Criminal Defense

"We Have No One In Custody, Legally."

noreply@blogger.com (Brian Tannebaum) — Mon, 13 Jul 2009 11:46:00 +0000

That was the Sheriff of Escambia County, Florida yesterday during an interview on cable TV regarding this horrific murder of the parents of 16 children in their home.

The three people arrested yesterday will be prosecuted for this unexplainable brutality, and if they are guilty, there is no doubt they will receive the maximum penalty for whatever they are eventuallly charged with.

But I'm tired of the semantics. I'm tired of the bullshit.

Let's review.

When I was growing up, both as a kid, and in the criminal justice system, there was no such creation as a "person of interest."

Everyone knows Miranda, you know, what we hear on Law & Order every 3 hours? "You have the right blah blah blah?"

Miranda applies to persons in custody.

In custody?

We defense lawyers litigate that every day.

In custody is determined on a "totality of circumstances." Was the person "free to leave?" (No one is ever free to leave while with a police officer, but we like to say that they are sometimes.) Was anything said to the person to lead them to believe they were a "suspect?" Were they in handcuffs, in the back of the police car, put in a room, taken somewhere, and on and on and on.

How do we take someone into custody, not arrest them, knowing they are a suspect, and not have to read them their "rights?"

We call them a "person of interest."

Person of interest=suspect.

But not legally.

When the Sheriff said yesterday that "we have no one in custody, legally," he was saying this:

"We have the murderers in custody, they are going to be arrested, but we are getting a "rights" free confession out of them before all that damn constitutional crap comes into play and we have to tell them they don't have to talk. So please lady, don't ask if we have anyone in "custody" 'cause we don't."

Legally.

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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Someone Get Me A "Former Federal Prosecutor."

noreply@blogger.com (Brian Tannebaum) — Fri, 10 Jul 2009 00:27:00 +0000

I often joke that there are criminal defense lawyers and "former prosecutors" (practicing criminal defense). Some laugh. The ones that don't, know I'm talking about them.

I am not, a former federal prosecutor. I am not a former prosecutor. I am a criminal defense attorney. I formerly worked as a criminal defense attorney at the public defender's office, and I make sure I always let the appropriate person, reader, or audience know that I am a former public defender.

I do not, though, identify my basic existence with that former position of which I am very proud.

When I have appeared in print or on radio or TV, I never ask to be identified as a "former public defender." Again, I used to work at the public defender's office doing what I do now, criminal defense. I am a criminal defense lawyer. If I ever was a prosecutor, I would not want to live in the past and tell the world at every opportunity what I used to do.

Former federal prosecutors, and former prosecutors to a lesser extent, seem to find themselves using that title in curious situations.

This week on the Today Show there was a segment discussing what will happen to Michael Jackson's kids. Jeanine Pirro, former New York Judge and DA was commenting perfectly on California family law, never leading the audience to realize she knows nothing about California law besides what the person she called in California before the show told her. (Sorry to blow the secret that lawyers and judges know nothing about law in other states)

And there was this other female lawyer on the comfy couch. I didn't hear the whole segment, but I saw across the bottom of the screen: "Former Federal Prosecutor."

There are only two possibilities here. This woman is a former federal prosecutor now practicing family law, or she is, well, just a former federal prosecutor doing something else. Either way, who cares? Is there some theory that the custody of Michael Jackson's kids will become of interest to the U.S Attorney? I know we're upset no one's been arrested yet in MJ's death and no Law & Order episode has been "ripped from the headlines," but do we really need to suggest that a former prosecutor, sorry, former federal prosecutor is the only person to comment on....custody?

Why was this woman referred to as a "Former Federal Prosecutor?" Did she ask, or did the Today Show think it sounded good.

It doesn't end there.

One of the dirty little secrets of this title is that it is used to mask the terrible things that "Former Federal Prosecutors" and Former Prosecutors do after they stop being Prosecutors," like become defense lawyers.

That, they refer to as "Private Practice."

Look at any candidate for judge or state or local office. Look at their resume. "Former prosecutor now in private practice?" BINGO - defense lawyer. Criminal defense lawyer. Shhhhhh.

I've always wondered what the media's love affair is with "Former Prosecutors." To me, they simply perpetrate the notion that these are the lawyers who know everything and are best suited to answer questions in any situation, because they used to prosecute criminal cases.

It has long been the mantra that being a "former prosecutor" is a better pedigree than being a former public defender. That's absolutely true. Former prosecutors are more likely to be hired at big firms who believe that clients will want to hire them to defend. They are more likely to be appointed to the bench, elected to office, and of course, plastered on TV to answer questions, about anything.

