A Young Lawyer's Concern Over Indigent Defense. Your Help Is Needed

When the story of the inexperienced Joseph Rakofsky and his representation in a murder case hit the internet, the divide between real lawyer and today's internet-created lawyer came to light. The real lawyers, i.e., those who created practices through the old fashion way of word of mouth, referrals, and competence gained through mentors and hard work representing clients, met the internet-created liar - the new style lawyer whose reputation was created through typing words and phrases on a keyboard - claiming to be "aggressive" and having "expertise," that in the real world, was a complete farce.

I previously wrote about how real lawyers responded in shock. "How could this happen," they asked?

More importantly, one real lawyer said: We need to do something. I tell my clerks and interns this is not law school. "We deal with real people whose lives and freedom are on the line by what we do or don't do. If you cannot commit to the level of effort required, then go do something else.

Well here's the chance to do something, to offer some thoughts, assistance, or tips to this young lawyer, admitted to practice in November of 2009, showing honorable concern for the state of indigent defense in his home state, and seeking advice on the American Bar Association's "Solosez" listserv:

On Apr 22, 2011, at 9:41 PM, John Wait wrote:

Quite possibly by July next year, North Carolina will have public defender offices in every county. What the hell am I supposed to do? How am I supposed to get courtroom experience and earn bread and butter pay while I am trying to build a reputation as a civil litigator? Law schools are churning out more and more lawyers, and the opportunities to get hands on experience get smaller and smaller. I need business plan ideas, immediately, from those of you who work in states where there is already a public defender in every county. Here are my ideas:

1. Bite the bullet and pay for traffic ticket lists. Do mailings.

2. Pay for SEO to increase my website's search engine effectiveness.

3. Continue networking as much as possible.

John Wait

Comments are open. Please help this young lawyer with his dilemma. We owe it to the profession.

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 Quiet Embarrassment Of Innocence

Two days ago death row exoneree John Thompson's chilling summary of his life as a "guilty" man appeared in the New York Times. His $14 million verdict tossed by the U.S. Supreme Court, he made clear his real question:

I don’t care about the money. I just want to know why the prosecutors who hid evidence, sent me to prison for something I didn’t do and nearly had me killed are not in jail themselves. There were no ethics charges against them, no criminal charges, no one was fired and now, according to the Supreme Court, no one can be sued.

He also notes, by the way, that: Of the six men one of my prosecutors got sentenced to death, five eventually had their convictions reversed because of prosecutorial misconduct.

Instead of blogging about Mr. Thompson's well-written piece, I watched. I wanted to see who would make his words news.

Here, take a look. Notice any of the mainstream media linking to the article? No. $14 million is a story, putting a real person in front of that verdict, well, that's for some bloggers.

When the $14 million verdict was overturned, that story made news. While the online commenters were mostly outraged at the conduct of the prosecutors, the resident, and anonymous of course, "everyone's guilty crowd couldn't resist:

People aren't picked at random off the streets and charged with crimes. He had to do something or have some connection to rise to the level of becoming a suspect. Posted by: mtn1man 2:28 PM

As someone who sits on committees with prosecutors and judges, I can tell you that the topic of innocence is annoying to some. I think we need to be discussing innocence more, while others believe it's nothing more than a "distraction" from our continued efforts to imprison more people than any other country in the world. When an innocent person is convicted, and even sentenced to death, only to be later (oops) exonerated, it creates a suspicion of the system that gets in the way of prosecuting everyone else.

Right now in Florida there is a bill in the legislature to make the photo lineup process more fail safe. It calls for a blind administrator, someone who doesn't know which one may be the suspect. It helps, if done correctly, to prevent suggestive identifications. That bill is opposed by law enforcement, who always use the "don't you trust us" argument in testimony before legislative committees. As Ronald Reagan said - "trust, but verify."

There's also discussion of jury instructions that advise jurors of the significance of eyewitness identification - in the sense that it is not always a sure thing.

Prosecutors don't like it. They "believe" it will cause witnesses to be reluctant to make identifications of suspects.

The only way we guarantee no innocent person is murdered by the government, is to abolish the death penalty. The only way we firm up our eyewitness identification process, is to put in to our system a protective process for identification and jury instructions that cause jurors to make sure they closely evaluate such evidence.

John Thompson is just one person. There are many others. There will continue to be others, no matter how embarrassed we are about their innocence.

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

Perpetuating A Congressionally Recognized Injustice

The broader question is whether federal trial courts will be required, for roughly the next five years, to perpetuate a congressionally recognized injustice. It is disturbing enough when courts, whose primary task is to do justice, become themselves the instruments of injustice, as in the history of our nation it must be acknowledged they sometimes have. But this discomfort reaches its zenith when the injustice has been identified and formally remedied by Congress itself. For a trial judge, the distastefulness of being forced to continue imposing a rejected penalty becomes unendurable in light of the fact that Congress acted partly because the injustice is racially skewed and, as everyone now agrees, will fall disproportionately upon Black defendants such as Mr. Watts.

Nope, it's not a letter to the editor, it's Federal District Judge Michael Ponsor's memorandum regarding the application of the Fair Sentencing Act of 2010 to the case of Antoine Watts. It's not the first time Judge Ponsor has been to the dance on this sentencing issue.

The paragraph quoted above is not a footnote, not buried at the end of the 50 page order, it's the second paragraph.

Antoine Watts is charged with possessing with intent to distribute five grams or more of crack cocaine. The judge in his memo questions whether the court will be compelled to impose a minimum mandatory sentence of at least five years on him, or will have the discretion to impose a lower sentence as permitted by the recently enacted Fair Sentencing Act of 2010.

