The Comment I Was Waiting For

After my last post on the juvenile system, railing against children being able to determine sentences for other children, and incidences that used to be handled elsewhere flooding our courts, I waited for the comment.

It didn't come right away. Then, last night, it showed up. The reason the system is filled with what used to be "things kids do," appeared on my blog:

But the client, no matter how much we all hate to say this, assaulted someone. Your client hit someone. They struck the first blow. If someone had hit you, you would want some sort of revenge or justice. I agree that while parents are no longer raising their children to be as respectful as they should be, and that some parents are checking out of raising their children, but we do still need to make children understand that they will be accountable for their actions.

If the prosecutor had let your client off with no punishment, what's to stop them from hauling off and hitting the next person who teases them? Your client needs to understand that people aren't always nice, but you have to deal with what they say.

Teaching a child to hit someone who teases them just causes more fights.

Let me summarize: "we need to let our children know that if they get in fights at school, they will be arrested, jailed, sent to court, and sentenced." "If it happened to your kid, you would want it that way."

No, I wouldn't. No, we don't.

While I appreciate the honest comment, it only reaffirms that generation of adults we have out there that believe the criminal justice system is there to resolve all of our disputes, to help us with our "revenge," that "justice" exists only in courtrooms, with cops, judges, and prosecutors.

If my kid got into a fight, I'd hope it could be handled at the school level. If it couldn't, I'd teach my kid about forgiveness and second chances. This was a fight with no injuries for God sakes. Have we no ability to use these opportunities to teach our children about resolving disputes? Or should we just teach them to call 911?

I will say it again, this is our failure, not the failure of our kids.

That we as adults can't see any other way to resolve a dispute between two children says more about us, than it does about our kids.

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. Post to Twitter

Our Failure: Juvenile Court

Today I will walk into Juvenile Court and accept diversion for a client who was involved in a misdemeanor battery. She will do her 15 hours of community service. The case will be dismissed.

And I couldn't be more angry, for two reasons.

First, when did a scuffle in school become an arrestable offense? Answer: When we as adults admitted our failure to and lack of interest in raising our children. That we can't take two fighting kids into the office and discipline them without having the meeting end with officer friendly (maybe the real officer friendly) snapping on the cuffs, is our disgrace. We suck. We failed. We are to blame.

Second, my "child" is getting diversion because the "victim agreed." Victim's rights are a big things these days. The mantra of "criminals get more rights than victims," has resulted in, well, victims gaining the right to run our system. Another failure of leadership.

In Florida, we have a Constitutional amendment that allows victims to be heard and notified of all court appearances. Prosecutors have interpreted this to mean they can offer plea deals. It makes things easier for the upcoming story in the paper or on TV to say that the "victim approved the plea," or not.

Sometimes, a prosecutor who has some guts, will ovcerride the vindictive victim - the one who won't agree to diversion or probation because they "want jail" for a minor offense or first time offender. Maybe the prosecutor knows the victim is looking for an advantage in a pending or soon-to-be-filed civil case.

My "child" and the victim hate each other and have for a long time. Reason? My client is a foreigner, and her "victim" has been taunting her. So one day my "child" hauled off and hit her.

Good. That ended that.

The prosecutor, overworked with other "why is this in juvenile court" cases, told me my "child" could not get diversion unless the victim agreed.

Seriously?

"She hates my client," I said.

"What if she doesn't agree and gives you no reason?"

"Sorry, I don't think I can override (this 15 year old) her."

"Sure you can."

"I don't think so."

The prosecutor tried, initially telling me that the victim was "waivering." Still, there would be no diversion until this victim agreed. The prosecutor was paralyzed by bad training, and a system that has succeeded in giving crime victims more rights than defendants.

Congratulations.

I don't know why this victim finally agreed. I would like to think her mommy and daddy told her about forgiveness and second chances. Maybe the prosecutor did a good job convincing her to agree.

That this is how we are resolving disputed between our children, is disgusting, in so many ways.

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. Post to Twitter

The Cop Lied, To Me

IN 1994, Alan Dershowitz coined the phrase "Testilying." The practice of giving false testimony against a defendant in a criminal trial, typically for the purpose of "making the case" against someone they believe to be guilty when legal technicalities weren't followed to the letter during the arrest of the suspect, or while searching the immediate area.