Even if they are now, "in private practice."

Shhhhhhhh.

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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Releasing Prisoners, Fear Mongering, The Predictable Public

noreply@blogger.com (Brian Tannebaum) — Thu, 09 Jul 2009 11:03:00 +0000

As soon as I saw the headline for this story this morning: "Up To 10,000 Illinois Prisoners May Be Released"

I dead-bang predicted word for word the tone of the story.

1. There would be mention that this is due to the depression (I know some call it a recession).

"Up to 10,000 convicted criminals could soon be released early from prisons across Illinois. It's all because of the state's budget mess"

2. The prisoners are all non-violent inmates but the writer will make some crack that questions this premise:

"The state's making a list of thousands of so-called non-violent inmates..."

3. The words "public safety" would be included to begin the fear mongering:

Rep. Jim Durkin. "Public safety? Not the place to cut. That is the last place you should cut the budget is public safety. The greatest responsibility of the governor and the legislature is to keep the citizens safe. And I don't agree with this approach."

Good job Jim, three times.

4. Oh, and Jim used to put people in prison and thinks that at least some of them actually belong there:

"I threw a lot of those guys in prison back in the '90s, and they probably, a number of them, belong there."

5. The public would be hyperventilating:

"Oh, my God. I don't agree with that at all," one woman said."

Oh.my.God.

6. Another member of the public would make an absolutely brilliant statement:
"I don't like that at all," a woman said. "You know, because I think people have been placed there for a reason."

You know, yeah.

7. The inmates would have little time left, making it irrelevant whether they served another few months:

"with less than one year left to serve...."

8. The fear mongering article would claim that the proposal is being done just for the putpose of.....fear mongering:

"What it's being done for is to try, through fear-mongering, cause people to support an income tax increase," said Bob Schillerstrom, Candidate for Governor. It's the wrong thing to do."

I agree, Bob.

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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Sarah Palin: An Unfairly Treated Woman In Need Of A Makeover

noreply@blogger.com (Brian Tannebaum) — Wed, 08 Jul 2009 16:46:00 +0000

I know, it's not about criminal law, but I just got back from vacation and am fascinated with the hypocrisy surrounding Sarah Palin.

I'll admit, like many others, when I first saw her (and the first time many saw her was when she was nominated VP), I thought "cute." Kill me, but that's what I thought.

Then she opened her mouth.

I have to believe that any 45 year old who ascends to the governorship, of any state, has to be somewhat intelligent.

While she may be "smart," she didn't present herself as qualified to be President. And no, I don't "hate" her because she's a "strong powerful woman." I just think she's not qualified to be President.

The Conservative republican machine has been quick to deter any attention from the fact that Palin is to the naked eye, "cute," but not qualified to be President.

They blame the "liberal media" for focusing on the truth. If the liberal media would just "leave her alone," she would appear qualified.

If the liberal media would stop commenting on her looks, the way she talks, or the fact that she really doesn't know anything about the world outside of criticizing the current administration or anything "democrat."

I understand the partisan game. The purpose of each party is to show the public that the other party is worthless, anti-everything the other party is for, wrong, and going to kill us all.

What I don't understand, is this column today by Cal Thomas. No liberal is he.

Thomas says that Palin was "treated unfairly and in ways that no liberal woman would have been..."

He then says that "anyone running for national office must traverse a media gauntlet -- with the notable exception of Barack Obama and his worshipful media disciples. While Conservatives can expect worse treatment than liberals, they can prevail with the right strategy."

Ok.

But Cal,the strategy you speak of is as follows:

"If Palin is to have a future in national politics (assuming she wants one) there are several steps she must take.

"First, she needs a complete makeover. The big media will never admit they were wrong in their judgments, but they might write stories about the ``new Sarah Palin.''

She should hit the books and learn as much as she can about the modern world, history and court cases. She should read newspapers so that when future interviewers hit her with questions, she can dazzle them like a Jeopardy champion."

"Palin should hire a speech coach and follow that person's advice. She has a pleasant enough speaking voice, but the tone needs to be adjusted, as do her word choices."

"Lastly, she needs a hair, makeup and wardrobe makeover. She is a beautiful woman, but appearance should not be the first thing one reacts to when people look at her."

He concludes with this: "Sarah Palin can be 'born again' in a political sense and excite beyond her base if she allows herself to be 'baked' (ha ha, good one Cal, baked.....Alaska....) at the proper temperature and for the right amount of time."

So let me understand.

We have treated Palin unfairly. We have focused too much on how she looks, how she talks, and what she doesn't read? The solution is not to find a better candidate, but to prop Palin up with a makeover, speech classes, and reading advice?

