Solo Criminal Defense Out of Law School, And Other Dumb Ass Ideas

Been gone for 10 days. Anyone notice? Actually got some work done. Stepping away from daily blogging gives me a great deal of respect for people who do it everyday as a matter of course.

Now that the shock of Madoff remaining in jail has worn off (yawn), I report this question on twitter that struck fear in all competent criminal defense lawyers around the country, or the blawgosphere, if we're being honest.


"Is it normal for someone who just graduated law school and passed the bar to practice solo criminal defense and still live with his parents?"

My response: "anyone who just passed the bar shouldn't be doing solo criminal defense, can't speak for living with parents."

To those in criminal defense, and others practicing law, I'm right. To those outside the legal profession, I'm just stifling competition, fearing my client base dwindling, and trying to keep the criminal bar from growing.

There has always been a perception that criminal defense is "easy." We don't produce mounds of paper like civil lawyers (a notion that is correct for those who have never handled a white-collar case), in many states there are no depositions in criminal cases (reading some civil depos lately makes me wonder why they don't ban depos there. Thirty-five pages of "objection to the form" seems a bit wasteful), and most of the cases resolve with a guilty plea in court shortly after the initial appearance or arraignment.

I'll never forget one of my first encounters with a civil lawyer in a criminal case. I was deposing the victim of a DUI accident. During a break he said "so what do you do, just go to court and plead these cases out?" "No, I take depos, prepare motions, fight them until I get a good offer or the jury comes back." I remember the look on his face was as if I asked him the square root of 48905.

When I talk to young lawyers who say "maybe I'll do criminal defense," I often hear "yeah, I'll just take misdemeanors and minor ("minor") felonies."

What they intend to do is go to court one time, get the state's first offer, and convince the client that they should take it. What a great lawyer. When they realize that some clients understand that jail is probably not an option, that same young hungry lawyer tells them that jail is a "possibility." I tell those same clients that jail is a "possibility" like the possibility of death from a tooth extraction.

I have a title for these lawyers.

"Paraders."

They have manila files, with the fee written on the inside cover. Sometimes the payments made are listed, and maybe a cell number for the client. There may be a paper of two stuck in there as well. Their fees, minuscule, commiserate with the time they put into the case.

In the last 2 weeks, 3 clients have called me to see if I could reopen their cases, misdemeanor and felony. I can't. I expect more to come.

I believe to practice criminal defense a newly minted law student should be required to do one of three things: be a prosecutor, be a public defender, "clerk" with a practicing criminal defense lawyer who's been practicing criminal defense at least five years.

That though, is a pipe dream. Clients are entitled to the lawyer of their choice, and if they want it to be someone who's ink on their law degree is not dry yet, they can have that lawyer.

And yes, I know, across the country prosecutor and public defender offices have hiring freezes. So go find a criminal lawyer to work with. They're not hiring either, or you just think you're worth $100,000?

Over the next few months, I expect more laid off civil lawyers and newly minted lawyers to walk into criminal court, where it's "easy." I expect them to get lots and lots of clients who don't know any better and are attracted by the notion of a criminal defense lawyer for $500.

I look forward to talking with these clients about their experiences when they come whining to me about their imminent deportation, their job loss, benefit loss, or just pure stupidity, all assisted by a lawyer who wasn't good enough to admit they had no idea what they were doing.

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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Mistrial: Jurors On The Internet

Although we hear time after time that a jury verdict of "guilty" means the defendant "did it," we know otherwise. Too many people have been exonerated after a guilty verdict for us to continue to believe that if 6 or 12 people decide to check the "guilty" box it means anything other than that they "believe" he did it.

We expect jurors to rely only on the evidence presented at trial, but we know that is not the case. Jurors bring with them the government cradled "common sense," and their own history. Jurors say they will be fair, that they will rely only on the evidence presented at trial, that they understand the lawyers are not on trial, and all that other good stuff.

Then they go on the internet.

A mistrial was granted in a complex federal case this week because of the internet.

Luckily, a juror brought it to the judge's attention.

This juror advised that another juror talked about evidence not presented at trial. He said he knew more about the case. He said he read about it, on the internet.

The offending juror said it wasn't true, and then under the eye of the federal judge, admitted the truth.

This led to the other jurors being questioned.

Many others admitted they searched the internet about the case, and the lawyers.

They did this during the trial, and during deliberations.

This is one trial. I imagine it goes on in hundreds across the country.

This issue brings to light questions about what jurors really consider in their deliberations. We in the system know it is more than the evidence, we now know it's google, facebook, blogs, websites, and anything else posted on the information superhighway.

We used to tell jurors not to watch TV or read the papers. Now with those mediums going away, all that is left is where I am right now, the internet.

This issue raises more issues. With TV and newspapers, jurors were possibly tainted by the reporters view of the case, but the information was limited to whatever was said with a microphone in front of the courthouse, or column space.

Now, jurors can read comments left on blogs and newspaper sites, personal information about the lawyers and maybe the judge. The information is everywhere and accessible on cell phones while jurors are in the bathroom.

Think about this if you are a trial lawyer, what is on the internet about you? What have you written? (Oh shit). What has been written about you? Can you control it? No.

Can you control the jurors?

Probably not.

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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I Don't Live In A Small Town

Practicing criminal law in Miami, like any other big city, numbs lawyers. I realized this last week when I took a drive 2 ½ hours north to Ft. Pierce, Florida for a hearing in federal court.

I was in Green Cove Springs and Sebring, Florida, but those stories are nothing to write about except to summarize them as “home towned.” For those non-lawyers, “home towned” means being treated as if you are in fact not from the current town you are in and being made to feel that leaving soon is in your best interest.

But back to Ft. Pierce last week.

My client was scheduled for both a first appearance and change of plea. This was a so-called “Rule 20” proceeding where my client had already worked out a deal in another state and the Government agreed to let him actually take the plea here in Florida.

Federal court, being the formal setting for criminal practitioners as opposed to state court, would still require a first appearance hearing, change of plea hearing, and sentencing hearing.

First appearance was at 9:30 before the magistrate, change of plea at 1:00 before the district judge, and I’d be home for dinner after leaving Miami at 5:45 am. Long day.

Then, the day before, an unsolicited order is issued. The magistrate will do both the first appearance and the change of plea at 9:30 a.m. I may be home for a late lunch.

The day before the hearing I also receive a call from a probation officer. She let me know if I arrived a half hour early she would interview my client for his “pre-trial services report,” and asked if I’d like to do the pre-sentence investigation report interview right after the plea. Usually these are scheduled a couple weeks after the plea, and I’d have to drive back up or appear by phone.

