How Famous People Handle Problems, Like Car Accidents

When an athlete is arrested in my town I am always asked by some panting person -"So, you representing so and so?" I always say, "no," and "don't want it."

There is a notion that representing a celebrity will make the criminal defense lawyer, well, famous. That can be true. It can be exciting, and it can put a relatively unknown criminal defense lawyer on the map, but for the most part it's just a pain in the ass.

First, unless you know the athlete/celebrity, you're not getting a call from the suspect. You're getting a call from the agent. The agent has three goals - to convince you that the celebrity is doing you a favor by contacting you, to negotiate a low fee based on the favor they are doing you, and to tell you that you have to work with the civil lawyers and 4 other idiots who know nothing about criminal law.

Trust me, I know.

Then there's the other issue - the PR side of the case. The "I don't want anyone to know I've hired or spoken with a criminal defense lawyer."

Now let's get to Tiger.

The three scheduled and cancelled interviews tell me one thing - there were too many lawyers and handlers around.

This is all just a guess, but here's what I think happened:

Someone told Tiger he should talk to a criminal defense lawyer. He scoffed. "I didn't commit a crime, I had a car accident."

Because the agent and civil lawyer(s) didn't want to piss off Tiger, they called 5 different criminal defense lawyers and asked them to keep this on the QT. A couple criminal lawyers were not told who the client was, as if they didn't know. "I got a guy who hit a tree and the cops want to talk to him....." None of these lawyers were paid, and none had face to face meetings with Tiger or even spoke to him. No criminal lawyer was going to THAT house.

Tiger wanted to talk.

Then he didn't.

Then he did.

Finally, someone, probably 2 of the civil lawyers, a young associate who "discovered" the law surrounding Florida's accident report privilege, the agent, and the PR firm, convinced Tiger not to talk through their conflicting advice.

Had Tiger spoken with a criminal lawyer of any caliber, the conversation would have gone like this:

"Mr. Woods, don't say a word."

UPDATE: While writing this, I learned criminal lawyer Mark Nejame was hired. Don't know at what point, but after he was hired, the interview with the police was cancelled.

A statement would have been prepared that "on the advice of counsel" there would be no statement, and something about the recovery and that this is a private matter and Tiger will pay any restitution if ordered to be paid by him for the damage to the tree and fire hydrant. and that would have been it.

Instead, it was more important to keep the criminal lawyer at a distance.

I may be wrong about all of this, but I doubt 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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A Criminal Defense Lawyer's Thanksgiving - 2009 Edition

This has become a little tradition here at my humble blog. Here's 2008,2007, and 2006.

In 2009, this criminal defense lawyer is thankful for:

[1] Prosecutors that don't spend their time crafting interesting prosecutions based on statutes that were never intended to be used in "that" way.

[2] Judges who say "I remember standing where you are," and actually do.

[3] Judicial assistants who don't believe being rude to my office staff is part of their job description.

[4] Bailiffs who know how to keep order without telling everyone to shut up every 2 minutes and making every lawyer feel they are about to go to jail if they don't "shut up" as well.

[5] Secretaries at prosecutor's offices who don't act like my phone call to the prosecutor may be a terrorist act. "No really, we're actually friends." "It's about a case, that he's prosecuting." Pick one.

[6] Clients who don't pretend they're calling on Monday morning for any reason other then to remind me they're my client. (There are none).

[7] Clients who wait 'till Tuesday to call for a case update. (There are few).

[8] Fellow defense lawyers who don't tell a potential client that they've "never heard of" a certain defense lawyer, even though they have. (There are some).

[9] Clerks who don't act like just the mere notion that I would think of speaking to them is a blight on their otherwise miserable day.

[10] Reporters who don't walk out of court and ask "so, what just happened in there." (I know one).

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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Terrorist Aiding Criminal Defense Lawyers, Michelle Malkin Is Looking For You

This week, a federal appeals court ordered attorney Lynne Stewart to prison and asked the trial judge to review her sentence. It may have been too low based on his lack of consideration of whether she committed perjury.

Conservative blogger Michelle Malkin was relieved:

If there is a shining example of just how dangerous it is for America to give foreign-born jihadists the full panoply of American constitutional rights and all the attendant benefits of a civilian trial, it is Lynne Stewart.

Lynne Stewart was convicted of passing notes for her suspected terrorist client that prosecutors said could have incited violence in Egypt. She was facing 30 years, and received 28 months.

I wasn't in the courtroom. I didn't hear all the evidence. I don't know if Michelle Malkin sat through the trial, although I suspect not.

That's the first problem here, and not really the subject of this post.

Conservatives in America long ago lost their tolerance for "liberal" judges who make determinations that defendant's should spend less than the maximum time in jail.

If the maximum for a crime is 30 years, then damn the judge who takes into account the history of the defendant and other issues (like the evidence in the case) and determines that a lower sentence is appropriate.

That's from where "minimum mandatories" came.

So Malkin thinks 28 months was too low. I don't have an argument there. You can't argue with America's love for lengthy prison sentences. That's a waste of time. If Malkin ever was to read this, she would probably chalk up the mere discussion of judicial discretion as a signal that I am a flaming liberal terrorist loving communist.

Which brings me to the purpose of this post.

