Tuesday, January 17, 2017

The Day The President Said My Client Wouldn't Die In Prison

In my estimation, there are five things that are icing on the cake for any lawyer who practices criminal defense. 1. An acquittal in a death penalty case; 2. A reversal of a death sentence on appeal; 3. An invitation to argue before the United States Supreme Court; 4.  A declaration of the client's innocence after conviction; and 5. A Pardon or Clemency from either a Governor or President of the United States.

All five are rare occurrences, and a lawyer can go through their entire career, never doing any of the five, and have the reputation as one of the best.

President Obama wanted to review the sentences of federal prisoners who were given lengthy sentences for non-violent offenses, mainly drug offenses. (No, I'm not interested in a debate over whether drug possession or sale is a violent offense.) As a result, Clemency Project 2014 was created.

This was an "all hands on deck" operation. In the end, 16,000 petitions for Clemency were reviewed by the Pardon Attorney, and as of today, a little over 1300 have been granted. Clemency is not always a Pardon, in fact in most cases it is a commutation, meaning a reduction in sentence. The conviction remains, it's just that someone sentenced to life, may instead serve 15 or 20 years. Under President Obama's grants, some had to enter drug rehabilitation.

Although it's a fear-mongering argument made by the ignorant, clemency is not about letting violent criminals back on the street. President Obama's Clemency Project 2014 had strict parameters including: the offense for which the defendant is in prison can not be a violent offense, there can be no prior significant violent offenses, the defendant must have served at least 10 years, and must have good behavior in prison.

I'm not going to name my client here, but he is on the list of 209 commutations granted today, January 17, 2017. I just want to tell the story of my participation in the Clemency Project.

In August of 2015 I was asked if I would take on "one of these" Clemency Project 2014 cases. I was told it was a matter of obtaining the client's Pre-sentence Investigation Report, filling out a form, preparing an "Executive Summary" and gathering whatever information I could about the client's family and conduct in prison. I would have to watch some videos and certify that I had been "trained." Seemed fairly organized and cookie cutter.

I had to get the client to agree to allow me to represent him, which took no effort. I didn't imagine someone serving life in prison, sentenced to die in a cage, would have any issue if a lawyer, for free, was going to try and get him out.

That was the last easy part of the representation.

The Government is not big on handing out Pre-sentence Investigation Reports, and so that took some "higher-up" conversations. Once I got it, I realized there were issues that required documents from old files. There were questions to be asked of the client (made easy due to email access to federal prisoners).

While I worked on the Petition, in came pictures of the client's family, and letters attesting to his good conduct in prison. After realizing there was a mistake in his prior convictions that had been corrected by a gracious state court judge, I had to make sure this was explained in the Executive Summary, basically a closing argument of why the client deserved Clemency.

What made this case more difficult, was understanding the odds. My client qualified for Clemency. He had served 10 years of a life sentence, was a model prisoner, had no violent past - on paper, he was perfect. But the odds. The President was getting thousands of these, why would he grant my client a second chance at life, outside prison?

As required, I submitted my Petition, and everything else to the Clemency Project.

Due to a technical issue, after completing my work, I could not get the Clemency Project to accept my Petition. The process was that the Project would review the Petition and supporting materials and forward it to the Office of the Pardon Attorney.

Fearful I would not get the stamp of approval of the Clemency Project, I contacted the National Association of Criminal Defense Lawyers (NACDL), another partner in the Project.

I was blessed to be able to reach the Executive Director, Norman Reimer. My hope was that Norman would put me in touch with someone at the Clemency Project to review my submission and propose edits. Instead, Norman said "I'm going to work on this with you." Norman made corrections, suggested edits and more work, and after a few days of work with Norman, my Petition was submitted to the Clemency Project.

It then went to the Pardon Attorney.

A couple times while the Petition was pending, my client emailed me and asked if I "heard anything." Of course there were only two things to hear, and I had heard neither. The Office of the Pardon Attorney has a website where they list every Clemency grant, and denial. Every time President Obama granted a bunch of Petitions, my heart sank. That meant there would be denials.

I kept checking, I kept searching lists by last name - occasionally finding the last name of my client on the denial lists, but..whew... a different first name.

