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

Wednesday, June 30, 2010

A Shaming By Stephen Bright

You know Stephen Bright? He's head of the Southern Center for Human Rights, and a few other things. He was invited to speak this year at the Civil/Criminal Lawyers luncheon at the Florida Bar Meeting. I don't think the civil lawyers, or the prosecutors or judges there knew what was about to happen.

He spoke as if he was amongst friends, or that he didn't care if he wasn't.

He said he almost never gets relief for his death penalty clients when he is before elected judges. He said, out loud, in front of a few elected judges, that this is because elected judges are thinking not about the next case, but the next election.

He said the indigent defense system in this country is a disgrace, and that judges and prosecutors not only watch it happen, but use it to their advantage. He said the system is in a downward spiral, people facing the death penalty with no appointed counsel, overworked public defenders unable to properly represent defendants, legislatures with no courage. I was in the front of the room, and could feel the faces behind me turning red. He was speaking the truth, and the truth hurts.

No, I'm not condemning all judges, and all prosecutors, I'm condemning a system that, as Bright says, processes defendants instead of represents clients.

Bright was raw to the core. He held back nothing. He spoke of injustice throughout the country. He gave examples. The room was silent.

He came to the Bar and shamed us. We deserved it. We all, deserved it.

You may not have an hour to watch this speech of Bright from 2007, but skip through it, listen to some of it. Find out where he's speaking and go see him, whether you are pro or anti-death penalty.

Nothing wrong with hearing things that anger you.

VIDEO: Stephen Bright at Franklin Pierce Law School, 2007

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.Share/Save/Bookmarkokdork.com rules Post to Twitter

Monday, June 28, 2010

Where Are The Criminal Lawyers In State Bar Associations?

We have 85,000 lawyers in the Florida Bar. Someone once did some research and found that 4,500 of those lawyers had filed notices of appearance in a criminal case. I've always heard that "less than 10%" of lawyers practice criminal law, so the numbers make sense.

In terms of committees that are relevant to criminal lawyers, the Florida Bar has a Criminal Law Section and a Criminal Procedure Rules Committee. There's also a Traffic Court Rules Committee, Rules of Evidence Committee and Appellate Rules Committee.

Over the past few years, the Florida Supreme Court has given more power to the Rules of Judicial Administration Committee to make rules regarding criminal practice. There are about 30 members on that committee - 3 are criminal lawyers.

I've been on a Florida Bar committee for over 10 years. I started my Bar involvement on the local young lawyers board, joining as the only criminal lawyer among 17 lawyers. When I was on a Florida Bar Grievance Committee, I was the only criminal defense lawyer. There were 3 prosecutors, and the rest, civil lawyers from BigLaw who never had a client, and didn't understand how criminal law worked.

Bar associations are overwhelmingly made up of civil lawyers. No surprise why - BigLaw loves to have their lawyers involved. Criminal lawyers are either prosecutors, public defenders or solo or small firm. There are time factors, cost factors in traveling to these meetings, and most prevalent, a feeling that the Bar is the government. We are required to be a member of the bar, and we have to pay our "taxes" (dues). It's just another "thing" to advocate "against."

When I go to the Bar meetings, the divide between civil and criminal lawyers is immediately apparent. The criminal lawyers are the ones who realize they are not in court, and dress accordingly - open collar, no jacket, an occasional suit on the lawyer who ran to the meeting from court. The civil lawyers, dressed to the hilt.

Due to dwindling attendance, the Florida Bar recently combined the annual criminal awards luncheon with the civil lawyers luncheon. In this, the second year, the luncheon began with a quip from a prosecutor at the podium that the criminal lawyers "are all seated over here, and you can talk to them, they don't bite." Cute comment, but that's how the room was seated - criminal lawyers amongst themselves.

Even in the criminal defense lawyers associations - less than half the criminal lawyers are members, except in Oregon, where they have 100% membership, and have more power in the legislature than the prosecutors.

Civil lawyers get it. They know that being involved in the process, at every level, only helps their Bar. Criminal lawyers are divided. There is the group that believes a criminal lawyer's job is to go to court, all day every day, and do nothing else. They believe the legislature and the Bar are governmental agencies that are to be avoided. They believe that anyone involved is a "self-promoter," only looking for something. What has always made me giggle a bit, is that this is the group that sends mailers to people's homes when they get arrested, buys the big yellow pages ads, advertises themselves on bus benches and billboards, and yet says those that join a Bar committee are "self-promoters."

I often wonder what the Bar would look like if every committee had a few criminal lawyers. I often wonder what the legislature would look like if there were a few real criminal defense lawyers - not the ones who are former prosecutors and call themselves "white collar" lawyers at BigLaw.

I know, we don't get elected, we aren't welcome at the Bar.

It's not true, it's just a self-fulfilling prophecy. We're criminal lawyers, we don't need an invitation - we need to barge in and speak up.

Do we really want civil lawyers making decisions on criminal practice?

The state bar associations will dump on criminal lawyers if they are not more active. It only takes one voice to stop a bad idea, to stop a new rule from changing how we practice law.