So cops lie. We all know that. It's something we don't like to talk about because it brings out the "so what, they're guilty anyway" crowd. Of course everyone will say "that's terrible," and "that's just wrong," but deep down inside those that wonder why we even have defense lawyers, there is the thought that it really doesn't matter. These are the same people who believe that a 1% error rate on the death penalty, is the "price we pay for having the death penalty." (Yes, someone actually said that.)

So in a Miami courtroom last week, it happened in one of my cases. No, this wasn't a high profile case where the public was screaming for a conviction. This was an old misdemeanor case that no one cared about, except my client, and the 4 prosecutors clamoring to object to all that was being asked. (Tip to a young prosecutor: When you've been practicing about 5 years, you'll realize that if it's that irrelevant, there's really no reason to object so much.)

This case involved two officers that pulled over my client. During a chance encounter with one of them, this officer told me they did not observe the same driving pattern observed by the other officer.

No, I didn't have a witness standing next to me. Just me and the officer.

I ran back to my office and on the same day, filed a motion laying out the details of the conversation.

It would be a few months before the motion was heard.

"Do you remember having a conversation with me?"

"Yes."

"It was out in the hallway."

"Yes."

"You said he wasn't weaving."

"I never said that."

Not, "I don't remember," or "I'm not sure exactly what I said," "I never said that."

"You never said that?"

"No."

This went on for a little while.

In the end, the testimony of both officers was enough for there to be reasonable suspicion for the stop. I don't disagree,

But this cop lied.

What struck me was the fact that not the judge, who knows me well, nor the four prosecutors, who haven't been practicing a year and don't know me at all, acted like anything was amiss.

No one thought to ask "is Mr. Tannebaum making all of this up?" "Is Mr. Tannebaum lying?" I kept looking around the courtroom, and noticing that everyone was carrying on as if there was nothing out of the ordinary.

I'm glad this happened. These are the things that reinvigorate my passion for the practice. It reminds me that for every prosecutor and police officer I respect and may even be friendly with, there is an undercurrent of shit in our system that affects defendants everyday. This is why defense lawyers must remain vigilant.

And that's the truth.

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. Post to Twitter

Cruel & Unusual: Kids Version

Few have noticed the lines blurred between child and adult in the criminal justice system. With an increase in "youth" violence over the last 30 years, the response of has been typical: throw 'em all in jail.

And we have. You're welcome. Thursday I will go to juvenile court to represent an otherwise good student from a good family who got in a fight with another girl resulting in no injuries. The days of these "school fights" resulting in a visit to the "office" and a grounding from Mom and Dad, are long over. We prefer handcuffs, jail, court, sentence.

It is our failure. Visit any juvenile court and watch your childhood missteps be adjudicated by men and women in robes, argued by prosecutors, one after the other.

Justice Kennedy says that "as compared to adults, juveniles have a “‘lack of maturity and an underdeveloped sense of responsibility’”; they “are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure”; and their characters are “not as well formed.” Yeah, yeah, yeah. But they can walk, and talk, and think?

So now, today, as compared to yesterday, we can no longer incarcerate juveniles for life, the rest of their life, for non-murder cases. Apparently: “[i]t is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.”

So the reason we can't throw away kids for life is because while some just had a bad night, and others are hardened criminals, we can't really tell the difference, and because we can't be sure, we just shouldn't be able to sentence them to life. Kinda sounds like the framework of the argument against the death penalty - if we can't be sure someone is guilty, maybe we shouldn't have......never mind, that's for another day.

Until yesterday, America was the only Nation that imposes life without parole sentences on juvenile nonhomicide offenders.

No one else. America is the only place where we are unable to see the possibility of rehabilitation in our children. How proud we must to say that a kid at 14 or 15 will never be anything more than a criminal.

Make no mistake, this is a watershed ruling. This is a message that we are going in a different direction, if only on this one issue.

Most of us see the criminal justice system as a place for big guys with tattoos, and other strange looking characters we wouldn't invite in our homes. Walking into a juvenile court can sometimes make one think that there are kids playing criminal. It can't be that some fresh-faced 13 year old is there in chains and a jumpsuit. Yes, he's there, and so are his friends.

The over legislation of the criminal justice system is a tribute to us as Americans. The public only want to make it easier to put more people in jail, for longer sentences. There is little thought on the basics of our system. I have for a long time said that we should scrap the system and create one from scratch. We should sit down in a conference room with some judges, prosecutors, defense lawyers, cops, corrections officers, and a few crime victims, and a yellow legal pad.

If we did that, this, the abolition of life sentences for nonhomicide juveniles, would certainly be on that legal pad.