I was told a few days ago that there were some recent denials, on January 13. I checked the list. He had to be on that list.

Nothing.

I knew I was going to get an answer this week, and before Friday when we inaugurate our next President. I was only told one thing - that the Office of the Pardon Attorney calls with the news.

Today I was out of town, having lunch with a long-time public defender friend, telling him that I hoped President Obama would decide today on his last grantings of Clemency, as I was nervous about the decision coming too close to the inauguration. That was at 1:30 p.m.

At 2:50 I received an email from my office. Attorney Sarah Black from The Office of the Pardon Attorney called and my client was granted a commutation. I was to call her back ASAP.

I called her back....and got voicemail.

A few minutes later she called me back, not knowing that I got the news, and so she told me as if I didn't know. She was happy. I was in complete shock. She asked me if I could inform my client. I said "of course, you want me to email him?" And in a first-class move, she said "well actually, we've arranged for you to be able to call your client at 3:30 today and tell him. We have a number that he will be waiting at for your call. Is that a good time for you?"

Considering I had never had a client given an Order of Commutation from the President of the United States, I told her that "yes, I can call him at 3:30 p.m." She said something to the effect of "I know this is a great day for you and your client, thank you for your work, and please call me if you need anything else."

I'm not used to having these types of conversations with lawyers from the federal government.

What was I going to say to my client? I had just called my wife and could barely get through the conversation with her, now I was going to tell him he wasn't going to die in prison because of Barack Obama? This was way too much for me.

So like Luca Brazi, I practiced. "I'm calling to tell you that President Obama...." "I have been advised...." No. "I have good news for you." No.

The clock said 3:29. Was it 3:30 at the prison and they were taking him back to his cell because "your lawyer didn't call on time?"

Then it was 3:30. I dialed, got the recording. The call disconnected. Oh no.

Two more times, recording, disconnected.

Third time, recording, dialed extension... "This is Delores."

"Hi Delores, this is Brian Tannebaum, I am..." "Oh yes, how are you Mr. Tannebaum?" Not a typical greeting from someone at a federal prison.

With a little chuckle I said "I'm doing great." "I bet you are," she said, "let me get your client, he's right here."

"Hi, It's Brian Tannebaum."

"Hi Brian, how are you doing today, how is everything?"

Such an odd, typical question. More odd than typical because I was about to tell him that he wasn't going to die in prison.

"I'm fine, I have some news for you."

"President Obama has ordered your sentence commuted."

He dropped the phone.

Delores came back on and I could hear her saying "get up, get over here, you have to talk to him."

He came back on and expressed the type of emotion you can only imagine from someone who was just told that the President of the United States has given him a second chance.

Can you imagine? Me neither.

Tonight I imagine he has told his family that he will be coming home sooner than at his death.

I have received many congratulatory messages this afternoon, and I appreciate all of them. But I have to tell you that nothing is more meaningful to me than the fact that my client was the benefit of the grace of the leader of the free world.

Yes, I filled out some paperwork, put a package together, became the messenger. But my client will be free because the Federal Defender of the Southern District of Florida, Michael Caruso, thought to ask me to take this case, because Norman Reimer at NACDL helped me, because the Office of the Pardon Attorney recommended my client be freed, and because President Obama nodded his head "yes."

If I never again have an experience like this in my career, (and statistically I won't), I can feel a great sense that someone is freed from the chains and cages of a federal prison, when he spent the last 11 years there thinking he would die there, because some stellar members of the Bar thought to assist me in asking the President to set him free.


Located in Miami, Florida, Brian Tannebaum practices Ethics and Criminal Defense. He is the author of The Practice. Share/Save/Bookmark

Friday, November 18, 2016

Leaving Facebook's "Lawyers On The Left"

In the fucking aftermath of "what the fuck is going to happen now," people are fucking talking about fucking getting together and fucking advocating for fucking rights they fucking think will fucking be taken fucking away.

As part of this fucking movement, fucking groups have fucking formed on fucking Facebook, including this fucking "Lawyers on the Left" fucking group.

I was fucking added to this fucking group which now has over 100,000 fucking lawyers fucking talking about fucking doing shit (sorry for saying "shit").

