Florida's New Clemency Rules Cause People To Say Stupid Things

The story goes like this: Florida was a state that didn't have automatic restoration of civil rights after a criminal was released from his sentence. Our former governor changed that. Then, one day, there was a cabinet meeting where at the very end, our new attorney general, under our new right-wing governor, simply asked why felons were having their rights restored automatically? Just like thiat, we got these new rules.

It's easy to understand why having a bunch of released prisoners without civil rights and awaiting a hearing became a problem. Florida likes to convict and sentence people to prison. Most of these people eventually are released. This is because most people are not sentenced to life in prison for things like drug possession, grand theft and other non-rape, robbery, murder type of crimes (although that may change if we keep going down this road).

When people are released, employers like to know that their "civil rights have been restored." This includes the right to vote (usually Democrat), the right to hold office, serve on a jury, etc... No civil rights, less chances of getting hired or even getting a professional license. (The new rules don't make it harder to get a professional license).

So now it's been several months since the new leaders in Florida decided we were all better off with felons waiting for hearings to restore their civil rights.

Here's the results according to the Miami Herald:

89,833 people are waiting to have their civil rights restored.

The wait is seven years for a clemency hearing. A huge backlog of pending cases means it likely will take much longer for felons to regain the right to vote, serve on a jury or run for office.

Here's where the "stupid things people say" I mentioned in the title comes in to play:

But a new report by the Florida Parole Commission shows that a released felon in Florida whose civil rights are restored is much less likely to commit a new crime than others in the overall prison population.

The report was quietly delivered to officials a few weeks ago and has not been discussed publicly.

So let's discuss it.

The agency studied 31,000 cases over a two-year period in 2009 and 2010 and found that about 11 percent of people whose civil rights were restored ended up back in custody. (note: that means 89% don't, but we don't mention that if we're elected officials).

And then of course the ACLU has to jump in and make total sense:

“This shows that the more you integrate people back into society, the more you’re going to reduce crime, save money and make the state safer,” said Howard Simon of the American Civil Liberties Union, which strongly protested the new waiting periods for clemency hearings.

But our attorney general, sees it, well, differently:

Bondi said the report shows that making it harder for ex-felons to regain their civil rights was the correct decision.

It does?

Where?

Actually, no it doesn't.

It shows that people who have their rights restored are much, much less likely to re-offend. It's the notion of having their civil rights restored, not the wait.

Unfortunately, Floridians will not rise up and demand a return to the old/fairly new system. While we continue to create a permanent underclass in Florida and around the world, saving money, helping people who want to live crime-free lives, get jobs, is not something that excites us or even causes us to write a letter or make a call.

The list of those waiting for civil rights restoration will continue to grow. The process is now meaningless and too far removed from release to matter. Civil rights restoration is nothing more than a token decision that will be made much too late to affect a newly released job-seeker.

We all pay for this, daily. We pay each time a resident of our state cannot get a job. Crime is just as much a part of our economy as business. This is why when the business community stands up and demands change, it will happen.

For now, it's just he ACLU and a few criminal defense lawyers.

Like trees falling in a forrest.

Non-anonymous comments welcome.Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer. Post to Twitter

Taking That Case In Norway

Until you've had it, it's the dream of every criminal defense lawyer - to get that case. The big one. The one everyone is talking about. That client - the famous one, the one everyone will be watching.

But not the one everyone hates. That's the one we don't take. The one we shy away from because we may look bad, we may get angry calls, and in today's world of marketing ourselves to death - it may affect our "brand."

Consequently, it is only the criminal defense lawyer that finds themselves in this dilemma - having to put oath of attorney above marketing and perception - having to defend the hated, despised, loathed, because it's the obligation of the profession we've chosen. We do this while other practitioners either applaud, or condemn us.

Talking Points Memo describes the events leading up to the call:

After massacring at least 76 people, most of them young members of the Norwegian Labor Party, right-wing zealot Anders Behring Breivik had a request: to be defended by Oslo lawyer Geir Lippestad.

Those following this horrific case closely know that the massacre took place at a Labor Party Youth Camp, Breivik having his issues with the Labor Party.

The story continues to the old "would a Jew defend a Nazi," or "would a African-American defend a member of the KKK,:" Breivik apparently did not know another biographical detail of his lawyer -- Lippestad is himself a member of Labor, the party whose policies of racial tolerance and multiculturalism the killer loathes.

Lippestad, a well known criminal defense lawyer in Norway, simply responded: "Someone has to do this job."

Lippestad went on to describe his thoughts and discussions leading up to his accepting the case:

"My first reaction was that this was too difficult," he said. "But then I sat down with family, friends and colleagues and we said that today is the time to think about democracy, and if I said no to this job, then I would say no to democracy.

Most of us criminal defense lawyers in America wonder what the system is like around the world. We wonder if being a criminal defense lawyer is the same in countries where they don't have a "Bill of Rights." We ask whether other countries have a Fifth Amendment. We wonder whether there are times when a lawyer has to take on a hated defendant.

Geir Lippestad didn't have to take this case. He knew that. He could of said no to the man who is currently the most hated man in the world. His agreement to represent this monster was not for the benefit of the client, but for the benefit of democracy.

Most of us will never be in this position - the thought of having to take on a case like this - to even have to consider it, scares us. We toil in "garden variety" cases and find meaning in paying the bills and getting an occasional dismissal or acquittal.

These are the moments that create lawyers. These are the moments that make websites, direct mail, and your LinkedIn account look meaningless (because they are).

I salute Geir Lippestad. I wouldn't want to be him, but I salute him.

Do you?

Non-anonymous comments welcome.Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer. Post to Twitter

Casey Anthony: Epilogue

This will be it, nothing more to write.

