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

Thursday, July 26, 2007

Payment Plan Practices


I don't have one.

Why do you?

"Because most of my clients can't afford to pay me up front."

You sure about that? Really sure?

How do you know that, when you advertise "payment plans available?"

If I know I can pay in installments without interest, why wouldn't I? Is there anyone who hasn't bought their flat screen plasma or washing machine on a one-year no payments no interest plans? Why wouldn't you? I'll keep my money as long as I can.

So will clients.

People ask, "how do you get the money up front?

I insist.

Are there exceptions? Of course. Half up front, the other half next month. Or a couple clients with monthly payments because they are those "nice young kids" that I like to represent, and really can't afford a lawyer any other way.

But as a matter of course, absolutely not.

Try it. Try it today. After your consultation, announce the fee, and when the client says "how much do you need up front, say "all of it."

Then wait and see what happens.

Payment plan practices consume lawyers. They become such a part of your daily practice that it becomes more time consuming to get paid, then to represent the client.

And don't tell me "that's the nature of the practice."

We've made it that way. It's time to stop.

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

Monday, July 23, 2007

No More Get Out of Jail Free Cards

As a criminal defense lawyer who doesn't advertise in the yellow pages, I receive few early morning "someone's in jail can you bond them out" calls.

I don't want them anymore.

I don't mind the call from a great friend, or current client seeking some help, but the people who "got your name from.....," please don't call me.

Why? Because you waste my time.

[1] You get some sense that I am responsible for actually getting them out. I am not. I am merely giving you the name of a respectable bondsman for you to call. This does not give you the right to call me 6 times on a Saturday and ask me why he's not out. I don't know.

[2] You don't listen to me, you go down to the jail when I tell you not to, and you start talking to people who tell you different things. You believe all of it. You then call me and tell me that "so and so said........"

[3] You rarely hire me for the case, if you even bother to call me and let me know he's out (because then you may have to say "thank you.")

My job is not to "get people out of jail." That is the job of a bondsman. If you have some difficulty posting a standard bond (the bond normally set for the particular offense in each juristiction), then a lawyer may be necessary.

But from now on if you're calling because "someone's in jail," be ready to retain me, or call someone else.

(Yes, this happened twice this weekend)


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

Thursday, July 19, 2007

Federal Criminal Lawyers Vs. State Criminal Lawyers

I wish the title of this post could be something different, but this is where we are.

I practice in state and federal court. About half and half. I began as a state public defender and my federal experience is gained from working with other federal criminal lawyers, not from being a former assistant united states attorney or federal defender.

I am not a "federal lawyer." A self-proclaimed "federal lawyer" is someone who only practices in federal court (with the exception of many of them who you can find tripping over themselves in state court when "indictments are down.") There is a group of "federal lawyers" who have no use for "state lawyers," and I think it's time to have this discussion. Mainly because I'm getting tired of the bullshit.

I do not bemoan anyone for their type of practice. I am not a "DUI lawyer," "ticket lawyer," "death penalty lawyer," "white collar lawyer," or "federal lawyer." My practice is mixed.

I am a "criminal defense lawyer."

I am tired of you "federal lawyers" looking down on all your brothers and sisters in the defense bar. What is so special about you? Why are you so much better than someone who goes into court and defends someone against state or municipal government?

And I'm not talking to those of you who will respond with "I don't look down on other lawyers." I'm not talking about you.

Why are some of you so convinced you are such great lawyers?

There are so many reasons I bring this up.

Specifically, yesterday, an email went out from a defense lawyer looking for a "DUI Lawyer" in another city. The responses from the "federal lawyers" was referrals to a former AUSA who probably has never been to state court, and to a legendary mafia lawyer.

What is it with some of you "federal lawyers" who think every single case needs to be referred to a "big" "federal lawyer?" I know, your answer is that you were referring these lawyers so they could make the proper referral. They can't, trust me. It's not just yesterday either, I see this all the time. Someone asks for a referral for a small state case, and recommendations come in for big Washington firms, or the white collar guy at the big firm who spends all day reading, I'm sorry, having other people read, documents.

Maybe if you took the time to learn about some of the other lawyers who also practice criminal defense, even though it's the criminal defense work you wont get your hands dirty with, you would be referring clients to the proper lawyers, or just staying out of it out of respect for "the rest of us."

Part I.

