Watching Cops Lie

Watch Hollywood, Florida cops lying about a report they're writing.

Courtesy of their dash cam.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com



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My Payback For "Newspaper Reporters Love Affair With Prosecutors"

When I wrote the below post a couple days ago, I had no idea that my federal sentencing yesterday would be the subject of an article in my local paper.

Another one, naming and quoting the prosecutor, and leading the public to believe that there was no defense lawyer.

Now, in defense of this reporter, he's a great guy, balanced as they come, with a great sense of the system. He's that good that you would never know from reading the article, that he was not at the sentencing. This is another new little secret of the printed press: They don't have the staff to actually attend things that they write about.

No, this story came from U.S. Attorney Press Releases, pleadings in the court file, and maybe, but probably not, a quick conversation with the prosecutor.

So the question is asked: ""Brian, is this about getting your name in the paper?"

Nope. My name's been in the paper plenty, and I'm not that hot on having my name in the paper when my client goes to prison.

The issue is: why the public continues to be fed stories about the prosecution of criminal cases, and not the defense? My client was facing decades in prison, and got two. How? That's the question I'm being asked, so I assume those reading the story in the paper are asking the same question. Actually, I know this is the question they are asking as it is part of the disgusting discourse in the comment section.

The second question is: How can reporters continue to call defense lawyers with a straight face and say "we want to get your side so we can write a balanced story?"

It is a complete coincidence that this story left me out just days after my post. Again, the reporter here, thought nothing of it, and probably didn't even realize it (until I emailed him this morning with a copy of my post below).

Cases are prosecuted and defended., by prosecutors and defense lawyers. The only place where this is not true is on the darling of the American public show "Law & Order.

It is a chronic problem in the print media, which I will continue to post about here.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com



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Newspaper Reporters Love Affair With Prosecutors

Well there was a big defense win in ultra-conservative Pensacola, Florida Friday. A young defendant was charged with vehicular homicide in the deaths of two people as a result of a car accident deemed drag racing by the prosecution. He had the honor of being represented by defense lawyer Jack Wilkins.

As a result of the great work of Jack Wilkins, the defendant was found not guilty of the vehicular homicide and guilty of misdemeanor reckless driving.

Wow, Jack Wilkins must be some defense lawyer to be able to refute the state's evidence in a case like this one where two people died.

Clearly the public would want to know who the defense lawyer was and how this seemingly hopeless case turned into an almost across-the-board acquittal? What was the turning point in the trial? What was the impact of the defendant's testimony? How did Jack Wilkins attack the weak points, otherwise known as "poke holes" in the state's case?

Here's the front page story from the Pensacola-News Journal:

Man convicted of lesser charge in fatal crash

Man convicted of reckless driving in what troopers called drag race

Kris Wernowsky
kwernowsky@pnj.com

A jury found a Pensacola man guilty of misdemeanor reckless driving late Friday in connection with a 2008 crash that left two dead.

Christopher Borgesen, 23, of Pensacola originally was charged with manslaughter, vehicular manslaughter and leaving the scene of a crash involving death in the high-speed Sept. 11 crash that killed Morgan Walsh, 19, and William Schaefer, 21, both of Pensacola.

The jury found Borgesen guilty of the lesser offense after more than five hours of deliberation.

Circuit Judge Frank Bell will sentence Borgesen in August. He faces up to 90 days in county jail. He would have faced up to 15 years in state prison had the jury convicted him on the original felony charges.

Florida Highway Patrol investigators and witnesses said that Borgesen was drag racing with Schaefer when the crash took place. To obtain a manslaughter conviction, the state was required to prove that both cars were engaged in a race.

Assistant State Attorney John Simon spent most of his lengthy closing argument Friday trying to convince the jury that Borgesen shouldered responsibility in the deaths because he was a willing participant in the drag race.

Borgesen was arrested in October and accused of racing Schaefer, 21, the driver of the Honda Prelude that crashed through a guardrail on New Warrington Road and went airborne, the Florida Highway Patrol said.

The accident happened as the BMW Borgesen was driving and the Honda were headed south on New Warrington Road at a high rate of speed, according to an FHP report.

The Honda hit a fence and a guy-wire connected to a utility pole before slamming into a house at 16 Pen Court, killing Schaefer.

No one in the house was hurt.

Jennifer Velazquez was driving along New Warrington Road the night of the crash and testified that she witnessed Borgesen's BMW swerve past her. She saw Schaefer's car lose control. She also said she thought the two cars were engaged in a race.

Borgesen told the FHP that he knew the Honda had crashed, but he continued south on New Warrington Road, the report said.

"(Borgesen) stated that he ... went to Georgia's Laugh Inn to shoot in a pool tournament," according to the report.

Walsh, 19, a passenger in the Honda, died Sept. 14 at Baptist Hospital. Aaron Bates, 25, of Pensacola, also a passenger in the Honda, was injured in the crash.

No, I didn't leave any of it out. Apparently, there was no defense lawyer in this case.