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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Another Criminal Defense Conference, Another Few Minutes Of Dreaming

noreply@blogger.com (Brian Tannebaum) — Sun, 14 Jun 2009 01:56:00 +0000

Over the past two weekends I've attended two different criminal defense conferences. In 15 years I've probably attended 30 or so. Each one includes talk of new case law, good and bad. They include war stories of that case, or those cases, where a judge, a jury, or a motion led to victory for the defendant. There's that new case that the police will learn to "get around," and there's the judges who tell us what they like and don't like in court.

And at the end of every conference we are led to the same belief, that we can win more cases, that we can win every case.

These conferences bring defense lawyers together within a state, a federal district, or a country. We learn we all have the same issues, the same cases, and the same clients. We leave and return to court Monday with a renewed sense of "what if?"

And then there's Tuesday.

Yes, if we tried every case, we'd control the system. If all our clients had the money to hire the best experts, or even a mediocre investigator, we could learn things that would cause a jury or judge to think twice about whether our client was guilty.

But we don't. Private lawyers don't, public defenders, don't

It is a system, and as we defense lawyers hear in court from the bench, "we have to move things along."

The economy is making things worse. More desperate lawyers practicing criminal law, taking fees to "pay the bills" that aren't enough to do a competent job. Take the client to court and tell him you got a great deal. He doesn't know. He'll spend 30 seconds thinking about whether to become a convicted felon, which is 30 seconds less than he spent thinking about who to hire.

We leave these conferences with a renewed sense about Monday, only to be faced with the inevitable Tuesday.

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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Being Pro-Life, And Pro-Death

noreply@blogger.com (Brian Tannebaum) — Tue, 02 Jun 2009 00:19:00 +0000

Abortion.

I know, I shouldn't write about abortion.

Abortion is not something we debate, its something we accuse others of supporting, or trying to prevent women from obtaining legally. Abortion is something that intelligent people refuse to debate, and wack-jobs kill people over.

Killing doctors who perform abortions is nothing new. But the advent of 24/7 conversation via the internet causes the news, the reaction, and the incendiary hypocrocrits to be heard all in one.

There are two types of "pro-life" schools of thought: Those that think there is only one pro-life school of thought, and those that make exceptions. The former have no use for the latter, but the former have some explaining to do post-assassination of Dr. Tiller this weekend in church.

If you are pro-life, you do not believe in killing an unborn child. I'm not going to get into the debate here about whether a fetus is a human being, I'll assume for purpose of establishing hypocrisy, that it is.

Hypocrisy, being pro-life, and pro assassination of a doctor who is performing legal abortions.

Thou Shall Not Kill?

Or "Thou Shall Not Kill Those That I Believe Should Not Be Killed?"

I know, true pro-lifers believe he was a "mass murderer." But he wasn't, because for whatever you believe about what Dr. Tiller did for a living, and are at least a wee bit knowledgeable when it comes to law, it was not illegal.

Case in point, did any pro-lifers call the police anytime they heard Dr. Tiller performed an abortion?

But they believe that someone who does something legal, yet against religious and moral beliefs, is properly assassinated in church on a Sunday.

Those who believe it was OK to blow Dr. Tiller away last Sunday are good at throwing darts, but generally won't engage in a debate. I've read some comments from those "no one should be crying over Dr. Tiller's death," people, responded with a question, and received no answer.

Maybe the solution for these supporters of murder can try to get an asterisk after Thou Shall Not Kill*

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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Miami Airport Cop: Did You Know My 9 Year Old Was There?

noreply@blogger.com (Brian Tannebaum) — Sun, 31 May 2009 10:00:00 +0000

Good thing about having a blog is that writing a letter that will be answered with some condescending bullshit about "public safety" is no longer necessary. I can just write it here.

Saturday night my wife goes to Miami International Airport to pick up her parents from a 3 week trip.

She entered the "arrival" section at 9:30 p.m. Like most Saturday nights at that hour, there was no one else there. No one.

My wife stops in front of Delta amid a sign: "No Parking Active Unloading Only." Pre 9-11 that meant you could park in the no parking zone, leave your car, go inside and meet your party. Post 9-11, take 2 steps away from the car, and it is obviously a bomb.

But in all seriousness, that sign mean you can be "actively loading" luggage and people while the car is parked, just don't take more than 10 seconds to do it. Eventually it will be required that the car keep driving while the people are trying to get in and load their luggage. Hey, there's a war on terrorism, get with it.

My wife stops, her parents walk out with some luggage. They load the luggage, and walk back in to the airport to retrieve more luggage. Three week trip, lots of luggage.

