Lemons, Odometers, and Criminal Penalties From Guest Blogger Sergei Lemberg

Sergei Lemberg, an attorney specializing in lemon law and auto fraud, and author of the great Lemon Justice Blog is sitting in the guest blogger’s chair today.

By Sergi Lemberg

Unfortunately, the behavior of some people who sell cars reinforces all of the terrible stereotypes we have about car salespeople. And sometimes it even crosses over the line into the arena of criminal prosecution. For example, according to the National Highway Traffic Safety Administration, odometer fraud has escalated dramatically along with the demand for low-mileage used cars. The NHTSA notes, “Strong enforcement of the federal and state odometer laws, i.e., prosecutions with stiff sentences, appears to be the most effective deterrent.”

Information on the Feds providing financial assistance to state agencies that pursue odometer fraud is found here.

U.S. Law (49 U.S.C. 32709) provides for criminal penalties for odometer fraud that include fines and up to three years of imprisonment. It even holds corporations accountable, in that the penalties also apply to directors, officers, and agents.

Criminal penalties also come into play when manufacturers and dealers fail to brand lemon titles as such. In about half of the states, when a vehicle is so defective as to be termed a “lemon,” there is a requirement to note that on the title so an unsuspecting consumer won’t unwittingly buy a defective vehicle. This phenomenon also comes into play for vehicles that have been declared “total losses,” such as the thousands of flood-damaged vehicles following Hurricane Katrina.

The problem is that, because state laws vary considerably, it’s easy for unscrupulous sellers to “wash” titles by taking vehicles to a state with a weaker statute, registering them so they have “clean” titles, and then reintroducing them in states that have stronger laws. The situation is all the more difficult because states can’t easily share information about vehicle titles with one another.

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

e-book Reviews on The Truth About Hiring A Criminal Defense Lawyer

Two of my favorite bloggers, Houston's Mark Bennett, and New York's Scott Greenfield have weighed in on The Truth About Hiring A Criminal Defense Lawyer.

Read the review at Simple Justice here.

Read the review at Defending People 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

Florida Judge Tells State 25 Years Is Too Long - No One Disagrees

Florida Judge Thomas Remington has ordered prosecutors to lessen the sentence of a suspected drug dealer.

The story is here.

I love that headline. Mainly because it's not that accurate, but will anger those who can't understand why everyone is not in jail.


Judge Remington said a 25-year sentence for Monica Pride was too harsh for stealing thousands of hydrocodone tablets from Walmart's pharmacy because "She's a first offender," and "I'm not going to give her 25 years."

What were you doing 25 years ago?

The judge has ordered prosecutors to go to their boss and "arrange something on a recharge."

Oh, they'll be arranging something, but probably not anything that will benefit the defendant.

Now, to be fair to those who don't understand why this client isn't getting the death penalty, she did tell investigators she had been taking four to six bottles a day from the pharmacy and selling them for $5 a pill or $500 a bottle.

In Florida a 25-year sentence is mandatory for people convicted of possessing more than 28 grams of hydrocodone.

Why? Oh, let's not talk about that. You know.

So congratulations Judge, trust me, most people in the criminal justice system, including prosecutors, agree that 25 years is a damn disgrace. Few, like you Judge, will actually say something about 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

Ed Koch's Key To Fixing The Financial Crisis? The US Attorney's Office

That's right. Knew it would happen soon enough - someone would say that a key to fixing the financial crisis is to, well, arrest people.

This morning on CNBC, Former NYC Mayor Ed Koch was asked what he would do to fix the financial crisis. He had 2 stupid ideas that are less than relevant. One, have the Fed force banks to lend. Two - have the US Attorney arrest and prosecute "those that got us in this mess."

Now I know we live in a "Law and Order" society in which we live to see people go to jail, but can someone in the financial sector tell me how arresting and prosecuting people is a "fix to the financial crisis?"

Yeah, I thought so.

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

Obligatory OJ Post

So OJ was found guilty in Vegas. Here's the video.



He was found guilty of all 12 counts, and some additional counts not mentioned, like the counts for killing 2 people, not paying the civil judgement, playing golf while looking for the "real killers," and generally for being OJ post acquittal.

Although I trust the jury looked at the evidence and selected their verdict based on the law and the jury instructions, my overall opinion is that the case was complete bullshit.

I know, he "broke into" that hotel room, "kidnapped" the thieves who stole his memorabilia, there were guns, but the case was a load of crap. If it wasn't OJ in that room, the cops would have told everyone to leave and go find something else to do.

So now OJ's going to prison, but not really for this Vegas garbage.

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

Juror Intimidation: Our Dirty Little Secret

Appears a jury in Miami is now crying foul over a conviction in the high profile "Joe Cool" murder case. The story is here.

Two jurors, of course after the verdict, said they felt "coerced, browbeaten and harassed during the five days of deliberations and finally voted to convict Hialeah security guard Guillermo Zarabozo, 20, of lesser charges -- but now they want to undo their guilty votes."

Good job, way to fulfill your oath. Both of them should be sanctioned by the court.

''I want to take back my vote to convict. I'm just sick over this whole thing. I think there has been a great miscarriage of justice, and I need to correct it,'' Venora Gray, 51, said.

Venora, how about telling the judge DURING deliberations, before you ruined a guy's life?

''No one in that jury room knew those were such serious charges,'' said Gray, a waitress from North Miami, who years ago served as a juror in another murder trial and convicted the defendant. ``There was no way I would have voted on that if I had known.''

Known what? The ridiculously large marble filled courtroom, the seal on the wall that said "UNITED STATES DISTRICT COURT," neither of those things led you to believe that the charges were serious?

A second juror also told The Miami Herald that she, too, wanted to withdraw her vote to convict.

''I still believe Zarabozo is not guilty. The government's case did not convince me he killed those people,'' she said.

But hey, what's a couple guilty verdicts mixed in with a deadlock on other charges?

The jurors said "they may have given in on those firearm charges because they felt 'intimidated to convict' by a ''bully juror'' who kept complaining 'he had a life and 11 kids' that he needed to get back to."

"Every time we spoke up, he would attack us and yell `Guilty, guilty, guilty!' and slam his hand on the table,' Gray said."

Other jurors said they stood by as the intimidation grew worse. By the final day of deliberations they could take no more, she said.

''I just wanted out of there,'' Gray said.

Ms. Gray, so did the defendant.

Judge Paul Huck agreed to hear arguments on that issue from both sides, but my guess is the ruling will be, in legal terms "too bad, so sad."


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

News About "The Truth About Hiring A Criminal Defense Lawyer"

Thanks to all that have read the book, it was placed on the "hot list" at Scribd.com today.

I am humbled and extremely thankful, and I hope it has helped clients make better decisions.

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

Shameless Plug For A New Blog

In the category of "I didn't know you did that work," I have started a new blog to discuss my other practice area entitled My Law License. This new blog is for those interested in the Florida Bar Admission and Grievance Process. It has links to ethics opinions and the rules pertaining to admission and grievance procedures, as well as rules of professional conduct.

Thanks for taking a look.

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

That'll Teach You Not to Jaywalk

Man hit by truck, then ticketed for jaywalking

A man who was hit by a truck near the city's downtown was also slapped with a citation. Boise police ticketed Ebrahim Balah, 62, for jaywalking shortly after the accident Wednesday.

Police said Balah suffered minor injuries and was taken to a local hospital as a precaution.

Police said he was hit by a passenger truck while trying to cross a busy one-way street. Officials said the section Balah tried crossing is not a designated walkway and pedestrians are not permitted to cross.


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

A Google Search From Someone Who Didn't Read "The Truth About Hiring A Criminal Defense Lawyer"

Does this prospective client think he's buying a car?