Malkin ends her blog post on the Stewart case with this:

How many more Lynne Stewarts are out there, ready to aid and abet their jihadi clients on American soil?

Really Michelle? You're on the hunt for American Criminal Defense Lawyers who are ready to aid terrorist suspects?

Well, if you're out there my colleagues, Michelle Malkin wants to know.

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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Will Scott Rothstein Get A Voluntary Surrender?

The public takes for granted when they hear that someone "surrendered to authorities."

Surrendering to authorities means that either there is a mature, experienced agent or police officer on the case, or that heavy negotiations took place, or that there's some pissed off cop who didn'tget a chance to have his "fun."

I say "fun" because recently I asked for a voluntary surrender for a client and was told by the officer: "well, making those 6:30 a.m. arrests are really the only fun we have anymore."

There is no policy for voluntary surrenders, a topic about which I previously wrote.

Recently I developed my own policy after a client who answered some questions in an effort to cooperate with a federal agent was picked up 2 years later at 5:30 a.m. because the prosecutor rejected the agent's request for a voluntary surrender.

My new policy is that if a client chooses to cooperate, there will be an agreement to a voluntary surrender, first. None of that "lets see how it goes." You're holding jail over my client's head already, no need to hold scaring the shit out of his kids and embarrassing him in his neighborhood over his head.

So back to the question: Will Scott Rothstein get a voluntary surrender?

He should.

As there is no policy, let me suggest we formalize one. One that prosecutors will probably say they already use. It's just a series of questions:

[1] Is the suspect aware of the investigation?

[2] Has the suspect cooperated?

[3] Has the suspect hired a lawyer? (This is not to put a suspect with money to hire a lawyer in a better place than a poor suspect, it's just one factor.)

[4] Has the suspect done anything to avoid the possibility of arrest? (Morocco?)

[5] Are the suspect's whereabouts known?

[6] Is there any evidence that the suspect will flee if asked to surrender?

Each of these are one factor to take into consideration. A balancing test (we in the criminal justice system all know about balancing tests) is done and a decision is made.

The problem is that recently I hear from the prosecutor: "I don't get involved in that. I don't want to interfere with the agent's/officer's investigation.

Punt.

Rothstein left the country. He came back. He has a lawyer who seemingly is in communication with the feds. Yes, his client is in an "undisclosed location," but I surmise the feds know the location. I trust Rothstein knows he will be arrested at some point and I trust if the feds felt he was still a flight risk they would file a complaint and have him picked up with an outrageous bond.

So I think the deal is done. Maybe it was done before he came back from Morocco.

The "perp walk" satisfies several purient interests. It allows law enforcement to do the early morning stake out, it allows the public to see a hated man walk in handcuffs, and that bodes well for, well, I have no idea.

So I think he gets his voluntary surrender, and in the end, it really doesn't change anything except to show our ability to be professional.

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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David Letterman Wasn't Extorted

As a defense lawyer, the job is to defend. Defending means determining the appropriate defense to the charge. There are simple defenses: didn't do it, that guy did it, insanity, statute of limitations has run, charge is not appropriate, and of course the old "I wasn't stealing his car, I was just borrowing it for a while. I was going to bring it back."

While it appears that David Letterman was asked to pay $2 million dollars for silence on some scandalous allegations, we are learning now that, well, it was really nothing more than an everyday "commercial transaction."

Let's begin.

The relevant portion of the extortion statute of New York says that: a person obtains property by Extortion when he compels or induces another person to deliver such property to himself or to a third person by means of instilling in him a fear that, if the property is not so delivered, the actor or another will:

(v) Expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt or ridicule

According to John Eligon over at the New York Times City Blog: the defense lawyer's follow up to this classic interview, is that Robert Joel Halderman was simply trying to sell a story, not extort money, when he delivered a one-page screenplay proposal and other evidence to David Letterman in September about Mr. Letterman’s affairs with women who worked for him.

OK.

More from Eligon's article: “This was a commercial transaction,” Mr. Shargel said outside the Lower Manhattan courthouse surrounded by a horde of cameras and reporters. “It was nothing more.”

At the heart of the defense argument is that Mr. Halderman’s only intention was to write a book or a screenplay about Mr. Letterman’s affairs. But before going forward with the project, Mr. Halderman offered to sell Mr. Letterman the rights to the story for $2 million....

As a defense lawyer, clients come in all the time with theories of defense. Some are obviously crafted to see if the defense lawyer will "buy it," and some are novel ideas, such as this one that Halderman wasn't trying to get $2 million from Letterman to keep the story quiet, but that he was just engaging in the sale of his "screenplay."

Defense lawyers owe an obligation to their clients to be candid with them about the appearance of certain theories of defense. All of use as defense lawyers deal with the client who complains "I don't think you believe me, how can you fight for me?

I think I do a disservice to my clients when I buy into a defense that I just don't think a jury will take seriously.

Even if the media will listen.

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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Why Life Without Parole For Juveniles Makes Sense

No, it doesn't make sense to me. But it makes sense that they remain in effect based on the fabric of our society, based on "what the public wants," says the government.

Yesterday, as every lawyer in the world knows, the United States Supreme Court heard argument on the issue of whether life sentences without parole for juveniles convicted of non-homicide offenses is a violation of the Eighth Amendment prohibiting cruel and unusual punishment.

