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

Wednesday, September 22, 2010

We Stand Witness To A Monstrous Wrong

Leonard Pitts compares the Anthony Graves case to a a TV western:

There's been a vicious killing. Everybody knows who did it -- or thinks they know -- and the posse wants to string the varmint up. No need for the bother of a trial. The crime was outrageous, people are furious. So get the rope, find a tree.

Anthony Graves was arrested 18 years ago for the brutal murder of a woman, her 16-year-old daughter and four children. After the beating and shooting, the house was set ablaze.

As Pitts writes in his column, of course placed on the last page of the newspaper:

No physical evidence linked Graves to the crime. He had no motive to butcher six strangers. Three witnesses placed him at home at the time of the murders.

Graves was convicted and sentenced to death on the testimony of Robert Carter, the father of one of the victims.

Pitts notes that Carter had shown up to his son's funeral with his hands, neck and ears heavily bandaged, the result, he said, of having accidentally burned himself while doing yard work.

He, Carter, then admitted his guilt - he admitted committing the brutal murders. He admitted prior to his own execution that Graves was innocent.

Check out Texas Monthly magazine for more of the story.

Pitts explains the mood of this small Texas town at the time:

It was an awful crime, and people needed to see someone punished for it. Indeed, Somerville mayor Tanya Roush told the Austin American Statesman her town was impatient with the idea of a trial. "They're saying, `Bring back the hangin' tree, and save the taxpayers' money."

And Pitts states the obvious:

Graves is a victim of, and may yet become a martyr to, that need to see someone punished. Unfortunately, there is often an inverse relationship between that need and justice. The more you have of the former, the less likely you are to find the latter.

We stand witness to a monstrous wrong perpetrated out of that vestigial sense of frontier justice in the American psyche which says some crimes are so heinous they demand we bypass niggling questions of evidence, motive, proof, even fairness, on the way to the hanging tree.

Some crimes leave communities outraged and demanding punishment and there are those who say those emotions are the reason we must put people to death.

Prosecutors will re-try Graves in February.

I've made this argument before, that Justice is never innocence, it is always a conviction. When there is an acquittal or exoneration, the public cries that the victim didn't "get justice." The notion of "justice" for the defendant is a non-issue, as we don't see our system as a place for people to be acquitted, it is a factory of guilt.

Anthony Graves appears to be innocent, but the discretion of the prosecutors in the case will be thrown to 12 strangers in a jury box, in a small Texas town looking for "justice."

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, September 17, 2010

A Survey On Indigent Defense Training

No, this isn't a post about the results - I want you to take this survey if you provide indigent defense services as a PD or private lawyer.

A curriculum is being developed by the ABA, NACDL and the Spangenberg Project at George Mason University for an upcoming indigent defense training and technical assistance project funded by the Department of Justice Bureau of Justice Assistance. This comprehensive curriculum will be developed to present four regional training programs across the country for lawyers representing indigent persons in criminal cases. The survey closes on October 4th.

The survey is anonymous and your answers will not be linked back to your e-mail or identity.

The link is here.


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

Sunday, September 12, 2010

A Disgruntled Prosecutor Seeks Advice

In this "tough on crime" "Law & Order" world we live in, there is a notion that prosecutors and cops (except the ones who are taser happy) are the good guys, and defense lawyers are "the problem." It is assumed that all prosecutors are in the right, doing the right thing, and committed to the concept of convictions and jail.

And then a defense lawyer (me) receives an email like this:

I apologize for the anonymity of this e-mail. I am indeed a disgruntled prosecutor.

I’m writing to you because I need some advice.

You see before I became a prosecutor I was a defense lawyer. I built my practice the old fashioned way – one client at a time with a healthy dose of referrals from other lawyers.

After a while the frustration of criminal defense work got the better of me and I applied for and was given a position as a prosecutor.

The truth is that I took the job for all the wrong reasons: financial stability and to have a shorter workday and not because I had a burning desire to prosecute people.

Well, I’ve been at this for a few years now and my dislike for what I do has gotten so bad that I can’t look at myself in the mirror anymore without seeing nothing but a fraud. I don’t believe in what our office does, I cringe at the arguments I make in court and I spend most of my days fantasizing about how I will quit.

I want to return to defense work. If anything, my time as a prosecutor has shown my just how defense minded I really was (and still am). I would leave my job tomorrow but my wife and I have young children now, a mortgage and bills. The economy is not the greatest and as much as I hate my job, walking away from a job that pays me over 100K a year with benefits and a pension so I can hang my shingle – essentially jumping into the unknown – leaves me scared shitless!

If anything this e-mail is a cry for help!

Any credible defense lawyer wants a prosecutor that, while doing the government's work, has some concept and respect for the defense function. I've always said that any prosecutor that has no respect for the other side of the courtroom, should quit or be fired immediately. (don't laugh).

But my anonymous friend is so committed to the defense function, that he needs to quit, tomorrow. He doesn't believe in what he is doing, and although there is no evidence he's not doing his job, he is being both unfair to himself, and his office. There are too many on both sides of the criminal justice system, that are just "doing their job" without any concern for the lives they are affecting.

