rich" person is someone who makes $1 more than you. If that's true, then someone who makes thousands more than you, is certainly the devil.

There is no sense trying to discredit the notion that those who can afford to hire expensive lawyers get better justice. Public defenders that win impossible cases are not written about as much as when the "marquis" lawyer wins a case. Sure, a defendant with money can afford to hire experts, investigators, and lawyers who don't have volume practices and can afford to put in more time to a case. But it's not always the case that the defendant with the most money, always wins.

The question in the title of this post is one that clients don't like to answer. It's always OK when a personal injury lawyer writes a letter, makes a couple phone calls, and resolves a case for $100,000, taking $30,000 for himself. It's OK because the money doesn't come from the client, technically.

But when a client who gets arrested and is told he will be fired if he is convicted, is asked to pay five, ten, twenty, fifty, a hundred thousand dollars to defend the case - it is then that the criminal defense lawyer is seen as unsympathetic. Don't we "understand?"

Truth be told, there are clients who understand that for the most part they have one shot to defend their case. There are those same clients who understand that a good lawyer costs good money, and that private lawyers are not public defenders. We don't work for free, and we don't have the luxury to tell our staff, landlord, investigators, mortgage companies, grocery stores, court reporters, or anyone else we pay bills to, that we are taking a break from charging fees because certain people believe we should be more sensitive to the fact they were arrested.

No one has an obligation to hire any attorney, and no attorney has an obligation to charge what the client can afford. If it's not worth it to you to hire the lawyer you are talking with, find someone else. My anonymous officer friend says $6,000 is a lot of money for a DUI case. To someone making $30,000 a year, it may be. To someone making $250,000, it may be pocket money. To someone fearing losing their job and wanting to do whatever they need to do to defend the case in a proper fashion, it may be a "bitter pill," that must be swallowed.

It always amazes me when I speak to a client about their life. I will hear them tell me about their job, their obligations, their insistence that they "can't" go to jail. It appears that they are serious about representation, until they hear the fee. And it's not just my fee. Often I will talk to a client who tells me they came to see me after being quoted an "outrageous" fee from another lawyer. When I hear the fee, I'm in shock - not at the fee, but at the low number.

My anonymous officer friend talks about setting up a system like health insurance. A client pays a small co-pay, I guess, and the rest is paid by the insurance company. Sounds good, just find me an insurance company that wants to bankroll criminal defense fees, and a lawyer that wants to take the fees that the insurance company will pay.

I spent 20 years in school. I've been practicing 15 years. I did my work as a public defender, and I still, to this day take court appointed cases in federal court, and when I see a need, help a client out.

But this is my profession. This is how I feed my family. If you can't afford me, pick up the yellow pages, go to Google. You'll find "reasonable fees," and "affordable payment plans" all over the place.

This is America, you are free to hire the lawyer of your choice.

Hopefully it's someone who values your case, as much, or more, than you do.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer.


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Monday, February 08, 2010

The More Things Change, The More Potential Clients Stay The Same

When I first started in private practice, I'd go anywhere to represent someone. I'd drive hours to a courthouse, or meet a client at a convenient place. I went to some interesting places.... Now, a few years later, most meetings are in my office, most cases, close to home.

But then there was last Thursday. A frantic mom called from her home a few hundred miles away - her son, a college student here, was arrested on some serious drug charges. Coming to my office was going to take some serious work, as he had no car and was waiting on a friend to take him back to campus after being recently sprung from the county jail.

So I looked at my schedule and realized that I was soon to head out of town for a conference, and drive right by the college.

"I'll go see him there."

Why not. Nothing wrong with going back to your roots and doing things you haven't done in a long time. It keeps you grounded.

So I went to the college and spend some time with my potential client. Interesting case, nice kid. He tells me to tell mom to hire me.

Now about an hour late for my drive out of town, I call mom and explain the situation as I know it to be and quote her a fee. She doesn't seem fazed by the fee and says she'll get back to me after talking to dad.

This was Thursday.

Today, Monday, I learn who the judge is, and send a message to mom letting her know about the judge and asking whether I should proceed on the case.

"I was going to follow up to let you know that your fee schedule was not affordable so we retained another attorney. My apologies for not calling. Thank you."