There is no question but that we have lost any desire to reform children that have gone astray. Trying juveniles as adults, once a rarity, is now the norm. Seventeen year olds are frequently charged as adults because, well, they're 17.

We have no issue as a society locking up people and "throwing away the key. This is whether they are 35, 50, or 14.

The State of Florida argued that individual states should have the right to determine how to prosecute children. Florida has a big stake in this case, with 77 of the 100 juveniles imprisoned for life on non-homicide cases proudly calling the Sunshine State home.

Lock 'em up. Forever.

It's how we are, and who we are today. Politicians run on "tough on crime" agendas, convincing the public that they will "keep them safe." Turn a misdemeanor into a felony, throw in a minimum mandatory penalty, have the tool to be able to lock up a kid for life, and we'll all feel safer. Go against the agenda, and you're just cozying up with criminals and running the risk of abandoning everyones perceived top priority of "public safety."

Life without parole sentences for juveniles make sense because they keep politicians in office, and keep people believing they are safe(r).

Talk about putting money into education, helping kids on the "front end" rather than the "back end" when they are well on there way to prison, and you just "don't understand." The anger and hatred expressed by those who can't believe we as a country would even consider non-homicidal children in prison for the rest of their lives to be cruel and unusual, is deafening.

Prosecutors want this hammer. The people, are told by their elected officials that they want this hammer.

That's why it all makes sense.

And that's why they'll stay in effect, subject to some level of discretion that is virtually meaningless.

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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VIDEO: Judge Calls Cop Stealing From Defense Lawyer's File "Leeway"

Required watching for every defense lawyer, prosecutor, judge, bailiff, defendant, voter, garbage man, teacher, citizen of the world, is this video where an in-court deputy is seen stealing a document from the file of a criminal defense lawyer.



There's almost nothing that needs to be said about this video.

Well, almost.

As usual, Scott Greenfield covered all the bases in this embarrassment of a scene in Maricopa County, Arizona.

Scott calls it "blatant, outrageous and yes, illegal." He analyzes it this way: "First, this happened in full view of the judge, Lisa Flores, who appears not to have noticed. Later, when confronted with what happened, her first reaction is that her court officers are entitled to "leeway." Her second reaction is to seize upon a statement by Cuccia that this isn't the time to deal with the situation. Her third is that she's got a busy calender and this isn't worthy of her scarce time."

Scott faults everyone, including the defense lawyer:

"On Cuccia's side, she fails to notice, despite a few backward glances as the officer is touching her papers, that something is seriously awry. Once informed of the problem by her client, she asserts herself, but allows herself to be told to "calm down" by the judge, and follows instructions well. Rather than go nuts, inform the court that this is outrageous, far more significant than anything else she has to do that day, and demand that the court address it immediately, loudly and clearly, she demurely allows the matter to be put off to another day."

It's clear the defense lawyer was pushed around, and relented. Scott didn't like that:.

"Rather than go nuts, inform the court that this is outrageous, far more significant than anything else she has to do that day, and demand that the court address it immediately, loudly and clearly, she demurely allows the matter to be put off to another day."

I didn't like that either.

But Scott lives in another world. The world of big time New York criminal defense. Scott suffers from what many of us defense lawyers suffer from: "What I would have done-itis."

Here's the problem: we all live in our own world when it comes to the practice of criminal law. We know judges, prosecutors, cops, and we know what we can and cannot do in certain situations. Maybe this defense lawyer operates in a world of fear of the court, maybe they all do in Maricopa County. I don't know.

She appears to be aggressive in certain areas, and less aggressive in direct confrontation with the Court. She let the judge do the "whatever, I'm busy routine," without putting on the record the seriousness of the cause.

Maybe she has a history with this judge. She did mention "retaliation" in the video. Sometimes doing your job as a criminal defense lawyer results in just that.

What I would have done, is to demand the judge issue a rule to show cause why the officer should not be held in contempt, allow him to obtain counsel, and have a hearing. Then I would have filed a complaint with Internal Affairs, and the state attorney's office alleging theft, obstruction of justice, and official misconduct, with the video attached.

After reading that last paragraph, the sad thing is the some defense lawyers are laughing. "Do that? In my town?"

Yes.

I often am taken to task by my brethren when they complain about situations and I wonder aloud why they don't do certain things. They tell me about the culture of the city, town, or village, and tell me I don't understand "how things are." Yes, there are many communities in this country where criminal defense lawyers "fall into line" because it's all about the business, and not about the system of justice.

Well, that's me, and what I would do here, in Miami, where I've been practicing criminal defense 15 years and feel comfortable asserting myself. There's been a lot of police corruption here, and a situation like this, here, in Miami, would be looked at differently than in Joe Arpaio's Maricopa County.

Some lawyers are just downright scared. And yes, that's shameful.

I'm not making excuses for this defense lawyer. I've just grown to learn that there are different types of communities with different types of attitudes.

Communities like Maricopa County, Arizona, where stealing a document out of a defense lawyer's file in court results in no contempt finding,

After all, these officers are there to insure courtroom safety. Safety from emotional courtroom observers, out of control defendants, and the file of a criminal defense lawyer.

