Newsletter of the Federal Courts Vol. 43 Number 8 August 2011

Online Chambers Training Expands ...... 3

Expedited Trial Program Begins .............. 4

USSC Votes for Retroactivity .................... 6

INSIDE

Stewards of Defender Services

The Committee on Defender Services is always mindful

of its mission—to ensure the right to counsel guaranteed by the 6th Amendment. Committee chair Judge Claire Eagan talks about the Committee and its activities (beginning on page 9).

INtErvIEw

2010 Report Shows Number, Assets and Debts of Bankruptcy Filers Increased

The total assets and debts of individuals filing non-business bankruptcy

petitions increased in 2010, according to a report filed with Congress this month. The report examines the 1.5 million consumer cases filed in 2010 and the 1.3 million consumer cases filed after October 17, 2006, and closed during calendar year 2010. The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) provides that clerks of the

Continued on page 2

On September 17, 1787, delegates to the Constitutional Convention signed the U.S. Constitution. In 1956,

Congress established Constitution Week to encourage all Americans to learn more about the Constitution. Then in 2004, Senator Robert C. Byrd of West Virginia sponsored legislation designating September 17th of each year as Constitution Day. Since then, public schools and governmental offices have been required, in Byrd’s words, “to take steps to ensure that our Constitution and our system of government are known, understood, and cherished by the people they were established to serve.”

Constitution Day 2011 falls on a Saturday, so the day will be observed in classrooms

and courts on Friday, September 16. Courts and teachers who would like assistance in developing programs for the day will find resources online at www.uscourts under Educational Resources/Constitution Day. This year’s theme is: Federal Courts: Guardians of the Constitution.

Planning for Constitution Day

The Third Branch August 20112

bankruptcy courts “shall collect statistics regarding debtors who are individuals with primarily consumer debts seeking relief under chapters 7, 11, and 13 of Title 11.” The complete report is available online at www.uscourts.gov/Statistics/BankruptcyStatistics.aspx.

During calendar year 2010, more than 1.5 million bankruptcy petitions were filed by individuals with predomi-nately nonbusiness debt, an increase of 9 percent over the number of filings in calendar year 2009. Data on assets, liabilities, and income are self-reported by debtors when they submit forms, motions, agreements, and other filings, and are not validated by the courts. The reports do not identify the names of filers. The 2010 statistics were dispropor-tionately affected by two debtors, one of whom filed a chapter 7 bankruptcy petition claiming assets of nearly $99 billion and debts of nearly $16,000, and another who filed a chapter 13 petition reporting $97 billion in assets against $100 billion in liabilities. These two petitions account for 48 percent of all assets and 21 percent of all liabilities reported by debtors eligible for inclusion in the 2010 report.

The following statistics exclude these two petitions.

■■■ Total assets reported by consumer debtors in 2010 rose to $211 billion, which was 5 percent over reported numbers in 2009. Eighty percent of assets were categorized as real property and 20 percent as personal property. Filers in the Central District of California reported the largest amount of total assets for any district ($27 billion), followed by the Eastern District of California ($12 billion), and the Northern District of California ($10

billion). The mean filer nationwide reported $149,000 in assets at filing.

■■■ Total liabilities of 2010 consumer debtors rose 15 percent over 2009 to $374 billion. Overall, debtors catego-rized 97 percent of all debts and obligations as dischargeable debt. The highest total for liabilities was for debtors in the Central District of California ($45 billion), followed by debtors in the District of New Jersey ($41 billion). The mean for debtors nationwide was $265,000 in liabilities at filing.

■■■ The median average monthly income reported by all debtors was $2,800, an increase of 3 percent over 2009. The median average reported monthly expenses were $2,872, 2 percent higher than in 2009. The Northern District of California had the highest median average monthly income at $3,705 and the highest median average monthly expenses at $4,040. The District of Puerto Rico had the lowest median average monthly income at $1,766, and the lowest median average expenses at $1,610.

The BAPCPA Report also includes data on 1.3 million individual non-business cases filed after October 17, 2006, and closed in 2010.

■■■ Approximately 85 percent of the 1.3 million closed consumer cases included in the 2010 report were closed under chapter 7, about 15 percent were termi-nated under chapter 13, and fewer than 1 percent were closed under chapter 11.

■■■ Of the closed cases included in the report, the mean time interval from filing to disposition was 230 days and the median time interval was 124 days. The mean is 14 percent higher than for 2009, and the median is one day greater than in 2009. The median time interval for closed chapter 7 cases included in the report was 120 days, the same as 2009. The median time intervals for closed chapter 11 cases (322 days, up from 296 days in 2009) and closed chapter 13 cases (399 days, up from 337 days in 2009) increased due, at least in part, to more cases with completed plans being included in the 2010 report than were included in the 2009 report.