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

Tuesday, July 17, 2007

Thoughts On Our Criminal "Justice" System

I received this e-mail in response to the story below. It really is a comment on the state of our system in general:

"This is all a result of a system that is designed for pleas, in which 2% of cases go to trial. Therefore, prosecutors are judged on conviction rates and on percentage of nolle pross's and other nonsense like that. They should be judged on whether they act honorably and thoughtfully on what they do and don't prosecute. It is further the result of this country's CYA mentality. No one wants to be on the O'Reilly factor. Therefore, cops make arrests they don't really agree with and pass it up the chain, hoping the State will do the right thing. The State files and pursues the case, while making a decent plea offer to the innocent Defendant, because they have to "back up the officer". The judges deny motions to suppress and other defense applications, because there is never any political capital to be gained in siding with a Defendant. The underfunded and overworked lawyer pleas the client out, or he just might lose to a jury of citizens who assume that a guy couldn't be arrested, filed on, and have a Judge allow a trial, if he is actually... innocent.

Its all capped off by a PCA from the District Court of Appeals, if they are too busy to write an opinion on that particular case.

I, for one, personally think that the only way to combat this trend is for more defendants, and their attorneys, to be willing to go trial. If we can raise the percentage of cases that go to trial then more nonsense gets exposed and the judges will encourage the State to not waste their time and clog their docket.... instead of leaning on 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

Sunday, July 15, 2007

Rolling The Dice, As A Prosecutor

This morning's Miami Herald brings us a story that is the perfect example of why all of us should be mindful of the power of prosecutors.

Norman Borden was charged with murder for killing two of three men in a Jeep that tried to run him down while he was walking his dog. He shot his gun five times through the windshield, then moved to the side of the vehicle and fired nine more rounds.

From the Herald: "He thought the shooting was self-defense, but a prosecutor put him on trial in the deaths, despite a new Florida law that grants wide latitude to people using deadly force to protect themselves."

In Borden's case, a prosecutor filed charges against him, even though he privately thought Borden might have been correct to open fire.

Kentucky Judge Sheila Isaac, said about the no-duty-to-retreat law in Kentucky similar to Florida's "You just don't see cases where people are prosecuted when they are defending themselves,"

Oh.......Judge Isaac, welcome to Florida.

Our guy Borden faced up to life in prison without the possibility of parole if convicted of murder and attempted murder.

"One of his would-be attackers, 21-year-old Juan Mendez, admitted in testimony at Borden's trial that the three men in the Jeep planned to 'rough him up.' A baseball bat was also found in the vehicle.

Prosecutor Craig Williams argued that Borden exceeded justified force when he continued firing after shooting the driver and stopping the Jeep. But Borden's defense argued that he did not have to retreat, citing the new law."

Now here's where it gets good, real good:

Williams said he pursued the charges because he thought a jury needed to decide the case. But he privately wondered how he would have behaved in the same situation. When Borden was acquitted, the prosecutor was almost relieved.

The assailants 'were bringing an arsenal,' Williams conceded after the trial. "It was pretty clear what the right thing to do was here."

Then I read this from the ABA Standards on Criminal Justice:
Standard 3-3.8 Discretion as to Noncriminal Disposition

Illustrative of the factors which the prosecutor may properly consider in exercising his or her discretion are:
(i) the prosecutor’s reasonable doubt that the accused is in fact guilty;
(ii) the extent of the harm caused by the offense;
(iii) the disproportion of the authorized punishment in relation to the particular offense or the offender
(iv) possible improper motives of a complainant

Additionally, (not that I have any evidence this happened here, but it is a long-time concern of judges and defense lawyers:

(c) A prosecutor should not, be compelled by his or her supervisor to prosecute a case in which he or she has reasonable doubt about the guilt of the accused.

As defense attorneys, we often hear prosecutors say "hey, if you're guy wants to roll the dice and go to trial......"

"Rolling the dice" is something to be carefully considered, on both sides.

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

Saturday, July 14, 2007

"Hire Me Despite My Website"

A state representative in Florida was arrested this week for offering oral sex to a male undercover cop for $20.

He naturally hired an attorney, one whose website says he has a "general practice with an emphasis in family law," naturally.

I don't know this attorney, so I did what everyone will do, I went to his website.
I noted this at the bottom of his site:

"The hiring of a lawyer is an improtant decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications & experiece."