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. Post to Twitter

Supporting Arizona

Not a single happening in this country defines our broken political system more than Arizona's new immigration law.

Upon it's passage, a huge gasp throughout the nation. All those who had a microphone, ran to speak. This was a "show me your papers," "Nazi Germany," unconstitutional statute that caused even those who see the Constitution as a hindrance to law enforcement to cry foul.

Then, a couple weeks later, another story came out - a poll.

66% of the country support the law. 70% of Arizona residents are fine with it.

Ut oh.

One of the dirty little not so secret things a politician needs to do, is get votes. If the majority of people support something, and you want to win, you've got to get a majority vote. There's no better way to get the majority vote, than to pander to the majority.

So Arizona's immigration statute is now a Florida campaign issue. Sure, our education system sucks, we have high unemployment, people are moving out, but hey, we also have a lot of illegal immigrants, so why not make that the focus since it's now a topic on the national stage.

Those Florida candidates who were against the Arizona statute, are now, um, tightening up their ties, and want you to know they are with you, you good people of the 66%.

The Republican Party's front-runner for governor, Florida Attorney General Bill McCullom, threw his support Thursday behind a tough new immigration law in Arizona that he criticized as ``far out'' just two weeks ago.

Seeing an opportunity to grab that same 66%, after the city of Los Angeles declared a boycott of the state of Arizona, Attorney General candidate Holly Benson, as the newspaper says embroiled in a hotly contested Republican primary chimed in: Illegal immigration is a serious problem facing our country and it is unfortunate that the Los Angeles City Council came down in support of illegal activity, over the actions of Arizona's attempt to enforce the law.

Yes! Rally those Florida citizens by telling them Los Angeles is a bunch of poopy heads.

U.S. Senate Candidate Marco Rubio also abandoned his (principles) previous opposition. He and McCullom say they changed positions in light of amendments that aimed to outlaw ethnic and racial profiling by the police.

Because as lawyers, they know that if the police aren't able to racially profile suspects, they will not. Nope.

It's a joke. All of it. And yet we sit back and act like there's nothing wrong with it. It is a foundation of our system that leaders made decisions based on polls and their ability to "get elected."

It's empty, and it works.

I have more respect for someone that supported the Arizona law from day one, than someone who now supports it because supporting it is a good place to be.

Leaders are required to lead, to take stands, to support the minority against the majority.

But we as Americans are just as happy to have them follow.

Vote early and often.

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. Post to Twitter

Because I Have To Write About Elena Kagan....

One of the things that is inherent in having a blog, is that there is a faction of the internet audience that believes you must write about what they want to read. So to avoid the "why didn't you write about Kagan" question(s), here you go.

I was trying to put together my thoughts on this nominee, when I ran across them on Norm Pattis' blog. So since we live in a society where the most vocal are those who repeat what their favorite pundit said on TV five minutes ago, let me join in the dumbed down mentality of our country and feign original thought in favor of just reprinting my (some of Norm's) thoughts:

Elena Kagan leaves me as cold as can of processed salmon. Princeton, Oxford, Harvard, a clerkship on the Supreme Court, associate at a megafirm, law professor, dean of Harvard Law School, Solicitor General of the United States. Oh, and did I forget that she writes a mean law review article?

We need a trial lawyer on the Supreme Court, not a judicial tourist. As near as I can tell, Ms. Kagan has never set foot in a courtroom representing a person in need. All she knows about the courts' capacity to change a life is what she has read. She's a surgeon who can only describe a scalpel. In a nation chock full of lawyers who actually know what the courts do by experience, she is a rank outsider. I'd need to send an associate with her to handle a misdemeanor, just to make sure she didn't give the client's rights away.

Why graduate high enough in your class, and you might never have to sit with the hoi polloi and listen to their sorrows. Play your cards just right, and, wham, bam, thank you Sam, you just might get a seat on the Supremes.

Kagan once referred to the confirmation process as insipid and meaningless. I suspect appearing on just such a soulless stage has been the ambition of her professional life. Undoubtedly, she'll soon demonstrate the art of evasion in response to questions put to her by the Senate. Saying nothing is the judicial nominee's stock in trade.

Shame on you, Mr. President. Are the pressures in Washington so great that what was once the outsider's promise of hope has now, and so quickly, become little more than a tap-dancing mime? Any president could have appointed Elena Kagan. Her resume drips with prestige, power and privilege. She is a predictable and uninspiring choice.

There has been murmuring in the Senate that we need to break the Ivy league mold and look beyond the predictable corridors of power for a justice.

