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

Thursday, April 08, 2010

A Really Long Rant About Liberty And Finality

I don't know where to begin here, so I'm just going to write.

I am a criminal defense lawyer. That means I represent people, sometimes entities, that are accused of breaking the law. Sometimes these clients are accused of breaking the law in ways that offends most people. Sometimes these clients are arrested for crimes that offend all people.

My job is not to judge what these clients have done, but to defend them. Not to defend what they have done, but them. That concept is where society in general and I, and those that do what I do, diverge.

Most cocktail party conversation is on two fronts. There are those who lie and claim they "understand" the role of the criminal defense lawyer and appreciate what "we" do in defending the constitution, and there is everyone else that hasn't realized that most of us glaze over at the "can I ask you how you represent people who tell you they are guilty," crowd of folks that find their inquiry of any interest or value other than to peg them as the mass of those who scoff at the presumption of innocence. They are the same people who have made Nancy Grace a TV star.

This all leads me to yesterday. In the Florida Legislature, Senate Bill 870 was voted out of committee. This bill amends the statute that currently provides victims of certain sex offenses, including "non-forcible rape" of children age 12 and older, until they are 21 to seek criminal charges. The new statute would abolish the statute of limitations.

As like all big criminal justice bills, this idea came from a horrific case. A Wisconsin priest died in 1999 after admitting he abused boys at a school for the deaf and blind. If he were still alive, he could not be charged in Florida.

The citizen proponent of the bill, Florida lawyer Michael Dolce, says he was sexually molested by a neighbor when he was 7 years old. According to the Palm Beach Post: Even as Dolce captivated the Florida Senate Judiciary Committee today with his first-person account of the horrific abuse that still haunts him, news reports about the Catholic Church scandal in Wisconsin were broadcast on national news.

Cue the legislators:

"That's why I voted for the bill. I think people who prey on children should be held accountable in a court of law," said committee chairman Joe Negron, R-Stuart, referring to the Wisconsin case. "I think it's appropriate and the evidence was very compelling that the minor victims of these crimes ... frequently wait many, many years into adulthood until they are disclosed."

The opposition?

The church objects because "of the passage of time and the very reasons that statutes of limitations exist, the inability to find any information that relates to it," said Mike McCarron, executive director of the Florida Catholic Conference. "It's just a very difficult thing to defend against when you go out without any time limit whatsoever."

And of course, us:

On Monday, the criminal defense lawyers' lobbyist, Jorge Chamizo, sent Aronberg an amendment that would have extended the current statute of limitations to 10 years after the victim reaches age 21.

Senator Dave Aronberg, a candidate for Attorney General:

"The Wisconsin case and recent news reports shows why we need to extend the statute of limitations to allow for justice in cases like this," said Aronberg, who is running for attorney general and also sponsored the bill last year. "I can't come up with a limit that's better than no limit at all."

And then there was this, a surprising statement on the concept of liberty:

Republican Senator Carey Baker objected to it because he said that there's no way to defend against false allegations after decades pass.

"I just Googled up a story about a man who was falsely imprisoned for 20 years. Got out when he was 61. He's not here today. He's not here to tell you about the 20 years that he lost from his life from false imprisonment. I don't know. There's no good answer."

But there's more:

Apparently a study commissioned by the Catholic Church found only 88 sex abuse cases out of 5,681 over a 52-year period were found to be false.

Only 88.


That reminds me of the time I heard someone on a "we have no idea what we're talking about" talking head show where someone said that if 1% of the people sentenced to death were wrongly executed, that would be a fair price to pay to keep the death penalty, being that nothing is usually 99% accurate. He said that with a straight face. I wish I remembered his name.

Michael Dolce's tale of abuse was taken to heart by the legislators, much like the emotional words of a crime victim in court, or even a defendant. These personal stories are what creates law, puts people in jail, and yes, keeps them out of jail.

But something is missing in all of this.

The concept of finality, and the concept of liberty.

The criminal defense function in America is now nothing more than the butt of "I was a prosecutor for 5 minutes" pundits and 9 episodes a week of Law & Order. The Bill of Rights is immensely important, assuming we are talking about the First, and Second Amendment. The Fourth, Fifth and Sixth are only for guilty scumbags, and moms and dads of kids who "didn't do anything wrong," or professionals who get speeding tickets and want the police officer fired.

What has happened over the last couple decades is that famous people have been acquitted, a few motions to suppress have been granted due to violations of the Fourth Amendment ("technicalities," for you with the mob mentality), and former prosecutors and even some defense lawyers have taken to the airwaves to play devil's advocate about all they know nothing about.