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

Tuesday, July 10, 2007

How NOT To Get Out Of Jury Service

From CNN.com

BARNSTABLE, Massachusetts (AP) -- A Cape Cod man who claimed he was homophobic, racist and a habitual liar to avoid jury duty earned an angry rebuke from a judge on Monday, who referred the case to prosecutors for possible charges.

"In 32 years of service in courtrooms, as a prosecutor, as a defense attorney and now as a judge, I have quite frankly never confronted such a brazen situation of an individual attempting to avoid juror service," Barnstable Superior Court Judge Gary Nickerson told Daniel Ellis, according to a preliminary court transcript of the exchange.

Ellis, of Falmouth, had been called to court with about 60 other potential jurors for possible service on a 23-member grand jury.

On a questionnaire that all potential jurors fill out, Ellis wrote that he didn't like homosexuals and blacks. He then echoed those sentiments in an interview with Nickerson.

"You say on your form that you're not a fan of homosexuals," Nickerson said.

"That I'm a racist," Ellis interrupted.

"I'm frequently found to be a liar, too. I can't really help it," Ellis added.

"I'm sorry?" Nickerson said.

"I said I'm frequently found to be a liar," Ellis replied.

"So, are you lying to me now?" Nickerson asked.

"Well, I don't know. I might be," was the response.

Ellis then admitted he really didn't want to serve on a jury.

"I have the distinct impression that you're intentionally trying to avoid jury service," Nickerson said.

"That's true," Ellis answered.

Nickerson ordered Ellis taken into custody. He was released later Monday morning.

Ellis could face perjury and other charges.


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

Friday, June 22, 2007

Nifong Going The Way Of Paris Hilton?

We can only hope...

FOX News has the story 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

Monday, June 18, 2007

"A Clear Case Of Intentional Prosecutorial Misconduct"

That's how former DA Mike Nifong's conduct was described at his ethics hearing.

Read about his future 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

Friday, June 15, 2007

Good Riddance Nifong, You Disgrace

Mike Nifong is thankfully stepping down from the position he disgraced.

I hope he never is permitted to enter a courtroom as anything else but a defendant.


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

Sunday, June 03, 2007

Please don't call me if.....

[1] You want to get someone transferred to another prison within the state.

[2] You are a boyfriend/girlfriend of an inmate who has been convicted.

[3] Your first question is going to be whether I "do pro bono."

[4] You are unhappy with your second lawyer.

[5] You want to sue the police because they were rude to you or the handcuffs were too tight.

[6] You've been issued a "no trespass" warning and you want to....."trespass."

[7] You're the guy's brother.

[8] You are set for trial tomorrow and want to know if "it's a good plea offer."

[9] Your wife, girlfriend, or both threatened to call the cops, but you just want to "talk" to me.

[10] The only problem you will have in retaining a lawyer, is, well.... the 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

Monday, May 28, 2007

Memorial Day and Bobby Kennedy


Next week, June 4, it will be 39 years since former Attorney General, Senator and Presidential Candidate Robert F. Kennedy was shot. (he died on June 6). By the way, BOBBY, is a great movie.

This is part of a television interview with Bobby Kennedy on the Vietnam War

It sounds like some of what he might say today.

I think the course that we are following is in error. But, I am saying that as a United States Senator and want to have what I say analyzed on that basis. I've always said unless it is clear that its their war and we are over there to help them that we can't win.

Now they have had corruption and lack of land reform, They failed to put in the democratic procedures that we should have and the democratic processes.

Unless they change,unless there is a drastic change, the people of South Vietnam are not going to feel the loyalty to them to Saigon -rather to the Vietcong and feel that its worth while- they're making the sacrifice -they're making the effort.

I think they should do it. They should carry the burden. Now if they are going to do more of that and the North Vietnamese will not escalate which I expect they will. And the Russians can send them far more sophisticated weapons than they have already. If both of those things come true, I think we will be well on our way to winning the war.

I think there has to be a one hundred and eighty degree turn on the part of the South Vietnamese and there has to be a complete change of policy in North Vietnam.I haven't seen any indications of this up to the present time,

I would to see the South Vietnamese do more. I would to see them carry this burden I would like to see them doing the fighting and not just Americans. Because I don't think there is any alternative to that. We are not going to win unless the South Vietnamese do more, and make more of an effort. It shouldn't be just the United States and Americans doing it.

First we were making the effort there so that people had their own right to decide their own future and select their own form of government. And it wasn't going to be imposed on them by North Vietnam. We had the support of the people of South Vietnam . I think that's why we were involved in that struggle. That's certainly the way I looked at it when I was in President Kennedy's administration and in President Johnson's.