“Absolutely,” I say.

I asked her about the judge and she gave me some important advice, mainly to be on time. In federal court you are either on time or dead. I asked her how big the calendar was, and she responded “you’re the only case.”

Next morning: destination Ft. Pierce.

I arrive at the federal courthouse, which is the size of my local neighborhood library. There’s one car in the parking lot.

My client and I meet across the street at the only place open for breakfast. A place that doubles as a local gift shop and post office. I am overdressed, and even in my specifically chosen drab brown suit, white shirt, and blue tie, garner the attention of the locals. I brought back a souvenir, the above picture taken on my Blackberry.

After toast on a paper plate and as much coffee as I was willing to grab from the machine “over there,” I head to the other corner of the block and into the federal courthouse.

I see the familiar grey pants and blue jackets holding the Motorola radios and hand over the required ID. They are asking me to stop emptying my pockets and take my “stuff” off the security machine. Apparently the fact that I am a lawyer is significant here.

I head in to the courtroom, there’s only two, and see a lady reading a book. That’s code for “court reporter.” She says hello. In comes my probation officer and we go into a room outside the courtroom and do the interview, which was more like a conversation with a smattering of laughter. She advises she will also be doing the post-plea pre-sentence investigation interview.

I walk beck in the courtroom and there’s a couple other lawyers there and a defendant in prison clothes. The clerk gets up from her chair, looks at me, smiles, and says “you must be Mr. Tannebaum.” She walks over and we chat about procedure.

In comes the prosecutor, who initially introduces herself with her first name. No formalities here. The rest of the morning she said nothing except to advise the judge that she was in agreement with me on a bond amount.

I realize there are two other matters on the calendar and that 9:30 is hopeful. That was quickly contradicted by the judge taking the bench at 9:15.

The first defendant understood about half of what he said and asked him to repeat himself, which he did, every time he was asked, without the hint of impatience.

My hearing ran like a machine, the judge even granting my client some liberal travel restrictions. The judge wasn’t chummy, overly friendly, edgy, looking for one misstep, or appearing as if he hated his job. He was a federal judge in the sense of what any lawyer on either side would want and expect in a federal judge.

After, the Marshals appeared in the courtroom to take my client 50 feet away for “processing.” I asked “how long,” and was told “about an hour or less.”

While waiting for my client, the clerk walked out of her office and asked me if everything went ok and if I needed anything. She wanted to know if it was my first time in Ft. Pierce.

Twenty minutes later, my client appeared, interrupting my chat with the probation officer and one of the court security officers about the local town, and the history of Connecticut politics. (Court security officer was a motorcycle cop in the old days up there in Bridgeport and didn’t think telling me that would be a violation of national security) We reconvened for the pre-sentence investigation interview. There were more questions, more laughter, and offers to accommodate my client in some of his obligations.

And that was it.

On my way out, I told my court security friend that I’d see him in May for sentencing. He responded: “That’s a deal.”

I’ve often wondered what it must be like to practice in a small town every day. Perks, downfalls.

To me it was just interesting. It was worth the drive.

I was treated like a lawyer, not a spoke in the wheel, at least for one day.

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's Solution To The Depression: Criminal Justice Legislation

Tuesday (March 3) marks the beginning of the 2009 legislative session.

On Floridians minds?

Jobs

Tourism

Health Care

Homeowner's Insurance

Property Taxes

Paying the next bill

Keeping their homes

Living a normal life

Not to worry, Tuesday Florida's legislature gets to work.

They know better though. All of these priorities pale in comparison to what we all really need:

More criminal justice legislation.

Our wildly popular Governor has made it clear:

"Nothing is more important than protecting the safety of Floridians."

See, here's the rub: criminal justice legislation is easy. Make a misdemeanor a felony, increase a penalty, create a new offense, give prosecutors and police more unbridled power to search, seize, arrest, file, prosecute, convict, and you get the prize - the right to stay in office. Remember that the goal in public office is not to foster change or say what people need to hear, at least in Florida, it's....public safety.

Pay no attention to the fact that the Florida Prosecuting Attorney's Association has pleaded with the legislature not to pass any legislation that creates any new offenses. They know better. John and Mary Public are not interested in any of the priorities listed above, they just want more criminal offenses. That will solve.....well.....something I guess.

Here's three examples of Florida's path to recovery:

Authorizing arrest without warrant when a law enforcement officer has probable cause to believe that individual has committed act of driving under influence or unlawfully exhibited his or her sexual organs in public, allowing state attorney investigators to give traffic tickets, and allowing security guards to detain and search individuals.

There's more. More minimum mandatories, more criminal offenses. Just another year.

Now I'm not in public office, and no, I'm not in a position to have to pacify the public, drunk on law & order. I'm on the ground, and I know that most if not every person I speak to is concerned about the economy.

Can't Florida Legislators do what they do in past years? Listen to what the prosecutors want, and do it? Just leave criminal justice be for a year?

The answer is no. The other problems, too difficult to solve, and as a result, not on the agenda. In Florida, House of Representative members run every two years. Our real problems can't be solved in a year or two. Criminal Justice can be tinkered with, and easily modified.

How is one supposed to run for election on the notion that they are working on solving big problems?

Who wants to hear that?

Anyone in Florida want to hear that?

Naaaah.

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, Remember What You Said About "Understanding Private Practice?" Remember?

As I was perusing the blawgosophere this afternoon, I ran across this typical story from my friend and stellar Houston lawyer Paul B. Kennedy.

Looks like Paul did everything he could to be courteous to a judge about a conflict, but it wasn't enough. Paul had to get his tongue lashing.

I often chuckle when at campaign cocktail parties and Investitures I hear judicial candidates and newly-elected judges wax sympathetic about the rigors of private practice.

"I understand you can't be in two places at once."

"I know you have more than one case."

"Everyone deserves a vacation."

"Just call if you're going to be late."

That's all nice to hear, and many judges stick to those promises even years after they've "been there, done that."

But it's the wearing off of common courtesy, understanding, and the reality that the power of the robe gives one the power to just give a lawyer a break when they need one.

Today I had a federal hearing at 9:15. I got out of court at 11:30. I didn't make it to my hearing in state court at noon until 12:30, but I called.

When I walked in, the judge said nothing. After finishing another matter she said, "can I call your case? Oh, and thanks for calling that you would be late."

I've heard the opposite.

"WHO'S YOUR LAWYER? YOU BETTER GET HIM ON THE PHONE AND GET HIM HERE!"

Then there's the tongue lashing about being late when after it's over you ask, "Judge, did your assistant give you the message I would be late?" There's usually some grumble or silence, like you didn't say anything.