"florida criminal defense attorney no money down"

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 please visit www.tannebaumweiss.com

My Free E-Book: The Truth About Hiring A Criminal Defense Lawyer

The Truth About Hiring a Criminal Defense Lawyer - Upload a Document to Scribd

Also available by clicking here

Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

11th Circuit Taser Video Posted on YouTube

R. Robin McDonald
09-18-2008
When Judge Beverly B. Martin this month dissented to a federal appeals decision in favor of a sheriff's deputy accused of civil rights violations for using a Taser on a handcuffed man, she urged that a video of the events in question be published with the opinion.
The suggestion of Martin, a district court judge sitting by designation with the 11th U.S. Circuit Court of Appeals, went unheeded. But James V. Cook, the Tallahassee, Fla., attorney representing plaintiff Jesse Daniel Buckley, apparently took Martin at her word.
On Monday Cook placed a copy of a video shot by a squad car camera on YouTube. The six-minute video can be found under the term "Buckley v. Haddock." Cook said Tuesday he is preparing a motion for an en banc rehearing.
The video shows how Florida sheriff's deputy Jonathan Rackard three times used a Taser on Buckley, who had been stopped for speeding and then refused to sign the traffic citation. Buckley is handcuffed, sobbing and sitting cross-legged on the ground. Each Taser jolt administered a five-second, 50,000-volt electric shock, according to the 11th Circuit decision.
In the majority opinion, Chief Judge J.L. Edmondson found that Rackard's actions were "not outside the range of reasonable conduct under the Fourth Amendment." Judge Joel F. Dubina concurred, although he wrote separately that Rackard's third use of the Taser against Buckley was unconstitutional.
Martin disagreed, writing "that the Fourth Amendment forbids an officer from discharging repeated bursts of electricity into an already handcuffed misdemeanant -- who is sitting still beside a rural road and unwilling to move -- simply to goad him into standing up."

Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

Criminal Defense Lawyer Indicted After Discussing "Elimination" of Witnesses

I hate this shit.

Lawyers are painted with a broad brush. We are hated. We are "thieves," "liars," "scumbags," and no amount of pro bono work we do is making things better. Like congressmen, people love "their" lawyer, and hate all others. Anytime there is a story in the paper about a lawyer, the "I have no job and just sit and comment all day on-line crowd" chimes in on their hatred of "all" lawyers, expressing their sarcastic "shock" that a lawyer committed a crime.

I, don't apologize for being a lawyer, but do apologize that like all professions, we do have our bad, rotten, inedible apples.

I don't know if the allegations against this lawyer are true. If they are, and I hope they are not, oh man, what the hell were you thinking?

People ask me all the time why educated, smart, talented professionals commit crimes. The answer is simple, because like anyone who commits a crime, they think they can get away with it. In the case of lawyers, some of them think they are smarter than they are.

Having conversations on or off tape about the elimination of witnesses, just isn't that smart.



Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

Who Did This Internet Search, Client, Or Lawyer?

We bloggers have a little tool that allows us to review what internet searches lead people to a list that includes our blog. I found this today:

"federal prison surrender delay excuses"

I suspect some lawyer is getting a call tomorrow from his client.

Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

How Florida Is Handling Their Multi-Billion Dollar Budget Woes

From The Smoking Gun:

Florida man nabbed for violating city's new baggy trouser ordinance

SEPTEMBER 3--Meet Kenneth Smith. The Florida man, 29, was arrested yesterday for wearing baggy pants. Smith was busted by Riviera Beach cops for violating a city ordinance governing low-slung trousers (or, legally speaking, "exposure of undergarment in public"). According to a Riviera Beach Police Department affidavit, cops were investigating a report of a man selling drugs from a parked Chevy Impala when they spotted Smith standing beside the vehicle. As Officer B. Jackson noted in the report, Smith's brown and white plaid shorts "were so low that it exposed his blue and white boxer shorts approximately two inches below his waist."

Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

On Labor Day, Celebrating Our Hated Profession

From Dan Zak of the Washington Post. (Free sign in required to view entire article)

"It's Labor Day weekend, so we paused to think about work. Then we started thinking about people whose work attracts the suspicion, dismissal or loathing of the general public.
The auditor: pickpocketing our hard-earned money.
The used-car salesman: passive-aggressive liar with a glinting Rolex.
The criminal defense attorney: slimeball in a suit, standing up for nefarious creatures.
The ballpark umpire: blind, deaf, clearly on the other team's payroll.
The parking enforcement officer: For the love of God, $40 for going two minutes over the meter?

Prejudiced generalizations, surely. Auditors and umpires are merely convenient targets for our personal frustrations. Car salesmen and defense attorneys are stock villains in pop culture, not necessarily bad guys in real life. And without parking enforcement, our streets would be jammed with scofflaws' cars.

Instead of appreciating our work today, we're going to appreciate their work and the nonsense they have to put up with by virtue of their titles.

The Criminal Defense Lawyer

A cartoon framed in William Moffitt's Alexandria office shows 12 jurors acquitting Sami al-Arian, the Florida professor accused of supporting Palestinian terrorists in 2005. The title of the cartoon is "The Real Patriot Act." Moffitt was al-Arian's attorney, perhaps his most recent visible assignment.

Moffitt, 59, grew up in New York, went to law school at American University, was hired as a clerk at the first racially integrated law firm in Northern Virginia in the early '70s and now runs his own practice. His client list has ranged from the high profile (controversial political activist Lyndon LaRouche Jr.) to the local (a clinically insane man who went on a stabbing spree in Alexandria). Moffitt, a Reston resident, takes pride in often being the lone person to stand up for the accused in the face of a powerful government and judgmental public.

Why did you become a criminal defense lawyer?
My mother raised me on "Perry Mason." Seven-thirty in New York every Saturday night. I always wanted to be a criminal defense lawyer. For some reason that always attracted me. You know, defending people against the power of the state is a very, very heady experience.

Does hostility toward a client ever turn into hostility toward you?
It sometimes does. Not always. I've seldom had a case where people were particularly angry at me. We got some pretty angry stuff on e-mails when we were doing Sami's case.

Like what?
"How could you represent this guy?" "He's a known terrorist." "How could you do that?"

How did you respond?
Most of my defense was that he was exercising his First Amendment rights. I wasn't calling anybody names; I wasn't calling the U.S. government crooked or anything like that. I was essentially raising a defense that people could understand. . . . We took the position -- as defense attorneys often do -- that we're educating people. One of the greatest things about what I do is my opportunity to use the courtroom as a place to educate people about things they don't really know about.

What's the worst part of the job?
The frustrating part about the system is that it isn't always right or always fair. Innocent people are sometimes convicted. Guilty people sometimes walk away. And you have to adjust to the notion that you are a participant in an imperfect system.

Is there anything you want the general public to know about your field?
Most of the people who are involved in the practice of criminal law are involved because they love people. The idea is that in order to get justice in an imperfect system, someone has to fight for it. And that's what thousands of people are doing every day -- many of them court-appointed, underpaid, overworked and what have you. But their dedication to the system of justice is what ought to be exalted, not the fact they represent a particular individual who may or may not be accused of something very serious or difficult to understand.

Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

I Smell Marijuana!

Ah, the smell of marijuana! (Criminal defense lawyers are already laughing at this post, some prosecutors too.)

The smell of marijuana opens many doors to the life of law enforcement. Smell marijuana and open comes doors of homes, stopped are countless vehicles that "smell" of that prohibited substance, and searched are "persons" who upon them have that "smell."