Officer Friendly appears. His greeting: "I'm sure you can read."

My wife's a lawyer, she reads pretty well, and advises the officer that the luggage in the car was brought out by her parents and they went back in to get more.

"It says no parking, active loading only." "And don't tell me they went back in to get more luggage, I've worked here a long time and I know it all comes out at the same time."

Officer, I was born in Miami, and I can tell you, it is a requirement that all your luggage not come out at the same time. Many of us have memorized the last 6 bags coming around while we wait for that last bag. You know, you hear the truck pull up, and pray to God that your bag is coming.

He's not done, after my wife begs, begs him to just let her remain there, with no other cars around, he relents: "I'm going to be nice and give you 2 minutes."

After he leaves, my 9 year old daughter says "Mommy please, lets just go."

Go?

Yes officer, you scared the crap out of my daughter who was sitting in the car listening to you act like a complete asshole for no reason.

And no, I don't know your name, and I'm not going to waste my time writing a letter to your chief, who will tell me that I "have to understand the times in which we live." I understand that you are a power hungry piece of crap who has no regard for the badge you wear and the impression you leave on people. Did you have to be such a jerk? Could you have not just asked my wife how long she was going to be and if it was going to be more than a couple minutes if she wouldn't mind driving around? Maybe then said hello to my daughter.

You know, it's funny, even as a criminal defense lawyer who deals with an occasional jerky cop, I always encourage my kids to respect the police. Thanks to you, my 10 year old now has her own impression. The last cop she saw gave her mommy a hard time while she was picking up her grandparents from a long trip. Congratulations jerk off.

So I just wanted to say officer May 30, 2009 at 9:30 p.m. by Delta arrivals, grow up. Get off your power trip. We live here and are used to rude cops, but there's plenty of tourists here in Miami (you've been working at the airport "a long time" so you probably know that) who don't need to come here and have the first person they meet, be you.

And you owe my daughter an apology.

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 Sotomayor Debate: Why Conservatives Are Scared Of Judges

noreply@blogger.com (Brian Tannebaum) — Wed, 27 May 2009 11:30:00 +0000

Conservatives don't trust judges.

This is why we have sentencing guidelines, minimum mandatories, reporting requirements on sentences, and the phrase that everyone likes to say, and no one understands: "legislating from the bench."

About 4 years ago, when this blog was in its infancy, I wrote about "legislating from the bench."

I said this: "Government hates our judges in America. They don't trust them, and they blame them for the state of, well, everything.

The problem is, governments define a bad judge as "one who does not rule they way they are supposed to rule."

The reason for this hatred is mainly because government doesn't understand nor respect the role on an independent judiciary, which has been significantly diminished in the last 20 years due to Congress believing they need to take hold of our court system.

Judges are supposed to be the independent arbiters of justice. Justice is a simple concept, it is fairness.

Fairness is what we determine it to be. If we think someone is guilty, then damn that judge who presides over the trial that finds him not-guilty (not to mention the obviously brain-dead jurors who were following instructions and actually applying the burden of proof).

If we think someone should receive a life sentence, then damn that judge that gives a 30-year sentence. And a judge better not find that a search of someones home was in violation of the Fourth Amendment, especially if there are drugs in the house. That's a no-no.

Most important, judges should never find themselves 'legislating from the bench.'

That is what extreme conservatives say when they are asked what type of judge they want on the Supreme Court. They all answer in the negative, like a church choir - 'we don't want a judge who 'legislates from the bench.'' Ever notice that there is no follow-up question? This is because no one knows what that phrase means. No one.

I do, "legislating from the bench" means to interpret the Constitution in a way that violates someone's political or religious persuasion.

See, the Constitution has been interpreted for years. But if a judge interprets it in a way that creates a right for someone, that is 'legislating from the bench.'

So if the judges on the Supreme Court interpret the Constitution as NOT prohibiting abortion, gay marriage, or the integration of our schools, then they are 'legislating from the bench.'

So it is not that Congress and state legislatures hate our judges because they legislate from the bench, it is because they interpret the Constitution to afford rights to those that 'they' believe should not have them."

In the coming days and weeks, this "legislating from the bench' crap will be a daily retort from those against Sotomayor. Want to end the conversation? Ask this question: 'What specifically do you mean by that?" The answer will be something like: "you know, legislating, from, the bench, making policy. legislating." Follow up with , "Ok, give me specifics."

You legislators ever wonder if the lack of respect for the legislative process brings this about? Respect for passed laws is based on the process in which they are passed.

I'll have respect for the process when I can ask a random sampling of legislators about a law that recently passed, and half of them can tell me what it says.