This notion that we need to just deal with what comes down the pike and fight our cases in court is ridiculous. We need to be at the table, we need to stop trains from leaving the station.

I have examples of criminal lawyers, one, criminal lawyer making a difference in legislative and Bar proposals. I won't mention them here, but suffice to say, it's happened, more than once.

You can say "screw the legislature," and "screw the Bar," all you want.

But as you sit back and tell them to screw you, they are.

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.Share/Save/Bookmarkokdork.com rules Post to Twitter

Thursday, June 24, 2010

Inmates Want Phone Calls To Lawyers Recorded, Says...Sheriff

Cops hate criminal defense lawyers and criminal defense lawyers hate cops.

That's not a true statement, but it is what most people think.

Sheriff Grady Judd of Polk County, Florida, in his defense of his new policy to record inmate calls to their lawyers, didn't use the word hate, he used "lazy."

Judd also admits that he is now getting complaints from inmates that their lawyers are lazy.

Now let's stop for a moment. Here we have a sheriff, claiming that he's doing inmates a favor by recording their conversations to their lawyers.

Truth be told, Sheriff Judd says he's abiding by the law, and he's right. It is now legal to record attorney/client telephone conversations if the attorney and client know the conversation is being recorded.

Completely legal.

As a recent client told me though, "this isn't right, it's just legal.

Sheriff Judd also says he spoke to many inmates (I hope who weren't represented by counsel) who told him they were relieved to hear they will now get to meet their attorneys before their court date.

The Polk County public defenders claim the increased visits to the jail will cost taxpayers millions. They want money for gas and extra video conference links. They want two million dollars.

Sheriff Judd, unfazed by any notion of overworked public defenders, has a solution to the concern about client contact:

"We're not telling them you can't have unfettered access to your clients. You can, and it's really simple. Come to the jail 24/7," Judd said.

Sheriff Judd says if the inmates "say something illegal," he will use it against them. "We're allowed to record these conversations, and why wouldn't we record the conversations in order to make the best prosecutable case to protect the victims and prosecute the criminal defendants. Why wouldn't we do that," the sheriff said.

Why wouldn't we do that?


I don't practice in Polk County, but I assume the decision to use evidence against a defendant is up to the prosecutor, and decided upon by the judge.

And the state attorney? What's his position?

"As a lawyer in the criminal justice system, I value the attorney client privilege. While I know I can use conversations between attorneys and their clients in criminal cases, I will not ignore the importance of the attorney client relationship for the purpose of gaining an advantage in a criminal case. I may be a prosecutor, and entitled to use this evidence, but I will not forgo my commitment to the profession and the ideals upon which it is based. The Sheriff can record all he wants, I'm not going down that road."

I'm just kidding, he didn't say that.

He said this:

The state attorney's office says that as of July 1, they will consider all calls made via the jail house recording system as potential evidence.

There are many questions surrounding this new policy. One is, why? Other than it's legal, what's the point? To gain evidence in a criminal case?

Most jail calls go like this:

"Hey, what's up with my case?"

"Can't I get a better deal?"

"Are you the prosecutor or my defense lawyer?"

"When are you coming to see me, again?"

"Can you send me what you've already sent me 3 times?"

"Did you get a hold of Roy, my defense witness?" "No, I don't know his last name."

Are the police going to sift through the approximate 600 phone calls a day from the Polk County jail to try to find evidence? Who is going to do that? Who is going to pay for that?

There has been discussion for a long time that if the Bill of Rights were before Congress today, only the Second Amendment would pass.

I think the attorney client privilege would also be legislated out of society, or diminished to the point of irrelevancy.

In Polk County my client can't call me as his lawyer and talk to me on the phone without the police listening, and using it as evidence. So me, and any lawyer who has a case there will either not be able to talk to their client as often, or cases will be delayed because "judge, I couldn't get to the jail this week."

I look forward to the first jail call to an attorney that is seen as potential evidence in a criminal trial, and I look forward to watching what the judges do about it, and have to say about it.

To those that think this is a good thing, I'm sure you do - you're not sitting in jail.

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.Share/Save/Bookmarkokdork.com rules Post to Twitter

Tuesday, June 22, 2010

Will We Ever Fully Understand Clients?

I assume all private criminal lawyers go through the same thing; a string of great calls and clients, followed by a string of mind numbing annoying calls from those that will never become clients, or if they do, will suck the life blood out of us.

I've had a week, well, a couple days, of the latter. Calls from people in terrible, desperate situations that I'll never get to resolve, either because the client doesn't have or won't pay the fee, or because I've politely declined based on something that caused me to think I'd regret taking the case.

I've reached the point where although it costs me money, I don't want to take on the clients that think a retainer buys them not only representation, but my full attention all day every day, my use as a tool for their strategy, and my cheerleading for them when I know the truth to be not so bright.

After 15 years I think I have it figured out, but I don't. In some ways I'm glad. There's still that caller who seemingly will never become a client, but becomes a great one. Then there's that seemingly great client I take on who at some point in the representation decides that I am the reason he is in this situation.