Four years for four misdemeanor counts of lying to police? The proper sentence, in this case (assuming the double jeopardy argument doesn't apply to the four counts for one long interview). I don't know Judge Perry well, but what I do know about him tells me that he didn't give Casey Anthony four years because she was acquitted, he gave her four years because he thought she deserved four years.

Caylee's law? Go ahead, change the law, make yourself happy. Make it a felony. Question though: If Casey Anthony was convicted and sentenced to death plus four years for lying, would anyone care? Would anyone notice?

Caylee's law isn't about Caylee, it's about Casey.

Casey Anthony will have a miserable life. Stalked everywhere, turned away from most places, yelled at, screamed at, and have things thrown at her. I know you don't care, I'm just making a statement (since you all care so much about Amendment One, and none of the others).

Jose Baez, he won a case most lawyers will never try. He did it after only being a lawyer a few years. You're envious, jealous, angry, hateful.

He doesn't care.

He won, regardless of what you think.

For the lawyers and former judges on TV saying the jury "didn't understand reasonable doubt?" You disgust me.

To all those asking what I think of the verdict? I think a jury of 12 people agreed the state didn't prove the case, and when 12 people can read instructions and evaluate evidence and come to a unanimous decision, I am happy that the Constitution is still a part of our system, no matter how many politicians and self hating lawyers try to tear it down.

I'm sorry a little girl is dead. I have two myself.

But I never want the Constitution and our criminal justice system to take a back seat to those who believe the burden of proof is just a technicality.

Non-anonymous comments welcome.Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer. Post to Twitter

The Embarrassment Of The Casey Anthony Verdict

The decision would be a foregone conclusion.

Everyone knew Casey Anthony killed her daughter. They never once criticized the prosecutors. Defense lawyer Jose Baez was a punching bag for his colleagues, his "brothers of the bar" in Orlando, and the public who enjoyed trashing him hourly - and with 3 years experience, was merely comedic relief for "legal experts" on cable news shows whose last murder trial was, well, let's move on.

I don't know what happened to 2-year old Caylee Anthony. Neither do you.

Neither do you.

But according to you, the case was solid. Casey was a lying slut, she lied to the cops, a few people opined on whether her trunk had a dead body in it, and well, a child was dead, so there we have it. The fact that there was no murder weapon, no cause of death, no witnesses, and a bunch of other "no," didn't matter. Cable news and social media addicts had no doubt, and all that was left was 12 people to agree with the majority of twitter, Facebook, and the zombie audience of Nancy Grace.

And like all of our best laid plans, it just didn't work out.

The jury of 12 unanimously rejected that the state proved Casey Anthony killed her daughter.

CNN calls this a "stunning" conclusion. Why?

Because the public knew she was guilty.

People are "disgusted," "sick," shocked that their demands that "the verdict better be guilty" were not met. Even lawyers, officers of the court, are showing disrespect for the system for which they are a part.

According to those not on the jury, if they were on the jury, the vote would have been 11-1, apparently.

This same jury that would have been applauded upon the return of a guilty verdict, is now a "bunch of uneducated" "morons" who "couldn't get it right."

The media is almost speechless. Almost, because the legal commentators are now stepping all over themselves to backtrack on their disgraceful commentary during the case and try to claim they are oh-so-pleased that the Constitution worked today. The media is on the verge of tears that the jury won't speak to them. I wonder which reporter is falling over which reporter to get Jose Baez' interview now?

I hope someone will compile all the comments of the media throughout the case so that we can all watch the summary, and make it a required lesson in every journalism school in America.

For the media now doing the typical questioning of their behavior during the trial, save it. You made your bed, you lost your bet that there would be a death sentence, and questioning yourself is the definition of hypocrisy.

As for the public's "disgust," and whiny disastrous attempts at complete sentences on social media - I can't help you understand the system of American justice. You don't care. You want what you want, damn the Constitution and jury instructions. All I can say about you is that I will argue for your right to act like complete morons and I will argue for a criminal defendant's right to a fair trial, which includes the obligation of the state to prove each and every element of the charge(s) beyond and to the exclusion of a reasonable doubt.

The embarrassment of the Casey Anthony verdict is not the verdict, it's everything surrounding it.

Non-anonymous comments welcome.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer. Post to Twitter

Lessons From Casey: The Silent Lawyers

The main lesson from the Casey Anthony case is how little the public knows about the criminal justice system.

Who's to blame?

Lawyers.

When's the last time we went to a Rotary Club lunch to explain due process? When's the last time we asked to go to career day to explain to kids the meaning of the Sixth Amendment?

Sure, there are people in society that have their own opinion of the system and could care less if it's Tuesday and someone tried to convince them it's Tuesday, but we as lawyers take little time to educate the masses.

In fact, the only lawyers I see these days are those on TV kissing ass to their host and abdicating their responsibility to maybe take the other side and explain the way things really work.

As the Casey Anthony case comes to an end - the lessons for lawyers, for anyone who works in the criminal justice system, are several:

[1] Trials are like football games. Fans decide who they are rooting for and if a penalty is called against their team, it's bogus. In fact, any moment which shows the weakness of their "team," is discarded as irrelevant and a cheap shot by the other team.

[2] Speed is important. Stopping proceedings to deal with legal issues is not good for ratings. Better to raise those issues on appeal, and have the appellate court reverse the conviction and order a new trial. While the public will complain, it will give them another opportunity to watch a "dramatic" trial.

[3] Accuracy in media reports takes a back seat to the amount of time set aside for the report. Incorrect reporting on rules and case law is of no matter. If it sounds good, it works.

[4] Although the defendant is on trial, the trial is really about the victim, and all rulings should be in favor of the victim. That whole "defendant has a right to a fair trial" thing was written a long time ago, before the public was able to tweet.