It would be nice if all private practitioners could set up their practice to handle one case per day. It's just not practical. None of us, well most of us, don't show up late on purpose. We show up late because we went to another court first and thought it would be quick, or we show up late because you judge, ahem, often come in just a wee bit late. It's on that day you appear 5 minutes early that we are all made to feel like louses.

There's other issues, continuances due to conflicts, vacations, kid events. The understanding varies with the numbers and names on courtroom doors.

Yes, there's lawyers who will lie for a continuance, or are chronically late, but isn't it obvious which lawyers are genuine, and which are full of shit?

And I know I'm not a judge and I can't understand the view from up there in the center, but I often wonder if you remember or ever knew the view from down here.

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



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Just Another "Your Job Must Be Exciting" Day In Criminal Defense

This is for my colleagues, who will remember their own day like this, for the law students dreaming of being a criminal defense lawyer because "it must be so cool (and it is), but mostly for me, because if I don't write this down, I will never remember it properly.

So last week I get a call about a 19 year old kid with an arrest warrant for violating his probation. Seems he reported for a couple months until he was told he needed to pay about $600. He didn't have the money, so he left Miami to go live in Tallahassee with his brother.

A few months later he learns of the warrant, and decides to tell his brother, who tells his mother, who calls a lawyer in Tallahassee, and then is comes to me.

Now normally this is how this works: the client is arrested, put on a bus in a few days and sent to jail in Miami. No bond is granted, and a hearing is held. The client can admit to the violation and try to work out an agreement with the state, or take his chances with the judge. Probation is a second chance. Violations usually result in some jail time.

I find out the the prosecutor now assigned to the case is a guy I like very much. I call him. We work out a deal where he'll extend my client's probation and add some community service hours and drug testing. He realizes my kid is just immature, is encouraged that he now has a job and is enrolling in school, and he thinks the judge, newly elected, will go along with the deal.

So I set it for court.

This is going to be great. Fee is paid, client comes in, deal will be accepted, and client will be back to Tallahassee for dinner.

Sort of.

After the judge accepts the deal and gives my client a little "talking to," the clerk announces he has another warrant, some petit theft resulting from a DVD theft at Costco.

Things are still OK. Judge says she will set aside the warrant or I can go to the misdemeanor judge and see if she will. I don't want to just set aside the warrant, I want to close that case as well.

I go see the misdemeanor judge handling the case. She's a friend, but I'm not on her calendar. Her incredibly friendly judicial assistant has the file brought into court within minutes. The prosecutor agrees to no adjudication, and just the payment of court costs.

Done.

Message received on blackberry - 2 p.m. depo cancelled.

Back at the office.

I have a client coming in from California for a hearing the next day, and a new client driving 2 hours to see me at 2:30 p.m.

At 12:45 I receive a call from the felony judge's assistant.

"Your client reported to probation."

"Great," I said.

"They're taking him into custody."

"He has another warrant for driving on a suspended license."

"The judge will be back on the bench at 2 p.m. if you want to come in and handle it."

So I call the mother, who doesn't speak English and in a frustrated tone ask her to put me on the phone with the probation officer. Of course I should be smart enough to realize the probation officer is way down the hall behind a "buzz" locked door.

She somehow gets him on the phone.

He has that "I hate talking to attorneys" tone.

But he of course has already called the police and they are there. (Yes, it's Miami, we have no real crime here......)

I ask him if he can just hold my client there until 2 when I get the warrant quashed.

In the end he becomes understanding, and says he will call the judge.

This is the best.

Judge tells him that the only way she will agree to let probation hold him is if I, yes me, I go pick him up at probation and bring him to court.

At first I'm annoyed, but then I think "what judge would do this? I've been given an opportunity to have my client not taken to jail. So I have to take a ride somewhere. Big deal. Maybe this is the creativity I speak of in criminal justice so much.

Probation officer wants me there quickly. I meet my receptionist in the lobby of my building and take my lunch from her. I'll eat it in the car.

Now this probation office is on 79th street and 27th avenue. This means nothing to those of you outside Miami, but for a visual, I've never in my entire life been to 79th street and 27th avenue.

The probation office is located in a mall where there is a traffic school, driver's license office, and coin laundry.

I was overdressed.

After waiting almost an hour until 2:20 p.m.with the half English speaking receptionist telling me "few more minutes," two probation officers walk out. One is the guy I spoke with on the phone, the other is a supervisor. They lie to me like I'm stupid. "We didn't know you were here for almost an hour."

They tell me, gotta love this, "the judge has no authority to quash a bench warrant unless she is on the bench. She cannot do it from her chambers."

Lie. Lie, lie, lie. A judge can issue orders from her bedroom, vacation, on the phone, anywhere.

You liars.

Anyway, they tell me, by the way. the cops already took him to jail.

I race to the courthouse. I enter the courtroom of the felony judge who obviously knows what happened, stops the proceedings and tells me that another judge will set aside the warrant (the actualy judge who issued the warrant)

I go to that judge's courtroom and his clerk writes up the order, gives it to the judge and hands me 3 certified copies.

It's now 3 p.m.

I go to the corrections office.

Problem.

He hasn't been booked.

I have to wait until he's booked to present this order, or "come back tomorrow."

Come back tomorrow? What are these people thinking? Leave him in jail overnight?

I'm not waiting.

I'm told to go see the corporal.

After a while of back and forth and another corrections officer joining us, both confused that an order has been issued clearing a warrant prior to booking (read: you can't get someone out who isn't in), I am advised that when he shows up at the jail, they will immediately ("immediately") release him.

A few hours later I receive a typo laden text from the kid. He's out and on his way to Tallahassee.

3:30 I get back to the office, sign up the new client, and just laugh.

So to everyone who asks "criminal defense, what's that like, must be exciting?"

Yeah, exciting.

As I've said for a long time, sometimes it's like trying to land a 747 on a short grass strip.

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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Blawg Review #199, Mark Bennett Flexes His Top Rated Blawg

After reading the Texas Tornado Mark Bennett's Blawg Review #199, I cannot even muster up a post today.

Just read 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 Free Guide For Former BigLaw Now Criminal Defense Lawyers

Over at the second best law blog in the country, Simple Justice, Scott Greenfield muses about the laid off BigLaw's coming over to slum it in the criminal courthouses of America. In short, he hits the nail on the head:

"With law firms laying off lawyers indiscriminately, and lawyers having bills to pay and mouths to feed, one can reasonably expect them to take their framed Law Review Certificates off the wall, put on some comfortable shoes and make a clean start of it in the trenches. Why? Because their options are limited.