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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Memories of Birmingham, Criminals Watching Public TV, And An Arrested Clown

noreply@blogger.com (Brian Tannebaum) — Tue, 26 May 2009 11:53:00 +0000

Been busy the last few weeks. Some of us "bloggers" actually have day jobs and aren't as attentive to our "entitled" audience as we'd like to be. So today I bring you three stories that pretty much sum up the state of our criminal justice system today, and the paranoia, hype that surrounds it.

First, Birmingham. Five cops beat the crap out of a jerk who almost ran over one of their own. The guy deserved to have the crap beaten out of him, but not by cops. We as a public are divided on this, as we are divided on what a video actually shows.

With the advent of video, we now get to see what sometimes goes on post arrest. We also get to see how two completely sane people can watch a video and see two different scenes. We have come to hear of the "adrenaline" defense of punching cops - "you know, these guys just have all this adrenaline after one of these chases and you know, they just are so emotional about the whole thing that we understand how they can get so upset and lose control."

Even the media pimps this defense.

Blah blah blah.

If you ever wanted to know why cops don't want interrogations taped, this case is the reason.

Imagine if there was no video. "These cops beat the crap out of me for no reason."

Sure they did.

Cops are professionals, just like anyone else. The day we excuse, and many of us do, the rogue behavior of a professional, we diminish their position in society. Just like a boy should never hit a girl, a cop should never hit a suspect. He should shoot and kill him if he is in danger of the same happening to him, but post-arrest, or once on the ground and not moving - no hitting, no shooting, never.

So now we watch these videos. We all see the same thing, some of us claming that the video doesn't give us "the whole picture."

That's a load of crap as well.

I'm shocked these Birmingham cops were fired so quickly. Happy, but shocked. I was waiting for the weeks and weeks of attorneys appearing on TV pontificating on either side about whether these cops really hit the guy.

Congratulations Birmingham.

And yes, I know, the streets are "less safe" now that they've been fired.

Speaking of safe, you ever wonder what "criminals" do when their not commiting crime? Apparently, according to the Chief of the Ft. Lauderdale Florida police department, they watch public television. This is the reason he wouldn't disclose to the city commission his request for millions in additional funds.

"Police Chief Frank Adderley asked this week for $2.8 million more. He said he needed some of the money to fight rising crime. Commissioner Romney Rogers insisted the commissioners get an accounting of how the money would be used.

Adderley said he didn't want to publicly air his crime-fighting strategies because criminals might be watching the commission on TV."

You sure they're not watching Charlie Rose on PBS?

And the clown arrest.

Seems Patricia Ingalls was arrested for DUI and leaving the scene of an accident in her clown suit.

This is a big story, worthy of a serious discussion: "Are our kids safe when we hire birthday party clowns?"

Watch this clip. The depth of the story, the length, the details, the anchor with the balloon as a prop.

My understanding is that this clown has a decent defense. I hear the other 16 clowns who remained in the car are witnesses. I also understand that the field sobriety exercises will be excluded due to the shoes worn while walking the line. Also, the finger-to-nose test "fail" will be rebutted, as the "honking" noise heard by the cop during this test is explainable.

The biggest issue, of course, will be the inability of the jury to determine from the mugshot whether the defendant in court is the same person who was arrested.

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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Michael Vick - Game Over

noreply@blogger.com (Brian Tannebaum) — Mon, 11 May 2009 11:54:00 +0000

When Michael Vick went to prison I made a bet with a friend that he would never again play in the NFL. I hope I lose.

In America, there are few second chances anymore.

An arrest is a conviction. A prison sentence is a tattoo. The internet bears all, forever, and when harm to animals is involved, forget it.

Employers are less interested in performance and quality in their employees. They are fearful of liability. You can't hire someone who was once arrested, for anything - they may go out and kill someone. The kid pulled over in his Honda Civic with a marijuana joint, will eventually move on to cocaine, buying it from people who promote terrorism as the money goes to Hamas, Al-Queda, and the Taliban. It's all connected perfectly, just ask any legislator.

Miami Herald Sports Writer Greg Cote says Michael Vick deserves a second chance.

Sure he does. He won't get it though.

Michael Vick didn't kill anyone, didn't even send someone to the hospital. He didn't steal from anyone, didn't rob a house or business, didn't buy or sell drugs, he didn't do anything that even the broadest definition (and they get pretty broad these days) of public safety would describe.

Michael Vick was involved in harming, killing animals. The killing of a human being doesn't raise emotions as much as the harming of animals. Disagree? Just walk into a courtroom where an animal cruelty case is being heard, next to the courtroom where a murder case is on the docket. Cote makes the case in mentioning Leonard Little. He killed a woman while driving drunk. He's still playing.

