Tuesday, January 17, 2017
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.
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.