Most will try their hand at some variation of the law they experienced in the wood paneled libraries of their former homes, but when they find that large corporations don't frequently shop for counsel in the back alleys off Main Street, they will come to realize that they need to adapt. The first adaptation will be that they will take any client who walks through the door. The second is that they will take whatever fee the client can afford. Hey, the ability to buy a cup-o-noodles is better than going hungry."

This certain move from the mahogany desk and ice bucket filled conference rooms filled also with irrelevant white shirted pale associates hoping one day to depose a witness or even talk to a client turn into a search for space (if not the home den) and trips into courtrooms to help real people (that's why you went to law school, no?) without announcing the 7 named partners when stating your appearance.

This is tough. This is like watching the guy at the gate bitching that he's supposed to be seated in first class and being told that only coach is available. People like me laugh.

So former BigLaw, here's your free guide to practicing criminal defense:

[1] We don't bill by the hour, send confirmatory letters, put 2 associates on every case, give opposing counsel ridiculous deadlines by when to respond, or threaten to "go to court."

[2] Now that 80% of you are crying, throwing up, or headed for the roof, here's some more.

[3] You have no idea what you are doing, so act like you have no idea what you are doing when you are around defense lawyers, judges, prosecutors, and especially clerks.

We experienced criminal lawyers act like this often, as it gets us more than busting in and playing the genius. Trust me, you'll figure it out soon.

[4] See those people sitting at tables drinking coffee and reading the paper?

Go sit with them, It's OK, they shower, have kids, mortgages, like good restaurants and watch TV. Talk to them. Tell them who you are and make a friend or two. We know you criticized us for years (except at cocktail parties where you said that you "respect" what we do). Say hello, buy the coffee, and cry for help. You'll get it.

[5] Watch the briefcase.

Those rolling trial bags are great. A briefcase with a few scratches is perfect. That brand new black leather thing, not so much. I have one and hardly use it, but I've been around for a while so it's OK. Yours will stick out like you do.

[6] Join the criminal defense association and show up to something.

No, the local charities for which you are a member but have never done anything won't care, your neighbors won't stop talking to you, and cops won't stalk you as you drive down the street.

[7] Unless you are going to speak negatively of BigLaw, don't bring it up.

Think of it as talking about a former boyfriend/girlfriend. "She was such a bitch" sounds much better than "Oh, I still love her so much."

[8] Understand that you have spent years doing nothing of any importance.

What you are doing now, is important. Do not take cases that are over your head. It takes about 4 words for the criminal defense bar, prosecutors, and judges to know that you are a fish out of water. So before you go into court and demand a hearing that everyone else waives and has waived for 30 years, talk to someone.

[9] Speaking of talking to someone, public defenders.

Yes, those people you said "couldn't hack it at BigLaw" or wanted an "easy government job," those public defenders. You don't need to apologize to them, although I don't discourage it. You do need to understand this: they are the most knowledgeable people in the courtroom.

When an experienced criminal defense lawyer gets a case before a judge he's never been before, the first call is to the public defender. They know the "mood" of the courtroom. I know this will be hard for you to absorb, but when you do, your life will be much easier. Talk to them, a lot. Don't bother them though, they are very busy and can smell you coming from far, far away.

[10] Get over your anti-solo practitioner bullshit.

I've spoken with 2 former BigLaws recently who are horrified at the notion of solo practice. I've heard "it's just the perception."

Listen, real people with real problems don't hire firms, they hire lawyers. Up to now, you weren't a lawyer, you were a tool in a firm. Now you're trying to be a lawyer. You go to a hospital when you're sick, or a doctor? You think you're going to a hospital, but you are actually seeing a doctor. The hospital is merely a place where the doctor practices. Get over this crap, look where it got you.

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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Dear Blake Nordstrom, As Pink Floyd Says "Leave Those Kids Alone"

February 11, 2009

Blake Nordstrom
President
Nordstrom
1700 Seventh Avenue, Suite 300
Seattle, WA 98101

Dear Blake:

If you have some intranet-type search feature, type the word "Tannebaum" and "children's shoes," and you'll see that my wife spends quite a great deal of money in your store.

It is with this background, in addition to my own frequent shopping in your store at both Dadeland and Merrick Park in Miami that I write to express serious concern over your efforts to destroy the owners of the trademark “Beckons.”

"Beckons?" Listen, I can't compete with your marketing people, but that doesn't sound as good as "John W. Nordstrom," or "Tommy Bahama," or "Facconable."

You know what happened here, the Patent and Trademark Office made a mistake, kind of like when I have my turn signal on to park in a space and someone doesn't see me and pulls into the space instead. I just go look for another space. Others commit road rage and wind up in a bad place.

Can you think of another name? I don't like what I see here, and I already don't shop at Neiman Marcus. Know why? One of my clients (I'm a criminal defense lawyer) with a little mental problem walked out of there with some shoes. The shoes were recovered immediately, but Neiman's wouldn't agree to let my client go into a diversion program. After that bullying by Neiman's, I stopped shopping there. Haven't shopped there in 5 years, and have told everyone why. I know it's cost Neiman's more than the few bucks the shoes cost. I predict the amount is in the tens of thousands.

So do me a favor, please, these people have spent $70,000 on legal fees fighting your huge corporation. Leave them be, come up with another name, and keep me and my family as customers, please?

Very truly yours,


Brian Tannebaum

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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Taking On Corrections: "They Just Think The Law Stops At Their Door"

The most important rule of practicing criminal law, a rule never taught in Criminal Procedure in law school, is to be nice to court staff.

Clerks that don't like you can conveniently forget to bring your client's file, the bailiff who thinks you're a jerk can decline to give the judge a message for you that you have to go and want to be called first, and corrections can, "oh sorry," not bring your client to court because he "didn't make the list."

In recent years, and understandably so, security has become tighter in courtrooms. A hug between family members and a defendant, passing discovery, talking to the client in custody in court, is now often a major issue, or denied. Judges have completely abdicated their right to run their courtroom to corrections, and corrections knows this.

"I'm sorry counsel, but I defer to corrections on whether crying mom can hug her sentenced-to-life-in-prison son goodbye."

So I was thrilled to see that a lawyer took a case of strip searching inmates arrested for minor offenses to a federal judge who said "nope, unconstitutional," or something to that effect.

According to this story, "More than 10,000 people arrested for minor crimes have been strip-searched at the facilities since 2003, a practice that could end up costing the counties millions of dollars, said Susan Chana Lask, a New York lawyer suing the jails.

"They just think the law stops at their doors, and they can do whatever they want," Lask said.

Oh Susan, they must love you now. Are you meeting with your clients at the jail, or is it now always "closed" or on "lock down" when you arrive?