There are those out there in this social media lawyer world that will scoff at my notion that this guy should walk away from his six figure job, but he should. He doesn't have a job, he is part of a profession, and within that profession he is working each day to convict people and possibly put them in jail. He doesn't want to do that, and he shouldn't.

But he should be smart about his future. He needs to give sufficient notice, and make sure he has enough funds to keep him fluid for a couple months. He needs to go back to building his practice as he did - one client as a time. He needs to stay away from the online snake oil salesmen who, for a fee, will claim to teach him the secrets of practicing law by laptop. And he needs to know that the economy is not what it was 2 or 3 years ago. Clients are not able to tap into lines of credit for legal fees, and there are more unemployed lawyers claiming to be "experienced" criminal defense lawyers - even though they are really experienced real-estate lawyers, without any real estate on which to work.

I trust he welcomes your advice as well.

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, September 07, 2010

A Public Defender Rants

Many many years ago, like 5 years ago, the blogosphere was different. Lawyers came here to write, to express opinions on the issues of the day, to pass on other posts and news items from other blogs. Sure there were marketers, but it wasn't like it is today, where lawyers race to start a blog for the sole purpose of getting the phone to ring, evidenced by the cheesy style of the poor-content, heavy links to the firm, blog.

But the blogs of "yesterday" still exist. Some look fondly at them like that vintage car riding down the street on a Sunday, others, the marketers, look at them as they do their elders when they give advice - like they don't know what they're talking about.

Daniel Partain is a public defender in Georgia, and he has one of those old style blogs. He writes what he thinks, and isn't here to market his free services to the indigent. He doesn't have hundreds of readers, not many comment, and the posts don't exactly go "viral." But that's mostly because today's blogosphere isn't looking for important thoughts, personal perspectives, or controversial statements. People here today are looking for link-love, Google juice, and the coveted SEO (search engine optimization for those who haven't gone desperately to a social media marketer claiming to be able to find you wealth and fame with a keyboard.)

Shortly after midnight, he went off.

Daniel appropriately titled his post A Very Poorly Constructed Rant. Then again, rants are not meant to be anything but "poorly constructed."

Daniel says, in part:

I hear from fellow lawyers and laypeople about how noble it is to be a public defender, and how we do is gallant or a true public service. When I hear this bullshit, I want to vomit.

Guilt or innocence is reduced to probabilities and percentages. Sentences are just a range of numbers. Confinement is seen as a cakewalk. It is three hot meats and a cot or a vacation from the cares of the real world. Or in the eyes of certain jurists, sentences are seen as an instrument to enlighten the masses as to the repercussions of committing a criminal act, and to alter their behavior. However, in this era of Twitter, Facebook, and other social / mass media that produces more sound than fury, and makes all of us sound like blathering idiots, this jurist's pronunciations are lost in the static, the white noise. The collateral damage that comes from the system is ignored.

The bar may pontificate about the flaws in the public defender system, but they quietly expect us to keep going beyond the limits of intellectual endurance. If we snap or break under the stress, it is of no loss. We are expendable. No, we are interchangeable and easily replaceable cogs in the meat grinder that is the system. They would never treat the vaunted private attorney like the way they treat us.

However, there are days where I hear of something so fiendish or so deprave that it pierces even my hardened heart, and it causes me to recoil in horror and disbelief. Yet, within in a few days, if not less, I return to my callous state, where I am numb to the suffering of others, and I find myself capable of telling a joke about any depraved act without a second thought or without any malice in my heart.

Over the years of doing this line of work, I find that my mind and my body are in constant warfare with each other. My body wants to collapse from the emotional and psychological wreckage that I must wade through. My mind ignores it, and pushes through it. Yet, there are days where my mind breaks down. Some days it will drop into neutral, and I find myself suffering from the 1,000-yard stare.

The despair that I feel overwhelms me and it comes over me like a wave against an ocean shore. With each wave that comes over me, the man that I was is slowly worn away.

These are the words of a real lawyer, a man in the arena every day. He sees and feels the weight and power of the criminal justice system, and chooses to put his thoughts in writing. Few people read this post, and the tough-on-crime-why-was-Law-and-Order-cancelled crowd feels nothing when reading it.

We have gone from a society where we looked forward to Perry Mason and Matlock winning the case, to the demand that for hours on end every day, legal dramas on TV reminded us that the cops always get the bad guy, and the defendant is always convicted, regardless of his scumbag defense lawyer. We ingore that the system is broken, while lauding the creation of "Innocence Commissions" and "Innocence Projects." We fail to recognize that the system itself should be an Innocence Project, instead, feeling better about ourselves that we are now trying to right wrongs that are the result of our zeal to prosecute and convict, justice be dammned.

So Daniel goes back to work today, processing through the dozens of defendants that will enter his courtroom. Nothing he said in his post will matter to anyone important, nothing will change. He ranted for the purpose of a rant, for the purpose of expressing real thought about a real topic. He wrote to write. His post will bring him no business, no money, no love from the marketing lawyers on the internet.

And that's the end of my rant.

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