[5] Successful commentary is that which criticizes the defense, and everything related to the defense. Take the other side, or express objectivity, and you're out.

Lawyers need to write, speak, express rational thought. Change a mind. Educate a moron.

Those of us sitting back in wonderment over the frenzy, the comments, the lawyers acting like theyre on Broadway, should remember that sitting back is part of the problem.

Non-anonymous comments welcome.Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer. Post to Twitter

An Open Letter To The Orlando Criminal Defense Bar

So, how's the courthouse coffee shop these days? Remember when you all used to sit around and talk about this judge, and that prosecutor, and whether Joe was going to win that tough case down the hall? You mused over the recent Fourth Amendment ruling and whether Judge so and so would get re-elected, having kicked a big coke case?

Now the Orlando criminal defense bar seems like the movie Cocoon. Remember? A couple guys found an energized pool that made them feel great? Then everyone jumped in the pool and sucked all the energy out of the pool, ending the magic, and killing the people who lived in the pool.

Is this that important to you? This perceived fame? This extended 15 minutes? Would it have killed you to decline to be a pimp for the cable news shows, for your local media outlets who just want to see the defendant convicted? A staple of law practice is that when someone is attacking a colleague, it's often difficult to find a local lawyer to handle the case. Not anymore. Fame, money trumps any sense of "Bar."

The public loves it, spewing love all over those lawyers who will "tell the truth," as in be on cue for criticism of the lawyer who walks the same courthouse halls on a daily basis.

And those who were lawyers involved in the case who are no longer restrained by your representation? Is this what your former clients, Casey's parents, Mark, want to hear you say about their daughter? Are the compliments from the mob-mentality public that essential to your already successful career?

The Casey Anthony trial will end. The cameras will leave, the reporters you think are your friends will move on to the next big trial in the next local community, with the next group of lawyers willing to spend their days trashing their colleagues. You won't be relevant to the broader legal system. You were used for a reason - a need for local Orlando lawyers to dump on the defense. Violins everywhere are jealous.

To the young lawyers in Orlando, the ones who look up to the more experienced around them, who strive to be great trial lawyers, and be a part of a bar that provides support, mentorship, and constructive criticism, the answer to your question is "no," this is not how local criminal defense bars should operate. Those lawyers that are more interested in fame and love from the public at the expense of those they share a wait in line at the podium with, are the exception.

Take my advice, when the Casey Anthony case is over, the lawyers you saw on TV that you should want to ask questions to, to seek advice from, to get perspective about the the practice, are those who sat at counsel table.

Non-anonymous comments welcome.Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer. Post to Twitter

A Post For Me, Don't Read It, I Don't Care. It's A Bookmark For Me

I took the last week to breathe. For the first time since 1999, I am no longer in a leadership position in the criminal defense bar. (Immediate Past President is an official position in FACDL, but my main job is to keep quiet unless asked to speak). Last Saturday night June 11th, I gave my awards, got my engraved marble Washington Monument looking momento, and said good-bye.

When I gave my (when will he sit down) good-bye remarks, I focused on the young lawyers in the room. I told them that 13 years ago I had no idea I would ever be President of FACDL.

I got involved in the governance of the criminal defense bar for no other reason but to be involved in the governance of the criminal defense bar. My small bar is no different than any other bar - there are suspicions of those who ascend into voluntary bar leadership. Few days went by where someone didn't say "why are you doing all of this?" "Are you running for judge?"

Now that I'm done, I'm asked about NACDL, and other Bar positions.

I would not trade the last 13 years. Organizational politics takes it's toll. Many times you wish you never knew the "workings" of a voluntary bar association, you wish you could be like many who show up for the beer and pizza, leave early, and complain, wondering what is being done to fix their problems.

This was never a marathon for me, a road to the top of the world. I love being a criminal defense lawyer, and I love FACDL. I've made deep, lasting, friendships. I've seen single lawyers marry and have multiple children. I've seen dear friends divorce, and listened to people confide in me their medical conditions. I've even represented a member or two in some minor dust up. I count as some of the most important people in my life those I have met in FACDL.

I have no desire to be a judge, to be President of NACDL, or anything else other than continue building my practice and re-commit myself to charitable causes in my native Miami community, including Diabetes, a disease I've had since the age of 34. We've started a Florida Association of Bar Defense Lawyers, and I'm going to work on building that organization. I'm not saying these other things won't be of interest in the future, but for now, I'm tired, I'm done, I'm satisfied.

One of the things I always hear from lawyers is "I want to get involved, but I don't have the time." You have the time. Not everyone needs to be on the board, or be President. There are committees, projects, things that take little time but can result in much growth in your career, both personally and professionally. The apathy of the criminal defense bar nationwide is to blame for much of the railroading we receive by judges and legislatures. That we concentrate more on making money than making policy, is well known.

I once stole a quote from a Bar leader which I think is prevalent here:

"Your practice is not the walk from your house to your car to the courthouse."

Non-anonymous comments welcome.Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer. Post to Twitter

What Will You Say If Casey Anthony Is Acquitted?

After my last post, where I criticized the lawyer frenzy of commentary on the Casey Anthony case, I was immediately asked if I was going to write about the case. I said no. I would not be writing about the case. I would not be picking apart the evidence, the lawyers (on either side), the judge, witnesses, or any other aspect of the case. I'm not there. I'm watching bits and pieces, and it's not my case.

I've accepted an interview once during the trial, by a reporter I know and respect, who had one question regarding whether it's common to see a certain type of evidence in a case. Easy question, and the answer wouldn't involve me pontificating about a death penalty trial 200 miles away.

In not "writing about the case" though, I do have a question: What if she's acquitted?