In 15 years, I've never seen a prosecutor edited out of a news story about a criminal case. I often see no mention of the defense lawyer. This is sometimes due to pissy reporters acting spiteful towards defense lawyers who won't give a quote, and other times due to the reporter's bias against the defendant. Then there's the canned "tell me if you've heard this" response: "my editor cut it out."

So it shouldn't surprise me in this case that even in a case the prosecutor effectively "lost," that the paper couldn't help themselves. I guess the fairness in it is that reporters love prosecutors when they charge, when they win, and when they lose.

Now I know Jack Wilkins, and he's a pretty low key guy who probably doesn't give a crap, but in this case, regardless of whether Jack offered comment, his name belonged in this story. The public deserves to know that there are good prosecutors AND good defense lawyers in their community.

Having been one of those lawyers who didn't take the advice of "don't talk to the media, ever," I've developed great relationships with good reporters, and of course been the brunt of biased reporters wasting my time only to have any evidence of my involvement in the case or interview be cut out. I've written about this here, and here

As to the stale excuses, I wrote:

"My editor cut you out" and "I had a space issue," have run their course.

Do all of you in the media know that we hear these excuses daily? We would more believe the dog ate your homework. And why do you not tell your editor that the defense lawyer was very helpful in the story and you would at least like the story to be fair to both sides (THERE'S a concept!).

Last time I heard this excuse from the reporter, I called the editor. He told me the original draft never included any mention of me.

Oops.

So I played a little ping pong with the reporter and editor on that one and got two people trying to remember who was lying.

So here, in this Pensacola case, I emailed the reporter:

"Jack Wilkins must have done some job to win this case. Any particular reason the story is devoid of any mention of him?"

Response?

"It was edited out."

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com



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"We Have No One In Custody, Legally."

That was the Sheriff of Escambia County, Florida yesterday during an interview on cable TV regarding this horrific murder of the parents of 16 children in their home.

The three people arrested yesterday will be prosecuted for this unexplainable brutality, and if they are guilty, there is no doubt they will receive the maximum penalty for whatever they are eventuallly charged with.

But I'm tired of the semantics. I'm tired of the bullshit.

Let's review.

When I was growing up, both as a kid, and in the criminal justice system, there was no such creation as a "person of interest."

Everyone knows Miranda, you know, what we hear on Law & Order every 3 hours? "You have the right blah blah blah?"

Miranda applies to persons in custody.

In custody?

We defense lawyers litigate that every day.

In custody is determined on a "totality of circumstances." Was the person "free to leave?" (No one is ever free to leave while with a police officer, but we like to say that they are sometimes.) Was anything said to the person to lead them to believe they were a "suspect?" Were they in handcuffs, in the back of the police car, put in a room, taken somewhere, and on and on and on.

How do we take someone into custody, not arrest them, knowing they are a suspect, and not have to read them their "rights?"

We call them a "person of interest."

Person of interest=suspect.

But not legally.

When the Sheriff said yesterday that "we have no one in custody, legally," he was saying this:

"We have the murderers in custody, they are going to be arrested, but we are getting a "rights" free confession out of them before all that damn constitutional crap comes into play and we have to tell them they don't have to talk. So please lady, don't ask if we have anyone in "custody" 'cause we don't."

Legally.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com



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Someone Get Me A "Former Federal Prosecutor."

I often joke that there are criminal defense lawyers and "former prosecutors" (practicing criminal defense). Some laugh. The ones that don't, know I'm talking about them.

I am not, a former federal prosecutor. I am not a former prosecutor. I am a criminal defense attorney. I formerly worked as a criminal defense attorney at the public defender's office, and I make sure I always let the appropriate person, reader, or audience know that I am a former public defender.

I do not, though, identify my basic existence with that former position of which I am very proud.

When I have appeared in print or on radio or TV, I never ask to be identified as a "former public defender." Again, I used to work at the public defender's office doing what I do now, criminal defense. I am a criminal defense lawyer. If I ever was a prosecutor, I would not want to live in the past and tell the world at every opportunity what I used to do.

Former federal prosecutors, and former prosecutors to a lesser extent, seem to find themselves using that title in curious situations.

This week on the Today Show there was a segment discussing what will happen to Michael Jackson's kids. Jeanine Pirro, former New York Judge and DA was commenting perfectly on California family law, never leading the audience to realize she knows nothing about California law besides what the person she called in California before the show told her. (Sorry to blow the secret that lawyers and judges know nothing about law in other states)

And there was this other female lawyer on the comfy couch. I didn't hear the whole segment, but I saw across the bottom of the screen: "Former Federal Prosecutor."

There are only two possibilities here. This woman is a former federal prosecutor now practicing family law, or she is, well, just a former federal prosecutor doing something else. Either way, who cares? Is there some theory that the custody of Michael Jackson's kids will become of interest to the U.S Attorney? I know we're upset no one's been arrested yet in MJ's death and no Law & Order episode has been "ripped from the headlines," but do we really need to suggest that a former prosecutor, sorry, former federal prosecutor is the only person to comment on....custody?

Why was this woman referred to as a "Former Federal Prosecutor?" Did she ask, or did the Today Show think it sounded good.

It doesn't end there.