When I was fucking added to this fucking group, I saw that people were fucking introducing their fucking selves by stating who they fucking are - fucking job titles, fucking leadership posts, that kind of fucking shit (sorry again).

So I fucking decided to fucking do something fucking different. I fucking just posted the last fucking thing I wrote here. It was a fucking post about why fucking people need to fucking stop telling other fucking people to "move on." At the fucking end of the post, I said "go fuck yourself." This was a statement to those attacking the majority of....the fucking Left.

So I post this fucking thing and get a "your post us awaiting approval." OK, fucking fine. Time went by. I then fucking posted a typical fucking biographical post that every other fucking person was posted and wrote that I had fucking posted a link to a post I wrote and it hadn't appeared. (I didn't use any fucking fowl language in that fucking post).

I was told that it was probably just in the backlog of posts awaiting moderation. OK, fucking fine.

Then I fucking saw other posts that clearly were written after mine, popping up regularly. I responded by fucking posting the fucking link again.

Fucking nothing.

So I fucking left this fucking group of Left thinking lawyers.

Prior to the fucking election I was critical of the Left for suppressing speech. I wrote that the fucking Right was much more willing to engage, even if that fucking engagement was harsh, mean, offensive, or fucking horrible. I was fucking criticized for saying that, because fucking people on the Left thought I was wrong.

I fucking wasn't.

To the Facebook group "Lawyers on the Left," I wish you all the fucking luck, and I'm sorry that I fucking offended you.

Located in Miami, Florida, Brian Tannebaum practices Bar Admission and Discipline and Criminal Defense. He is the author of The Practice.Share/Save/Bookmark

Friday, November 11, 2016

A Heartfelt Message About Moving On From This Election

My girl lost and your guy won. 

I accept that Donald J. Trump will be the next President of the United States. I don't like it, as I don't think he was the lesser of two evils, I think he was the evil of two lessers. 

Hillary wasn't the best candidate, but she was the inevitable candidate for the Democrats, and her election at least wouldn't have school children wondering out loud in class if they were going to be deported, or homosexuals wondering if they were going to have to go back in the closet, or the unwashed public facing certain disappointment when they realize Trump won't get them a job.

And this call to come together? That's not happening. Too many feelings on our side that you hate Jews, and blacks, and gays, and immigrants. No, I know, it's not all of you, and many of you are just working class people fed up with the elites. I get it, but many of us don't care. Many of us think this election was about hate, and hate won. Argue that's not true, but don't expect any concessions.

There is but one point I really have to make right now and that is in response to this call for us to "move on," to "stop crying," and to "stop whining." 

I don't begrudge your gloating, your happiness, your joy that your guy won. You deserve to enjoy the results of this election, to celebrate victory, to dance, cheer, whatever you want. 

You won, but now a man who attracted supporters due to his attack on Muslims, who disparaged members of our military (including Senator John McCain), who said things about women that go well beyond locker room talk, and who showed no respect to our current President until yesterday's dog and pony show, is going to run this country for at least the next four years, and half the country is pissed off about that. Seems understandable to me that someone would shed a tear.

Because in that win, there was of course loss. When one team wins the Super Bowl, it requires the other team to lose. When the cameras pan the losing team's sideline, it shows grown men crying. So if a few little girls, women, moms, and a also dads, cry in public, express their disappointment, or want to engage in a meaningless protest - deal with it. We didn't want your guy to win, and he won. This was not an inconsequential victory.

In sum, to those that believe "we" owe "you" a "moving on" from this election, go fuck yourself.

Located in Miami, Florida, Brian Tannebaum practices Bar Admission and Discipline and Criminal Defense. Share/Save/Bookmark

Wednesday, November 9, 2016

You Can't - Always Get - What You Want

I never understood why Donald Trump ended his rallies with that song, until last night.

Last night it made sense. It wasn’t a song for his supporters. It was a song for everyone else.

This morning my 17 year old daughter was crying.

As I drove her to school and asked “so what do you think,” (not specifically mentioning the election) my 14 year old daughter suggested that if Hillary won Florida she would have won. I told her, “no, she wouldn’t have.” Texts came in from friends telling me their children too were upset. Anger on the internet has reached a point where people are wishing death on their fellow Americans.