So Cote says in regards to Vick that:

"The bigger issue is whether the rest of us can muster anything close to ''genuine forgiveness'' -- or at least begrudgingly admit that the man has paid his debt and deserves a clean slate and a fair chance to resume his life and livelihood."

Greg, Michael Vick will have paid his debt to society when he dies. Just knock on a few doors in any neighborhood if you disagree. There is little "genuine forgiveness" after a criminal conviction, save for the "wacky liberals" who understand that someone who does their time should be able to re-enter society and move on.

Cote says: "He has not been pampered or gotten off easy, and that's not to mention the ruination of his name and finances."

Greg, people think he should have received the death penalty.

He says "it's time to move on, and to not allow the zealots over at PETA to continue to set the agenda in what seems a concerted effort to unfairly ruin him beyond his time served." He claims "People for the Ethical Treatment of Animals might be insane, by the way. Recently they suggested that the music group Pet Shop Boys change its name to Rescue Shelter Boys. Seriously."

Then Cote mentions the exact reason Vick will not play in the NFL again: "PETA leads the protest league in sanctimony and publicity chasing, turning off more people than they persuade, so let them paint their signs and sing their chants for the TV cameras the day Vick is released from prison."

Greg, right now PETA is thumb tacking the cities of the 30 NFL teams on a huge map on the wall of their office. Note to owner of NFL team that takes Vick: protests, every game, beginning and end, protests at your office, daily, your home, daily, everywhere you are. The NFL meetings, NFL stores, anything NFL. It will never stop.

Cote says (hopes I think) "some NFL team is going to be brave enough to sign a reinstated Vick, even knowing the PETA protests will be daily occurrences -- or at least until some socially incorrect celebrity is spotted on a red carpet wearing fur and the publicity-seeking PETA army gathers its blood-red paint and shifts to a new cause."

As a lifetime dog owner, I disagree.

Then Cote goes off on a tangent, speaking for the minority of the American public that has any perspective on the criminal justice system:

"This is about second chances, though. About the idea of a man not still being charged after he has paid his debt. You can hate what Vick did and still believe it ought not turn into a life or career sentence for him.

I hope most of us are better and bigger than what that attitude portrays."

Oh Greg, you're such a sentimental guy.

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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Jury Duty - Leave Me The F---- Alone

noreply@blogger.com (Brian Tannebaum) — Tue, 05 May 2009 13:06:00 +0000

At least the guy was completely honest: (hard to read, expand once opened)

Jury Duty Response

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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Fighting Terrorism, One College Kid's Fake ID At A Time

noreply@blogger.com (Brian Tannebaum) — Sat, 02 May 2009 11:46:00 +0000

Soon after September 11, 2001, state and local law enforcement, feeling left out of the feds work to "keep us safe," wanted in on the game. Arrests went down due to local cops spending their time trying to find Osama Bin Laden in coffee shops, retail stores, at former DUI roadblocks, anywhere. The tone of law enforcement changed forever - everyone, every-single-person, could be a terrorist. It remains that way today.

Cue the change in how we deal with fake IDs. Used to be the anxious college student walked up to a bouncer at a bar, showed the fake ID (while somewhat looking away), and if the bouncer realized it was fake, life was over. Not over due to an arrest, but due to the bouncer taking it away, a far worse penalty. The night ended early, and there would be no more nights at bars until a new fake ID was obtained. Nightmare.

Now, states have made possession of a fake ID a felony. If it's not fake, its still a misdemeanor, but not "notice to appear" misdemeanor - a jail misdemeanor.

Remember - that fake ID could be used to board a commercial airliner and....well, you know the mindset. What would we do if we let that pasty face 19 year old chemistry major scoot without an arrest, fingerprints, entry into the state database? Today's bar hopper is tomorrows terrorist.

So I have two of these right now here in Florida. A state like every other state - we're broke, and looking for ways to save money in the criminal justice system.

At yesterday's arraignment, I asked the prosecutor on the record if the plea offer was "don't do it again." The judge chuckled. The prosecutor did too. Then she said "no." They want a record. They got, a demand for jury trial. Another case, clogging up the system.

The other case, they're checking to see if he has priors in other states. They "have information" he may have priors. I'm not joking.

All this, in the name of keeping us safe.

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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Detective: You Lied To Me

noreply@blogger.com (Brian Tannebaum) — Thu, 30 Apr 2009 20:32:00 +0000

Cops lie.

Now before the comment section fills up, let's be honest: (no pun intended) cops lie. Lawyers lie. Witnesses lie.