One of the dirty little secrets of this title is that it is used to mask the terrible things that "Former Federal Prosecutors" and Former Prosecutors do after they stop being Prosecutors," like become defense lawyers.

That, they refer to as "Private Practice."

Look at any candidate for judge or state or local office. Look at their resume. "Former prosecutor now in private practice?" BINGO - defense lawyer. Criminal defense lawyer. Shhhhhh.

I've always wondered what the media's love affair is with "Former Prosecutors." To me, they simply perpetrate the notion that these are the lawyers who know everything and are best suited to answer questions in any situation, because they used to prosecute criminal cases.

It has long been the mantra that being a "former prosecutor" is a better pedigree than being a former public defender. That's absolutely true. Former prosecutors are more likely to be hired at big firms who believe that clients will want to hire them to defend. They are more likely to be appointed to the bench, elected to office, and of course, plastered on TV to answer questions, about anything.

Even if they are now, "in private practice."

Shhhhhhhh.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com



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Releasing Prisoners, Fear Mongering, The Predictable Public

As soon as I saw the headline for this story this morning: "Up To 10,000 Illinois Prisoners May Be Released"

I dead-bang predicted word for word the tone of the story.

1. There would be mention that this is due to the depression (I know some call it a recession).

"Up to 10,000 convicted criminals could soon be released early from prisons across Illinois. It's all because of the state's budget mess"

2. The prisoners are all non-violent inmates but the writer will make some crack that questions this premise:

"The state's making a list of thousands of so-called non-violent inmates..."

3. The words "public safety" would be included to begin the fear mongering:

Rep. Jim Durkin. "Public safety? Not the place to cut. That is the last place you should cut the budget is public safety. The greatest responsibility of the governor and the legislature is to keep the citizens safe. And I don't agree with this approach."

Good job Jim, three times.

4. Oh, and Jim used to put people in prison and thinks that at least some of them actually belong there:

"I threw a lot of those guys in prison back in the '90s, and they probably, a number of them, belong there."

5. The public would be hyperventilating:

"Oh, my God. I don't agree with that at all," one woman said."

Oh.my.God.

6. Another member of the public would make an absolutely brilliant statement:
"I don't like that at all," a woman said. "You know, because I think people have been placed there for a reason."

You know, yeah.

7. The inmates would have little time left, making it irrelevant whether they served another few months:

"with less than one year left to serve...."

8. The fear mongering article would claim that the proposal is being done just for the putpose of.....fear mongering:

"What it's being done for is to try, through fear-mongering, cause people to support an income tax increase," said Bob Schillerstrom, Candidate for Governor. It's the wrong thing to do."

I agree, Bob.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com



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Sarah Palin: An Unfairly Treated Woman In Need Of A Makeover

I know, it's not about criminal law, but I just got back from vacation and am fascinated with the hypocrisy surrounding Sarah Palin.

I'll admit, like many others, when I first saw her (and the first time many saw her was when she was nominated VP), I thought "cute." Kill me, but that's what I thought.

Then she opened her mouth.

I have to believe that any 45 year old who ascends to the governorship, of any state, has to be somewhat intelligent.

While she may be "smart," she didn't present herself as qualified to be President. And no, I don't "hate" her because she's a "strong powerful woman." I just think she's not qualified to be President.

The Conservative republican machine has been quick to deter any attention from the fact that Palin is to the naked eye, "cute," but not qualified to be President.

They blame the "liberal media" for focusing on the truth. If the liberal media would just "leave her alone," she would appear qualified.

If the liberal media would stop commenting on her looks, the way she talks, or the fact that she really doesn't know anything about the world outside of criticizing the current administration or anything "democrat."

I understand the partisan game. The purpose of each party is to show the public that the other party is worthless, anti-everything the other party is for, wrong, and going to kill us all.

What I don't understand, is this column today by Cal Thomas. No liberal is he.

Thomas says that Palin was "treated unfairly and in ways that no liberal woman would have been..."

He then says that "anyone running for national office must traverse a media gauntlet -- with the notable exception of Barack Obama and his worshipful media disciples. While Conservatives can expect worse treatment than liberals, they can prevail with the right strategy."

Ok.

But Cal,the strategy you speak of is as follows:

"If Palin is to have a future in national politics (assuming she wants one) there are several steps she must take.

"First, she needs a complete makeover. The big media will never admit they were wrong in their judgments, but they might write stories about the ``new Sarah Palin.''

She should hit the books and learn as much as she can about the modern world, history and court cases. She should read newspapers so that when future interviewers hit her with questions, she can dazzle them like a Jeopardy champion."

"Palin should hire a speech coach and follow that person's advice. She has a pleasant enough speaking voice, but the tone needs to be adjusted, as do her word choices."

"Lastly, she needs a hair, makeup and wardrobe makeover. She is a beautiful woman, but appearance should not be the first thing one reacts to when people look at her."

He concludes with this: "Sarah Palin can be 'born again' in a political sense and excite beyond her base if she allows herself to be 'baked' (ha ha, good one Cal, baked.....Alaska....) at the proper temperature and for the right amount of time."