One thing that never changes is the rough and tumble at the point of resolution. Most clients want their case dismissed. If that's not what they want, they "just don't want to go to jail." I've never met a client that told me the opposite.

But what will never change is the thought by some clients that whatever result you obtained, there is something better. Even when a case is dismissed, I'm often asked if the prosecutor will pay the attorney's fees, or if we can sue. When the client is facing a minimum mandatory prison sentence, and receives an offer of probation, I'm often asked "can we do better?"

There's nothing wrong with wanting better. I was taught as a young lawyer to ask (the prosecutors) until they say no, and mean it. But I've tongue in cheek developed a theory that a criminal lawyer should be careful about doing something good for a client, because it won't be good enough.

Sure, there's the appreciative clients, the one's that know they dodged a bullet, the one's that understand compromise is when both sides are unhappy. But I still don't know what to say to a client that "just wants the felony dropped," and after it's dropped to a misdemeanor, asks if we can do better. Sure, I'll keep fighting, but they dropped the felony to a misdemeanor as a compromise. A compromise takes both sides. The only way to "win" outright in criminal court, is a dismissal or acquittal. This is why when someone asks about my "win/loss" record, I respond with "what do you consider a win?"

My job in every case is to get the best result for my client. I have no problem telling my clients that tell me about how the case is going to affect their job, family, life, and other collateral aspects, that no one cares. I care, but the state generally doesn't care. Many people have families, jobs, status in the community. A particular prosecutor may care, but in general, the government doesn't care.

There are other things that never change - the client who says you never told them something you've told them ten times over, the client who wants to make sure you tell the prosecutor something that won't have any effect on the case, and the client who says it sounds like you're "not fighting" for them because you tell them something that can only be described as brutal truth.

Clients are not to be judged. This is something I learned in my first days as a public defender. Being judged is not the same is being honest. Some clients don't know the difference. It is my job to be honest with clients, regardless of that article I read years ago that said in white collar cases, always be positive when speaking with the client. Why is that? Should I say everything will be OK when I know it won't? Should I tell the client I don't think he's going to jail when I know the judge he's before always puts defendants in jail for the same crime? Should I tell him he has a great, defensible case, when there is a box full of of wiretap and video evidence?

Representing clients in criminal cases is never dull. While experience as a criminal defense lawyer helps in dealing with the different personalities and "buzz words" and phrases that indicate a certain issue has arisen, I don't believe I'll ever fully understand each and every type of client.

In a strange way, that's what makes this job fun.

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.Share/Save/Bookmarkokdork.com rules Post to Twitter

Friday, June 04, 2010

A Perfect Game: The Criminal Justice System

Bud Selig did the right thing. Sometimes life sucks and you get screwed. You don't go back and change things.

It's too easy to compare the missed call that robbed Armando Gallaraga of only the 21st game in Major League Baseball's history to the criminal justice system, but what the hell.

Gallaraga pitched a perfect game. The replay shows it, the ump admits it, even Jason Donald, the hitter called "safe" admits it.

Gallaraga pitched a perfect game.

But we will write down that he didn't. He will receive no credit for this perfect game. According to the law, it never happened.

My friend who made the quote at the beginning of this post makes the point. He's got support. Yes it happened, but sometimes the law steps in and poof, it didn't happen.

Any criminal defense lawyer who felt his client was wrongly convicted, has stood at sentencing and heard the judge and prosecutor say over and over again "but the jury found him guilty." Yes, a group of people looked at the evidence and made a judgement call. Human beings came together to decide whether someone committed a crime. Most of the time it's easy. There's a confession, along with witnesses, along with physical or scientific evidence, and the combination of all of it is proof beyond a reasonable doubt

But it's the cases like the missed call that resulted in a "non"-perfect game, cases where there is one witness, who may have gotten it wrong.

Most people will say that a guilty verdict means the defendant "did it," but that an acquittal doesn't mean he didn't do it. That makes sense only in regard to the fact that an acquittal can be the result not only of a jury thinking the defendant didn't commit the crime, but that they don't believe the government proved the case beyond a reasonable doubt. The latter is less likely, as juries are told to use common sense, which is a way for them to disregard the burden of proof. In sum, if a jury "thinks" the defendant did it, he's guilty.

We've seen a lot of innocent defendants released over the past few years. In a slew of post-verdict cases, there was a prosecutor announcing that "a jury found him guilty." This is spouted even in the face of DNA evidence (our instant replay) proving innocence. The public hears only of the exoneration, not all the hearings where the state tried to maintain the conviction despite evidence of innocence.

We've even had arguments as to whether factual innocence is relevant.

Today the country is crying foul - a man pitched a perfect game and the law prevents us from doing anything about it. It's wrong. It's not fair. But my friend is right - we in this country love law & order so much, that we can say with a straight face that Bud Selig did the right thing. Sometimes life sucks and you get screwed. You don't go back and change things.

And nobody will, regardless of 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.Share/Save/Bookmarkokdork.com rules Post to Twitter