I'm not saying she will be, or even that it's likely, but anyone who has ever entered a courtroom knows that you can never say what a jury will do.

The hate mob surrounding the defense in this case is as big as it gets. I have read nothing negative about the prosecution. Nothing negative about the judge. This was not the case in O.J. Simpson, where both the defense and prosecution and judge were the subject of the public's scorn. In OJ, the defense had the best mob, simply because Simpson was a popular figure. Casey Anthony is hated.

So I ask, if she is acquitted, will Baez be a hero? Will it be because the jury was stupid? Will it be because the judge did something wrong? What will be the take from the anonymous commenters on newspaper websites and from lawyers who have been spending months critical of everything defense?

Will everyone have been wrong? Will the "system" be to blame?

Just a question.

Non-anonymous comments welcome.Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer. Post to Twitter

No One Would Like My Commentary On The Casey Anthony Case

This morning I began to write a post on the Casey Anthony trial. I started writing about my disgust over the media coverage. I stopped because I figured too many people would not be able to separate my thoughts about this case from what's currently going on in the Rakofsky circus.

People would ask how I could write about my opinions on the coverage of the Casey Anthony trial, my thoughts that the pounding on the defense is just disgusting, when I have been part of the commentary on the Rakofsky matter. I realized quickly that the difference is that I am a defendant in the Rakofsky case, and my commentary in his underlying case is post-trial. I'm not commenting from afar on an ongoing trial.

But I stopped. I went to work. Then, coincidentally, I got a call from the media, asking for an interview on the Casey Anthony trial. I called back too late. They found someone else. I had no doubt. Lawyers have been chomping at the bit to comment on this case. Lawyers have turned commentary into careers. I didn't want to give the interview. Was it because both defense counsel Jose Baez and Cheney Mason are friends of mine? Partially. I believe in friendship and loyalty, and I'm not going to exchange my mug on national TV for a friendship. There are those that don't believe in friendship over their own ego.

But the main reason I didn't want to give the interview? The case is ongoing. I believe in fair trials, and I believe in the sanctity of the system. I know the jury is sequestered, but leaks happen. In a society where just being a lawyer makes one a "legal expert," I choose to take a pass.

In the legal profession it has always been taboo to attack one of your own, especially in your backyard. Many an out of town lawyer has been retained to go after a local lawyer because "no one in town will take the case." In Orlando, they all hate Jose Baez - the lawyers, and the media.

Some of the "reporting" by the local Orlando media is disgraceful. No one cares about fair trials anymore, it's all about the opinions, the "bombshells," and the guessing about what a jury will believe. Few of the commentators have ever tried a death penalty case, but no one asks, nor cares.

Of course I have opinions about the case, about what I see going on in court. But this is not theatre, this is not a punching bag for the local defense bar to hit throughout the day. Have some damn dignity, let the trial go on - tell the media that you will not be a part of the frenzy. You walk the halls of the criminal justice system and using a life or death moment for your own fame is indefensible.

You want to educate the public - do that. Do not use the time or microphone and camera to play contrarian to your brother of the bar just to gain favor with the vultures of the media that have already decided that the defendant is guilty.

This is the interview I will give. Any takers?

Non-anonymous comments welcome.Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer. Post to Twitter

I'll Miss Joel

It's an odd world in which we live that people we've never met, never spoken to on the phone, become our "friends." We read their words, comment on their thoughts, engage in typing wars, and never shake hands. Yet when he hear of harm or worse, death befalling one of these "virtual" friends" we are touched in the same way as if they were a neighbor.

I don't remember when I first "met" Joel Rosenberg. I remember reading a comment here and there that he would write on various blogs I read, and he'd even chime in on my blog(s). My first impression was that Joel and I were complete opposites. He, a passionate gun advocate, and I, well I hate guns.

I assumed Joel was a wacko, nut job, idiot who was probably anti-defense, until I was quickly disabused of all of those thoughts. I learned Joel was an accomplished author, a brilliant mind, well read and passionate not only about Amendment 2, but also 4, 5, and 6.

Joel was a welcome commentator in the criminal law blogosphere, a place where well thought out comments from the citizenry is often lacking. Joel would agree, disagree, present another viewpoint, but always have an intelligent thought behind anything he argued. A rarity online.

Joel died suddenly yesterday.

I learned this today, as I was sitting in court waiting to defend a client. Joel would have been happy to know I was there.

Joel was the author of Everything You Need to Know About (Legally) Carrying a Handgun in Minnesota. He asked to include some passages from an e-book I wrote. In a profane response, I advised him that he need not seek my permission to do this, that it was my honor. But Joel didn't do things that way. He liked respect, getting, and giving it. There were laws and rules, and as he taught people to follow them, he wanted to follow them too, even if the laws revolved around copyright.

I will miss Joel, as will others.

My condolences go out to his beloved Felicia, and his daughters Judith Eleanor, and Rachel Hannah.

I leave you with what I believe sums up JDog. R.I.P. good man.



Non-anonymous comments welcome.Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer. Post to Twitter

She Was Innocent

Any criminal defense lawyer knows that the typical defense presented in a pot case is "wasn't mine." That it wasn't marijuana is a rare answer.

In Robin Brown's case, it wasn't.

Didn't matter. It was field tested. Field test said marijuana. The prosecution wanted to be sure, so they sent the sage to a lab.

They just didn't wait for the results before going to Brown's work and taking her out in handcuffs.

They arrested me in front of my customers, my boss, my co-workers,” Brown said. She later was subjected to a body cavity search, a strip search and an overnight stay in jail.

Her lawyer gets the discovery, notes the sage wasn't tested at the lab, and demands the test.

Oops.