So let me understand.

We have treated Palin unfairly. We have focused too much on how she looks, how she talks, and what she doesn't read? The solution is not to find a better candidate, but to prop Palin up with a makeover, speech classes, and reading advice?

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com



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Another Criminal Defense Conference, Another Few Minutes Of Dreaming

Over the past two weekends I've attended two different criminal defense conferences. In 15 years I've probably attended 30 or so. Each one includes talk of new case law, good and bad. They include war stories of that case, or those cases, where a judge, a jury, or a motion led to victory for the defendant. There's that new case that the police will learn to "get around," and there's the judges who tell us what they like and don't like in court.

And at the end of every conference we are led to the same belief, that we can win more cases, that we can win every case.

These conferences bring defense lawyers together within a state, a federal district, or a country. We learn we all have the same issues, the same cases, and the same clients. We leave and return to court Monday with a renewed sense of "what if?"

And then there's Tuesday.

Yes, if we tried every case, we'd control the system. If all our clients had the money to hire the best experts, or even a mediocre investigator, we could learn things that would cause a jury or judge to think twice about whether our client was guilty.

But we don't. Private lawyers don't, public defenders, don't

It is a system, and as we defense lawyers hear in court from the bench, "we have to move things along."

The economy is making things worse. More desperate lawyers practicing criminal law, taking fees to "pay the bills" that aren't enough to do a competent job. Take the client to court and tell him you got a great deal. He doesn't know. He'll spend 30 seconds thinking about whether to become a convicted felon, which is 30 seconds less than he spent thinking about who to hire.

We leave these conferences with a renewed sense about Monday, only to be faced with the inevitable Tuesday.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com



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Being Pro-Life, And Pro-Death

Abortion.

I know, I shouldn't write about abortion.

Abortion is not something we debate, its something we accuse others of supporting, or trying to prevent women from obtaining legally. Abortion is something that intelligent people refuse to debate, and wack-jobs kill people over.

Killing doctors who perform abortions is nothing new. But the advent of 24/7 conversation via the internet causes the news, the reaction, and the incendiary hypocrocrits to be heard all in one.

There are two types of "pro-life" schools of thought: Those that think there is only one pro-life school of thought, and those that make exceptions. The former have no use for the latter, but the former have some explaining to do post-assassination of Dr. Tiller this weekend in church.

If you are pro-life, you do not believe in killing an unborn child. I'm not going to get into the debate here about whether a fetus is a human being, I'll assume for purpose of establishing hypocrisy, that it is.

Hypocrisy, being pro-life, and pro assassination of a doctor who is performing legal abortions.

Thou Shall Not Kill?

Or "Thou Shall Not Kill Those That I Believe Should Not Be Killed?"

I know, true pro-lifers believe he was a "mass murderer." But he wasn't, because for whatever you believe about what Dr. Tiller did for a living, and are at least a wee bit knowledgeable when it comes to law, it was not illegal.

Case in point, did any pro-lifers call the police anytime they heard Dr. Tiller performed an abortion?

But they believe that someone who does something legal, yet against religious and moral beliefs, is properly assassinated in church on a Sunday.

Those who believe it was OK to blow Dr. Tiller away last Sunday are good at throwing darts, but generally won't engage in a debate. I've read some comments from those "no one should be crying over Dr. Tiller's death," people, responded with a question, and received no answer.

Maybe the solution for these supporters of murder can try to get an asterisk after Thou Shall Not Kill*

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com



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Miami Airport Cop: Did You Know My 9 Year Old Was There?

Good thing about having a blog is that writing a letter that will be answered with some condescending bullshit about "public safety" is no longer necessary. I can just write it here.

Saturday night my wife goes to Miami International Airport to pick up her parents from a 3 week trip.

She entered the "arrival" section at 9:30 p.m. Like most Saturday nights at that hour, there was no one else there. No one.

My wife stops in front of Delta amid a sign: "No Parking Active Unloading Only." Pre 9-11 that meant you could park in the no parking zone, leave your car, go inside and meet your party. Post 9-11, take 2 steps away from the car, and it is obviously a bomb.

But in all seriousness, that sign mean you can be "actively loading" luggage and people while the car is parked, just don't take more than 10 seconds to do it. Eventually it will be required that the car keep driving while the people are trying to get in and load their luggage. Hey, there's a war on terrorism, get with it.

My wife stops, her parents walk out with some luggage. They load the luggage, and walk back in to the airport to retrieve more luggage. Three week trip, lots of luggage.

Officer Friendly appears. His greeting: "I'm sure you can read."

My wife's a lawyer, she reads pretty well, and advises the officer that the luggage in the car was brought out by her parents and they went back in to get more.

"It says no parking, active loading only." "And don't tell me they went back in to get more luggage, I've worked here a long time and I know it all comes out at the same time."

Officer, I was born in Miami, and I can tell you, it is a requirement that all your luggage not come out at the same time. Many of us have memorized the last 6 bags coming around while we wait for that last bag. You know, you hear the truck pull up, and pray to God that your bag is coming.