So today went my motion to suppress a traffic stop. Arrest affidavit was pretty simple - my hero is observed with what appeared to be a marijuana cigarette in hand, is seen "inhaling" from it, and then his car is stopped. After the stop, officer smells marijuana and arrests my client, seizing the additional marijuana in the car.

Problem is that's not proper under the Fourth Amendment and applicable case law. Smell of marijuana has to come BEFORE the stop.

Not a problem. Put the officer of 8 whole months on the stand, and today, he says he smelled the marijuana BEFORE the stop. Why wasn't that in his detailed arrest affidavit that he testified included "exactly what happened in the order it happened?"

"I forgot to put it in there." (A gasp is heard from the back of the courtroom.)

During a small break in the hearing I leaned over and asked the prosecutor "you think he's being honest?"

Answer: "That's what he said happened."

Motion denied. Judge had no issue with testimony.

Public defender seen shaking her head.

Another day......

Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

Training Prosecutors: Garbage In, Garbage Out

It happens very rarely, a prosecutor reads a motion to suppress in a small drug case or misdemeanor, finds it to be well taken, and agrees to dismiss the case. And no, I'm not talking about the routine b.s. motions that are not well taken, but debatable.

I'm talking about the one where the officer basically says he had a "hunch" the client was selling or possessing drugs, and conducted a search. The ones that law students look at in criminal law class and know right away that the Fourth Amendment has been excoriated.

Then yesterday I realized why this rarely happens, and again, I'm talking about dead-bang obvious motions, so spare me the "most defense motions are worthless......" argument.

Simple facts: some unidentified person tells the officer my client is smoking pot. Officer sees my client driving through parking lot normally, does not see him smoking pot. Pulls him over, finds pot. Pretty obvious. Differing minds could not disagree on these set of facts.

The prosecutor told me incredulously "we would never dismiss a case because a motion was well taken."

Now she didn't learn this in school, she was trained to conduct herself this way. She was told: "let the judge decide." Senior prosecutors will deny this, but then tell me, where did she get her training? Where did she learn that her position is an effective use of resources?

I know the answer, she was seeing if I'd take a plea.

No need.

Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

Does Anyone Really Know What Time It Is? Does Anyone Really Care?

What a perfect end to the day today. I called a judge's assistant to ask about his procedure at arraignments. "Don't know, she said. "I've only been here 4 months."

The day began with 2 detectives at my client's door. They had a pick-up order for him. Said he failed to appear in court at his trial. Problem was I was at his trial, the prosecutor told me she was dismissing the case, and the judge told me I and my client could leave. After I left, the prosecutor forgot to announce the dismissal, the judge forgot he told me I could leave, and issued the arrest warrant for my client. After I begged and convinced the detectives not to take my client to jail, I went to court and listened to a new prosecutor tell me "I don't know why you would have been told the case would be dismissed." Two hours later a senior prosecutor found notes from the other prosecutor reflecting that the case was to be dismissed.

A few weeks ago I was on vacation and sent another lawyer to court to accept a diversionary program for my client. I didn't give him the emails and faxes evidencing that I had already accepted the diversion program, because I didn't expect the "other" prosecutor in court to deny that I ever accepted diversion and seek an arrest warrant for my client.

And this is the last few weeks.

Is it summer, laziness, little of both, or a trend?

I'll tell you what, it's pretty damn annoying. I never want to have a practice like civil lawyers where nothing is based on anyone's word, rather "confirmatory letters," but I'll tell you what, it looks like we may be headed that way.

Sad.

Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

Stewart

While sitting in my office yesterday, the cell phone rang. Caller ID said Stewart was calling.

Some background:

Before the ink was dry on my Bar license, Stewart, and his mother became my clients at the public defender's office. Stewart had his 2nd DUI, and Mom had either a DUI or some traffic issue, can't remember.

They were unlike a lot of public defender clients. They came to my office several times for meetings, and we always had nice conversations. Mom claimed to be a painter and said she was going to paint me something.

I resolved both their cases, no jail, just some probation, etc...

Mom gave me the ugliest painting I think I ever saw, but it was her painting and the first gift I ever received as a lawyer from a client. I remember getting some crap from my supervisor about receiving a gift, and as a result, hung it right in my office.

Stewart continued to get into minor trouble. I left the PD's office and helped Stewart for little or no money. Mom came to me with an occasional "can't pay rent can you talk to my landlord" problem.

When I was in the PD's office, they were clients with a case. When I left, I realized they were alcoholics and Stewart as well a drug addict.

Stewart got his 3d DUI, it involved a minor fender bender. He went with the public defender, but when Stewart showed up 9 minutes late to his trial and the judge took him into custody, forcing a waiver of his speedy trial right, he came up with a little bit of money and hired me.

I appealed on some pretty weak case law and a stronger argument in my mind that what the judge did, "just wasn't fair." An appellate judge agreed, and dismissed Stewart's case.

Stewart's Mom died, I found out a few months later when Stewart called about some leak in his condo. He didn't tell me about Mom, I had to ask. He was in and out of labor type jobs, setting up convention halls for meetings and shows.

Finally, he caught a break. He sold his condo and made a $70,000 profit. He took it easy, his new found fortune in hand, and didn't work, for 4 years.

A possession of cocaine case made him a convicted felon after all these years of me helping him to dodge even the hint of a misdemeanor on his record. He didn't hire me for that case, not wanting to spend some of his fortune on a decent attorney's fee.

After that conviction, I didn't hear from Stewart. He was tired of me yelling at him about being a "loser," even though he always called, and always told me "I need to hear this."

When he called yesterday, I didn't pick up. I knew I'd listen to the message later and hear either about his new arrest, or legal matter not worth pursuing under any theory.

So I listened to the message.

It wasn't Stewart.

It was his drug addict girlfriend calling to tell me she found him dead.

Overdose.

She told me about his last few months of life. I felt like I was watching the movie "Leaving Las Vegas" all over again.

Stewart's at the medical examiner's office. No family. No money. Awaiting an autopsy.

Stewart died a junkie.

I always liked him though.

Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

My Big Fat Pig Colleagues

So today a potential client calls. Her whole family is arrested in a RICO case. Two family members are represented by one lawyer (something I never do). The third, is my potential client.

Appointment set. Time? After she goes to the other lawyer's office with her two other family members. (Criminal defense lawyers can stop reading here, as they know the end of this story).

At a restaurant, I see the other lawyer having lunch with a former judge. I mention to him that I received a call from the third family member, I know he's going to see the other two, and that I don't want to interfere with his representation, but family member three wants to hire me.

He comments to the judge "oh, we we're just talking about professionalism, how professional of you!" He also mentions that he's spoken to the prosecutor and that "all these cases can be resolved." (Should have been my clue).

Client just called to say she "can't make it." Wants me to call her back.

I do.

"I'm going to go with (other lawyer) because he says there's a plea deal."

Oink Oink my "colleague."


Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

When It's More Calls Than Cases

Sometimes I wonder if people want to talk to attorneys rather than hire them.

Today's one of those days. Girl calls, arraignment is today, actually it was 2 hours before she called from out of state. Wants a lawyer, a free lawyer, but won't of course say that. So I engage her in conversation. Small case, but a problem for her if she doesn't resolve it and instead waits for the arrest warrant to be executed. I can handle the case without her here, but I have to get to court today to be at the already-missed arraignment.

I quote the fee. At that point I realize her husband's on the phone because he starts yelling at me. He wants to know how I can charge her when "it wasn't her." I explained that this was unfortunate, but I didn't know that, and even so, she still needs a lawyer, and SHE CALLED ME!

He continues yelling at me, and finally says "WE'RE COMING DOWN THERE TODAY TO TAKE CARE OF THIS OURSELVES." Before I could say 'Ok," he hung up.