Ullman said one apologetic prosecutor called him to say it was “scary” that someone could be arrested under such circumstances.

Our policy is to make sure the evidence is tested, at the very least, before trial,” said Ron Ishoy, spokesman for the Broward State Attorney’s Office. “Looking back now at this specific police report, it would have been the better practice to test the evidence before filing a formal charge.

But what's the harm when we don't do the "better practice?" Someone goes to jail? So what. Isn't that what we want in America, people in jail?

The surveilance and investigation were intense:

After a day of bird watching:

When Brown returned to her car, a deputy and officer with the Florida Fish and Wildlife Conservation Commission were waiting. They asked what she was doing there.

Bird-watching, she told them. When they continued to question her, she opened her backpack to show them her binoculars and bird book.

That’s when the deputy spotted her sage and the smudging bowl with burned ashes.

Three months later, she found herself in jail.

For untested suspect marijuana that wasn't even marijuana at all.

Now Brown is suing. Her case is on appeal after Circuit Judge John Bowman dismissed her case in January, saying prosecutors are given immunity from lawsuits in the course of doing their jobs.

That's correct. under Florida law prosecutors enjoy absolute immunity for acts performed within the scope of their prosecutorial duties.

Why?

The prosecutor must be free from the harassment of unfounded litigation that would deflect his energies from his public duties and undermine the independence of judgment required by his public trust. Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128(1976)

I believe Ms. Brown is out of luck. I believe the appellate court will find this to be negligence, and immune from suit the prosecutor and state attorney's office.

Because we all make mistakes, and society is willing to accept these types of mistakes.

Unless it happens to you.

Non-anonymous comments welcome.Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer. Post to Twitter

What Will John Edwards Do?

Plead Guilty.

Yeah, no long analysis or "wait till the end of the post" type stuff. He's broken, his life a tragic tale of lies and deceit. No reason to put all of that in a courtroom. He'll lose his law license, which will be the last in a series of losses for him, but he won't fight this.

Those we're happier times above. Me and John Edwards. Me thinking he was an all-American guy (even though someone I respect told me he wasn't). Me remembering his cell phone ringing and him saying it was Elizabeth. Maybe it was.

Lots of lessons.

Non-anonymous comments welcome.Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer. Post to Twitter

Not Just Another Prison Overcrowding Case

Andrew Cohen provides a great analysis of the U.S. Supreme Court's recent prison overcrowding case of Brown v. Plata, a case that may result in the release of 37,000 California prison inmates.

For those unfamiliar with prison overcrowding cases - they work like this: county jails and state prisons become overcrowded based on "tough on crime" legislation. Every so often a suit is filed and the feds order a reduction in the population. State and local governments figure out a way to release inmates while announcing that the biggest crime spree in history is about to occur. We all know of course that releasing a drug possessor 4 months early is a blight on society and will only cause murder and mayhem in the coming days.

Justice Scalia started the trumpeting of what's to come in his dissent, calling the ruling a "staggering and radical event in the annals of law."

Cohen rightly says that the ruling marks a nadir in America's persistently zealous efforts to imprison its citizens: We still lead the world in that category by far.

Cohen goes on to say that the opinion's author, Justice Kennedy finally (did) the dirty work that has long needed to be done; to hold accountable lawmakers and prison officials who have tarried for decades in providing state prisoners with a constitutionally acceptable level of care and living conditions.

With language that is surely to cause the Nancy Grace minions to say "so what," Justice Kennedy, in addition to noting the needless suffering and death, writes: As many as 200 prisoners may live in a gymnasium, monitored by as few as two or three officers. As many as 54 may share a single toilet.

Cohen pulls no punches:

Here, at last, after decades of short-sighted policy, comes the butcher's bill for the war on drugs, the state's dubious three-strikes law, and the magnetizing political pull of victims' rights groups. And it was delivered to the Golden State by the only tribunal in America with the power and the authority to speak on behalf of the nation's last lobbyless constituency -- our nation's prisoners. If this decision is a "slap in the face" to the victims of crime, as so many overheated commentators were suggesting Monday afternoon, it is not a slap delivered by the inmates themselves or even the federal judiciary. Like so much else about modern governance, we see here instead the consequences of the gulf between political promise and budgetary reality; between our short attention spans (lock 'em up, throw away the key) and life's long journey (in or out of a cell).

The article is a step by step history lesson as to how we got here. As Cohen says: Much of the extraordinary growth in the prison and jail population is attributable to a dramatic increase in prosecution and imprisonment for drug offenses. From 1980 to 1997, the number of people incarcerated for drug offenses increased by 1,100 percent. Drug convictions alone account for more than 80 percent of the total increase in the federal prison population from 1985 to 1995. In 2008, four of five drug arrests were for possession, and only one in five was for distribution; fully half of all drug arrests were for marijuana offenses.

And by the way, Cohen notes: many of the inmates in California's prisons appear to receive less care and consideration than do the terror law detainees at Guantanamo Bay, Cuba.

Cohen ends with a reminder of what our justice system is supposed to be about: Monday was a good day for the timeless proposition that our rule of law can on occasion protect even the least popular among us.

Every once in a while, after stuffing the criminal justice system with as much unfunded criminal justice legislation as will get a legislator re-elected, the rule of law chimes in. We are only occasionally reminded that if we say we have the best justice system in the world - that we must actually have it. We can't afford the system we think we want, nor can we continue to ignore the mess we've created.

Non-anonymous comments welcome.Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer. Post to Twitter

The Court Who Cried Wolf. For Real

One thing I've noticed about judges, elected prosecutors and public defenders, and everyone else in the court system, including civil lawyers, is that whenever budget cuts are discussed, we hear ad nauseam about how the cuts will "ruin" or "destroy" or "severely limit" access to courts.