Now we turned. When we found that the South Vietnamese haven't given the support and are not making the effort. Now we are saying we are going to fight there so we don't have to fight in Thailand . So we don't have to fight on the west coast of the United States, so they won't move across the Rockies.

Our whole moral position, it seems to me changes tremendously. One we are in there- We are helping people. We are working with them. We're fighting for their Independence.

Second, we're killing the enemy and we are also killing many civilians. But we are doing it because they want it.

Now we changed, we switched. Maybe they don't want it but we want it. We are going in there, we're killing South Vietnamese, we're killing children, we're killing women, we're killing innocent people. Because we don't want to have war fought on American soil. Or because they are twelve thousand miles away and they might get to be eleven thousand miles away.

Our whole moral position changes it seems to me.

Do we have the right here in the United States to say we are going to kill tens of thousands of people, make millions of people as we have refuges, kill women and children as we have.

There is thirty-five thousand people without limbs in South Vietnam.one-hundred and fifty thousand civilian casualties every year. Thousands of children are killed because of our efforts.

Do we have that right, here in the United States to perform these acts, because we want to protect ourselves so it is not a greater problem for us in the United States.

I very seriously question whether we have that right. And I think other people are fighting it, other people are carrying the burden. But this is also our war. Those of us who stay here in the United States.


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

Wednesday, May 16, 2007

Report Suggests Raising Age For Criminal Responsibility

A report from the British Centre for Crime and Justice Studies (CCJS) suggests raising the age for criminal responsibility and also suggested children should no longer be sent to prison.

The story is here.

Imagine if we ever took a wholesale look at juvenile justice in this country?

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

Sunday, May 13, 2007

The Wrong Things Potential Clients Say To Criminal Defense Lawyers And Why

[1] How many cases have you won?

We all know there's those lawyers out there who say "I've never lost a case." If that's true, assume yours will be the first.

[2] My friend had a lawyer and he got the whole thing "quashed," "dismissed," "thrown out."

My friend went to the best doctor in the world and died.

[3] If I pay you this money I'm guaranteed not to go to jail, right?

Criminal defense lawyers aren't ethically permitted to give guarantees. If you talk to one who does, run out of their office as quick as possible, with your money.

[4] How much do you need to get started?

This is interpreted to a criminal defense lawyer as "what is the smallest amount I can give you now, and then make you chase me for the balance?"

[5] What do you mean by priors?

This means, "yes, I have been arrested, but I don't want to talk about that before you quote your fee."

[6] Can I get back to you, think about it, talk to my family?

Sure, but you won't.

[7] I didn't bring my checkbook today.

How funny, that happened to me the last time I went to buy something and I walked out with nothing as well.

[8] What's our chances of "beating this thing?"

No matter how many times I say "50-50," it never receives a different response than "I know, but what's our chances of beating this thing?"

[9] Can I be honest with you?

Honest is good, especially right now.

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

Saturday, May 05, 2007

Dear Paris,

Paris, actually, I should call you Ms. Hilton, as I don't know you personally.

I'm sorry you have to go to jail for 45 days. Jail sucks, it will suck for you more, as you've probably not had to stay overnight in a musty motel off some expressway for a night on your way somewhere, ever. My advice to you is probably the same as your lawyer's - keep to yourself, and lose the attitude. They will screw with you daily, just keep it together.

Speaking of your lawyer, he's a good lawyer Mr. Weitzman, been around a long time. I trust he didn't tell you to take the stand and blame your "handlers" for "letting you" get "caught" behind the wheel. I trust he also didn't tell you to say that you are a "very busy person," in response to why you didn't really understand that WHEN YOUR LICENSE IS SUSPENDED, YOU CANNOT DRIVE.

I bet he advised you to take the stand and just apologize and beg for mercy from the judge. Did you say "I'm sorry?" Maybe you did, I didn't see the transcript.

I just hope you now know that when you are a criminal defendant in criminal court, charged with not obeying a court order, you sometimes have to just take responsibility.