In half the country, there is joy. A new term has spread across the airwaves – “the forgotten man.” Apparently “the forgotten man” won last night. This is the man who has spent the last 8 years angry at the government. This is the man who has been convinced that immigrants are the reason they are unemployed or underemployed. This is the man who doesn’t care that black people are killed by the police for being black people, and is tired of hearing about it. This is the man who has no Muslim friends and doesn’t believe that any Muslim is peaceful. This is the man who, based on the numbers, is a white recent college graduate, has no retirement account that plummeted last night, is deeply in debt and believes that Donald Trump will resolve that issue, and at 21 or 24 or whatever has had it with the federal government. This is the man who believes we will build a wall, kill NAFTA, have a better health insurance system, and that their life would be better if we “lock her up.”

I predict Hillary hearings will begin in January to the joy of “the forgotten man.” Millions of dollars will be spent, and the “forgotten man” won’t care. Conservatives are for smaller government, spending less of their tax dollars, unless they can be entertained. Last night, as Trump prepared to take the stage and talk about unity, his supporters were joyfully chanting “lock her up.”

I said months ago, as I listened to Donald Trump spew red meat at his supporters, that they would be the most disappointed if he was elected. He has many ideas, and no plan. Not a single plan for a single idea, and it doesn’t matter. Politicians have had plans, and no success. That’s what his supporters knew – it doesn’t matter what he says because they are all liars and he is our liar.

The theme of his campaign amongst his supposed Constitution loving supporters, besides “lock her up,” (for whatever she was never convicted of nor charged with), was “we don’t care.” Nothing he said mattered. Hillary had an email problem and that was enough.

So now you have your man, you “forgotten man.” This country is more divided than anyone imagined. Yes, this is a victory for white America – the white America that wants America to be whiter. The white America that wants more people in prison, the white America that believes a Black president is to blame for their lot in life.

I see people wishing Donald Trump “success.” I do not wish him success in the way the “forgotten man” wants him to have success. Donald Trump has given a voice to those that hate what America is today, and they hate their fellow Americans. The retort is always that “Donald Trump does not hate,” but it doesn’t matter. He has given a voice to people who hate those that are not white like them, and that support has made him President.

I didn’t support Donald Trump because I don’t hate what America is today. 

Whenever you have 300 million people living within borders, you will have problems. But the problems defined by “the forgotten man” are their problems with people who aren’t like them and can only be “fixed” by returning us to a time to which I don’t want America to return.

This election was the end of the mainstream media’s credibility. By allowing paid “surrogates” from each campaign to sully the airwaves with whatever lie would help their candidate, they lost any objectivity.  They should be ashamed of becoming nothing more than modified reality shows for the purpose of ratings. The new media is social media, and Donald Trump proved that over and over again.

Make no mistake, you may be happy this morning that the corrupt email bitch didn’t become President –and let’s be clear-she was a weak, flawed candidate for the Democrats - but we have sent a man in to the White House that has promised to make America white again, and in doing that, we have to go back to the politics of the 1950’s.

When I saw my 17 year old daughter this morning, she was crying. I gave her a hug and said “I’m sorry.”


Because I am.  

Located in Miami, Florida, Brian Tannebaum practices Bar Admission and Discipline and Criminal Defense. He is the author of The Practice.Share/Save/Bookmark

Sunday, July 31, 2016

The One Reason Donald Trump Should Never Be President

This has been the worst Presidential campaign in my lifetime and likely in America’s history.

Let’s assume - for the purpose of preventing heads from exploding – that Hillary Clinton is a criminal, a liar, is responsible for the killing of people including a U.S. Ambassador, and is married to a former (impeached) (womanizing) President. For any of those reasons alone, I understand you may not want her to be President and you will not vote for her. OK? We good there?

The reason I wrote the above (other than it is reasonable) is because the “BUT WHAT ABOUT KILLARY, SHE LIED AND PEOPLE DIED AND EMAIL AND EMAIL” is not an appropriate response here.

Donald Trump is not qualified to be President of the United States.

And I know, he’s 35, he was born here and so yes “he’s qualified.”