I hear about firing prosecutors, courts being closed one or two days a week, clients languishing in jail due to lack of public defenders, civil litigants not being able to get hearings - but none of it ever happens.

Until now.

H/T South Florida Lawyers

Non-anonymous comments welcome.Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer. Post to Twitter

The Smell Of Marijuana, Part II

When I began my career, I didn't remember much hearing about the "smell" of marijuana. I heard a lot about young black men chronically dropping bags of cocaine in the presence of police officers, and the shock, shock I say of police officers when asked on the stand whether they coerced in any way the consent to search all of my clients. "No sir, he was very cooperative."

Then, a few years ago, I wondered if I was the only person not noticing the smell of marijuana all over the city - mostly while sitting in my car behind another car (usually a modified Honda Civic) in which the occupants were listening to loud music, but also behind the doors of homes.

Turning to the United States Supreme Court's decision yesterday regarding exigency as a exception to the warrant requirement under the Fourth Amendment, I am not shocked, surprised or otherwise in wonderment that the smell of marijuana, oh the smell, is good enough for a warrantless search of a house.

My comedic relief comes from this part of the opinion:

Officer Steven Cobb, one of the uniformed officers who approached the door, testified that the officers banged on the left apartment door "as loud as [they] could" and announced, "`This is the police'" or "`Police, police, police.'" Id., at 22-23. Cobb said that "[a]s soon as [the officers] started banging on the door," they "could hear people inside moving," and "[i]t sounded as [though] things were noises, Cobb testified, led the officers to believe that drug-related evidence was about to be destroyed.

I know - "c'mon Brian, everyone knows what the sound of destroying marijuana sounds like."

And the officer was right - the noises he heard was the sound of marijuana being destroyed:

...the officers entered the apartment, and they found three people in the front room: respondent Hollis King, respondent's girlfriend, and a guest who was smoking marijuana.

In reversing the lower court, the Kentucky Supreme Court tried to make a go of the argument that cops can't create the exigent circumstances. Specifically, that by banging on a door, the cops created a situation where the drug dealers would begin to destroy drugs. The Supremes quickly disposed of that argument.

It's a great Fourth Amendment opinion. We are reminded of the notion of cop vs. defendant with this statement:

Respondent argues that the officers "demanded" entry to the apartment, but he has not pointed to any evidence in the record that supports this assertion.

The only evidence being the banging on the door. Why would anyone think that people with guns banging on a door were demanding entrance?

The criminal defense bar knows where this case goes. We'll be hearing new and different things in drug cases. The "noises" of drugs being destroyed will become a staple of the direct examination in response to the 16th "what happened next."

The opinion never discussed what the "noises" of marijuana being destroyed sounds like.

I trust it will be defined by the totality of the circumstances.

Non-anonymous comments welcome.Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer. Post to Twitter

The End Of Anonymity

The website "skateboard city forum," (which I won't link to because some of you will leave there dumber than you are now), confirms that the childhood prank of leaving shit on someone's doorstep, ringing the doorbell, and running away is still around.



It's how I best describe the anonymous comment on a blog.

Some of my friends did away with anonymous comments long ago. My blogs don't get as many comments, and with moderation, it's been easy to delete the written words of people I am ashamed to know hold law licenses.

Whenever bloggers are critical of anonymous comments, the anonymous comment support group chimes in hysterically with all the important reasons why anonymity is essential to the continued existence of the internet. Every excuse from "I work for someone and I live every day scared of expressing an opinion," to "I am anonymous because I choose to be anonymous (read: I have the right to be anonymous and you can't take that away from me) gets repeated with just the right amount of entitlement.

While I will never understand why someone who went to law school, passed the bar, and works as an advocate is satisfied with living in fear of expressing their opinion, I no longer want to provide a place for it here.

People leave anonymous comments for only three reasons:

1. They want to criticize someone and are too scared to do it to the person's face,

2. They want to say things that aren't true without any consequences; or,

3. They fear that their opinion will have repercussions somewhere.



Whether you live in the world of 1, 2, or all three, I don't want you here. I don't want you here because for the most part, you're a lawyer, and a pathetic one at that. I don't know what you are afraid of, but you're an embarrassment to the profession, and I'd rather you embarrass yourself somewhere else, anonymously.

You want to comment here, leave your name.

If you don't, you can take your shit elsewhere.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer. Post to Twitter

"He Looked Like He Was Reaching For A Weapon." Just Say That

The more I hear about the killing of Osama Bin Laden, the more I feel like I'm listening to a press conference by the local chief on the shooting of a suspect in the dark streets of Miami at night.

But its not as succinct.

First I heard, "this was a kill mission, there was no intention of capturing him alive."

Then I heard he had a weapon.

Then I heard he didn't have a weapon.

Then I heard there were "threatening moves." Hint: we and the case law call them "furtive movements." Use "furtive." It has more meaning to someone in a robe.

Then I heard he looked like he was going for a weapon.

Then I heard he "resisted."

Then I thought - maybe we should stop explaining this, maybe we should stop trying to justify why we blew his head off. We're not doing a very good job.

My recommendation is that any government or terrorist organization or fringe group that wants to know why we killed Bin Laden, should be told to Google "world trade center airplanes September 11," and click the link to "video." Find the long video that shows people jumping out of the twin towers.

Yes, I am an anti death penalty criminal defense lawyer who believes in due process. Yes, making an exception here may make me a hypocrite.

But I've been called worse.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer. Post to Twitter

This Is How The Profession Really Works. Really.