Then mom of another client calls to ask about her son's case. She has a lawyer but is concerned about the process and wants some advice because her jailed son is telling her what he's being told by the jailhouse lawyers, and she's anxious. She wants to hire me, so I ask why he's in jail. "Can't afford the bond." Short conversation there.

I always live with the knowledge that "you never know," who's on the phone or where it will lead. I just sometimes wish there was a way to avoid playing phone lawyer somedays.

Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

So Much For Terror Watch Lists....

UPDATE: JIm Robinson said in an interview that he applied to be removed from the terror watch list 3 YEARS AGO, and is still on the list.

WASHINGTON (AP) - The Justice Department's former top criminal prosecutor says the government's terror watch list likely has caused thousands of innocent Americans to be questioned, searched or otherwise hassled. Former Assistant Attorney General Jim Robinson would know: he's one of them.

Read more here

Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

What If We Federalized The Entire Criminal Justice System?

It's heartwarming to know that when you have a blog and stop writing for a while, you get treated as if you haven't called your mother, and she's worried you may not be eating, or dead.

Since I've been observing and not blogging, some significant things have happened.

On the federal side, Guantanamo detainess now have the right to contest their detention in federal court. Most people have never been to federal court, where contesting detention these days of any defendant is a long shot, but cue the fear mongering war on terrorism types who claim that this of course means they will all be released into the streets of America and we should all be afraid, very afraid.

On the state side, budget cuts are causing public defender's offices to cut staff and refuse to take cases. Judges are screaming about the lack of court funding, caused by legislators who believe a properly funded judiciary is somehow a "bad" thing.

Escaping any criticism are the district attorney's offices, who refuse to prioritize the prosecution of cases.

Hence, my question whether we should consider federalizing the entire system.

Now, I practice state and federal defense, and I know the first response is "OH NO, not the feds!"

But wait.

Federal judges and the United States Attorneys are appointed. State judges and district attorneys are elected. When's the last time you saw a victims rights group on the steps of a federal courthouse?

Now I have no issue with crime victims. I do take issue with the new way of prosecuting state cases of: 1. arrest, 2. file charges, 3. find out what the "victim wants," 4. Offer that.

The fear of state prosecutors and judges over what the victim will do if they don't get what they want is often paramount to what should "really" happen to the defendant and the case. Restitution has been dumped into state criminal courtrooms as if they are bill collection courts.

Not in federal court.

Yes restitution is mandatory in federal cases, and victims are consulted, but they don't run the place nor does the media. You can't vote out federal judges or prosecutors.

Additionally, the feds prioritize what they prosecute, states and counties don't. A recent comment from a district attorney is proof. In response to severe budget cuts I read "unfortunately, we're not going to be able to prosecute every case."

You mean every fight between two people? Every DUI where the defendant had a breath alcohol level below the legal limit? Every first time offender who deserves a break? Every child abuse allegation and domestic violence violation where there is a pending divorce and it's clear the allegations are "suspect."

Anyone walk into a misdemeanor courtroom lately? Or watch a felony prosecutor struggling with a case because she knows what should happen, as opposed to what the victim wants?

Victim's have taken over the system in state court. And before all you victim's advocates start typing, I'm not talking about murder, robbery, rape, and sexual battery. I'm talking about that grand theft case where your car was stolen, and you want the death penalty. The mantra of "criminal's have more rights than victims" has turned the tables on how our state system runs, and we don't have the money to do what every victim wants in every single case.

But we won't stop acting that way.

Think about it, what if the feds took over?


Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

The Neutering Of The Private Criminal Defense Bar

What happened to us? What are we all so afraid of, and when did we become so afraid of, everything?

This includes me, although I'm growing tired of being "careful" about everything. What I say, what I say here on my blog, who I represent, how I represent them, speaking the unpopular truth.

When I first started this blog I wrote a post about judicial elections. I wrote about how some judges suddenly become "nice" during campaigns. It was full of sarcasm and the "truth" about the politics of electing judges.

I received calls from judges - "very disappointed Brian." "Were you talking about me?" The buzz became loud. Lawyers began calling me. "Judges are upset, Brian...." At this time there was no local blog like there is now (run by an anonymous blogger who several judges still think is me). My post was tame compared to whats out there now.

But I took the post down, not interested in developing an uncomfortable relationship with the judges who had a problem with what I wrote. Why prejudice my clients should a case fall in front of them?

I regret taking it down. I actually don't have it anymore. Wish I did, because today, I'd put it right back up. I'm embarrassed I fell to the pressure of a few judges who for some reason didn't like my commentary.

But this is all over the place. We have blogs where lawyers and everyone else can anonymously comment on judges, prosecutors and fellow defense lawyers. Few defense lawyers would dare publically say that judge so and so did something they thought was wrong, or that a prosecutor is chronically unreasonable, or that one of their own stole a case from them by undercutting their fee just to pay the rent. Sure we have our rules of professional responsibility, but what about our obligation to be advocates and not just businessmen and women.

And those of us who practice in federal court, we've been smashed into submission on many fronts.

The recent indictment of a prominent criminal lawyer brought many of us to his defense, but still found a fair amount saying "be careful," "wait till the evidence comes out."

What happened to us, the criminal defense bar? Is it our job to stand up for justice, or merely to make sure we don't piss anyone off while representing those that the "Law and Order TV Generation" feels don't deserve more than an hour of legal process (including a confession to the prosecutor in his office)? Has it become all about the business of our profession?

We complain about elected officials ignoring the law and creating laws that only serve to please those outside the system who don't understand that being "tough on crime" is not akin to turning every misdemeanor into a felony and telling the folks at the rotary club that a stupid crime that no one cares about now carries a minimum mandatory prison sentence (at $20,000 per inmate per year). But when election time comes up and the defense bar's screams get louder and louder, none of us (including me) file to run against anyone. We just go back to bitching at the coffee shop and our anonymous comments on blogs.

I know in the end this is me ranting and that nothing will come of it, but I end with how I began - "what are we all so afraid of?"

Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

For Any Federal Judges Who May Be Interested...

The other day I was listening to a federal judge talk about, what federal judges like to talk about - how we lawyers should treat them, practice in front of them, and the things they hate.

So I thought I'd return the favor: (WARNING - attempts at humor are below)

[1] I understand that your day sometimes frees up due to a trial that ended in a guilty plea, or some other scheduling issue, but can you understand that when I am scheduled to appear at 2p.m., it does not necessarily mean that I have cleared my entire day, making it possible for you call my office at 10 a.m. and request that I "come over now?"

[2] If I take the podium and mistakenly say "good morning" and announce my appearance before you've asked for "appearances," can you not make a big deal out of it by making it clear that I've spoken out of turn?

[3] There are no awards, bonuses, or monumental legacies left by granting no continuances. If the Government thought every case should go to trial 31 days after arraignment, they wouldn't have a 70 day speedy trial rule.

[4] If I had a year or four to investigate my case, interview witnesses, and speak with the agents, I'd always be ready at the first calendar call too, and be saying things like "we're always ready judge." Really, I would.

[5] Are lawyers really that rude to your staff that you always have to tell us to "be nice" to everyone? Have you ever thought that......nevermind.



Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

The Cold Pathetic Heart Of The American Criminal Justice System

LINCOLN, Neb. -- A 10-year-old Lincoln girl dying of brain cancer has one wish -- for her father to be at her bedside.

It isn't likely to happen. Her father is in a federal prison in Yankton, S.D.

Vonda Yaeger is pleading with the warden for compassion to grant her daughter's wish.

"She wants her dad. She goes to her room crying because she wants her dad," Yaeger said.