Susan began her lawsuit over her client who was arrested while driving and had an outstanding warrant for failing to pay a court fine, even though he produced documentation to show the fine had been paid.

Documentation? What, like a receipt? Go to jail you terrorist.

He was held in the Burlington County jail for six days before being transferred to the Essex County jail, and strip searched, twice.

Here comes that canned "public safety" argument from corrections: "They said the inspection of the nude inmates was necessary to ensure they were not smuggling contraband, to identify gang members through tattoos, and to detect health issues, such as evidence of the MRSA virus."

The federal judge put it into perspective: "Thus, a hypothetical priest or minister arrested for allegedly skimming the Sunday collection would be subjected to the same degrading procedure as a gang member arrested on an allegation of drug charges."

Corrections, through their lawyer, obviously understood the ruling and responded in kind: "The county fully intends on appealing and defending the case vigorously."

Nice use of money you don't have.

Congrats Susan, or as they refer to you now, Susan "don't touch my client" Lask.

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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California's Prison Problem: Canned Talking Points

State Legislatures are a curious bunch.

States have education problems, health care problems, environment problems, budget problems, and yet it is rare to find a state legislature that does not tout "public safety" as their highest priority.

With all these problems, the hook is to create fear among the masses. We must live in fear and react by putting people in jail. This somehow helps us stupid citizens forget about everything else. I rarely see a legislator coming forward with a comprehensive plan on health care, education, or taxes, but when it comes to "public safety, it's easy. More criminal offenses, more people in prison, more talk about how they're "keeping us safe." Remember that at the end of the Bush Presidency the loudest support was "he kept us safe."

So now those liberal California federal judges have ordered that the California prison system must reduce overcrowding by as many as 55,000 inmates within three years to provide a constitutional level of medical and mental health care.

For all you angry conservatives out there, let me anger you more by linking to the New York Times Story.

Here's where the legislators cry foul (this can't be!):

"Relying on expert testimony, the court ruled that the California prison system, the nation’s largest with more than 150,000 inmates, could reduce its population by shortening sentences, diverting nonviolent felons to county programs, giving inmates good behavior credits toward early release, and reforming parole, which they said would have no adverse impact on public safety. (Shhhhhhhhh).

"The panel said that without such a plan, conditions would continue to deteriorate and inmates might regularly die of suicide or lack of proper care."

Prisoners dying and committing suicide due to overcrowding and lack of medical care? I haven't read any of the usual local fare comments on California newspaper websites, but I bet there's those "so what?" and "let them die" comments all over the websites.

And here comes the politicians to protect us:

"The California attorney general, Jerry Brown, vowed to appeal the ruling:"

“This order, the latest intrusion by the federal judiciary into California’s prison system, is a blunt instrument that does not recognize the imperatives of public safety, nor the challenges of incarcerating criminals, many of whom are deeply disturbed,” Mr. Brown said in a statement.

“The court’s tentative ruling is not constitutionally justified,” he said. “Therefore, the state will appeal directly to the U.S. Supreme Court when the final order is issued.” (i.e., be scared, they're all dangerous, even the non-violent drug offenders).

In the LA Times Story California Corrections Secretary Matt Cate: The ruling "poses a significant threat to public safety because it could prevent the state from incarcerating as many criminals as it now keeps in seven to 10 prisons."

Good job Matt, stating the obvious. Way to go.

"The court supported its argument by citing Gov. Arnold Schwarzenegger’s own support for prison reforms, which he has said would reduce the population by about 40,000 inmates." Oh Arnold, you bad, bad Republican.

By the way, not that the California Legislature cares, (the state is broke),
the court "estimated the state could save $803 million to $906 million annually if it were to reduce its prison population."

But who needs a billion dollars in this day?

This is all canned talking points. Any reform to criminal justice affects public safety. There's no new thinking, no brilliant ideas accepted or advanced by those wanting to stay in office.

Just a bunch of fear mongering to protect us from ourselves.

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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Federal Practice: Government-Please Call Again, Defense-Piss Off

After 15 years of practice, I'm not one of those lawyers who constantly bitch about the "unfairness of it all" (I just write about it).

The case law is against us, the Government is pounding on us, the politicians, unable to work on any other social issue, create more silly laws to "protect" us, or actually, protect their seat.

But lately I've noticed this trend in federal cases. Note: we bloggers tend not to write much about the bad shit in federal court for fear of, well, I don't know.

Here's 4 examples of what I entitle "Government, please call again, defense, piss off:

EXAMPLE 1

Client re-indicted.

Government CALLS magistrate judge chambers to place on calendar the new first appearance (a complete waste of time at that, but I digress).

Notice issued.

Date conflicts with oh-my-dear, out of town hearing for defense counsel.

Defense counsel CALLS magistrate judge chambers and asks to re-set it not for next month, or next year, or even next week. but for the next day.

"File a motion for continuance." (and wait).

EXAMPLE 2

Hearing set.

Government contacts defense counsel to say that hearing conflicts with another trial.

Defense and Government agree on possible new dates for hearing.

Government CALLS judge's chambers and has hearing reset.

No motion needed.

EXAMPLE 3

Government and Defense agree on date for first appearance.

Government CALLS magistrate judge chambers.

Hearing set.

Date needs to be changed.

Government and defense counsel agree on new date.

Defense counsel CALLS magistrate judge chambers.

"File a motion for continuance and (this is the best part) don't assume it's been continued until you receive an order."

EXAMPLE 4

Law Clerk (don't talk to the law clerk) e-mails all counsel to request (via return email) available AND unavailable dates for a phone conference.

Order issued for telephone conference.

Date for telephone conference conflicts with another federal trial (yes there are other federal judges and they have cases as well).

Defense counsel e-mails Law Clerk to advise that date on order FOR PHONE CONFERENCE conflicts with other federal TRIAL and can't be there.

Judge calls defense counsel and tears him a new one for contacting law clerk via e-mail about the order.

So it appears the rule is "Government, please call again, defense, piss off."

Of course I hope one of my faithful federal judge readers (yeah, that's a joke, laugh) doesn't respond "you know, you're right Brian, now everyone can file motions, no more calls."

I just wonder what is the fear of efficiency, a quick phone call? Is the assumption that we cannot be trusted that we actually spoke with the Government? Is it that we need to do much more work to get the same thing accomplished as the Government? Why do I have to write a motion, convert it to .pdf, and electronically file it instead of just making a call so someone can move a line on a calendar to another line?