Responsibility is...... 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

Monday, April 30, 2007

NOT GUILTY - A JUDICIAL ORDER LIKE NO OTHER

IN THE COUNTY COURT, IN AND FOR
PALM BEACH COUNTY, FLORIDA
STATE OF FLORIDA
CASE NO. 2007MM001698AXX
V.
BERTRAM WILLIAMS,
____________________________/
VERDICT -
ONE SMALL CASE IN THE WAR ON DRUGS

THIS CASE came before the Court for a Non-Jury Trial on April 19, 2007.
Defendant, charged with possession of less than 20 grams of marijuana, representedhimself; the State was represented by Seth A. Kolton, Assistant State Attorney.
The Court took testimony from two police officers. Defendant testified in his own
defense.
The prosecution of marijuana cases continues to be a significant component of the war on drugs. For example, FBI statistics showed that the total number of arrests for marijuana offenses was higher in 1997 than in any prior year in this nation’s history. In that year alone, state and local law enforcement agencies reported 695,201 marijuana arrests, of which 87 percent were for possession only.
In his judicial indictment of the war on drugs, Judge James Gray citing this statistic, remarked as follows:
“Simple arithmetic yields the staggering statistic that someone is arrested for a marijuana offense somewhere in the United States every forty five seconds.”1
More recently, the New York Times estimated that marijuana arrests have reached three quarters of a million annually.
According, to the National Household Survey, about 18 million Americans used
marijuana at least once in 1997, and more than 71 million had used marijuana at some time in their lives.
The war on drugs has clearly been a bipartisan effort. Although President Clinton was the first President to admit having put a joint in his mouth, marijuana arrests continued to increase during his administration.
Nor have the events of September 11th, 2001, and the subsequent war on terror
diverted law enforcement resources away from the search for marijuana. As Judge Gray notes, it was Attorney General Ashcroft in the post 911 era who proudly announced the success of “Operation Pipe Dream,” a nationwide roundup of bong and roach clip manufacturers.
Oddly enough, Judge Gray reminds us that the first American law about marijuana, passed by the Virginia Assembly in 1619, required every household to grow it as hemp was considered a valuable commodity.
Notwithstanding the widespread use of marijuana, and the resulting arrests and
prosecutions, trials in misdemeanor marijuana cases are rare in Palm Beach County. In most cases, the accused is found in actual possession and the litigation, if any, in these cases centers on search and seizure issues rather than the issue of guilt or innocence.
The rarity of trials is also a product of the state’s lenient plea offers, most often involving court cost assessments, or deferred prosecution agreements that permit offenders to avoid an adjudication of guilt, thereby avoiding a mandatory two year driver’s license revocation which is triggered by a conviction for possession of any quantity of marijuana, no matter
how small.
Against this backdrop, we turn to the events of this case and examine the war on
drugs closer to home.
At about one o’clock in the morning on January 23, 2007, two deputy sheriffs were in a marked vehicle on Australian Avenue in West Palm Beach. It should be noted that these deputies are and were assigned to the “Violent Crimes Task Force.” From their testimony it is apparent that their main responsibility is “aggressive traffic enforcement” that can lead to the discovery of weapons, outstanding warrants, and contraband drugs.
There is no question that the officers appear to be honest and zealous in their
mission to take drugs off our streets. It is also apparent that their mind set appears to be that even minor traffic infractions are likely to lead to the discovery of narcotics. Australian Avenue is apparently perceived as part of the war zone, at least in the early morning hours.
At the same time, the Defendant, Mr. Bertram Williams, is driving down Australian Avenue in the area of 15th Street. He is a black male and is pulled over for a tag light violation. Although the legality of the stop in this case is not at issue, this judge, for sixteen years, in his courtroom has been haunted by the image of African American motorists being detained by police officers for minor equipment violations.3
Mr. Williams, it turns out, has worked as a sky cap for the past 17½ years at Palm Beach International Airport. He is well mannered and soft spoken.
The officers approach Defendant’s vehicle cautiously - one deputy on the driver’s side; one deputy on the passenger side. Defendant cooperates and produces a valid driver’s license. Allegedly, the officers detect an odor of marijuana emanating from the vehicle (an allegation that is omitted from the probable cause affidavit filed in this case).
The Defendant cooperates as he is frisked for weapons. He has no weapons or
contraband on his person. Asked for consent to search the vehicle, he gives it with no hesitation.
The police find marijuana in the vehicle. Defendant adamantly denies knowledge of it to the deputies at the scene.
The testimony is undisputed that Defendant was driving a family member’s vehicle, that Defendant did not smell from marijuana; nor did he exhibit any signs of being under