Jason Yaeger was convicted of methamphetamine charges nearly five years ago and is scheduled to be released next year.

"We've never asked them to release him early. Never asked them to change anything. We've asked them to just give him some time to be here," Vonda Yaeger said.

Jayci Yaeger has been allowed three escorted visits with her father, but each trip lasts only a couple of hours and costs the family hundreds of dollars. Requests for longer furloughs have been denied.

"They say it doesn't constitute an extraordinary circumstance," Vonda Yaeger said.


Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

Voluntary Surrender Shenanigans

Six a.m., the number one time for police, federal agents, to bust in the house, wife and kids woken up crying, begging, "no, no, no!" "Don't take my Daddy." The wife asks "where are you taking him?" "Shut up lady, he's a criminal," she's told.

The truth is, just like my 5-year old likes to "press the button" on the elevator, law enforcement lives for these moments. These are the moments where the investigation ends, and the prize is the arrest, the "perp walk," the embarrassing scene in the neighborhood.

Many times, the future defendant is well aware of the pending arrest. He's been under investigation for months or even years, defense lawyers, prosecutors, and law enforcement have spoken and met.

Even in these situations, the "voluntary surrender" is something for which we beg.

This whole thing is embarrassing. Enough already.

The purpose of an arrest is to take the defendant into custody and present them before a judge or have them bonded out immediately. It's not a damn prize or game.

And I'm tired of prosecutors telling me "I'm not going to interfere with their desire to arrest your client." What are you all so afraid of? Tell the officers/agents, I know this defense attorney, he keeps his word, let his client surrender. If they say no, so be it.

Right now I have a police officer client. The arresting agency, another police department, wants to arrest him at his police station. Nice way to maintain that "fellow officer" thing." (UPDATE - THEY'VE AGREED TO A VOLUNTARY SURRENDER!)

I hear other stories from prosecutors about why the defendant can't surrender - my favorite - "ok, he can surrender, but not to the jail, to the police department, because they want him to ride in one of their police cars."

Let me not leave out all the mature people in our system that when asked about a voluntary surrender, say "I don't care about that."


Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

Why Criminal Defense Lawyers Hate The Media

When I joined the public defender's office out of law school I was told: "don't ever talk to the media."

I haven't followed that advice, to the chagrin of my colleagues in the defense bar who believe we shouldn't talk to the media, or are just upset that the media has no interest in their cases.

I don't hate the media, I think many of them have a philosophy about the justice system more in line with "us, then with "them." I just don't understand why they continue to piss off criminal defense lawyers on a daily basis.

If I have an opportunity to have the media report that I said my client is not guilty, I'll take it. If they want the "other side's" point of view because the prosecutor's press conference attacked the client harshly, I may try to soften the blow. My philosophy is that if there's going to be a story about my client being the worst person in the world, someone, like his lawyer, should be heard to say otherwise.

So here's some tips to our media friends:

1. Don't waste my time.

I'm happy to spend 5 minutes on the phone with you because you are not a lawyer and don't understand certain aspects of a criminal case.

I'm not happy to spend 20 minutes on the phone about my case, explaining the facts and other things you don't understand, only to read a story about the case that repeatedly quotes the prosecutor and makes it appear like the client has no lawyer, and we never spoke.

2. "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!).

3. Listen.

Stop going to court, listening to the proceedings, and then catching me outside and asking "so what just happened?" That's getting old too. Pretend like you heard something like "granted, denied, trial next Monday, Not Guilty."

4. "Calls to the defense lawyer's office were not returned."

Factual, yes, gratuitously critical, yes. How about "the defense attorney was unable to be reached?" Saying the defense attorney did not return the call makes it appear like it was intentional. Gee, maybe the defense attorney didn't get the message, was out of town, or something else happened.

5. Be accurate, really accurate.

A plea of "not guilty" is a formal pleading filed in court. Sometimes it's announced in court. A plea of not guilty is not claiming "innocence," and therefore when the client 4 months later pleads guilty, it's inappropriate for you to do the whole "he previously said he was innocent......." Additionally, a continuance is a staple of the system. Almost every case is continued, more than once. Stop with the "another delay." The public eats this up, and blames the defense.We both know that many times the case is continued because the prosecutor has a witness problem, hasn't turned over a document, or is unavailable.


Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

The Criminal Defense Bar's Dirty Little Secret

Those in the legal field often say that "criminal lawyers are the only civil lawyers." This comes from the notion that civil lawyers spend their days fighting over money, and when people fight over money, they get nasty.

Well let me clue you in: we do that too. Well.....some of us do.

The concept of "stealing cases" is rampant in federal criminal practice. Federal cases are more lucrative than state cases, and federal practice is where you will find some cut throat crap amongst your "colleagues."

In federal cases, you can file a "temporary appearance" until you are retained. Reason being, once you file a "permanent appearance," you can't withdraw unless you die, or have a conflict of interest that involves something having to do with you dying. A temporary appearance is legalese for "they're trying to get the fee together."

A temporary appearance though, is like a rug to many fellow criminal defense lawyers - they'll walk right over it and go meet with your "temporary" client. They'll say you suck, they'll undercut you, they'll do anything to get the case. Anything.

I come from the school of "I won't take food out of your kids mouth." This means that I won't take cases from my friends.

In federal practice, you will learn soon that there is a difference between a "friend" and "very very very good friend."

Last week I had a lawyer call to tell me he saw I filed a temporary appearance and although he got a call to see the client, he was not going to see him without my consent. This has happened to me exactly once in my career.

I handled the case, until the client's family went to meet with another lawyer, who thought nothing of taking the case. He actually told me that he did not consider me a "social friend." His justification. He still doesn't know, because I didn't tell him, that I considered him a friend, and would not have met with the client's family knowing he was the lawyer. He also told me the clients were leaving me anyway and going somewhere else. My response to the clients had it been reversed, would have been what I said above - "I'm not going to be the lawyer to take food out of his kids mouth."

I've recently instituted a policy of not being anyone's second lawyer. Two reasons for this - 1. Most people who are not happy with their first lawyer will never be happy. 2. The others are being represented by my friends.

I have actually had colleagues argue with me about my practice and tell me that "we are in competition."

So maybe I'm a lone ranger in my philosophy, but I believe more in the notion of "what goes around....." well, you know, you, you, you and you - the thieves among us.


Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

Back From A Break: The Bench, My Friend Ben, And Bond

I haven't blogged here since Christmas Eve. I've been sitting back, and watching our system continue to deteriorate into a circus of bad clowns and elephant crap.

The Bench

During my break I noticed a lot of terrible things coming out of the judiciary, both locally and nationally. These robes must have some effect on otherwise normal human beings, or more likely they were never normal, and the robe brought it out.

I read about a first time offender sentenced to the maximum 15 years in prison after a trial where the prosecutor offered no jail pre-trial, a man denied bond on a misdemeanor for absolutely no reason, a man be told he cannot talk publically about his acquittal, an appellate judge at a cocktail party who responded to an acquittal in a terrorism trial by stating "well, some cases just shouldn't be tried to juries, and the best, a female cancer victim lawyer told she must take her hat off her bald head in court.

Nice.

My Friend Ben

Ben Kuehne was indicted by the "we don't target Miami criminal defense lawyers" DOJ. He was indicted for money laundering. Actually, he was indicted for providing an opinion to another criminal defense lawyer as to whether the money was clean. DOJ didn't like the opinion, and now they want Ben to go to prison.

Most people with a Bar card who know or know of Ben, are shocked, angered, and fully supportive. Others, can't get out of their own miserable world. You know, the "the Government is entitled to their day in court" folks? My opinion: the Government has enough days in court, they can skip this one. The fact that they didn't give Ben the benefit of the doubt is sickening, and will for a long time affect their standing at least in the South Florida legal market (both civil and criminal) and across the country.