There is no doubt that in federal court a lot of it is form over substance. The purposefully intimidating courtrooms, the "gotcha" every time you make a silly unintentional mistake, the filing of motions for things the Government can just call about. I was doing a Friday wrap up with a fellow defense lawyer about his ongoing federal trial and most of the conversations was about the judge yelling at the lawyers about, well, everything. There was very little about the actual case.

Those that practice in federal court know that vacations are taken by permission, schedules belong to the court, not to the lawyers, and life often takes a back seat to the proceedings.

So, like at the end of a date, my question is, "Can I call you, please?"

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



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The Prosecution Of Michael Phelps

I knew it.

The minute I saw this picture:



I said, "when's the arrest?"

Now, I'm not advocating the arrest of Michael Phelps. In fact, I think the arrest and prosecution of Michael Phelps is a great example of what's wrong with America.

One thing first. Lawyers for Michael Phelps, what were you thinking? Sorry for assuming you were thinking, but why did you allow your client to say ANYTHING?

I trust the lawyers on board Michael's team wear white shirts and rep ties and saw a courtroom last when they were sworn in to the Bar, so allow me to offer some advice: When you are presented with a photo of your client possibly committing a crime, you and your client, say nothing.

Now I know the first thought was "how do we protect Michael's endorsements and his boy scout image?" That was stupid, but I trust you all didn't think to even speak to a yucky criminal defense lawyer.

So now we have a photo and a modified confession. "I engaged in behavior which was regrettable and demonstrated bad judgment," said Phelps. The regrettable behavior and bad judgment being opening his big mouth after opening it to cover the bong.

Cue today's story that the Sheriff is contemplating criminal charges.

"Authorities will file criminal charges if the investigation determines that they are warranted, a spokesman said Tuesday."

Well that's good to know.

Here's my favorite quote: "The Richland County Sheriff's Department is making an effort to determine if Mr. Phelps broke the law. If he did, he will be charged in the same manner as anyone else. The sheriff has a responsibility to be fair, to enforce the law and to not turn a blind eye because someone is a celebrity."

I wonder what would happen if people just started sending in photos of people smoking pot in Richland County?

No, actually, I don't.

Here's the mission of the Richland County Sheriff's Office:

"It is the mission of the Richland County Sheriff's Department to improve the quality of life of the citizens of Richland County by:

Maintaining a high standard of professional accountability, reducing the fear of crime, and reducing the fear of retaliation from those persons who constitute the criminal element within the county."

So if Michael Phelps is arrested for possession of marijuana that "reduces the fear of crime or "reduces the fear of retaliation from those persons who constitute the criminal element within the county?"

No, but what the hell. Pot is bad, illegal, and as the Sheriff said "If someone breaks the law in Richland County, we have an obligation as law enforcement to investigate and to bring charges."

I hate to use legal reasoning here, but c'mon!

Have you seen the news Sheriff? Is your department, your county, facing severe budget cuts? Are the residents crying out for pot smokers to be prosecuted? It is a college town you know.

I say so what, who cares. This is the message we send? That if a photo surfaces of misdemeanor conduct (by the way "misdemeanor" means "mistake in demeanor," not "murder") and someone apologizes, we initiate an investigation and prosecute?

Move on already. America, and especially Richland County are no safer by the arrest or prosecution of Michael Phelps.

I think he will be arrested - not for the photo, but for the photo and for opening his big mouth.

Michael asked for forgiveness from the public. Unfortunately, that public probably does not include the resourceful law enforcement in Richland County South Carolina.

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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I Am Not Going To Jail Today

Yesterday around the country thousands of criminal defendants went to court. Some were found guilty, a few acquitted, some pled guilty, and one, in Broward County, Florida, died.

Jon Ross, 29, did not receive the death penalty. He drowned, and left three young children without a father.

Because of a new arrest on drug charges while out on bond, Judge Cynthia Imperato revoked his bond and ordered him into custody. Instead of taking a seat, he ran down 7 flights of stairs, out the door, into a canal, and drowned.

When I heard this, I didn't know who the judge was. My first thought was to write some sarcastic piece about what I assumed happened. I of course assumed that upon the judge hearing about he death of the escapee, the reaction would be "next case."

After 15 years of practice I am often too quick to assume that judges are cold hearted robots who only care about clearing their dockets.

As I was getting ready to write about this - this reality of emotions that sometimes accompany the factory of criminal justice - I heard it was Judge Imperato, and saw a video of the scene. There was the canal, the boats, the cops, the witnesses, and in the corner of the screen, Judge Imperato on the dock.

I know Judge Imperato. I've never appeared before her and have no pending cases in her court, but I sit on a couple Bar committees with her, and know her as a human being. When I saw her standing there, I wondered why she was there and what she was thinking as she was standing there.

Was she asked to come to the scene? Did she go voluntarily? What was going through her mind? Will this affect her rulings in the future? I think it has to.

There are those who will say this is her fault. There are those who will defend and criticize her decision. The truth is, pick up a new case while out on bond - bond revoked - tough judge or not.

The comments of course to the story in the online version of the paper are riddled with just pure stupidity. I haven't read them all, but I know those over 100 comments include happiness that the "scumbag" is dead, criticism of the judge, questions of why anyone cares, and a few about how terrible this is. I often wonder who writes these comments and whether many of these people are just looking for reaction or are just unemployed and retarded as I assume.

You may be asking, "what is the point of this post?"

I don't know.

I guess there are too few moments where we in the system, and those outside the system see raw emotion and overwhelming desperation result in the ultimate price.

I don't know if Jon Ross was trying to escape or die, but he died. He didn't want to go to jail, and he won't, ever.

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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Civil Lawyers, Come Here, Closer, Listen Up

Every so often criminal lawyers have the "joy" of interacting with a civil lawyer in the course of a criminal case.

Now look, I don't like to generalize. There are good and bad lawyers in every field, on every side. In general though, civil lawyers have a method of practice that is very different from criminal practice.

So civil lawyers, come here, closer, listen up:

[1] I went to law school too. There was nothing I read in school or in the last 15 years that mandates "confirmatory letters." I know you get .3 in billable time for writing and sending them, but I won't read them. I won't write them either. When you tell me something, I may scribble it somewhere, but that's for me. See, in criminal law if a prosecutor or defense lawyer doesn't keep their word, it gets around the courthouse in about 23 minutes. I know you come from the school of thought that every lawyer is a blood sucking not-to-be-trusted liar. That's your problem, not mine.

[2] I don't care about your schedule, just like you don't care about mine when you call and give me a deadline to call you back (followed up by a confirmatory letter) "or else."

[3] Court scares you, not me. So don't threaten me with "going to court." I love going to court. I love going to civil court where all the former criminal judges ask "are you lost Mr. Tannebaum?" "What are you doing here?" Trial? please. When we starting big guy?