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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Scott Rothstein: Who Knew?

Keeping up with the latest news on the unraveling of Scott Rothstein is like watching the stock market ticker.

Here's what we know this morning:

Rothstein had $16 million transferred to Morocco. A country he spent the last few days "clearing his head," and according to NBC6 Miami, contemplating suicide. By the way, he's back. His first meeting, with the feds.

Nationally known political consultant Roger Stone thought something was up a year ago.

On Halloween, Rothstein sent this text message, neither a trick, or treat:

"Sorry for letting you all down," he wrote. "I am a fool. I thought I could fix it but got trapped by my ego and refusal to fail and now all I have accomplished is hurting the people I love. Please take care of yourselves and please protect Kimmie (Rothstein's wife). She knew nothing. Neither did she nor any of you deserve what I did. I hope God allows me to see you on the other side. Love, Scott."

All the news surrounds one question: Who knew?

Yesterday a prosecutor told me: "It takes two people to make anything happen."

We'll see.

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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A Lawyer's Meteoric Collapse Sends No Shockwaves

I never met Scott Rothstein. He ducked out a few minutes before our lunch a few years ago. His secretary telling me and his colleague, who set up the lunch: "he went to lunch." There was no further inquiry as we were not entitled to even be standing by his office, an "off-limits" area of the firm. Instead I went to lunch with some other lawyers in the firm who felt they needed to take pity on me for my wasted 40 minute drive, all of them telling me in response to the unprofessional behavior of their king: "I'm not surprised." "That's Scott."

It was hard not to follow the career of Scott Rothstein and his firm. They were everywhere, sponsoring everything. Charities, foundations, the South Florida Business Journal who enjoyed large advertising revenues and event sponsorship revenues for their "who's the best" this month ass-slapping luncheons, sports stadiums, everywhere.

Over the last year or so the chatter of how this firm, in this recession, was not only surviving but thriving like no other 7 year old firm, got louder.

Lawyers continued to flock to the firm.

Yesterday a legal marketer asked me why these lawyers "didn't do the math."

I responded that today's lawyer doesn't do the math beyond the paycheck.

Today's lawyer doesn't want to know that the average lawyer srtuggles to make $100,000 a year. A good lawyer, makes several hundred thousand dollars a year. Very few make seven figures. A miniscule amount hit the jackpot.

That's reality.

But there's no personal benefit to taking a hard look into how an employment lawyer who started a small firm 7 years ago now owns tens of millions of dollars in homes, leases a jet, owns several six figure cars, and has round the clock bodyguards.

Just give me the check.

I don't know if Rothstein stole the 100-200 million dollars rumored to be missing. I don't know if he committed a crime. I know he sent an email asking what countries do not have extradition treaties with the United States, and is rumored to be in one of those countries. I don't presume him guilty, I do presume him highly careless for sending that email. A search for his name on CNN.com doesn't serve him well either.

The big question going around, as this story develops by the hour, is "what did the lawyers in the firm know?"

They all claim to have known nothing, that Rothstein hid all the firm's finances from the partners and associates.

So maybe they didn't know about this investment scheme.

But there are things you know, and things you know.

You know?

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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Why Do Conservatives Apologize For The Government?

I don't know Randall G. Shelden, other than learning he is a criminologist at UNLV, but in searching for a definition of the Conservative philosophy of criminal justice I ran across his thoughts:

The conservative view of crime and criminal justice can be summarized very simply. People commit crime because they think they can get away with it, largely because the pleasure they get from committing the crime is greater than the potential pain they would receive if caught and punished. This is, of course, the popular “deterrence” perspective. From this perspective people refrain from committing crime mostly because of the fear of getting caught and punished. In order to reduce crime, the pain must be increased so that it is greater than the pleasure received from committing the crime. In other words, to reduce crime we should increase the odds of getting caught and the severity of punishment. This way potential criminals will think twice before committing the crime. To use a popular phrase, “if you can’t do the time, don’t do the crime.”

Having spent the past several years watching the Florida Legislature, and every other legislature, continue to increase sentences in an effort to distract the public from their lack of ability to resolve any other social issue, I think Mr. Shelden is on the mark.

But there is a more disturbing trend in conservative thought when it comes to criminal justice. Maybe it's not a trend, just more visible with the advent of blogs and online comments on newspaper websites, but it appears that conservatives have abandoned their desire for limited government.

I say this because more and more I read comments in response to innocent people being released, charges being dismissed, and not guilty verdicts that are written by conservatives apologizing for not rooting for the government.

"Hey listen, I'm a conservative, and I think they overcharged this guy."

"I think the government went way overboard in this case and I'm a conservative."

"I can't believe the prosecutors are wasting their time with this case, and I'm a conservative."

So, please, tell me, what am I missing?

My understanding is that conservatives, while chest beating their "law & order" philosophy that has turned our criminal justice system into political talking points for elected officials, believe in limited government and believe that a government with too much power is a "bad" thing.

So why do conservatives apologize when they believe the government has gone to far in the criminal justice context?

Are they hypocrites, or am I confused?

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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Trick or Treat: Scary Criminal Justice Statistics

From on of the various fact sheets on the website of Families Against Mandatory Minimums:

Race and mandatory sentences

Prison populations

•One in 20 African American men over the age of 18 is in state or federal prison, compared to one in 180 white men.