Sixty comments. 60. I've never had 60 comments to a post. Yes, I'm talking about the last post, the one inspired by John Wait. I throttled John. He responded. He used his name, not like the growing crowd of anonymous cowardly "lawyers" posting on blogs as if they are leaving a pile of shit at someone's doorstep and running away like children. John engaged me in a discussion. Don't be surprised if we continue the conversation down the road. While he disagrees with some of what I said, and probably thinks I acted like an asshole, don't confuse that with the impossibility of beginning a relationship..

The discourse was great. The comments were a tapestry on the subject of criminal defense. Two comments near the end caught my attention (My comments appear in bold in parenthesis):

"You have a good strategy. Criminal law is a great place to learn the fundamentals (on the backs of poor defendants who don't need lawyers who are committed to criminal defense or have any experience in the field) and also to generate cash flow (because it's all about the cash flow) while you build a civil practice (and hopefully quick so you don't have to defend guilty scumbags); especially if you are building a contingency fee civil practice. This is because of the following reasons:

1. Most criminal cases are bite sized. (like m&m's). Stay away from murders and big felonies unless they can pay a big fee (if they can pay a big fee, take them and fake it. Hopefully the client won't figure out you aren't experienced. Hopefully you've created a false online presence that can convince anyone you are "experienced."). They are too much stress and usually too little money (and the practice of law should never include cases that are stressful without the requisite "big fee."). This does not apply to drug conspiracies; drug dealers have lots of money (or at least they did in 1983). Take lots of DUIs (because you can only go to jail for 6 months for DUI), small drug possessions (only 60 days in jail), domestic batteries (maybe a year, but hey, what's a year in jail?), misdemeanors and the like (hopefully you'll get a lot of "the like."). Try to take them to trial (whether you know how to try a case or not). Most clients are guilty and, in state court, the punishment is usually minor (so try to keep a straight face when you do voir dire and speak of the presumption of innocence, and try to keep a straighter face when you tell your client you are sorry he's going to jail for 30 days when he could have pled guilty and received probation). Win if you can (but only if you can. If you can't, at least you'll have the experience for when you "go civil":). Loose if you must (or lose). But have fun (fun, like at Disney World). Even if you don’t try them, you learn other important skills like negotiation, case management and client control. (These are things you will learn on your own, no need to seek mentors to help you. They are all mean and will only tell you about practicing in areas in which you are "passionate," and when we're dealing with cash flow, there is no room for this so called "passion.")

2. Criminal trial and negotiation skills are transferable: You cross examine, direct, argue and negotiate exactly the same way in civil litigation. (and the rules are the same, well not exactly the same, but similar, kind of, like almost, maybe.)

3. Clients overlap. The people who commit run of the mill crimes are the same ones who are workers comp/ PI plaintiffs. Tell your criminal clients that you do PI and you’ll get lots of good cases (lots, wink). The deadbeat who can barely get $500 for you to do a quick plea might get a $200,000 PI case next week. (or the week after)

Some caveats:

1. You pick up bad habits as a state criminal defense lawyer (but not as a PI lawyer, or commercial litigator, never). Federal civil litigation is very precise and methodical and the rules are followed. (they are not followed in federal criminal court, just go in and see for yourself.....)
2. You won’t learn civil discovery and complex research and writing from criminal law. (right, and you won't learn how to grow tomatoes from taking a class in American history)
3. There’s no homework in criminal (none, not a single criminal lawyer does anything but walk in and out of court.) but lots of homework in civil (but don't confirm this with any civil lawyer, because you might be confused). Spending too much time in court takes you away from your desk. Bunch up all of your criminal cases on only 2 days each week so the rest of the week is free for work. (just tell the judge this is how you need it to be, trust me, they will all understand.)

Your concern about public defenders is unwarranted. The average client looks down on the public defender. They think PDs are like medical residents: lawyers in training. Or they think PDs are lawyers too bad to have their own practice. This is not true, but that is the clients’ perception. Guys who spent 3 months in the state’s attorney’s office brag for the next 25 years that they are “aggressive former prosecutors”. (first true statement) Former public defenders hide that they ever worked at the public defender’s office. (ut oh, I better start hiding this) It’s ridiculous, but that is the perception.

Good luck to you. (yes, especially if you take this anonymous advice - GOOD LUCK.)

And then there's Anonymous 2, who has all the answers:

Anonymous said...

John:

This is how the profession really works: A lot of lawyers start with criminal. They get experienced. They then move on to bigger and more lucrative civil litigation. (this is true.)

But criminal law (or insert any type of law) can be a refuge for complacent lawyers. Criminal defendants are poor (all of them, even the wealthy ones, just go with it). There aren’t many cases where the client pays enough money for you to make a big deal out of it (and who's going to "make a big deal out of it" if the money is not good?). State criminal law is a bit of a confidence game. You ask the clients’ expectations. He may be terrified of going to jail. You know that he’s not realistically going to go to jail; but he doesn’t. During the interview, you gather economic status information. Multiply FEAR x ECONOMIC STATUS = LEGAL FEE. (yes, this is how the scumbag lawyers do it). After you are paid, you resolve the case to the client’s satisfaction with a five minute plea negotiation (five minutes, not a second more). You tell the client what a great lawyer you are (repeatedly); and you move on. If a client has unrealistic expectations or expects lots of work, you charge an exorbitant fee and he moves on. (never take on a client where there may be "lots of work," we don't want that. We're not trying to build a reputation here, just cash flow.)

Complacent lawyers can make money. They refer PI and other civil cases for a 1/3 cut and don’t bother learning to be good civil litigators. I know guys making over $300k who work 20 hours a week and haven’t tried a jury in 15 years. (do this, you can make lots of money and never have to worry about being a good lawyer - this is the goal of this generation.)