[4] Cut the crap with telling me every time I ask for a courtesy that you "have to talk to my client." I don't care how "impatient" or "upset" your client is. My client may go to jail and the fact that your client wants a check isn't my priority. I'll try to help, but stop trying to make me believe that your client has to approve of you acting like a normal human being.

[5] Stop telling me you either "used to do some criminal," or "don't know anything about criminal," (with that holding-your-nose attitude). The fact is, you're not a criminal lawyer, and I'm not really interested in hearing about your distant history or lack of knowledge about what I do as if it makes you a better person.

And to those of you that don't do this stuff, call anytime. (I put that in writing for you)

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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But Won't I Look Guilty?

The second step for those non-indigent defendants post-arrest, is to one or 12 lawyer's offices. There is no question at this point that the defendant is in need of criminal defense counsel, and the only issues are money, money, can the lawyer guarantee me a win, and money.

The second step for the pre-arrest-under-investigation type is often a trip inside their mind. This is where they determine that they've done nothing wrong, don't know why there was a business card with an FBI or Secret Service logo left on their doorstep, and that they will "handle this."

After Mr. pre-arrest talks to too many people about this (which is any person other than their wife or priest) someone convinces him to speak to a criminal defense lawyer.

He does so reluctantly.

He calls the office and will not tell the receptionist or the lawyer's assistant, anything. Not even his last name. They of course, are not to be trusted. They have never received a call like this.

The annoyed criminal defense lawyer takes the call with no knowledge of the facts leading up to the call. Does the lawyer represent a co-defendant? Is the lawyer otherwise conflicted out? Is the potential client a lunatic?

The conversation ensues. Answers are more opinion than fact, and generally not helpful.

This potential client may make an appointment, but whether it is there or on the initial phone call (which is getting more difficult to take as the client is now whispering from the empty office outside the conference room in which he was just meeting), the question is asked:

"But won't I look guilty if I hire you?"

That's not the full question, really. The full question is:

"I think I've done nothing wrong and I don't want anyone else to think I think I've done something wrong because if I appear to think I've done something wrong then others will assume I've done something wrong, and that's just wrong."

But to your question: "But won't I look guilty if I hire you?"

The answer is:

You already do, look guilty."

You may not look guilty to the general public because they don't yet know about the investigation. You may not look guilty to your co-workers, friends, or family because you've told them every time you've seen them or spoken to them since "the visit" or receipt of the subpoena that you are "innocent."

But you do look guilty.

You look guilty to law enforcement, the people investigating you. To them, you either look guilty, or are guilty.

They are the people that matter.

Everyone else will make up their own mind whether you hire criminal defense counsel, or continue trying to game the system with your stupidity.

There will always be a perception of guilt for someone who claims innocence and hires a criminal defense lawyer.

There will also be a perception of sickness for someone who claims to feel OK, but goes to see a doctor.

Me, when a potential client under investigation asks "but won't I look guilty if I hire you," I say, "you already do, otherwise you wouldn't be here."

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



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I Think Blagojevich May Be Getting Screwed, Somewhat

Never want to kick a man when he's down, but there is something hysterical about a politician calling a press conference to announce that the system under which he is being prosecuted is unfair.

Now Illinois Governor Rod Blagojevich is not complaining about the criminal justice system (yet), he's complaining, loudly, about the administrative rules governing his impeachment. He wants the legislature to change the procedural rules so that he can call as witnesses everyone except Jesus, Moses, and Britney Spears (I think). He is doing the classic "I'm going to drag everyone who ever spoke to me into this and embarrass as many people as I can until either the system apologizes to me or I have a nervous breakdown."

So I read the rules.

Blago says he can't challenge the evidence.

Rule 8(b) The House Prosecutor or the Governor or his counsel may object to the admission or exclusion of evidence. Any objection must be addressed to the Chief Justice. No objection, however, may be made against all or any part of the House impeachment record filed by the House Prosecutor with the Secretary.

Now I don't know if he's right about this, because I don't understand what this rule means. Who wrote these?

Blago also says he can't subpoena the witnesses he wants to appear. I think he's right.

Look at this crap:

Rule 15(f) "It is never in order to request a subpoena for the testimony of any person or for the production of documents or other materials from that person if the U.S. Attorney for the Northern District of Illinois has indicated that the person's testimony, or inquiry into the subject matter of that person's testimony, could compromise the U.S. Attorney's criminal investigation of Rod R. Blagojevich, as exemplified by, but not limited to, exhibits 10, 24, and 30 of the House impeachment record, unless the U.S. Attorney subsequently indicates otherwise.

So the U.S. Attorney has to bless Blago's right to call a witness? No question that requires the impeachment be stayed pending the outcome of the criminal trial.

What fascinates me is that these rules were drafted specifically for the Blago impeachment trial. Read them. These are not rules of procedure for impeachment, these are rules governing the impeachment of Blago.

The problem is that Blago has no friends, and now, no lawyers. His criminal lawyer resigned because he can't control Blago and his big mouth.

Blago's biggest problem? His message gets lost in the messenger.

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



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What Obama Should But Won't Do For Criminal Justice

[1] Create a policy, like a real policy regarding immigrants and crime.

Recently a friend was deported. He was convicted in federal court over 20 years ago. Back then, people were released without detainers. My friend started his life, went to school, started a business, lived under his real name, got credit cards, married, and a couple weeks ago at 6:30 a.m. ICE came and took him into custody.

In law we have something called "laches." In simple terms, if a party doesn't execute a right within a reasonable period of time, that right expires.

There's a difference between hiding out, hoping not to get caught, and just living your life while the government ignores you.

We need to have a policy that isn't just, "get 'em all out of here."

[2] Encourage Congress to roll back or remove all minimum mandatory sentences, except for life in prison for murder.

I know, this is the "liberal" in me. Minimum mandatories were invented for one reason, disrespect for judges. We no longer let judges be judges. We have politicians, many who have never entered a criminal courtroom (yet) determine sentencing schemes. We throw out numbers like 10, 15, 20, 30. We are ridiculous.

[3] Stop the lip service about drug addiction.

We yawn when we hear how many people are in prison for drug use. We ignore the economic issues related to filling up our courtrooms with cases of marijuana and possession of small amounts of cocaine.

I know, drugs are bad. Drugs kill our kids. But I'm not talking about the traffickers. I'm talking about the users. Stop acting like there's not a difference.

[4] Tell DOJ that the prosecution of criminal defense lawyers by use of expansive theories of laws meant for drug dealers is over.