•Two-thirds of the 2 million Americans in jail or prison are African American or Hispanic.

•In 2001 the lifetime chances of going to prison were highest among black males (32.2 percent) and Hispanic males (17.2 percent) and lowest among white males (5.9 percent).

•At the end of 2003, black prisoners made up an estimated 44 percent of all federal and state prisoners with sentences of more than one year. White prisoners accounted for 35 percent, and Hispanic prisoners 19 percent. (Prisoners in 2003, Bureau of Justice Statistics)

Drug offenses

•African Americans make up approximately 12 percent of the population and are 13 percent of the drug users, yet they constitute 38 percent of all drug arrests and 59 percent of those convicted of drug offenses.

•Nationwide African American males sentenced in state courts on drug felonies receive prison sentences 52 percent of the time, while white males are sentenced to prison 34 percent of the time.

•In 10 states African American men are sent to state prison on drug charges at rates that are 27 to 57 times greater than those of white men in the same state.

•When sentenced for drug offenses in state courts, whites serve an average of 27 months and blacks an average of 46 months.

•African Americans are 59 percent of those convicted of drug offenses but, since they are less likely to strike a favorable plea bargain with prosecutors, are 74 percent of those sentenced to prison for a drug offense.

Enjoy the candy.

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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Criminal Defense Brethren: The 11th Circuit Says "No" On The Ben Kuehne Case

If he hasn't already, my good friend David O. Markus will certainly blog the result in the Ben Kuehne case handed down today in the 11th Circuit. An opinion from a case of first impression in the 11th circuit on the issue of the exemption of section 1957 (f)(1) for criminal defense fees.

If you are a criminal defense lawyer and do not know about this case, well, you're not really a criminal defense lawyer. Maybe you just play one on the internet.

The court found the "plain meaning of the exemption set forth in §1957(f)(1), when considered in its context, is that transactions involving criminally derived proceeds are exempt from the prohibitions of § 1957(a) when they are for the purpose of securing legal representation to which an accused is entitled under the Sixth Amendment. Accordingly, the exemption is limited to attorneys’ fees paid for representation guaranteed by the Sixth Amendment in a criminal proceeding and does not extend to attorneys’ fees paid for other purposes."

My favorite part of any criminal appellate opinion these days is references like this: "See U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense)."

As if the system needs to be reminded.

The Government argued in this appeal "that the exemption in §1957(f)(1) has been nullified or vitiated because, shortly after the provision was enacted, the Supreme Court held in Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 626 (1989) that the Sixth Amendment right to counsel does not protect the right of a criminal defendant to use criminally derived proceeds for legal fees."

But the 11th Circuit had to remind the Gubmint that the cited case: "addresses a different statute governing the civil forfeiture of criminally derived proceeds," and "has no bearing on § 1957(f)(1).

Oh, ok.

The court further reminded the Government that the cited case: "held simply that Congress may require the forfeiture of criminally derived proceeds, even if those proceeds are used for legal representation, without running afoul of the Sixth Amendment right to counsel.

And the death knell to the Government's attempt to jail this prominent member of the Bar: "It would therefore make little sense—and would be entirely superfluous—to read § 1957(f)(1) as an exemption from criminal penalties for non-tainted proceeds spent on legal representation, as those funds can always be used for any legal purpose. We do not believe Congress intended such an absurd result, which nullifies the provision and divorces it from its statutory context, thereby violating basic canons of statutory construction.

The 11th Circuit spoke in plainly, referring to the Government's argument by describing it as a "rocky premise," and an "implausible interpretation," of Congress’s belief at the time it drafted § 1957(f)(1).

The ruling is not just an affirmation, but states that the district court was "eminently correct in holding that Defendants are not subject to criminal prosecution under § 1957(a), because the plain language of §1957(f)(1) clearly exempts criminally derived proceeds used to secure legal representation to which an accused is entitled under the Sixth Amendment."

While I think that ends things for Ben on this topic in this prosecution, I'm not at all convinced the Government is done with us.

Not at all.

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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Senator Grassley Slams DOJ's Medical Grass Policy

It's typical in this country to say we're fighting 2 wars - Iraq and Afghanistan. We're actually fighting dozens of "wars." Today I heard someone speaking so passionately about the increase in violence against women that she actually said we are "losing the war on women" in this country. I'm sure that's not what she meant. Maybe she did.

So we have this war on drugs. Depending on who you talk to, we're winning, or miserably failing. Most people in the criminal justice system, conservatives and liberals, think we're wasting our time on the wrong people.

So DOJ decides to prioritize the war on drugs. Imagine that. It is decided that prosecuting the medical marijuana crowd (those who prescribe and use marijuana where it is legal for medical purposes) will no longer be a priority.

It's a step in the right direction.

Unless you're Senator Charles Grassley.

He's from, well, Iowa. Here's his website with a good picture of Iowa

Here's his talking points (targeted at complete morons who are led to believe that marijuana is the beginning of terrorism) “I think that marijuana is a gateway to harder drug use,” Grassley said. “Medical marijuana brings a certain amount of legitimacy to an illegal drug, even though it attempts to do it in a legal way. We have a federal law that is intended to outlaw its use. That federal law ought to be enforced. It was enforced in the previous administration and I think having a national program against drug use is very, very important.”