We all know.

But today was different. It was different because I caught a detective lying to me not in court, but to my face (well, on the phone).

My mom had surgery today. She's fine. I took the day to be in the hospital with her.

The Detective called my office to schedule a statement. One of my clients agreed to give a statement in case in return for probation in a case where there was a minumum mandatory sentence.

Now granted she called last week when I was on standby for 2 trials and couldn't commit to a date.

Today she calls and is told I am out on a family emergency. Some background: a cop tells me he sneezed 3 days ago and needs to reset his deposition, done. Why, I may need a favor one day.

The email from my receptionist: "she said that two days ago you didn't have a family emergency and that no one has gotten back to her and your client is not going to have a chance to cooperate if you don't get back to her."

So I call her.

"Oh hi Mr. Tannebaum, how are you?"

"I don't know, what message did you leave at my office?"

"To call me when you got back."

"Did you say that two days ago I didn't have a family emergency and that my client is not going to have a chance to cooperate.........?"

"It really doesn't matter."

It deteriorated from there.

I guess for some people that's just how they roll.

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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Verdict On Misdemeanors: Government Wasting Money, Creating Deficits, Violating Rights

noreply@blogger.com (Brian Tannebaum) — Wed, 29 Apr 2009 18:04:00 +0000

The National Association of Criminal Defense Lawyers (NACDL) announced the "first-ever national report on misdemeanor courts," and determined the following:\

Efficient enforcement will unclog the courts, improve public safety and save money.

Now now, NACDL, why are you throwing things like this at the public? At elected officials? Since when does efficiency in government unclog anything, improve anything, or save anything or anybody?

This report comes on the heels of the announcement that misdemeanors will no longer be prosecuted in Contra Costa County, California due to lack of funds.

The Report, entitled Minor Crimes, Massive Waste: The Terrible Toll of America’s Broken Misdemeanor Courts, took a look at misdemeanor courts in the United States.

It recommends that, ahem, "states divert non-violent misdemeanor cases that do not impact public safety to programs that are less costly to taxpayers and repay society through community service or civil fines."

There's non violent misdemeanor cases that do not impact public safety? Like what? Selling flowers without a license, urinating in public, commercial vehicle violations, stealing a minor amount of merchandise, drinking in public, loitering, expired tag more than 4 months?

NACDL President John Wesley Hall says “I don’t think there is a bigger waste of human potential and taxpayer money in the entire criminal justice system."

Maybe he has a point, since the report shows there are more than 10 million misdemeanor prosecutions per year.

Also, "In four major cities—Atlanta, Chicago, Miami, and New Orleans—public defenders have more than 2000 cases per lawyer per year. In New Orleans it is more than 18,000, which means that the lawyer has five minutes per client.”

Five-minutes? I know, "can we get that down to two" some people are thinking.

Good report, let's see what happens as a result.

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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Getting Paid

noreply@blogger.com (Brian Tannebaum) — Tue, 21 Apr 2009 10:31:00 +0000

When I graduated law school knowing I wanted to be a criminal defense lawyer, the one piece of advice I received over and over again was: don't go into criminal defense." The advice had nothing to do with the possibility that I would not enjoy the practice or the public's perception of criminal defense lawyers, it was based on one thing: money.

"You'll never get 'rich.'" I was told. "You'll never make 'any money."

For as long as I've been a criminal defense lawyer I've heard and read criminal defense lawyers bitching about not getting paid, asking about suing clients, and stating with authority that they cannot do anything to change the "way things are."

Whenever I say that I don't do payment plans, eyes roll, attitudes fly, and disbelief ensues.

I don't do payment plans. I don't audition for cases - you know, do the bond hearing to see if I can get the guy out and then see if I can get hired. I don't care that jerky down the street quoted $500 less, and I don't need to hear that "this is a good case" for me.

Practicing criminal defense is what I do for a living. I run my practice the way I want, and I don't let it run me.

I know, criminal defense lawyers have to compete with know-nothing paraders or mills that send out flashy brochures with the Mastercard and Visa logo, offering "easy payment plans," and letting the public know that there is plenty of "cheap" out there.

And I know, you can't possibly ask for the fee in advance because not a single person in the world will hire you. Every criminal lawyer in your community does easy payment plans (called "non-payment" plans) and if you don't fall in line, you'll be broke.

If you want to get paid, you have to demand to get paid, not hope to get paid.

Many of my colleagues work every day "hoping" to get paid. Why?

I am not "lucky," or any different than many of my colleagues. I just choose to run my practice with a philosophy that doesn't leave me chasing money.