the influence of marijuana or anything else.
There is no evidence that any of the marijuana was warm to the touch or recently consumed.
Defendant testified rather credibly that he does not do drugs, smoke cigarettes or drink alcohol, that he coaches athletics in his spare time and wants to be a role model for his children.
Defendant had appeared in court three times prior to the trial and rejected offers to avoid an adjudication of guilt by merely paying court costs or entering the PTI Program.
In the words of the Defendant, he “was not raised to say he was guilty of something he did not do.”
As a general rule, where the state’s evidence of constructive possession is all
circumstantial, it is for the trier of fact to decide whether the evidence excludes every reasonable hypothesis of innocence. As the trier of fact in this case, the Court answers the above question in the negative. This Court believes it is reasonable to believe the marijuana butts belonged to and had been smoked by Defendant’s brother who routinely drove the vehicle. Defendant’s mere proximity to the contraband standing alone is not enough.
Undoubtedly, the officers in this case are well intentioned in their commitment to the war on drugs. However, the spectacle of two members of the Violent Crimes Task Force investigating a tag light violation warrants some scrutiny by our citizenry.
Drug prosecutions inevitably involve search and seizure issues that require courts to assess the credibility of police officers. Trial judges routinely remark to each other how amazing it is that so many drug users leave their drugs in plain view and voluntarily consent to searches that will incriminate them. More significant, however, are the comments by some experienced law enforcement officers regarding this issue. Joseph McNamara, the former police chief of both San Jose and Kansas City expressed his concern about the collateral effect of the war on drugs in a 1996 editorial comment entitled “Has the drug war created an officer liars’ club?” In this case, the Court does not find that the officers lied or misled the court in any way. However, as Chief McNamara notes, less honest officers can be easily tempted to tailor their testimony to meet legal requirements for successful drug prosecutions.
The prosecutor in this case argues that Defendant’s guilt was established when it was shown that he was driving a vehicle that smelled from marijuana. The tragic reality, however, is that notwithstanding the war on drugs, narcotics, including marijuana, are everywhere and one is not guilty of a crime merely because he or she is in a place where drugs are found. Remember, 18 million Americans used marijuana at least once in 1997.
The extent to which drugs have permeated our community was noted by the Chief Judge of Florida’s Third District court of Appeals back in 1991 when he wrote that trace amounts of cocaine may be found innocently on “almost everything in South Florida”, Jones v. State, 589 So2d 1001 (Fla. 3rd DCA 1991).
Fortunately, the appellate courts of this state have carefully scrutinized constructive possession cases. For example, it has been found that the mere presence of the odor of marijuana is not sufficient evidence of knowledge, Metzger v. State, 395 So2d 1259 (Fla. 3rd DCA 1981); that “mere proximity to contraband is not enough to establish dominion and control. Rather to prove dominion and control, the evidence must establish the defendant’s conscious and substantial possession, as distinguished from mere or superficial possession of the contraband,” Isaac v. State, 730 So2d 757 (2nd DCA 1999, at p. 758.
The State’s contention that the Defendant committed a crime because he operated a vehicle that smelled of marijuana is a dangerous argument. Applied literally, it calls for punishment for conduct that does not involve any criminal intent. And, as noted above, anyone adjudicated guilty of possessing a minor amount of marijuana loses his driving privilege for two years pursuant to Florida State law.
In publishing this verdict, the Court has included commentary that admittedly may not be relevant to the question of whether the Defendant committed a crime. This commentary should not be construed as an indictment of the officers who arrested the Defendant or the state attorney for prosecuting the case. This judge is deeply concerned about the threat that drugs pose to our society, and particularly to our children, and, therefore, appreciates the motivation and good intentions of the police and prosecutors who bring these cases to court. However, as Judge Gray so eloquently writes, “although the war on drugs makes for good politics, it makes for terrible government.”
In this one case, the Court finds the Defendant not guilty. Undoubtedly, the state
will prevail in many other marijuana cases that will come before this Court in the future if the accusation is proven. This judge is sworn to uphold the laws not to write them. The more important questions to be resolved are whether the war on drugs as it is presently being conducted is doing more harm than good and whether it is effective. Those questions can be answered only by the Legislature, not the Courts, and certainly not by this judge.
DONE AND ORDERED in West Palm Beach, Palm Beach County, Florida, this
________ day of ________________, 2007.
____________________________________
BARRY M. COHEN
County Court Judge