Yes, even a national program against legal drug use for people who legally use drugs to kill pain because legitimate doctors believe it is good for them.

Grassley said that while some of the people who produce and distribute marijuana may be law-abiding citizens in the eyes of their state, people should not forget that “most of the marijuana that flows into the United States comes from the drug lords.”

Funny, I hear about a lot of it being grown here.

Senator Grassley, enough. In order to "win" the war on drugs, we need to target importers and high-level dealers.

Even your constituents don't think that arresting people who are writhing in pain and about to die is of any use.

Now let's move on.

Go oppose some other new idea that may change the focus of law enforcement for the better.

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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When Our System Confronts Pure Tragedy

Yesterday in Miami, Ronald Salazar was sentenced to two consecutive life sentences for rape and first degree murder. The story is here.

I assume somewhere else in the world yesterday, some defendant or two, or more, were sentenced to life terms for murder, rape, kidnapping. It is what our system was meant to do, take violent criminels off the streets so they can never commit what we deem the most serious crimes, again.

Our system has evolved though. We now send people to prison for life if they've sold too much drugs, or have committed too many other types of crimes. Life in prison is no longer reserved for those that have killed, or almost killed.

Everyday our system confronts crime. Car theft, credit card fraud, mortgage fraud, and other personal and property crimes. Prosecutors hand out jail sentences, argue for no bond, and our system further blurs the lines between those who belong in jail, and those who don't.

Ronald Salazar was 14 when he raped and murdered his sister. His parents did not hire a lawyer for him nor support him through the process. I'm not blaming them, just stating this as a fact. He tried to put on an insanity defense, but his post-crime activities didn't convince the jury that he didn't know what he was doing. The prosecutor assigned, was one of the most senior homicide prosecutors in the state attorney's office. I wasn't there for the trial, so I can't say whether Mr. Salazar has a shot on appeal. Most defendants don't.

The trial was not a circus, or a media spectacle. The story mentions a nearly empty gallery at the reading of the verdict.

This, to me, is one of the most tragic cases I've seen. It defines pure tragedy. These parents have lost a daughter and will live the rest of their lives knowing their son is in prison. With no parole in Florida Mr. Salazar knows now, at the age of 19, that barring a successful appeal, he will eventually die in prison.

I saw no post-trial press conference by either side, no inflammatory comments, no sense of joy in the community, or concern that a 19 year old will die in prison.
This, is how we confront pure tragedy. Quietly, professionally, and without any sense of satisfaction.

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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Letterman Extortionist Lawyer Bombs on Today Show, says People Magazine

Visit msnbc.com for Breaking News, World News, and News about the Economy

Why would a lawyer turn down an invitation to go on the Today Show?

Just think, you go on the Today Show, get to meet Matt, Meredith, Ann, and Al, maybe a couple celebrities in the green room, and then, after your interview, get all those emails and phone calls: "Hey! Saw you on the TODAY SHOW! Awesome!."

This can lead to: "you should hire him, I saw that dude on the Today Show!" It also adds a nice touch to the website: "As seen on the Today Show."

But there's that moment when lawyers grow up, we hope.

Eight years ago I accepted an invitation to appear on national television. I was appointed to represent a high profile defendant that CNN named the most important case of 2003. After one appearance, I realized the most important question a lawyer should ask before appearing on national TV, or even giving an interview to the local paper:

"Does it benefit the client?"

I can hear it now: "The client?" "Dude, I'm going to be on national television! The calls will come pouring in to my office."

Exactly: Does it benefit the client?

I haven't appeared on national television in almost 5 years. Not for a lack of invitation, but for asking that question.

Yesterday's interview (above) with the lawyer for the accused extortionist of David Letterman, reaffirmed my philosophy.

He bombed. Ann Curry embarrassed him. But hey, then he made much more news, like on the website for People Magazine

When Curry pointed out that his client had cashed a $2 million check and had been recorded on a detective's wire, Shargel's response was to say, "I've been at this a long time." He also talked up Halderman's 20-year career as a respected TV producer and mentioned the name of Dan Rather, though it was not clear how the former CBS News anchor is relevant to this case.

Curry defined the moment: "I'm giving you access to media this morning and you are not giving your client's side of the story."

So I wonder. On the way to the Today Show in the back of the limo, what was this lawyer thinking? He's been a lawyer for 40 years. No question he knew what the questions would be, and knew he wouldn't answer them.

So why go on the show? Scott Greenfield asks the same question.

The answer is typically that the client is getting killed in the media, especially when the alleged victim is the "king of late night," and the lawyer should equally defend the client in public.

Can't argue with that.

But that's not what happened.

What happened was the lawyer got the national stage, and did nothing for his client.

I wonder if he got to hang out with Matt. I like Matt.

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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Roman Polanski, Criminal

Roman Polanski is a beloved film director who survived the Holocaust and suffered further horror as his wife was murdered by arguably the worst criminal "family" in the history of the world, the Mansons.

In 1977 he plead guilty to having sex with a 13 year old. Prior to sentencing, he fled the United States.

So what am I missing?