But, I digress. I am bitter because when I go to court tomorrow to face a sentencing judge in a capital felony, I know that the work I do, the lawyers with whom I associate, the client I represent, are just another set of statistics to those atop the law's vast pyramid. I will struggle to be heard and know that what I say is mere verbiage in the barrel of the law's broken promises.

I took Obama seriously when he talked about change. His betrayal of that promise and transformation of it into a cynical farce has me wondering how long it will be until old wine skins finally burst. Elena Kagan? I suppose she'll do as well as one hundred other high-powered legal academicians might have done. But I had hoped for something better. I had hoped for a trial lawyer. What I got was another harmless error of a choice.

Yeah, what he said.

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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First, Let's Kill The Dog

The thugs among us.



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. Post to Twitter

The Terror Of Miranda

Faisal Shahzad, an American Citizen born in Pakistan, sits in custody charged with attempting to explode a bomb in Times Square. There is debate on whether this bomb could have caused any harm, but let's assume it would have hurt, maimed, or killed dozens, maybe hundreds.

I hope that if it is proven beyond a reasonable doubt that Shahzad was the driver of the SUV that contained the bomb, or created the bomb, or was attempting to kill people, or a combination of all three, that he is convicted and sentenced to life in prison.

Yesterday, like many others around the country, I wondered if he did it, why he did it, who he was trying to harm, and whether this will happen in other cities.

But that wasn't the main question being asked by our politicians or the general public.

The headlines:

Republicans Use Faisal Shahzad Arrest To Renew Miranda Rights Debate

Faisal Shahzad Was Read Miranda Rights After Initial Questioning

Miranda rights and alleged Times Square bomber: questions linger

Was It Right to Read Bomb Suspect His Rights?

Miranda Rights: Times Square Bomber Reignites Debate

Marco Rubio, Republican candidate for U.S. Senate and a Florida lawyer who apparently skipped Criminal Law the day they taught it in law school, opines that he doesn’t support any action that could interfere with the U.S.’s attempt to prevent terrorism – including giving Shahzad a Miranda warning of the right to remain silent and have a lawyer.

“If this individual has information that could help us prevent future attacks and loss of life nothing should stand in the way of that, including Miranda,” said Rubio, a favorite of the tea party movement. “If they stop talking, people can die.”

Marco, there is no evidence that Miranda stops suspects from talking. Seriously, I should know.

John McCain, who wanted to be President, and Rep. Peter King (R., N.Y.), "also expressed concern over the decision to read the Miranda warning to Shahzad before finding out as much information as possible about the plot and others involved."

McCain, said the immediate use of Miranda rights is a “mistake.” “Don’t give this guy his Miranda rights until we find out what it’s all about,” he said.

McCain was apparently also very busy reviewing the Federal Code:

There's probably about 350 different charges he's guilty of, he said.

350? Wow. Must be an exception to Miranda there.

King, who never misses an opportunity to appeal to hysteria and hate, said simply:

I know he's an American citizen but still.

So lets just throw in a little law.

"Miranda," comes from Miranda v. Arizona, a United States Supreme Court case. A case that every American knows because they either read it in law school, use it in cases as prosecutors and defense lawyers, or get giddy when they see it on T.V. 9 times a day on Law & Order.

So for fun, I re-read Miranda.

It begins with Chief Justice Warren stating that the cases before us raise questions which go to the roots of our concepts of American criminal jurisprudence: the restraints society must observe consistent with the Federal Constitution in prosecuting individuals for crime. More specifically, we deal with the admissibility of statements obtained from an individual who is subjected to custodial police interrogation and the necessity for procedures which assure that the individual is accorded his privilege under the Fifth Amendment to the Constitution not to be compelled to incriminate himself

Now, for all the lawyers, and you non-lawyers can play along too, where do you see the words "except," or "terrorism," or "Muslim," or "Islam," or, well, never mind.

In holding in 1966 that Miranda was entitled to know his rights before interrogation, the Supreme Court gave some bad news to our politicians of today who view the Constitution as a "problem:"

Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.

Aw shucks.

Ernesto Miranda wasn't told he had the right to remain silent, or that he had the right to a lawyer. He did. He did because of this little gem:

THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

And there's also this little annoyance:

THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

"No person."

"No." "Person."

Sure, bring up the public safety exception created in New York v. Quarles. But in Quarles, there was a missing gun, here, the bomb had already been found, the car impounded.