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

Sunday, April 29, 2007

Bush Administration: Gitmo Problems Caused By Defense Lawyers

When will they stop? Why do I ask?

As you probably know by now, there is a Justice Department proposal (i.e. Alberto Gonzales) to limit lawyers' access to Gitmo detainees. As reported by AP, the department said attorney access via the mail system has 'enabled detainees' counsel to cause unrest on the base by informing detainees about terrorist attacks. The New York City Bar calls the allegations false.

''This is an astonishing and disingenuous assertion,'' the association president, Barry M. Kamins, wrote Gonzales.

''Blaming counsel for the hunger strikes and other unrest is a continuation of a disreputable and unwarranted smear campaign against counsel,'' according to the letter.

On Thursday, American Bar Association President Karen J. Mathis criticized "arbitrary restrictions concerning the number of times and the ways that lawyers may confer with their clients in Guantánamo.''

I'm so tired of this.

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

Thursday, April 26, 2007

Willie Nelson's On The Road Again

FROM THE MIAMI HERALD:


Willie Nelson and his tour manager were spared jail time Tuesday after pleading guilty to a misdemeanor count of marijuana possession.
Nelson and tour manager David Anderson, along with Nelson's sister, Bobbie Nelson, and two drivers, were issued citations on Sept. 18 after Louisiana state troopers said they found marijuana and hallucinogenic mushrooms on the country legend's tour bus during a commercial-vehicle inspection on Interstate 10.
State District Judge Paul deMahy fined Nelson and Anderson $1,024 each and put both on probation for six months. As part of a plea agreement, the citation against Bobbie Nelson was dismissed.



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 http://www.tannebaumweiss.com/

Tuesday, April 24, 2007

Dear Clients,

1. I am your lawyer.

You have my 24 hour phone number and I ask that you use it if you have questions before you try to figure out the answer yourself.

2. No one else is your lawyer. Your bondsman, significant other, good friend, boss, "friend in New York that's a lawyer," or person you know who “has a good friend that is a lawyer,” is not your lawyer.

3. If someone listed in #2 tells you something that causes you concern, read #1.

4. Calling me.

If you call my office looking for me in the mornings, you will quickly develop an opinion that I am never in the office. I am in court at least 3 mornings a week. Unless I am in trial, I am usually in the office after 2 p.m., Try me then. If you leave me a message on my cell phone voice mail, I will receive it. If you leave a message at the office, it will be sent to me immediately. This information is provided to avoid the occasional routine of calling every hour to learn whether I have received the message.

5. Me calling you.

If I do not call you back right away, it is only for three reasons:

a. Your message did not require an immediate return call, or;

b. I am not able to call you back right away, or;

c. I am on vacation and your message did not require an immediate return call.

6. Vacation? Aren’t you going to be in town every day during the pendency of my case?

No. I can assure you though that during any vacation there will be no hearings, depositions, trials, or any other significant developments in your case that will require my presence. You should consider a vacation as well.

7. Just because a certain result happened in your friend’s case, does not mean it will happen in your case. Even if you tell me 6 times.

8. There won’t always be something going on in your case.

Many times I receive messages from clients saying “What’s going on in my case?” Sometimes we are just in a waiting period. Waiting to receive evidence, waiting to take a deposition, or waiting for court. If you want your case over immediately, go plea guilty now.

9. I will never forget that you are my client and that you have a pending case.

I am not a part of a large law firm, and I do not have hundreds of clients at any one time. My goal is for you to think you are my only client, but you are not. If you cannot understand that I have to meet with other clients and do work on their cases as well, go to law school and be your own lawyer. You can spend all the time with yourself you wish.

10. There is one rule to follow that will relieve your anxiety.

Everything will take longer than expected.

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

Saturday, April 21, 2007

Gonzales & Nifong, Attorneys At Law

Attorney General Alberto Gonzales cannot remember, (known in congressional hearings as "I can't recall") the fact that he was intimately involved in the firing of 8 U.S. Attorneys.

Mike Nifong at least understands that he used the power of his office to prosecute innocent people. He says he's "sorry."

They are both "sorry."

Everyday I hear "that's what makes lawyers look bad." Sometimes that comment is made when lawyers actually do things that make lawyers look bad, like lie (see above), and, cheat (see above). Many times its made when lawyers do things they are supposed to do, like obtain not guilty verdicts or large monetary settlements.

Now we have two lawyers, the highest officer of the Department of Justice, and an elected District Attorney, that are the best evidence of what makes lawyers look bad.

Alberto, you're not being honest, we all know it, I hope next Saturday I'm writing about your resignation.


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