There appears to be three arguments going on in favor of Polanski. (1) he has had a rough life, (2) there are mitigating factors favoring dismissal of the warrant, such as the United States lack of dilligence in attempting to bring him back, and (3) someone re-neged on the deal he made, therefore justifying his fleeing the country.

Now that the dust has settled and the idiots have said their peace, let's talk reality.

I've only been practicing criminal defense for 15 years, but I am comfortable saying that there is no legal justification for fleeing the country prior to sentencing.

The argument from Polanski's supporters appears to be "c'mon, leave the guy alone, it was over 30 years ago."

Well, there's legal precedent for that. The government cannot just "sit" on a warrant and make no attempt to arrest the defendant while his whereabouts are known. Warrants get "stale." You snooze, you lose.

Sometimes.

But not in this case. Polanski was in places, carefully chosen, that do not permit extradition. The only thing the government could have done was to lure Polanski to another country or effectively "kidnap" him.

See folks, warrants don't just go away. I just had a friend deported who was convicted over 20 years ago. He was ordered deported after his conviction. After he left prison, he lived openly under his real name, started a business, even got an American Express card. A few months ago at 6 a.m. ICE came and took him to Jamaica. his wife's still here. No one cares.

I agree with "you snooze you lose." Unfortunately, that's not generally how it works, especially post conviction.

If Roman Polanski got a raw deal or believes the warrant is "stale," or has some other legal argument why he had the right to flee, he should make it, in court, in America. I trust he has outstanding lawyers in America making every argument they can at this point. I trust their investigators have spoken with the victim and everyone else associated with the case to attempt some resolution.

I just know when I represent clients in these types of situations, most prosecutors say "when he comes back, we'll talk."

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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Florida To Tourists: Come On Down, The Kids Are In Prison

To the "ho-hum" of the nation, the national media reported back in May, and last week, that in November the United States Supreme Court will take up the issue of whether life in prison without the possibility of parole for juveniles convicted for non-homicide offenses is a violation of the Eighth Amendment prohibition against cruel and unusual punishment.

Here's a story from the LA Times.

According to Amnesty International, "The United States is the only country in the world that does not comply with the norm against imposing life-without-parole sentences on juveniles."

While about 2,500 juveniles are serving life sentences without the possibility of parole, 109 are serving life for other crimes.

Our own attorney general and gubernatorial candidate Bill McCollum isn't interested in addressing the issue of whether life in prison without parole for juveniles who commit non-homicide crimes is cruel and unusual, he's just arguing that it's too late to raise the issue. I think when defense lawyers do things like that it's referred to as a "technicality."

Here's a shock "Florida leads the nation in sending teenagers to prison for life with no possible parole for crimes such as burglary, assault or rape. It has at least 77 such inmates. California and six other states also have at least one.

Two years ago, California prohibited sentencing juveniles to life in prison.

Don't worry about Florida, as our government lawyers are arguing in their brief, these juveniles who commit these violent non-homicide offenses are "threatening the state's bedrock tourism industry."

The crux of this issue is that we've given up on our kids. We don't care. Put 'em all away. Whether they're 14, 16, 17, who cares. Hell, we arrest 8 year old kids all over the country for things their punishment used to be sending them to the principal.

Get them off the streets, forever.

Especially in Florida, where Mickey lives.

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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Cutting Budgets, Scaring People

After a week away, I returned and did something I probably won't do again. I read every day of the newspaper that was published while I was gone.

The news of the day, or week for that matter, is local governments setting budgets. Every city, county, village, is reeling with lower property values. Budget cuts in Miami-Dade County are to be $444 million.

The issue brings out the same tired debate: How do we keep doing the same thing with less money? How do we fund basic services (police, fire, trash pickup, libraries, etc...) and social services, and all the pet projects, capital projects, and keep paying salaries?

We can't. Everyone knows that, no one wants to discuss it.

In the criminal justice arena, the debate is simple: the minute governments start talking about budget cuts, do everything to scare the public into thinking that their "public safety" will be compromised.

Fear, works, everytime.

I know I'm a defense lawyer, and that anything I suggest is only to help criminals and attack the police, but this is my blog, so I'll write my suggestions anyway. (Cue the law enforcement talking points)

[1] Cease all speed traps and other planned traffic enforcement.

Speed kills, I know. But it really doesn't. Going 40 in a 30 in my neighborhood won't kill anyone more than going 20 in a 30 will. Going 90 on the expressway may kill someone, but there's not as many speed traps there as there are at that stop sign in the neighborhood where no one has ever stopped for 20 years. Enough.

[2] No one should be taken to jail for misdemeanors, except for domestic violence.

Yes, that includes DUI. I know, DUI is serious, the guy could have killed someone. But he didn't. Take him home, make him get a ride home, give him a promise to appear. What's the purpose of having a bunch of drunk people in jail for a few hours, except to satisfy the public's desire to see drunk people in jail?

Not a single other misdemeanor should require a night in jail at arrest.

[3] Remove all mandatory minimum penalties. All of them.

Mandatory minimum penalties are expensive. They cause more cases to go to trial, and have contributed to our aging prison population, which has exponentially increased prison health care costs.

Let's put the discretion back in the hands of prosecutors and judges. Victims can still have all the input they want.