We live in a country where person after person after person is being exonerated by DNA evidence. People who were sentenced to death, and to life. Is this the time to abolish statutes of limitations on cases where a mere accusation can result in a criminal prosecution that can take away a person's liberty for the rest of their life?

Yet when we, the criminal defense bar, and members of the legislature even dare to oppose a bill like this, we are accused of merely attempting to "get pedophiles off." We are accused of this because it is easy to do so. It inflames the senses, it diverts away from the real issue, which is: why are the same people who scream for finality in criminal cases, passing legislation that abolishes it? With so much written about DNA and eyewitness testimony, why are we creating laws that allow someone to come forward, whenever, and make accusations?

I know, I don't understand. I don't understand the horror, and if this happened to me or one of my children, I would understand. That's always the way to create a different discussion.

What I am discussing here is why we are OK letting our elected leaders convince us that finality and liberty only matter in the types of cases in which they decide? Yes, there is no statute of limitations on murder. The reasoning is perfectly clear - you take a life, you have no protection from prosecution, ever. I know people will say that sexual abuse is "like taking a life," and I'm not going to argue with that. My argument is only that proof of murder is a lot easier than proof of sexual abuse - and that's exactly what Senator Baker was saying, alone.

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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  1. Well said Mr. Tannebaum, very well said. Media sensationalism and knee jerk political thinking have seemed to replace rational thought and reasonable legislation. Like the writers for "Law and Order", the legislative bodies pull their inspiration straight from the headlines. Just as Congress spent a whole day debating the validity of interstate primate sales, we are forever susceptible to the flagrant acts of others in different places and the flagrant coverage thereof to guide our political processes.

  2. Tanner Andrews1:32 PM

    I prefer to see a limitation period even for murder. Facts become stale.

    Think about it: Vic was killed five years ago on a certain date. Tell me where you were that night. And prove it.

    For a hypo like this, the question is low stakes. When we are deciding if you are guilty of a crime, the stakes increase -- but your ability to prove your alibi will fade just the same.

    I admit that with the hysteria about sex abuse cases, there is little sympathy for the defendants. I do not have much myself. However, considering the difficulty of offering evidence in stale cases, and having some respect for the idea of due process, I cannot approve of extended SOL periods.

  3. Anonymous7:57 PM

    I'm tired of people analogizing sex abuse to murder. Come on. Sexual abuse is a terrible crime, but how can you compare it to taking someone's life? I know, I know, this is an unpopular position, but this witchhunt against sex offenders is getting tiring, and the witchhunt now impacts the rights and liberties of plenty of people who are in no way sex offenders. Americans need to calm down a little bit about sex abuse so that they can have a rational discussion, rather than just rant and rave about increasing protections which are already part of a non-functioning system.

  4. Anonymous9:35 PM

    Show me one case where someone was wrongly convicted of child sex abuse because of supposedly stale evidence and I will show you an inept criminal defense lawyer. And for every one you show me, I'll show you thousands of child victims who never had to be, children whose abusers were freed by a statute of limitations. We have rules of evidence and burdens of proof to protect adults. No child has ever been protected by a statute of limitations. Statutes of limitation that protect child molesters reward the intimidation and terror they inflict on their victims. Mr. Tannebaum and his fellow defense lawyers need to stop speaking about cases that don't exist and protect our kids first. They need to be honest about the fact that these abusers are convicted because they photograph, videotape and confess to their crimes -- evidence that withstands the test of time. And Mr. Anonymous, before you ask me to stop analogizing child sex abuse to murder, come with me to the graves of my fellow abuse victims who have died from anorexia and suicide in their grief and unrelenting terror. Walk in my shoes for a day before you pass judgment.

    M. Dolce

  5. Mr. Dolce,

    Thank you for taking the time to visit and comment. I'm sorry in your advocacy for legislation you so passionately believe in, that you feel the need to resort to calling me, my criminal defense bar colleagues, and your brothers and sisters of the Bar of which you are a member, liars. I wish all of us in our profession could behave as such, professionals. Good luck with your continued efforts.

  6. Anonymous2:01 AM

    "I know, I don't understand. I don't understand the horror, and if this happened to me or one of my children, I would understand. That's always the way to create a different discussion."

    And interesting position coming from defense counsel.

    If it did happen to one of your kids, why press charges at all?

    Seriously, rather than having a a good attorney give a vigorous defense to a charged suspect, why not just really protect the suspect's rights by not even charging the guy who harmed your child in the first place? Wouldn't that be "justice"?