He's not done, after my wife begs, begs him to just let her remain there, with no other cars around, he relents: "I'm going to be nice and give you 2 minutes."

After he leaves, my 9 year old daughter says "Mommy please, lets just go."

Go?

Yes officer, you scared the crap out of my daughter who was sitting in the car listening to you act like a complete asshole for no reason.

And no, I don't know your name, and I'm not going to waste my time writing a letter to your chief, who will tell me that I "have to understand the times in which we live." I understand that you are a power hungry piece of crap who has no regard for the badge you wear and the impression you leave on people. Did you have to be such a jerk? Could you have not just asked my wife how long she was going to be and if it was going to be more than a couple minutes if she wouldn't mind driving around? Maybe then said hello to my daughter.

You know, it's funny, even as a criminal defense lawyer who deals with an occasional jerky cop, I always encourage my kids to respect the police. Thanks to you, my 10 year old now has her own impression. The last cop she saw gave her mommy a hard time while she was picking up her grandparents from a long trip. Congratulations jerk off.

So I just wanted to say officer May 30, 2009 at 9:30 p.m. by Delta arrivals, grow up. Get off your power trip. We live here and are used to rude cops, but there's plenty of tourists here in Miami (you've been working at the airport "a long time" so you probably know that) who don't need to come here and have the first person they meet, be you.

And you owe my daughter an apology.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com



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The Sotomayor Debate: Why Conservatives Are Scared Of Judges

Conservatives don't trust judges.

This is why we have sentencing guidelines, minimum mandatories, reporting requirements on sentences, and the phrase that everyone likes to say, and no one understands: "legislating from the bench."

About 4 years ago, when this blog was in its infancy, I wrote about "legislating from the bench."

I said this: "Government hates our judges in America. They don't trust them, and they blame them for the state of, well, everything.

The problem is, governments define a bad judge as "one who does not rule they way they are supposed to rule."

The reason for this hatred is mainly because government doesn't understand nor respect the role on an independent judiciary, which has been significantly diminished in the last 20 years due to Congress believing they need to take hold of our court system.

Judges are supposed to be the independent arbiters of justice. Justice is a simple concept, it is fairness.

Fairness is what we determine it to be. If we think someone is guilty, then damn that judge who presides over the trial that finds him not-guilty (not to mention the obviously brain-dead jurors who were following instructions and actually applying the burden of proof).

If we think someone should receive a life sentence, then damn that judge that gives a 30-year sentence. And a judge better not find that a search of someones home was in violation of the Fourth Amendment, especially if there are drugs in the house. That's a no-no.

Most important, judges should never find themselves 'legislating from the bench.'

That is what extreme conservatives say when they are asked what type of judge they want on the Supreme Court. They all answer in the negative, like a church choir - 'we don't want a judge who 'legislates from the bench.'' Ever notice that there is no follow-up question? This is because no one knows what that phrase means. No one.

I do, "legislating from the bench" means to interpret the Constitution in a way that violates someone's political or religious persuasion.

See, the Constitution has been interpreted for years. But if a judge interprets it in a way that creates a right for someone, that is 'legislating from the bench.'

So if the judges on the Supreme Court interpret the Constitution as NOT prohibiting abortion, gay marriage, or the integration of our schools, then they are 'legislating from the bench.'

So it is not that Congress and state legislatures hate our judges because they legislate from the bench, it is because they interpret the Constitution to afford rights to those that 'they' believe should not have them."

In the coming days and weeks, this "legislating from the bench' crap will be a daily retort from those against Sotomayor. Want to end the conversation? Ask this question: 'What specifically do you mean by that?" The answer will be something like: "you know, legislating, from, the bench, making policy. legislating." Follow up with , "Ok, give me specifics."

You legislators ever wonder if the lack of respect for the legislative process brings this about? Respect for passed laws is based on the process in which they are passed.

I'll have respect for the process when I can ask a random sampling of legislators about a law that recently passed, and half of them can tell me what it says.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com



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Memories of Birmingham, Criminals Watching Public TV, And An Arrested Clown

Been busy the last few weeks. Some of us "bloggers" actually have day jobs and aren't as attentive to our "entitled" audience as we'd like to be. So today I bring you three stories that pretty much sum up the state of our criminal justice system today, and the paranoia, hype that surrounds it.

First, Birmingham. Five cops beat the crap out of a jerk who almost ran over one of their own. The guy deserved to have the crap beaten out of him, but not by cops. We as a public are divided on this, as we are divided on what a video actually shows.

With the advent of video, we now get to see what sometimes goes on post arrest. We also get to see how two completely sane people can watch a video and see two different scenes. We have come to hear of the "adrenaline" defense of punching cops - "you know, these guys just have all this adrenaline after one of these chases and you know, they just are so emotional about the whole thing that we understand how they can get so upset and lose control."

Even the media pimps this defense.

Blah blah blah.

If you ever wanted to know why cops don't want interrogations taped, this case is the reason.

Imagine if there was no video. "These cops beat the crap out of me for no reason."

Sure they did.