[4] We can't prosecute everything. Let's start acting like it.

There is a county in Florida where 95% of all arrests are prosecuted. Why? What happened to looking at a case and saying, "yeah, he did it, but we have to prioritize how we spend our prosecution resources. I know "public safety."

Public safety refers to murder, rape, robbery, other violent crimes, DUI, and domestic violence (maybe I left something out). Public safety is not affected by selling flowers without a license, driving without commercial vehicle markings, peeing on the sidewalk, drinking in public, and other "get the homeless off the streets" crimes.

[5] Prosecutors need to "strongly encourage" legislatures to stop enacting new criminal offenses.

Every year, some prosecutor somewhere loses some case and drafts some law so when that case comes up again, he won't lose. Then we start prosecuting people for "battery on a lifeguard during a riptide."

We have plenty of laws. Too many.

[6] Stop sending everyone to jail for everything.

When I first became a public defender, I was told by a supervisor "some of our clients belong in jail." Some people belong in jail, but we have reached a point where probation and diversion is the exception. Why is that? I think it's to satisfy the public's thirst for jail. We're all paying for it, but no one seems to care. "Lock 'em up." OK, morons.

There is a move afoot to have more diversion options for first time drug offenders, but most of these "commissions" are filled with "former" everythings. Former judges, former prosecutors, former cops. Why is it that only "former" people have the guts to propose reasonable reforms to the system? We all know the answer.

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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JUDGE, A Client Is Not A Lawyer's Keeper

This morning, while waiting for my case to be called, I popped into another courtroom after hearing a police officer in the hallway say "man, he's on the warpath today."

Upon entering the judge's courtroom, I heard lots of yelling, from the judge.

"WHERE'S YOUR CLIENT?"

"WHERE'S YOUR LAWYER?" "YOU BETTER CALL HIM AND GET HIM HERE."

Over and over again.

"Call and get him here?"

Really?

Now as lawyers, especially criminal lawyers who are normally in court several days a week, we know how this works. On any given day a judge is "tired of" clients being late, lawyers being late, interpreters having to be in other courtrooms, court reporters being late (and heavens forbid needing a break), and all the other typical "stuff" that occurs in criminal court.

I understand. But you're the judge, and yelling about it, resolves nothing.



There are things in life called "traffic" and "accidents" and "lines at security." I know you don't drive in the same traffic, as you travel like the Jetsons. I know you have reserved parking, and don't wait in line. Most others do.

With all due respect, deal with it. There's a difference between someone willfully not showing up to court, and someone who is trying their best in the big city.

Deal with it.

And one more thing; stop yelling at the client because his lawyer is not there. His lawyer was paid to be in court and is responsible for him or herself. That poor client did nothing but write a check and follow directions. Why are you stressing him out for something he didn't do?

Say what the other judge said today; "We'll pass the case for your lawyer." Then you can tell your assistant to go yell at the lawyer.

And use your inside voice.

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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Immigration, Meet Laches

Laches (f. French, lachesse, laches ) [1] is an equitable defense, or doctrine. The person invoking laches is asserting that an opposing party has "slept on its rights," and that, as a result of this delay, that other party is no longer entitled to its original claim. Put another way, failure to assert one’s rights in a timely manner can result in a claim's being barred by laches. Laches is a form of estoppel for delay.

I can't link to the story, because it's an Incisive Media, National Law Journal, Daily Business Review "you want to read online you gotta pay story," but here's the short version:

Guy comes to American from his native Italy at the age of 13 in 1961. In '77 he's convicted of arson and criminal mischief. I don't know the details, but with the attachment of a criminal mischief charge, I can't imagine it was a raging wildfire.

He's paroled in '84, marries a U.S. Citizen in '91, has four children and ran a restaurant.

Great.

Then he goes to Italy and is detained upon returning to the U.S. He's released while the gubmnit decides what to do, which is eventually to have him deported, sorry "removed." (Sounds so much nicer)

In 2001, 24 years after his conviction, he's ordered back to Italy, the country he left 48 years ago.

I know, I know, "he should of thought of that when he lit the fire," "We need to get rid of all these criminals," etc..... I know where this country's collective head is on this issue.

The "reluctant" 2nd Circuit Court of Appeals cited "considerable confusion" in federal court decisions around the country and left it to Congress and Homeland Security to "reconcile."

Our courts appear to happily stay out of two places, Immigration, and the Bureau of Prisons. These agencies have almost unbridled power.

I have a personal story here.

A friend, convicted of "driving the car" during a small drug trafficking operation was convicted and sentenced to 2 years in prison. He was also ordered deported.

Upon his release from prison, he walked out, and started his life. He got married, started a business, got credit, all under his real name. The gubmit did nothing, for 22 years.

Then, at 6:30 a.m. one day. they came and got him. He now lives in his native country. He hasn't been there in over 25 years.

He was and is no threat to anyone. The gubmit knows this.

This goes on everyday. Some stories are noticed, others just a "day in the life" of our sick twisted immigration policies.

All in the name of "public safety," right folks?

It's time to introduce the concept of Laches as a defense on immigration cases. This is a pathetic, draconian use of our laws, and it's time a valid defense of Laches is permitted in these cases.

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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