I'm sure the comments will come in - "you don't understand."

I understand.

I just heard something once about "if you keep doing what you're doing, you'll keep getting what you're getting."

Or something like that.

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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$600,000 Of Prosecutorial Misconduct

noreply@blogger.com (Brian Tannebaum) — Thu, 09 Apr 2009 20:10:00 +0000

If you are a criminal defense lawyer, prosecutor, lawyer practicing in any area, law student, citizen of the world, you must, must print out this 50 page order and read every word.

This is what justice is all about.

A defense attorney inadvertantly finds out during trial that he and his investigator have been recorded, and the world of several prosecutors changes like day into night.

Print it out, take it home, read it.

All of 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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What I Saw On My Vacation: "DRUG CHECK AHEAD."

noreply@blogger.com (Brian Tannebaum) — Mon, 06 Apr 2009 16:05:00 +0000

I consider myself someone pretty up on the news, and so it came as a shock to me when I was driving on Florida's Alligator Alley (I-75 connecting the east and west coast of Florida) to see an electronic sign flashing "DRUG CHECK AHEAD."

"DRUG CHECK AHEAD."

Never seen that before.

My first thought was that it was a sign that was being used at some pharmaceutical conference or health care festival and was now pulled over for some maintenance issue.

Then I saw it.

Two cars, well a station wagon with big silver rims and a van, pulled over by two Broward Sheriff's Officers, and then a few hundred feet later, two more vans pulled over.

I assumed this was the DRUG CHECK, AHEAD.

Now I am aware of DUI roadblocks. They are advertised, regulations are printed requiring that "every 4th car,"or something like that be stopped, but this was all new to me.

Were police officers randomly pulling cars over to seek consent to search for drugs?

I think so, but I didn't stop to ask.

I, in my (quote unquote) white SUV with my family and the family dog heading out on vacation, were not stopped.

So who was, stopped?

Did everyone consent? I have to think so. I was thinking, what if I was stopped? Should I put on my lawyer hat, my criminal defense lawyer hat and wait an hour for a dog (which wouldn't make my dog happy)? Or let the officers search through some of my kids toys and ask if the dog food was really dog food?

Is this a frequent occurrence in Broward County, in other counties, other states?

Are we acknowledging the failed war on drugs with new and inventive ways to find, drugs?

Are there regulations on who is stopped? Probably not. Is Delaware v. Prouse, that nuisance of a case that says it's unconstitutional for state police to randomly stop vehicles at a check stop unless there is a justifiable reason for a motorist to be stopped, still good law?

We're all aware of City of Indianapolis v. Edmond where the U.S. Supreme Court dealt with a drug checkpoint. The majority believed it was set up to find drugs. The three dissenting justices believed it was to check driver's licenses and vehicle registration. The drug checkpoints had written rules and like this one in Broward County, were identified with lighted signs reading, "Narcotics Checkpoint -- One Mile Ahead. There was a dog, and if it alerted, your day was done.

But In Michigan Dep't. of State Police v. Sitz, 496 U.S. 444 (1990), where the Court upheld the State's use of highway sobriety checkpoints, the Court, noted its disapproval of a "checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing."

The majority concluded that "in determining whether individualized suspicion is required, courts must consider the nature of the interests threatened and their connection to the particular law enforcement practices at issue. The Court is reluctant to add exceptions to the general rule of individualized suspicion where law enforcement officers primarily pursue their general crime control ends."

So are drugs "ordinary criminal wrongdoing," and DUI "extraordinary?" If you live in Florida, you have to say yes.

So case law aside, with domestic and other violent crime on the rise, what are we doing here? (Cue the "drugs lead to violent crime" talking points.)

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

noreply@blogger.com (Brian Tannebaum) — Sat, 21 Mar 2009 11:11:00 +0000

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

noreply@blogger.com (Brian Tannebaum) — Wed, 11 Mar 2009 12:53:00 +0000

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

noreply@blogger.com (Brian Tannebaum) — Mon, 09 Mar 2009 00:18:00 +0000

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

noreply@blogger.com (Brian Tannebaum) — Sun, 01 Mar 2009 16:17:00 +0000

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?

noreply@blogger.com (Brian Tannebaum) — Tue, 24 Feb 2009 20:29:00 +0000

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

noreply@blogger.com (Brian Tannebaum) — Tue, 24 Feb 2009 11:09:00 +0000

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

noreply@blogger.com (Brian Tannebaum) — Mon, 16 Feb 2009 12:54:00 +0000

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

noreply@blogger.com (Brian Tannebaum) — Sun, 15 Feb 2009 15:32:00 +0000

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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