No person. That includes Shahzad. It's not about the crime, it's about the law. In Miranda, the Court said that:

...the prosecution may not use statements stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. Custodial interrogation is initiated by law enforcement after a person has been taken into custody or otherwise deprived of his freedom of movement.

Rep. Steny Hoyer weighed in:

This is a U.S. citizen, arrested on U.S. soil, and subject to the constitutional protections and constraints of every U.S. citizen. He is obviously suspected of committing a crime, of putting together a device to kill people and harm U.S. property. Even Glenn Beck says he's a U.S. citizen and deserving of constitutional rights," Hoyer said.

Even Glen Beck:

He is a citizen of the United States, so I say we uphold the laws and the Constitution on citizens," the bombastic Fox News host said to the stunned co-hosts of "Fox and Friends". "If you are a citizen, you obey the law and follow the Constitution. [Shahzad] has all the rights under the Constitution.

They were stunned. Stunning.

I don't know about you, but if Shahzad confesses, or gives information, I'd like a jury to evaluate it, instead of a court saying years from now that it's inadmissible and as a result the case is weakened to the point that there can be no adjudication on the merits.

But I'm about the law, I'm not about the grandstanding.

I fear terrorism. I also fear politicians who believe the Constitution has exceptions which do not exist, and that those who follow the Constitution and Supreme Court precedent, are anti-American.

Shahzad is an American citizen, being prosecuted in an American court.

The big secret, is that any cop worth his badge, reads Miranda to a suspect. The good ones get the confession, regardless.

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. Post to Twitter

The Vacation Dilemma

When I started out as a criminal defense lawyer one of the first things I learned is that criminal defense lawyers don't go on long vacations. A "long vacation" being defined as anything longer than a "long weekend."

I understood. Potential clients won't wait more than a day or so to see most criminal defense lawyers, and missing the client, meant missing the case, and the fee. Not to mention that unlike civil lawyers, who seem to be able to set their hearings upon agreement, the criminal court system moves along by judges and clerks setting dates. We can't leave the setting of dates up to lawyers in criminal court, because of course defense lawyers would never set a court date.

As time goes on, a criminal lawyer may reach a level of reputation, where the client will wait for the lawyer to return after a week or two, assuming their office can handle preliminary matters, like the filing of a notice of appearance, or a call to a prosecutor. Still, most clients believe the lawyer needs to be seen, not just heard from, immediately, and will hire the lawyer who is in town.

So the dilemma ensues. Does practicing criminal law mean that there are no long vacations? Is the next case, the next fee, that important. Will the judge not move a hearing? A trial? Will the feds come busting in at 6 a.m. the day after you leave town on a case where you've been talking with the US Attorney?

In 15 years I've gone on a few long vacations, those that are more than a long weekend. Almost every time I came back to a "problem." Even on long weekends, I've left town on a Thursday, only to get a call from someone on Friday. Once it was a judge wondering where I was (then realizing I never received notice), then there was the client's family who were incensed I left town for a few days, and then there's the client(s) who "called someone else."

There will always be work. There will always be clients. There will always be schedules that some judge who never went on vacation as a lawyer will be inflexible. The dilemma will always exist.

I wrote recently that any lawyer who boasts that they never go on vacations, and there are many, is a miserable human being that I do not want to deal with on any level.

Right now though, I've having this dilemma. Upcoming trial, clients waiting to be arrested by agents, and prosecutors on those cases who are little concerned about my travel.

I don't know what the answer is here. I know part of it is something I've already done, and that is to not concern myself with the cases I won't get because I'm out of town and the client won't wait.

My dilemma has changed throughout the years. My dilemma now is leaving when I have things in the hopper, and working in a practice that is all about "me" handling the case. Clients who hire criminal defense lawyers don't want the 2 year associate standing next to them in court.

The dilemma becomes more difficult as the cases become more complicated. Trying to keep things from being set even for a 5 day period coming up is like a game of wackamole. It's almost comical watching notices come in to the office, and fighting off hearings for this upcoming 5 days away, in which 3 are obviously weekdays.

I've said before that the best way to plan a vacation as a lawyer is to do it 6 months in advance. As a criminal lawyer, it's more difficult. Judges are anxious to "close cases," court dates are sometimes "set in stone," and then there's the client who comes in after the plans are made.

Vacations are not the norm, unless they are when everyone else goes on vacation - spring break, Christmas, etc....

Taking off for a week takes armour, swords, and patience, unless you're a judge.

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. Post to Twitter