Additionally, if you're one of those very few criminal defense lawyers who are saying "let's wait and see the evidence," keep walking when you see me. It's time to stand up and be counted in our profession, period. (See Resolution in support of Ben Kuehne by the Florida Association of Criminal Defense Lawyers)

As my friend Milt Hirsch said upon Ben's indictment: "It's official, it is now a crime to be a criminal defense lawyer."

Bond

Happy to report nothing ever changes in this business. Today I was continuing my audition in a federal case at a pre-trial detention hearing. The main issue was whether someone died as a result of some prescribed medications. This fact increased my client's sentencing guidelines from 5 years to over 20 years minimum. After a lengthy hearing the judge found the prosecutor did not meet his burden on that issue but that he may be a flight risk and reset the hearing to next week after announcing "I am going to set a bond." Next week she wants the family there to pledge assets.

Of course after the hearing I was fired.


So now I'm back, fully pissed off, and ready to resume writing.

Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

Bullshit

Something off-topic for Christmas Eve, a perfect assessment of how embarrassing we are as voters.


Poll: Bullshit Is Most Important Issue For 2008 Voters


Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

"This Is The Most Important Time In History To Be A Criminal Defense Attorney."

So said one of my hometown heroes of our profession, David O. Markus yesterday at the Miami Criminal Defense Bar's Holiday Seminar and Lunch.

As we end the year, we meaning criminal defense lawyers, (those of you who often come here after a google search of "criminal defense fees," or "how much does a criminal defense lawyer make," or more recently "michael vick," can take a pass on this post, this is for my colleagues.) many of us are beat, exhausted, hoping for a few days off without an irrelevant court hearing set in the middle of the next two weeks, and most importantly, thinking about our practices and the future.

I love what I do......about 28 days of the month. The other 2 are usually reserved for unfair judges, unreasonable prosecutors, clients who won't listen, and that case I didn't get.

But above all that is David's statement: "This Is The Most Important Time In History To Be A Criminal Defense Attorney."

It is. What is going on in the world, in our country, in Congress, the Supreme Court, our local courts, in state legislatures, the need for us as cornerstones of society cannot be questioned.

Technology is such that anything we do is recorded. I love the navigation in my car, and now I know from talking to a federal prosecutor that where I go can be downloaded. If you get arrested today for a misdemeanor in rural Mississippi, it will be on the computer at New York's JFK Airport within hours.

Society as a whole, hates us. Yes, there are many who understand and respect, and even treasure our role in society, but most think the system is obstructed by our presence. They would learn quick the ignorance of their thoughts if for only one week, not a single defense lawyer went to court in America.

So to my colleagues about to hopefully enjoy a few continuances into the end of the year, I leave you with this from the criminal defense attorney of 59 years who spoke as well yesterday, the great Albert Krieger:

"There is nothing more important in the life of the lawyer than to represent an individual charged with a crime."

Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

Want To Hire Me, Fire Your Other Lawyer, First

There are certain things that go on in the criminal practice that none of us talk about. Undercutting each other to get cases,traveling to other jurisdictions to take a case because of desperation for fees when a fully competent lawyer or several that we know and like practice in that jurisdiction, and taking over cases from other lawyers.

For the most part, we hate getting those calls from our colleagues that our client "came and met with me about his case and I'm going to be taking over." We see it as a failure and question the client's loyalty and truthfullness. Candidly, we hope for the worst for the client now that he's left us.

While I scan the net and see that the colleagues I respect are making decisions about how they practice when it comes to taking cases, cooperating with the government (more on that in another post forthcoming) trials, and fees, I've made one myself:

I will not talk to clients who are represented by another lawyer, period.

What happens is that the client gets concerned about their representation, they feel "nothing's going on," or more likely, they can't afford to continue paying their payment plan lawyer. (I don't do payment plans so that knocks out those clients from signing up with me anyway).

I used to meet with them, advise them to try to work things out with their lawyer, explain that they'd be paying a whole new fee, etc.... Most of the time they just wanted a second opinion, i.e., to waste my time for free.

New policy, instituted this week with someone. Call me and tell me you have a case, you're represented and are unhappy with your lawyer, my assistant will tell you to fire your lawyer if you're serious about new counsel. No meeting or conversation will occur with me until then.

Now how many of my colleagues are willing to join me?

In that answer lies one of the basic problems within the criminal defense bar.


Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

Bless The Divorce Lawyers

"I could never do what you do."

I hear that weekly.

I have always said the same thing about divorce lawyers.

Some of the stuff you all argue over, not to mention the constant "he dropped the kid off 3 minutes late, I want to go to court" after hours phone calls, make me wonder if you have the most difficult job as a lawyer.

So yesterday I reaffirm this notion when I'm in court on a restraining order hearing that is traveling along with my clients arrest for battery.

We come to an agreement on a short-term injunction. We agree to stay away from her, her house, her parents house, her family, all the typical stuff. Then, comes the portion of the hearing where I try to keep from laughing, or crying, but the eye rolling is fast and furious.

Judge: "What about all these clubs and restaurants?"

Me: "Judge, they both frequent these places and she would like him to stay out of them, although when the initial temporary order was signed it said he must stay 25 feet away if he's there at the same time as her."

Her lawyer: "Judge, she would like him to stay out of those places."

Judge: (Starts naming each of the clubs and restaurants and asking who goes there on what night, this goes on for a minute or two).

My client is getting antsy because he goes to one of the clubs on both Thursday and Friday and doesn't want to limit his visits to one night. He also throws her a bone by agreeing to stay out of one of them. The Martini Bar comes up and he won't budge.

At this point I remind myself I have clients facing prison time and ask the Judge to keep the 25 feet rule in place for each of them.

The alleged victim objects, she wants 50 feet. The Judge says some of these places may be to small for 50 feet, while her lawyer mentions that 25 feet is "a little close." The Judge says 25 feet is the distance from her bench to the front door of the courtroom, and I'm starting to chuckle, loudly. the Judge looks at me, not chuckling, because she goes through this hourly. She's not finding me disrespectful, she just looks amused that I find all of this funny.

Finally, the alleged victim proposes a compromise - 40 feet. I ask, annoyed, to leave it at 25 feet, and the Judge has the last word by ordering "50 feet if possible, 25 feet otherwise."

Then I went back to being a lawyer.

Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

A Lying Cop

Our criminal justice system is totally screwed up. No, I didn't just realize that, it's what keeps me doing what I do, defending the constitutional rights of those who are drawn into the system through arrest, or investigation. It is getting worse though.

Last week brought us this story about a teenage suspect who secretly recorded his interrogation on an MP3 player. The detective has been charged with perjury because he, oops, didn't know the kid was recording this interrogation and went into court and testified under oath that that the suspect "wasn't questioned" about a shooting. A transcript of the, hmmmmm, different facts, showed that he tried for more than an hour to persuade the kid Erik Crespo to confess.

During the false testimony of the detective, prosecutors asked for a recess and advised the lying cop to get a lawyer to represent him in his 12-count perjury indictment.

The kid's lawyer comments "I couldn't believe my ears."

Really?

This is in no way an indictment of police officers, most who take their oaths seriously, but c'mon, our system is full of liars. This type of conduct occurs daily. Lawyers lie, cops lie, witnesses lie. All in the name of conviction or acquittal, not justice.

For whatever you think of him, Harvard Law Professor and Author Alan Dershowitz spoke about this to Congress 10 years ago.

He said, in part: "I believe that no felony is committed more frequently in this country than the genre of perjury and false statements.