Donald Trump is not qualified to be President.

I know, you don’t care. Plenty of “qualified” people have become President and disappointed you, so why not vote in this guy? Why not use the power of the internet to convince people to blow up the system? We have the power to do that. 

We can control who buys what from where, who gets fired, and who gets elected. Let’s put this guy in office.

There are many reasons why you should care. Donald Trump knows little about the responsibility he wishes to undertake, and what he does know is not going to help you.

So stop telling me that he’s going to let you keep your gun(s) and that he’s the best President for Israel. Donald Trump is going to do nothing but disappoint you, especially when you are still wondering why that wall that will help you get a job hasn’t been built.

And yes, I said there was “a” reason Donald Trump should never be President.

The reason is that he is running as a Republican, the party that claims to have the franchise on respect for our military.

Donald Trump should never be President because when the Muslim father (who has always voted Republican, until now) of a dead Muslim soldier (both Americans) stood at the podium at the Democratic National Convention, questioning whether Donald Trump had read the United States Constitution, and claiming Donald Trump had not sacrificed, Donald Trump responded that he has indeed sacrificed by having “worked hard” and questioning why the dead soldier’s mother stood quietly by her husband’s side (intimating that as a Muslim she is forbidden from speaking.)

Note: Ms. Kahn has responded to Donald Trump.

Of course Donald Trump wants his supporters to think that never in the history of men speaking in public - with their wives standing by – has the wife remained silent. No, this is an appeal to the other Muslim haters out there besides Donald Trump who are willing to believe that Captain Kahn’s grieving mother silently stood by her husband’s side while he, a lawyer, addressed the millions of people listening, because she was forbidden from speaking, because in Donald Trump’s world, Muslims are bad people and this was another bad Muslim moment.

To my Jewish brethren claiming Trump is Israel’s best friend in this election, or unemployed Americans believing that a wall is going to get them a job, or anyone watching the news convinced that Donald Trump is going to keep them safe, you are ignoring who this man really is.

You cannot respect our military while disrespecting the families they left behind. 

You cannot claim to be a member of the party that believes it is the only party that supports the military, and elect a man who just did to Captain Kahn’s family what Donald Trump did. You can claim that you don’t care what he says, but what he says is what he thinks, and what he hopes you think, and unfortunately, what some of you actually do think.

Yes, Donald Trump could shoot someone on 5th Avenue and not lose voters, he can say anything he wants and any attack on his statements will be seen by his supporters as trying to take away the power of the people to vote for him.

Donald Trump is not about the end of political correctness. The enemy of political correctness is not attacking the family of a dead soldier. There is nothing political or correct about accusing a grieving mother of a dead soldier of standing silently by her husband because she is Muslim. That, is not only incorrect, it is despicable.

The reason Donald Trump should never be President is because what he did to the Kahn family shows that he doesn’t respect what America stands for, and this is true no matter how much you hate Hillary Clinton.

Located in Miami, Florida, Brian Tannebaum practices Bar Admission and Discipline and Criminal Defense. He is the author of The Practice.

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Sunday, June 26, 2016

On Fatherhood

Yesterday I dropped my oldest daughter off for a month away on a college campus. It’s a summer program. She’ll be back in 30 29 days. Back in the house, back for me to see every day, back to tell me where she’s going and when she’ll be home. Back to breeze by me on her way in from one thing to change her clothes and head off to another.

In this era where every moment of our lives is plastered on social media (as are my thoughts now), we are used to seeing kids at the airport going off to college or camp, or venturing away to a foreign country for an extended period of time. 

These are pictures. They never portray the feelings behind the camera. For years I’ve heard “it goes by quickly.” I always heard that as a message that I would feel sad when my kids were no longer living at home.

But yesterday I didn’t experience the feelings of separation, or wondering how much I would miss my daughter. I had one prevailing feeling.

Was I a good father?

This thought, feeling, came to me because a phase of fatherhood ended yesterday. My first-born is grown up. She’s not 10 years old and going to summer camp, she’s not going away for a week with friends. She’s in a program with other girls from all over the world. None of her friends are there. We are 1,500 miles away.