Cops are professionals, just like anyone else. The day we excuse, and many of us do, the rogue behavior of a professional, we diminish their position in society. Just like a boy should never hit a girl, a cop should never hit a suspect. He should shoot and kill him if he is in danger of the same happening to him, but post-arrest, or once on the ground and not moving - no hitting, no shooting, never.

So now we watch these videos. We all see the same thing, some of us claming that the video doesn't give us "the whole picture."

That's a load of crap as well.

I'm shocked these Birmingham cops were fired so quickly. Happy, but shocked. I was waiting for the weeks and weeks of attorneys appearing on TV pontificating on either side about whether these cops really hit the guy.

Congratulations Birmingham.

And yes, I know, the streets are "less safe" now that they've been fired.

Speaking of safe, you ever wonder what "criminals" do when their not commiting crime? Apparently, according to the Chief of the Ft. Lauderdale Florida police department, they watch public television. This is the reason he wouldn't disclose to the city commission his request for millions in additional funds.

"Police Chief Frank Adderley asked this week for $2.8 million more. He said he needed some of the money to fight rising crime. Commissioner Romney Rogers insisted the commissioners get an accounting of how the money would be used.

Adderley said he didn't want to publicly air his crime-fighting strategies because criminals might be watching the commission on TV."

You sure they're not watching Charlie Rose on PBS?

And the clown arrest.

Seems Patricia Ingalls was arrested for DUI and leaving the scene of an accident in her clown suit.

This is a big story, worthy of a serious discussion: "Are our kids safe when we hire birthday party clowns?"

Watch this clip. The depth of the story, the length, the details, the anchor with the balloon as a prop.

My understanding is that this clown has a decent defense. I hear the other 16 clowns who remained in the car are witnesses. I also understand that the field sobriety exercises will be excluded due to the shoes worn while walking the line. Also, the finger-to-nose test "fail" will be rebutted, as the "honking" noise heard by the cop during this test is explainable.



The biggest issue, of course, will be the inability of the jury to determine from the mugshot whether the defendant in court is the same person who was arrested.



Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com



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Michael Vick - Game Over

When Michael Vick went to prison I made a bet with a friend that he would never again play in the NFL. I hope I lose.

In America, there are few second chances anymore.

An arrest is a conviction. A prison sentence is a tattoo. The internet bears all, forever, and when harm to animals is involved, forget it.

Employers are less interested in performance and quality in their employees. They are fearful of liability. You can't hire someone who was once arrested, for anything - they may go out and kill someone. The kid pulled over in his Honda Civic with a marijuana joint, will eventually move on to cocaine, buying it from people who promote terrorism as the money goes to Hamas, Al-Queda, and the Taliban. It's all connected perfectly, just ask any legislator.

Miami Herald Sports Writer Greg Cote says Michael Vick deserves a second chance.

Sure he does. He won't get it though.

Michael Vick didn't kill anyone, didn't even send someone to the hospital. He didn't steal from anyone, didn't rob a house or business, didn't buy or sell drugs, he didn't do anything that even the broadest definition (and they get pretty broad these days) of public safety would describe.

Michael Vick was involved in harming, killing animals. The killing of a human being doesn't raise emotions as much as the harming of animals. Disagree? Just walk into a courtroom where an animal cruelty case is being heard, next to the courtroom where a murder case is on the docket. Cote makes the case in mentioning Leonard Little. He killed a woman while driving drunk. He's still playing.

So Cote says in regards to Vick that:

"The bigger issue is whether the rest of us can muster anything close to ''genuine forgiveness'' -- or at least begrudgingly admit that the man has paid his debt and deserves a clean slate and a fair chance to resume his life and livelihood."

Greg, Michael Vick will have paid his debt to society when he dies. Just knock on a few doors in any neighborhood if you disagree. There is little "genuine forgiveness" after a criminal conviction, save for the "wacky liberals" who understand that someone who does their time should be able to re-enter society and move on.

Cote says: "He has not been pampered or gotten off easy, and that's not to mention the ruination of his name and finances."

Greg, people think he should have received the death penalty.

He says "it's time to move on, and to not allow the zealots over at PETA to continue to set the agenda in what seems a concerted effort to unfairly ruin him beyond his time served." He claims "People for the Ethical Treatment of Animals might be insane, by the way. Recently they suggested that the music group Pet Shop Boys change its name to Rescue Shelter Boys. Seriously."

Then Cote mentions the exact reason Vick will not play in the NFL again: "PETA leads the protest league in sanctimony and publicity chasing, turning off more people than they persuade, so let them paint their signs and sing their chants for the TV cameras the day Vick is released from prison."

Greg, right now PETA is thumb tacking the cities of the 30 NFL teams on a huge map on the wall of their office. Note to owner of NFL team that takes Vick: protests, every game, beginning and end, protests at your office, daily, your home, daily, everywhere you are. The NFL meetings, NFL stores, anything NFL. It will never stop.

Cote says (hopes I think) "some NFL team is going to be brave enough to sign a reinstated Vick, even knowing the PETA protests will be daily occurrences -- or at least until some socially incorrect celebrity is spotted on a red carpet wearing fur and the publicity-seeking PETA army gathers its blood-red paint and shifts to a new cause."