"Police perjury in criminal cases - particularly in the context of searches and
other exclusionary rule issues - is so pervasive that the former police chief of San Jose and Kansas City has estimated that "hundreds of thousands of law-enforcement officers commit felony perjury every year testifying about drug arrests" alone.

"Clearly, the most heinous brand of lying is the giving of false testimony
that results in the imprisonment or even execution of an innocent
person. Less egregious, but still quite serious, is false testimony that
results in the conviction of a person who committed the criminal
conduct, but whose rights were violated in a manner that would
preclude conviction if the police were to testify truthfully."

By the way, prosecutors offered Crespo less than the 25 years he was facing upon conviction. His mp3 player got him a plea to 7 years.


Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

Traffic Ticket Court

Yesterday I ventured into traffic ticket court. I don't go there all that often anymore. I know some of you "big criminal defense lawyers" scoff at traffic ticket lawyers, but they've got the greatest gig. They don't charge much, they have a steady stream of volume business (even though they continuously undercut each other by $10 just to get the edge), no one goes to jail, and for the most part, there's no prosecutor in court. What could be bad?

But yesterday I had one of those clients all of us criminal defense lawyers have; the old client, great client, client who wont walk into any courtroom without us, or just that client for which we have a soft spot.

Such was yesterday, and I was shaking my head at what I saw and overheard.

I'm not one of those criminal defense lawyers who "hates cops," or "hates prosecutors," but yesterday I saw some pretty sad behavior.

There were only 4 officers in court, but 3 of them were acting like they had arrested mass murderers, instead of merely handing over a citation for a minor traffic infraction.

I first heard one say "I had a great Thanksgiving, gave out a ton of tickets." "Yeah, I like to park by the high school the Wednesday before Thanksgiving every year and give tickets to the kids leaving."

He then went on to brag about arresting a doctor who refused to sign a citation. Truth be told, it is an arrestable offense. The officer has discretion to take the person to jail, or give them an additional ticket for refusing to sign. The officer was enjoying telling his story about taking the doctor to jail, and explaining how he listened to him apologize over and over again.

Another officer was getting annoyed answering questions from a lawyer who was trying to verify whether the officer was the one who gave the tickets to his various clients, for the purpose of advising his clients to plea guilty. At one point he said "now, I'm done talking." I could see a detective on a serious felony cutting a conversation short with a defense attorney, but this was a traffic ticket. When the lawyer walked away, he bad mouthed him for about 5 minutes in front of me, complaining about his behavior which was nothing more than conversational.

This was the same officer who told the judge that the woman who was ticketed for an expired registration and came to court with a new registration, should not be found to be in compliance because she had no proof the registration was valid on the day of the ticket.

Seriously.

The judge did not call cases out of turn for lawyers, but for officers. He explained that he does this because he "wants these officers out catching bank robbers, not sitting in an air conditioned courtroom on traffic tickets."

When I left after resolving my case, I saw the result of the judge's efforts to return these officers to the streets, as one of them was handing out a traffic ticket to someone outside the courthouse.

Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

Thanksgiving Redux

Because I have to leave for the airport 6 hours before my flight to get through the throngs of media reporting on the throngs of people, I will be lazy and re-post my Thanksgiving post from last year. Enjoy!

This Thanksgiving I am thankful for:

1. Families Against Minimum Mandatories (FAMM). A real organization, with real goals, and the most promise of achieving some of them.

2. Prosecutors who sincerely respect the role of the defense lawyer.

3. Prosecutors who don't sincerely respect the role of the defense lawyer and quit being a prosecutor to do insurance defense.

4. Judges who realize there is a whole world outside their courtroom. This world includes traffic, kids, vacations, clients waiting in the lobby, and trials that aren't ready to be trials, yet.

5. Cops who walk out of court after you cross-examine them and slap you on the back and say "good job."

6. Clients who appreciate, well, anything you do.

7. My kids, who don't see what I see everyday.

8. My wife, who loves what I do, because she loves me.

9. The fact that I do not have to advance an argument because "my supervisor" says so.

10. Any prosecutor who understands the gravity of their position.

11. Public Defenders

12. Public Defenders

13. Friendly clerks, bailiffs, and corrections officers.

14. Clients who have payment plans with their family, and pay you up front.

15. Any legislator, state or federal, who doesn't use the criminal statutes or sentencing guidelines as their focus for legislation, solely for the purpose of their re-election.

16. Anyone in government or the courts who believes we have gone WAYYYYYY overboard with minimum mandatory sentences, and is willing to do something about it, other than shake their head.

17. Defense lawyers who are in this business for something other than money.

18. Judges who exercise the independence they so covet.

19. Members of the public who think protecting the constitution is a noble profession even if they think the police "can search my house anytime, I've got nothing to hide."

20. Practicing the only law that really matters.

Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

Unhappy Criminal Defense Lawyers Get What They Ask For

This morning, one of our courthouse resident complainers was asking me how I handle clients that don't pay after I get them a great result.

I told him that doesn't happen to me. He chuckled until he realized I wasn't kidding.

He couldn't understand how I get paid up front or within 30 days in "tough times" like these.

I told him I insist, and yes, people walk out the door (probably to his office).

Think about it for a minute my colleagues. What would your practice be like if all fees were payable up front, or in a short period of time? What would you do if you never concerned yourself with deadbeat clients, or waiting desperately for the mail or a visit from a client or two with some money?

I know, you'd have less cases.

So?

I know, "you don't understand my clientele."

Yes I do.

We in the criminal defense bar get what we ask for. If we ask for very little, we get very little.

Isn't it time we concentrate on practicing law, instead of begging for money?



Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

Dear Prospective Client, Sitting In My Lobby

Welcome to my office and thank you for considering me to represent you in your case. Prior to our meeting, I thought it would be important for you to have some information about my practice.

[1] You are here today because someone, a former client, attorney, family member, friend, or just someone you trust gave me your name. I know this because I do not advertise or mail brochures to those "recently arrested." What this means to you is that I do not have a "volume" practice. A "volume" practice is one where the attorney advertises and has many clients. A lawyer who has a "volume" practice is able to charge lower fees based on the number of clients. There's nothing inherently wrong with a "volume" practice, it's just not my practice.

The difference between my practice and a "volume" practice is comparable to the difference between public and private school. The question being, would you like your child in a class with one teacher and 50 kids, or one teacher and 20 kids? If you want more attention, you need to pay for it. By the way, I went to public school and did just fine, but the consequences of not doing well weren't a conviction and jail.

[2] I may decline to represent you. I will most likely decline to represent you if you tell me that "this would be a good case for you." This means you may think it is a privilege for me to represent you. It may be, but I'll determine that.

I may also decline representation if I "just don't like" you. I enjoy my life. I'm not one who works 7 days a week, has no relationship with their kids, considers a vacation to be taking a Friday off, tolerates clients who believe that I am "on call" 24/7, or otherwise believes that the focus of my basic existence is clients. If I take your case, you will learn quickly how important you are and receive a great deal of attention, but if I believe we are not a good fit, I may do us both a favor and refer you to another criminal lawyer.

[3] When you called, if you asked about fees, you were told my minimum fee. The fact that you are here indicates that you either didn't ask or that this possible minimum fee is not as important as the quality of the lawyer you choose. If you didn't ask, I will let you know now that my minimum fee is ________ for a misdemeanor, ________for a felony, _________ for a federal case (feel free to insert other types of cases). If this is out of range for you, please thank my receptionist who greeted you today, give her back the coffee mug or glass, and drive safely.