I am not sad because I miss her already, although I do. I am sad because I question whether I have been a good father to her. I’ve never thought about this until yesterday.

I know I have been. I know. I’ve provided for her, went to her dance recitals, her school events, allowed her to stay out late, explained politics and law to her. I know. I’ve been lucky to be self-employed and be with her when I chose.

But this trip is different. I now realize that her next long trip will be the beginning of college. I know that then she’ll be away for months at a time, and then, after graduation, she may wind up living far away, and seeing me a few times a year. I know that this is something parents live with and it’s part of life. 

Parents raise children. Children are supposed to grow and flourish and run off to make their goals and dreams come true. I’ve never wanted my kids to stay home, or close to home, and in theory I am excited for them to move on.

Yesterday, though, I realized that she no longer needs me to walk her across the street, or carry her, or be with her daily. She has grown up, and while I know she’ll need her “Daddy” in her life, as I will need my first born, it is not for the same reasons as before. It is those thoughts that cause me to hope that I have done everything I was supposed to do.

I am not unhappy that my oldest no longer needs me in the same way she once did, I am sad. There is a difference. I cannot escape the fear that I have not taught her everything I was supposed to teach her, or that I missed an opportunity to be with her and it may now matter.

I know that she will meet incredible people at this program, and that everything she learned so far will benefit her over the next 29 days. She will talk politics and law, and learn about life in foreign countries. She will come home with new friends and thoughts and ideas and likely be much different than when she said “goodbye” yesterday. I just wonder if anything I’ve done – good or bad – will be a motivator for her in her thoughts or actions.

I told her that I am proud of her, my voice crackling so much that I don’t know that she heard me.


That’s all.




Located in Miami, Florida, Brian Tannebaum practices Bar Admission and Discipline and Criminal Defense. He is the author of The Practice.Share/Save/Bookmark

Wednesday, April 27, 2016

Professor Jeff Jarvis, The Joke

"Jeff Jarvis, a national leader in the development of online news, blogging, the investigation of new business models for news, and the teaching of entrepreneurial journalism, writes an influential blog, Buzzmachine.com. He is author of the books What Would Google Do? and Public Parts: How Sharing in the Digital Age Improves the Way We Work and Live as well as the e-book Gutenberg the Geek."

And like those who have tied themselves to the internet for their career, I've never heard of him outside the internet. I never heard of him before I had a twitter account.

I do know the fake Professor Jeff Jarvis. He's someone who has a twitter account and tweets out the most ridiculous, funny exaggerations about the role of the internet in our lives. Stuff like this:

and this:

and this:

He takes the stupid phrases of the internet-centric and shows us the sillyness of it all.

This is Professor Jeff Jarvis.




This is the fake Professor Jeff Jarvis.

Prof. Jeff Jarvis

Can you tell the difference?

Well yesterday Esquire did a satire piece (now removed as you'll read below) on the good Professor.

The Real Professor Jeff Jarvis got mad. He had enough. He had enough, again, according to his whiny pathetic piece that contains this aw poor baby passage:

It was personally upsetting. My anxiety was pushing my heart back into afib for the first time in a few years. Oh, joy, this bozo is going to send me to the hospital. Enough.

No, really. that's in the piece, read it. He's had it. There will be no SNL skit on Professor Jeff Jarvis, mainly because no one knows who he is, and if they did, SNL wouldn't want the headache of this crybaby who claims to be teaching, of all things, journalism.

Thankfully no journalists will ever have to deal with satire. I mean, could you imagine if there were satire videos of someone like, let's say CNN's Wolf Blitzer all over the internet?

There is no bigger honor than making good fun of someone. It's called parody. It's called satire. Every politician, movie star, musician, and famous person prays that they will appear ridiculous and made fun of on Saturday Night Live or elsewhere. When I say "good fun," I mean harmless jokes.

When you read Professor Jeff Jarvis' whiny retort to the satire on Esquire, you will shake your head. If you don't, well, hello Professor Jeff Jarvis.

Located in Miami, Florida, Brian Tannebaum practices Bar Admission and Discipline and Criminal Defense. He is the author of The Practice: Brutal Truths About Lawyers And Lawyering Share/Save/Bookmark