I don't need to get into that issue too much. Just Google "Ben Kuehne."

[5] Host a conference entitled "What We Prosecute In Federal Court."

There's a lot of garbage in there these days. Let's get it out in the open.

[6] Appoint more federal judges that have real experience as lawyers.

I can't remember the last time a stellar federal prosecutor or criminal defense lawyer became a federal judge. Sure, those that started their career as assistant U.S. attorneys, 20 years ago, get appointed and have to leave their silk-stocking BigLaw job, but what about plucking judges out of the U.S. Attorney's office or Federal Defender's Office, or private criminal defense practice?

None of this will happen, but as we are all into this thing about "hope," this is mine.

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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Hey Martin, Happy Birthday! From the White House And The Big House

There was a heightened buzz about the prison population when the stats came out that over 2 million people were in American prisons.

Then I think American Idol came on a few hours later, and led us into the evening news of lottery numbers and tomorrow's weather. I think there was a small warehouse fire that night as well that made the top stories.

So anyway, about 10.4% of the entire African-American male population in the United States aged 25 to 29 is incarcerated. Hispanic men make up 2.4% and 1.2%, white men.

According to a report by the Justice Policy Institute in 2002, the number of black men in prison has grown to five times the rate it was twenty years ago.

Today, more African-American men are in jail than in college.

In 2000 there were 791,600 black men in prison and 603,032 enrolled in college. In 1980, there were 143,000 black men in prison and 463,700 enrolled in college.

MSNBC.com reported in 2006 that "about 16 percent of black men in their twenties who were not college students were either in jail or in prison. African Americans are seven times more likely to go to prison or jail than whites. Almost 60 percent of black male high school dropouts in their early thirties have spent time in prison. The percentage of young jobless black men continues to increase, part of a trend that generally hasn't abated in decades. In 2000, about 65 percent of black male high-school dropouts had no jobs, either because they couldn't find work or because they were in jail. By 2004, the studies found that number had grown to 72 percent. The numbers for young black men were higher than for whites and Hispanics similarly affected.

A study of nearly 1,500 private employers in New York City, found that black job applicants with no criminal records weren't any more likely to get a job than white applicants who were just out of prison.

So today we bar-b-que, we stay home, we "take the day off." We "celebrate" the birthday of a man who said this:

"But one hundred years later, the Negro still is not free. One hundred years later, the life of the Negro is still sadly crippled by the manacles of segregation and the chains of discrimination. One hundred years later, the Negro lives on a lonely island of poverty in the midst of a vast ocean of material prosperity. One hundred years later, the Negro is still languished in the corners of American society and finds himself an exile in his own land. And so we've come here today to dramatize a shameful condition.'

Well, we don't have segregation anymore, not legal segregation anyway. But we have a problem. Things are getting worse, and other than lip-service, we really don't care, do we?

As a great friend told me years ago, "racism is economic." I understand that. It's not just being "scared" of or "not liking" black people. It's taking that fear and dislike and turning it into a lack of desire to integrate. When we take our fears or dislikes of people and translate them into economic hardship, it kills our society.

This is the response to those that say more black people are in prison because they commit more crime.

People commit crime for various reasons, but one is that they have to. You can make all the arguments you want, but when a young black man can't get a job and needs to eat, he will find a way to eat. If that way is stealing, robbing, selling drugs, or even killing, he, like whites and hispanics, will eat.

You say blacks should "get a job like everyone else." Are you hiring black people, or do you expect "us" to do it?

The face of America will change tomorrow with the Inauguration of the first African-American President. I hope this change trickles down to the neighborhoods of American and into the hearts and minds of all Americans.

We need to stop ignoring our growing prison population, our willingness to accept the hoards of black men shackled and taken before judges each morning. It is a disgrace, it is economic based, and it is "our" responsibility to grow up and not only usher a black man into the White House, but into our house, or business.

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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Message to Prosecutors: We Can Advise Clients. Really We Can

Over at the 2nd best criminal defense blog in the country, Simple Justice, Scott Greenfield brings us this story about yet another lawyer indicted for, uh, being a lawyer.

So here's what happened: Lawyer was hired by some nurses. The nurses were made some empty promises in order to get them to come to the United States to work for a company named SentosaCare.

Working conditions were abusive and the lawyer advised them to quit.

Let me say that again; "the lawyer advised them to quit."

He didn't advise them to kill people, traffic in drugs, steal things, assault people, break into homes, tie up people and pistol whip them. He advised them they should quit.

The nurses waited until the end of their shift when other nurses arrived, and they left.

The theory, with a capital "T," was that the lawyer caused the nurses to leave patients without care. It wasn't true, but I digress. The trial judge denied the motion to dismiss, and the appellate court, apparently more interested in the role of attorneys, said :

"We cannot conclude that an attorney who advises a client to take an action that he or she, in good faith, believes to be legal, loses the protection of the First Amendment if his or her advice is later determined to be incorrect,"


"Indeed, it would eviscerate the right to give and receive legal counsel with respect to potential criminal liability if an attorney could be charged with conspiracy and solicitation whenever a District Attorney disagreed with that advice," the panel said.

It continues:

"The potential impact of allowing an attorney to be prosecuted in circumstances such as those presented here are profoundly disturbing," concluded Eng, adding that the prosecution of any matter potentially involving the disclosure of confidential attorney-client confidences as a defense "is an assault on the adversarial system of justice."

Congratulations to lawyer Oscar Michelen for his wonderful work in this case.

Scott sums it up:

"In the scheme of prosecutorial abuse of authority in an effort to chill an attorney's ability to advise clients to take action against governmental or powerful corporate interests, this decision is huge. In exceptionally strong language, it makes clear that lawyers are protected from prosecution for providing good faith legal advice to clients, and that overreaching prosecutors cannot punish lawyers because they disagree with the advice."

This correct application of the law makes me think of my friend Ben, and his case. In Ben's case, prosecutors allege that Ben gave legal advice that was not the advice they would have given.

I have thought long and hard about the prosecution of lawyers, and I'm not talking about the prosecution of a lawyer for DUI, possession of drugs, taking drugs into the jails, tax evasion, or theft. I'm talking about arresting particularly criminal defense lawyers for doing their job. It's happening. It's denied, but it's happening.

It's disgraceful, but it won't stop. There is an arm of the prosecution in this country that figuratively and literally pops a cork when a criminal lawyer is indicted, I've seen it.

The word to young lawyers today going into criminal defense is not "defend your clients well," or "have fun, it's a great practice." The advice is first, "be careful."

It is unfortunately not always anymore the people sitting next to us that we have to be so careful of, as much as the people across the courtroom at the other podium.

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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