[4] Regarding fees, they are not negotiable, and I do not arrange payment plans, except in very limited circumstances. Even in those limited circumstances, it's not a payment plan that includes more than 2 payments. What this means is that you should avoid asking me if I can "make it lower," "give a bigger discount (especially if I've already discounted the fee for some reason)," or "how is it paid?" Again, you may consider it a privilege for me to represent you, but it is not a privilege for which I am willing to pay.

[5] One last thing on fees. The fee I quote you is good for 24 hours. Based on my experience, if a client hasn't retained me in 24 hours, they are "shopping" for the lowest bidder, or have no intention of retaining me. I'd rather not think about it for more than a day. It just annoys me.

[6] Finally, there will be no taking of notes. It's more important that you listen to me and that we can talk without any distraction. In the end, your notes will only provide a method to remind me, and the Bar Association of things I said that may not come true. Such as me telling you that your "case can probably be resolved quickly," or that "your case is complicated and will take a lot of work." My predictions are merely that, predictions. They are not spoken for you to memorialize my words so that every time we talk in the future you can remind me of what I said.

Thanks for coming, I'll be with you shortly.




Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

A Call For Larry Craig To Stand Up For Defendants (Cue The Crickets)

Richard Cohen of the Washington Post writes this great editorial today on why Larry Craig should speak out for those that are coerced to confess.

I'll hold my breath......

Some quotes from the editorial entitled "When a person is arrested and coerced to confess"

"Having been arrested in a Minneapolis airport men's room, having been compelled (or so he says) into a false confession, having been roundly ridiculed and ostracized by many of his colleagues -- et tu, McCain? -- he has neither the gumption nor the integrity nor the wit to question some of his former positions that made him, without a doubt, a law-and-order conservative par excellence. Craig wasn't exposed as gay. He was exposed as uneducable."

"Along with almost everyone else outside the Republican Senate Caucus -- when the door opens the blast of toxic hypocrisy is enough to deck the average person."

"....why doesn't he say he learned something from the incident? Maybe he wants to reconsider his votes in favor of restricting death-penalty appeals because he now knows that the cops can arrest the wrong person and get him to confess. Look, it happened to him."

"....surely if a three-term U.S. senator can be pressured into confessing to a crime that he insists he did not commit, then something similar can happen to a rattled, undereducated kid who thinks the deck is stacked and is promised a reduced sentence."

"Craig and others who voted to restrict penalty appeals and for mandatory sentences and for one penalty for crack and another for cocaine ought to ponder what happened to him -- what he said happened and what actually might have happened."

Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

Am I The Only Criminal Lawyer This Happens To?

Where have I been?

Getting angry. Going through that occasional "what's happening to our criminal justice system?"

In the past few weeks I've both personally and in the news seen the following:

1. A Texas inmate on the verge of execution denied an appeal and then executed because the Court of Appeals told his lawyers who were running late due to a computer malfunction, "we close at 5."

2. A man pardoned after being sentenced to 25 years in prison for possessing too many pain killers. 25 years!

3. Two separate prosecutors, federal and state, completely ignore polygraph results. (When are we going to get right with this polygraph thing?)

4. A man arrested at his home by 2 police officers who knocked on his door on a Sunday night while he was with his family, did the whole "we got a 911 call from this residence can you step outside" thing, and then took him to jail for.........missing his arraignment on the charge of failing to display the proper commercial vehicle markings on his truck.

So I haven't had the passion to write anything. Although these are individually things I could write all day about, combined, they cause me to shake my head and wonder if anyone's watching.

They are, they're all on the newspaper websites. You notice this? Every news story now has a comment section, and when it's a criminal law story, the opinions fly. They are mostly of two schools of thought:

1. The defendant should "fry" for his crime; or,
2. The defendant should go to jail forever.

That gets me into the phrase my dear friend said at a recent seminar. He said something to the effect that in our criminal justice syttem today only two things happen, they either kill you, or leave you alone.

I'll be back next week, still a bit "annoyed" by it all.


Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

"Who is OJ Simpson?"

This is what my 8 year old asked repeatedly the other night as I was discussing the case with my wife. After asking a couple times, I looked at her and realized she was born 5 years after the not guilty verdict in the murder case. She wasn't just doing that "I need to know everyone you are talking about" thing that little kids do, she really had never heard of OJ Simpson.

This has nothing to do with what I will write here, it's just an anecdote that puts some things in perspective.

Here's my thoughts on the latest "OJ."

[1] In my legal opinion, looking at the media reports, reading the police report, and having no working knowledge of Nevada law (as do not a one of the "legal experts" pontificating on TV), the case is in a word, stupid.

[2] It's as much an "armed robbery" as a burglary with assault is when an ex-boyfriend is prevented from going into his ex girlfriend's house to "get his shit," and as a result, he pushes her away from blocking the door.

[3] Anyone else, and hotel security would have walked in the room and made everyone leave.

[4] The case has revived the "talking head" market on cable television. I have one question, can they not find a single criminal defense lawyer from Vegas who actually knows the law and procedure there, instead of lawyers from California, New York, Florida, and every other state? Do they not want to hear what "IS" going to happen, instead of playing the guessing game? "Well, I don't know the law in Vegas, but in Tupelo Mississippi, OJ would........."

[5] OJ will not go to jail. The case will fall apart. He will plea to a misdemeanor and be on probation, which he will violate by doing something stupid, for which he will also not go to jail.

[6] The case is only important because the vast majority of people think he got away with murder.

[7] I am one of those people in [6].

[8] Now that OJ is back home (10 minutes from my house), the media will begin their "are we covering OJ too much?" I know this because yesterday's big story was......."who is OJ's girlfriend?"

[9] People are annoyed by the accusation that we are obsessed with celebrity justice, because the truth is that as a society, we just can't help ourselves. What else are we going to pay attention to, health care? Education? All that other stuff? GIVE US MORE OJ!!!!!

Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

"As appalling as it sounds, in Ohio a mistake is not a crime"

This is what I heard this morning from a reporter on the Today show regarding an Ohio mother who left her 2 year old child in the car for 8 hours, and found her dead at the end of the day.

The mother went to buy doughnuts and thought she had dropped her daughter off. She went to her job as an assistant principal, and came out to her car at the end of the day to find her child dead in 150 degree heat inside her car.

So I hear this, and get a deep pain in my stomach. I have 2 young children. I can't imagine. How dreadful. This mom, who has a reputation of being a good person, left her kid in the car and now she's dead.

In Ohio, a prosecution for this only occurs if there is "recklessness," not just "negligence." So as the reporter said, "In Ohio, a mistake is not a crime."

But that's appalling to some. In fact, there is outrage in Ohio that this mom is not going to jail. The child welfare office is investigating whether she is fit to take care of her 5 year old.

Guess who's speaking out in her defense? The prosecutor who decided he could not prosecute.

But there's outrage. Why? Because we live in a society where we've been conditioned that every human failure should require jail. It makes me sick. Every single time there's a mere car accident reported on the news, the story ends with "no word on whether the driver will face charges," or "charges are pending." Pending what? Your next report? Charges aren't pending until they're filed. The fact that a police officer was called to the scene doesn't mean "charges are pending."

My thoughts here are not really about the media though. They're about those in Ohio, and maybe around the country who are "appalled" that this mother won't be charged.

Let me ask you something? You think she cares? You think she needs to "learn a lesson?" How about a judge or jury telling her she's "guilty?" Maybe she needs someone or some body of people to advise her that she is "guilty" for leaving her baby in the car. Maybe the system should teach her to "never leave her 2 year old in the car by mistake again."

Maybe, as the prosecutor said this morning, the fact that she will have to live everyday of her life knowing she did this," isn't enough for you.

Put yourself in her shoes, if you can stomach the thought.

Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com