Now you may be wondering, how did legislation called the "Fair Sentencing Act" get through Congress? I guess the racial disparity issue of sentencing crack offenders (mostly black) to much higher sentences than those with powder cocaine (white people) resonated with enough "tough on crime" congressmen.

Judge Ponser doesn't get past page 3 before dismissing the Government's argument:

The government’s position here is that this court, and all federal trial courts in this country, must robotically continue to impose penalties that all three branches of government -- executive, legislative, and judicial -- and all elements of our political system -- Republicans and Democrats from the most conservative to the most liberal -- have now formally condemned as racially tainted and have explicitly rejected as not only unjust but mistaken from the outset. For the reasons set forth below, the affront to manifest and undisputed congressional intent advocated by the government here is not required by law.

You would think the defense lawyer's motion got mixed up in the copy machine when you get to this passage:

It is a painful, and often noted, irony that the United States of America -- the land of the free and the home of the brave -- leads the world in the rate of incarcerating its citizens. Some seven percent of the population, or 2.3 million people, are currently housed, at vast expense, in the nation’s prisons and jails.5 Approximately 210,000 inmates are in federal prisons; of these federal prisoners,100,000 were convicted of drug crimes.

Then we get to the narrow issue:

The question before the court is very simple: does the law require this court to sentence Antoine Watts according to a statute found by Congress to be both unjust and racist?

There's a question.

Here's the memo. It's worth the 50 page read.

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 Day, The Music, Died. (Reactions from Criminal Defense Lawyers and Marketers)

It finally happened.

The lying that has become marketing was brought to light in the story of an "experienced" criminal defense lawyer. He took on a murder case a week after his admission to the bar, and got a mistrial. His internet marketing was good enough to convince those looking for experienced criminal defense lawyers that he was the one, but the judge was not convinced.

The mistrial was granted out of disgust with the lawyer's conduct, and so in true millenial marketers fashion, the lawyer posted on his Facebook page "MISTRIAL!," congratulating himself, as his fans joined in the chorus.

The sordid story began over the weekend, but exploded in the blawgosphere yesterday, right in the middle of the 2011 Legal Marketers Association Annual Conference.

The National Association of Criminal Defense Lawyer's email listserv buzzed all throughout the day on the topic. From one member:

The conduct of this person, I cannot bring myself to call him a lawyer, is without doubt reprehensible. But I am forced to a much larger question. How did he get to this point? Measuring my professional life now in decades, I cannot comprehend his apparent lack of comprehension of his situation. To be told by a judge that you are not competent to the extent you are being dismissed from a case would be mortifying (an old dinosaur term) to me.

Is there some fundamental flaw which is afflicting our profession by which young lawyers are unable to see such clear problems, whether it is a Murder I as your first trial or representing two defendants with conflicting needs?

We need to do something. I tell my clerks and interns this is not law school. "We deal with real people whose lives and freedom are on the line by what we do or don't do. If you cannot commit to the level of effort required, then go do something else.

From another fellow criminal defense lawyer:

And, all the while, he ends up screwing his client by, first, stealing his money and, then, by guaranteeing that his client spends ANOTHER year in jail before he can have his days in court. Yeah, it's just great that the judge called a mistrial. A gross miscarriage of justice was averted, but all justice will continue to be averted for another year. I have a better idea than bringing this charlatan up on ethics charges: Let the client out of jail and let the lawyer (if he is, in fact, a lawyer) go pull the time until the trial actually concludes. After that, he can get out and go back to his several offices and face the music for what he did to this client. But, of course, that will not happen.

You know, we joke about this and laugh and shake our heads and wonder just how this can happen. We speculate that the defendant was taken in by the web site for this huckster. We are hopeful that some bar association or supreme court will do something to stop this insanity before someone pays for a bad decision (of whom to hire for legal representation) with his or her life. But, all good criminal defense lawyers are tarnished by this sort of gross misconduct. It is no wonder the general public, and the producers/writers/directors/actors of movies and TV shows think so little of who we are and what we do. It is no wonder we all get painted with the same brush that is going to be used to tar (before feathering) this incompetent. We should be outraged at this and demand that New York or New Jersey or Connecticut take some action to stop this train wreck.

At the legal marketers conference, one of the speakers had this to say:

Today I came here to discuss what you all want to hear - that we need to better educate lawyers on the power of the internet, that social media marketing is the future and that marketing, and you as a marketer, is the greatest friend a lawyer can have. But I cannot do that today, because today it has all exploded in our face. We look like scam artists. We look like hucksters. So today, as I talk to you about this lawyer who lied his way to clients pocketbooks, I am going to talk about why this is not where we want to be and why we need to temper our marketing zeal with more ethics than flash.

Actually, that never happened. The talk of the internet yesterday, the unethical marketing that caused a mistrial in a murder case, never came up. It never-came-up.

Instead the marketers said:

Enjoying my beer and the conversation at #LMA11

Dinner at Emeril's. Amazing food, ridiculous wine and fantastic company. BAM!! #LMA11

Relaxing at the yacht club bar #LMA11

You can't make everybody happy. Somebody will be mad at you everyday. #lma11

Yes, the marketers took the opportunity, on a day where their advice and strategies were the talk of the internet, to say nothing.

Everything about marketing must remain positive, nothing critical, nothing negative, just pay the cash and get clients. They don't worry about your ethics, and don't want you worried about theirs.

But I hear the candy at booth 32 is yummy.

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