But with legions of young lawyers who can now repeat the marketing tricks (taught by failed lawyers selling said marketing tricks) and undercut in price, the complacent lawyers are complaining. It’s their fault for being lazy and not having moved up market years ago. (it's also their fault for taking the advice to be complacent lawyers and make money instead of building their skills as lawyers.)

Well.

This is the advice out there. This is why I laugh when people ask me why I ride these marketing trolls, the ones teaching twitter instead of trial. The ones teaching SEO, instead of BOLO.

One thing I've learned from this is that in many jurisdictions, taking criminal cases is as easy as asking to be on a list. Where I'm from, we have screening committees. No experience, no cases. You want criminal appointments in Miami - apply, and hope you get selected. It's not a training ground here like it is elsewhere. I understand though, in smaller jurisdictions there is no ability to be selective because fewer people want to take criminal appointments.

But my question is this: Does pride matter anymore? Is there any desire to be good at what you do? Or is it just a factory - an exercise in cash flow?

There are many complacent lawyers, in many disciplines. The civil bar tolerates us criminal lawyers. We know this. They think we walk in to court and just plead people guilty, and for the most part, that's what happens every day.

Let's not forget though that in those moments where a client wants more than a plea machine, more than a "complacent" lawyer, more than a kid trying to generate cash flow, there is a need for non-anonymous criminal lawyers who are in this for the purpose of a zealous defense.

And this is how the profession works, really.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer. Post to Twitter

A Young Lawyer's Concern Over Indigent Defense. Your Help Is Needed

When the story of the inexperienced Joseph Rakofsky and his representation in a murder case hit the internet, the divide between real lawyer and today's internet-created lawyer came to light. The real lawyers, i.e., those who created practices through the old fashion way of word of mouth, referrals, and competence gained through mentors and hard work representing clients, met the internet-created liar - the new style lawyer whose reputation was created through typing words and phrases on a keyboard - claiming to be "aggressive" and having "expertise," that in the real world, was a complete farce.

I previously wrote about how real lawyers responded in shock. "How could this happen," they asked?

More importantly, one real lawyer said: We need to do something. I tell my clerks and interns this is not law school. "We deal with real people whose lives and freedom are on the line by what we do or don't do. If you cannot commit to the level of effort required, then go do something else.

Well here's the chance to do something, to offer some thoughts, assistance, or tips to this young lawyer, admitted to practice in November of 2009, showing honorable concern for the state of indigent defense in his home state, and seeking advice on the American Bar Association's "Solosez" listserv:

On Apr 22, 2011, at 9:41 PM, John Wait wrote:

Quite possibly by July next year, North Carolina will have public defender offices in every county. What the hell am I supposed to do? How am I supposed to get courtroom experience and earn bread and butter pay while I am trying to build a reputation as a civil litigator? Law schools are churning out more and more lawyers, and the opportunities to get hands on experience get smaller and smaller. I need business plan ideas, immediately, from those of you who work in states where there is already a public defender in every county. Here are my ideas:

1. Bite the bullet and pay for traffic ticket lists. Do mailings.

2. Pay for SEO to increase my website's search engine effectiveness.

3. Continue networking as much as possible.

John Wait

Comments are open. Please help this young lawyer with his dilemma. We owe it to the profession.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer. Post to Twitter

The Quiet Embarrassment Of Innocence

Two days ago death row exoneree John Thompson's chilling summary of his life as a "guilty" man appeared in the New York Times. His $14 million verdict tossed by the U.S. Supreme Court, he made clear his real question:

I don’t care about the money. I just want to know why the prosecutors who hid evidence, sent me to prison for something I didn’t do and nearly had me killed are not in jail themselves. There were no ethics charges against them, no criminal charges, no one was fired and now, according to the Supreme Court, no one can be sued.

He also notes, by the way, that: Of the six men one of my prosecutors got sentenced to death, five eventually had their convictions reversed because of prosecutorial misconduct.

Instead of blogging about Mr. Thompson's well-written piece, I watched. I wanted to see who would make his words news.

Here, take a look. Notice any of the mainstream media linking to the article? No. $14 million is a story, putting a real person in front of that verdict, well, that's for some bloggers.

When the $14 million verdict was overturned, that story made news. While the online commenters were mostly outraged at the conduct of the prosecutors, the resident, and anonymous of course, "everyone's guilty crowd couldn't resist:

People aren't picked at random off the streets and charged with crimes. He had to do something or have some connection to rise to the level of becoming a suspect. Posted by: mtn1man 2:28 PM

As someone who sits on committees with prosecutors and judges, I can tell you that the topic of innocence is annoying to some. I think we need to be discussing innocence more, while others believe it's nothing more than a "distraction" from our continued efforts to imprison more people than any other country in the world. When an innocent person is convicted, and even sentenced to death, only to be later (oops) exonerated, it creates a suspicion of the system that gets in the way of prosecuting everyone else.

Right now in Florida there is a bill in the legislature to make the photo lineup process more fail safe. It calls for a blind administrator, someone who doesn't know which one may be the suspect. It helps, if done correctly, to prevent suggestive identifications. That bill is opposed by law enforcement, who always use the "don't you trust us" argument in testimony before legislative committees. As Ronald Reagan said - "trust, but verify."

There's also discussion of jury instructions that advise jurors of the significance of eyewitness identification - in the sense that it is not always a sure thing.

Prosecutors don't like it. They "believe" it will cause witnesses to be reluctant to make identifications of suspects.

The only way we guarantee no innocent person is murdered by the government, is to abolish the death penalty. The only way we firm up our eyewitness identification process, is to put in to our system a protective process for identification and jury instructions that cause jurors to make sure they closely evaluate such evidence.

John Thompson is just one person. There are many others. There will continue to be others, no matter how embarrassed we are about their innocence.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer. Post to Twitter