As a lifetime dog owner, I disagree.

Then Cote goes off on a tangent, speaking for the minority of the American public that has any perspective on the criminal justice system:

"This is about second chances, though. About the idea of a man not still being charged after he has paid his debt. You can hate what Vick did and still believe it ought not turn into a life or career sentence for him.

I hope most of us are better and bigger than what that attitude portrays."

Oh Greg, you're such a sentimental guy.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com



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Jury Duty - Leave Me The F---- Alone

At least the guy was completely honest: (hard to read, expand once opened)

Jury Duty Response

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com



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Fighting Terrorism, One College Kid's Fake ID At A Time

Soon after September 11, 2001, state and local law enforcement, feeling left out of the feds work to "keep us safe," wanted in on the game. Arrests went down due to local cops spending their time trying to find Osama Bin Laden in coffee shops, retail stores, at former DUI roadblocks, anywhere. The tone of law enforcement changed forever - everyone, every-single-person, could be a terrorist. It remains that way today.

Cue the change in how we deal with fake IDs. Used to be the anxious college student walked up to a bouncer at a bar, showed the fake ID (while somewhat looking away), and if the bouncer realized it was fake, life was over. Not over due to an arrest, but due to the bouncer taking it away, a far worse penalty. The night ended early, and there would be no more nights at bars until a new fake ID was obtained. Nightmare.

Now, states have made possession of a fake ID a felony. If it's not fake, its still a misdemeanor, but not "notice to appear" misdemeanor - a jail misdemeanor.

Remember - that fake ID could be used to board a commercial airliner and....well, you know the mindset. What would we do if we let that pasty face 19 year old chemistry major scoot without an arrest, fingerprints, entry into the state database? Today's bar hopper is tomorrows terrorist.

So I have two of these right now here in Florida. A state like every other state - we're broke, and looking for ways to save money in the criminal justice system.

At yesterday's arraignment, I asked the prosecutor on the record if the plea offer was "don't do it again." The judge chuckled. The prosecutor did too. Then she said "no." They want a record. They got, a demand for jury trial. Another case, clogging up the system.

The other case, they're checking to see if he has priors in other states. They "have information" he may have priors. I'm not joking.

All this, in the name of keeping us safe.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com



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Detective: You Lied To Me

Cops lie.

Now before the comment section fills up, let's be honest: (no pun intended) cops lie. Lawyers lie. Witnesses lie.

We all know.

But today was different. It was different because I caught a detective lying to me not in court, but to my face (well, on the phone).

My mom had surgery today. She's fine. I took the day to be in the hospital with her.

The Detective called my office to schedule a statement. One of my clients agreed to give a statement in case in return for probation in a case where there was a minumum mandatory sentence.

Now granted she called last week when I was on standby for 2 trials and couldn't commit to a date.

Today she calls and is told I am out on a family emergency. Some background: a cop tells me he sneezed 3 days ago and needs to reset his deposition, done. Why, I may need a favor one day.

The email from my receptionist: "she said that two days ago you didn't have a family emergency and that no one has gotten back to her and your client is not going to have a chance to cooperate if you don't get back to her."

So I call her.

"Oh hi Mr. Tannebaum, how are you?"

"I don't know, what message did you leave at my office?"

"To call me when you got back."

"Did you say that two days ago I didn't have a family emergency and that my client is not going to have a chance to cooperate.........?"

"It really doesn't matter."

It deteriorated from there.

I guess for some people that's just how they roll.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com



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Verdict On Misdemeanors: Government Wasting Money, Creating Deficits, Violating Rights

The National Association of Criminal Defense Lawyers (NACDL) announced the "first-ever national report on misdemeanor courts," and determined the following:\

Efficient enforcement will unclog the courts, improve public safety and save money.

Now now, NACDL, why are you throwing things like this at the public? At elected officials? Since when does efficiency in government unclog anything, improve anything, or save anything or anybody?

This report comes on the heels of the announcement that misdemeanors will no longer be prosecuted in Contra Costa County, California due to lack of funds.

The Report, entitled Minor Crimes, Massive Waste: The Terrible Toll of America’s Broken Misdemeanor Courts, took a look at misdemeanor courts in the United States.

It recommends that, ahem, "states divert non-violent misdemeanor cases that do not impact public safety to programs that are less costly to taxpayers and repay society through community service or civil fines."

There's non violent misdemeanor cases that do not impact public safety? Like what? Selling flowers without a license, urinating in public, commercial vehicle violations, stealing a minor amount of merchandise, drinking in public, loitering, expired tag more than 4 months?

NACDL President John Wesley Hall says “I don’t think there is a bigger waste of human potential and taxpayer money in the entire criminal justice system."

Maybe he has a point, since the report shows there are more than 10 million misdemeanor prosecutions per year.

Also, "In four major cities—Atlanta, Chicago, Miami, and New Orleans—public defenders have more than 2000 cases per lawyer per year. In New Orleans it is more than 18,000, which means that the lawyer has five minutes per client.”

Five-minutes? I know, "can we get that down to two" some people are thinking.