First, she was never going to call. We all know that. No one calls back unless they are hiring you or are of that rare breed that want to pay you for your time (that real, real rare breed) or just have that sense that saying "no thanks," never killed anyone.

Second, she violated rule 6 of my ebook: "Be honest with the lawyer. Tell him you want to hire him (if you do) and the details of your financial situation. You just told this lawyer you were plastered, picked up a hooker, stole something, or shot someone. This is not a time to be coy, or shy. Admit you are poor, broke, or need time to pay the fee. Tell the lawyer what you can come up with right now, today."

I also say in my ebook to "not negotiate," but that's mutually exclusive of telling the lawyer "hey, this is what I can afford" and letting the lawyer decide they really want the case, for a different price.

So after I made my house call (my first and last house call this year thank you lady for ruining it for everyone) and calmed her fears, she called another lawyer or 4. A lawyer who didn't go see her son, but gave her the "number" she wanted, got the case. She wasn't looking for a lawyer, she was looking for a fee.

I just hope she got both.

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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Friday, February 05, 2010

How Many Innocent People Are In Jail, Right Now?

Scott Greenfield reports this morning on the Innocence Project's announcement of the 250th exoneration of an innocent person. This one was convicted when I was 7, and left prison on parole when I was 12.

We as criminal defense lawyers read about exonerations and react. We shake our heads, we get angry, we roll our eyes when our friends express amazement that an innocent person was in jail, that a prosecutor fought their release even after DNA cleared them, and we wonder how many else there are.

We also hear the deafening silence of the vast majority of the public who don't care.

There are those, you know, that consider this the cost of doing business. They're apologists for the "imperfect system. I'll never forget watching a guest on a TV talk show say that if 1% of the people executed were innocent, that would be a pretty good stat - 99% being guilty.

The problem here is not that 250 people have been exonerated, the problem is that we don't know how many innocent people will spend yet another night in jail, for something they didn't do.

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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Monday, February 01, 2010

The Slippery Slope Of Bond

A couple weeks ago there was a tragic accident. A bicycle rider was killed. The suspect, left the scene, and was later arrested. The allegations, not formally filed yet, include driving on a suspended license and DUI.

Miami has a big bicyclist community, and they are vocal. This accident was more than a story of car v. biker, it became bikers v. government, bikers v. not enough safe places to ride, and now, bikers v. criminal justice system.

The suspect appeared before a judge, and was released on bond.

In the local paper appeared this letter in response to an editorial on the issue of bicyclist safety:

The writer should focus some of his outrage on the system and the judge who allowed the perpetrator to bail out of jail. The man who allegedly hit the biker and left the scene was driving while under the influence. He had an invalid license and resisted arrest.

He obviously had no respect for the law. Where is the outrage?

The outrage is there, but letters to the editor aren't as sexy as commenting on the internet where anonymity allows people to say things they would never say, to anyone. A letter to the editor requires a name. Who wants to put their name to something when they can leave it out and write things that incite hate?

The sentiment is typical - how can someone who did this, be given bond after arrest and be allowed to walk out of jail? Why is a conviction required for a defendant to be kept in jail?

Well, it's not. Bond has become more the exception. Legislators have been adding offenses to the "no bond" schedule throughout the country. Few an accused murderer is released on bail, add to that armed robbery, burglary with an assault, a few other violent crimes, and don't forget the judge's discretion to set a high, unaffordable bond when the defendant is a flight risk, and/or has little ties to the community.

People like me talk about the "slippery slope." Bond has slid down this slope at a fast clip.

The top of the slope is here, the Eighth Amendment to the United States Constitution (don't laugh, it really exists):

"Excessive bail shall not be required."

Then there is Florida Law: Article I, section 14 of the Florida Constitution reads:

Unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great, every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on reasonable conditions.

This is a hard pill to swallow for many - the fact that the public thinks "he did it" and that "he's guilty" and the fact that a judge must follow the law and grant bail, is outrageous to some. I understand.

But this is where public sentiment and law and order diverge.

If we left all aspects of our system up to people emotionally affected by crime, or accusations of crime, there would be a jail on every corner.

I understand the sentiments of the author of this letter, and I hope he understands that while the judge many not have made the ruling he, and other bikers like, he did follow the law, as slippery as it has become.

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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