Good report, let's see what happens as a result.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com



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Getting Paid

When I graduated law school knowing I wanted to be a criminal defense lawyer, the one piece of advice I received over and over again was: don't go into criminal defense." The advice had nothing to do with the possibility that I would not enjoy the practice or the public's perception of criminal defense lawyers, it was based on one thing: money.

"You'll never get 'rich.'" I was told. "You'll never make 'any money."

For as long as I've been a criminal defense lawyer I've heard and read criminal defense lawyers bitching about not getting paid, asking about suing clients, and stating with authority that they cannot do anything to change the "way things are."

Whenever I say that I don't do payment plans, eyes roll, attitudes fly, and disbelief ensues.

I don't do payment plans. I don't audition for cases - you know, do the bond hearing to see if I can get the guy out and then see if I can get hired. I don't care that jerky down the street quoted $500 less, and I don't need to hear that "this is a good case" for me.

Practicing criminal defense is what I do for a living. I run my practice the way I want, and I don't let it run me.

I know, criminal defense lawyers have to compete with know-nothing paraders or mills that send out flashy brochures with the Mastercard and Visa logo, offering "easy payment plans," and letting the public know that there is plenty of "cheap" out there.

And I know, you can't possibly ask for the fee in advance because not a single person in the world will hire you. Every criminal lawyer in your community does easy payment plans (called "non-payment" plans) and if you don't fall in line, you'll be broke.

If you want to get paid, you have to demand to get paid, not hope to get paid.

Many of my colleagues work every day "hoping" to get paid. Why?

I am not "lucky," or any different than many of my colleagues. I just choose to run my practice with a philosophy that doesn't leave me chasing money.

I'm sure the comments will come in - "you don't understand."

I understand.

I just heard something once about "if you keep doing what you're doing, you'll keep getting what you're getting."

Or something like that.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com



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$600,000 Of Prosecutorial Misconduct

If you are a criminal defense lawyer, prosecutor, lawyer practicing in any area, law student, citizen of the world, you must, must print out this 50 page order and read every word.

This is what justice is all about.

A defense attorney inadvertantly finds out during trial that he and his investigator have been recorded, and the world of several prosecutors changes like day into night.

Print it out, take it home, read it.

All of it.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com



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What I Saw On My Vacation: "DRUG CHECK AHEAD."

I consider myself someone pretty up on the news, and so it came as a shock to me when I was driving on Florida's Alligator Alley (I-75 connecting the east and west coast of Florida) to see an electronic sign flashing "DRUG CHECK AHEAD."

"DRUG CHECK AHEAD."

Never seen that before.

My first thought was that it was a sign that was being used at some pharmaceutical conference or health care festival and was now pulled over for some maintenance issue.

Then I saw it.

Two cars, well a station wagon with big silver rims and a van, pulled over by two Broward Sheriff's Officers, and then a few hundred feet later, two more vans pulled over.

I assumed this was the DRUG CHECK, AHEAD.

Now I am aware of DUI roadblocks. They are advertised, regulations are printed requiring that "every 4th car,"or something like that be stopped, but this was all new to me.

Were police officers randomly pulling cars over to seek consent to search for drugs?

I think so, but I didn't stop to ask.

I, in my (quote unquote) white SUV with my family and the family dog heading out on vacation, were not stopped.

So who was, stopped?

Did everyone consent? I have to think so. I was thinking, what if I was stopped? Should I put on my lawyer hat, my criminal defense lawyer hat and wait an hour for a dog (which wouldn't make my dog happy)? Or let the officers search through some of my kids toys and ask if the dog food was really dog food?

Is this a frequent occurrence in Broward County, in other counties, other states?

Are we acknowledging the failed war on drugs with new and inventive ways to find, drugs?

Are there regulations on who is stopped? Probably not. Is Delaware v. Prouse, that nuisance of a case that says it's unconstitutional for state police to randomly stop vehicles at a check stop unless there is a justifiable reason for a motorist to be stopped, still good law?

We're all aware of City of Indianapolis v. Edmond where the U.S. Supreme Court dealt with a drug checkpoint. The majority believed it was set up to find drugs. The three dissenting justices believed it was to check driver's licenses and vehicle registration. The drug checkpoints had written rules and like this one in Broward County, were identified with lighted signs reading, "Narcotics Checkpoint -- One Mile Ahead. There was a dog, and if it alerted, your day was done.

But In Michigan Dep't. of State Police v. Sitz, 496 U.S. 444 (1990), where the Court upheld the State's use of highway sobriety checkpoints, the Court, noted its disapproval of a "checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing."

The majority concluded that "in determining whether individualized suspicion is required, courts must consider the nature of the interests threatened and their connection to the particular law enforcement practices at issue. The Court is reluctant to add exceptions to the general rule of individualized suspicion where law enforcement officers primarily pursue their general crime control ends."

So are drugs "ordinary criminal wrongdoing," and DUI "extraordinary?" If you live in Florida, you have to say yes.

So case law aside, with domestic and other violent crime on the rise, what are we doing here? (Cue the "drugs lead to violent crime" talking points.)

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com



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