2010 Report Shows Number, Assets and Debts of Bankruptcy Filers Increasedcontinued from page 1

Mean Net Scheduled Debt Per Consumer Bankruptcy Filing, 2010

Less than $126,000

$126,000 to $150,000

$150,001 to $184,000

$184,001 to $260,000

More than $260,000

The Third Branch August 2011 3

Get Your COAT on!

Prepare and docket an opinion, learn about the Case Management/Electronic Case Files system, work

with PDFs, leverage your electronic environment to share files with your email: training on all those topics and more are available to judges and court employees from their desktops through COAT, the Chambers Online Automation Training. Since COAT began in August 2008, Judiciary users have completed over 7,000 lessons online. And now COAT has even more to offer.

This month, the list of available training modules will double to include lessons on Microsoft Word software, working remotely, computer safety, and separate module series for bankruptcy and appellate courts.

The audio/video training modules fall into 13 general lesson areas. Few run longer than 10 minutes, many clock in at around 3 minutes. Each module is organized by job-related function and includes a demonstration and a guided simulation.

COAT began with a desire by the Judicial Conference Information Technology Committee to create better IT training for judges and chambers staff. It is part of the FJC/AO Judicial IT Training Initiative.

“At conferences, we’d present brief ‘show and tell’ videos of IT tools that could be useful in chambers and they were always very well received,“ said Magistrate Judge David Nuffer (D. Utah). “It seemed to me there was a need for training videos on select automation topics that could

be made available on demand, on line, where judges and staff could view them.”

With a grant from the Edwin L. Nelson Local Initiatives Program and the collaborative efforts of the Judiciary ’s Automation Trainers Community of Practice, the Federal Judicial Center’s training experts, and judges like Nuffer, who suggested topics for modules, 40 audio and video modules were produced. That number will double with the most recent additions.

“Our judge-advisors recommend modules they think might be useful for chambers staff, as do our IT developers who work with staff in their courts,” said Luta Pleiss, software trainer in the District of Nebraska. Pleiss helped launch COAT

Continued on page 5

Pretrial Services Cases Show Steady Growth

The number of criminal defendants super-vised under the federal

Judiciary’s pretrial services system has grown in each of the last five fiscal years.

The number of pretrial services cases activated in FY 2006 was 94,853, and that number grew to 96,259 in FY 2007, 98,244 in FY 2008, and 110,547 in FY 2010, the 12 month-period ending September 30, 2010.

The pretrial services function of the federal courts takes place at the very start of the criminal justice process—after a person has been arrested and charged with a federal crime and before he or she goes to trial. Pretrial services officers focus on investigating the backgrounds of these

persons to help the court determine whether to release or detain them while they await trial. The decision is based on whether these individuals are likely to flee or pose a threat to the community. If the court orders release,

a pretrial services officer supervises the person in the community until he or she returns to court. In 2010, PSOs prepared 107,256 pretrial services reports.

Congress authorized “demonstration” pretrial services agencies in 1974 with a goal to reduce crime by persons released to the community pending trial and to reduce unnecessary pretrial detention.

President Ronald Reagan signed the Pretrial Services Act of 1982, which expanded the system Judiciary-wide.

For additional information on pretrial services, including history, articles on pretrial risk, and definitions of commonly used terms, visit the federal court’s website at www.uscourts.gov/FederalCourts/ProbationPretrialServices.aspx.

28%The increase in the number of pretrial

services cases activated between

FY 2001 and FY 2010.

92%Percentage of pretrial services reports that

were pre-bail reports.

The Third Branch August 20114

Expedited Trial Program Gives California Litigants Options

one and a half day jury trial, if certain procedures were developed for federal courts.”

The program is completely voluntary, but binding once agreed to, and the goal is to try a case within six months. To participate, the parties execute an Agreement of Expedited Trial and Request for Approval. Once the agreement is approved, expedited time schedules and rules of procedure begin.

Parties may exercise a variety of creative options to customize the trial to their needs. For example, a plaintiff might be willing to participate if the defendant is willing to waive the right to move for summary judgment, while a defendant might be willing to participate if the plaintiff is willing to waive the right to seek punitive damages. The program will be a good fit for any short-cause matter.

“The process may also prove attractive in cases where the parties conclude that an expedited ruling on a single issue, such as comparative fault, will enable the parties to settle the other aspects of their dispute,” Alsup explained.

Timesavers are built into the program. Discovery is limited to ten interrogatories and 15 hours of deposition time to be used at the party’s discretion. Experts are limited to one per side, absent agreement of the parties or leave of the court; pretrial motions also require leave of the court and may not exceed three pages. Each side is allowed three hours for presen-tation of its case, including cross-exami-nation. Six jurors are selected and the judge conducts the voir dire. Post-trial motions are limited to recovery of costs and attorney’s fees, and grounds for new trial motions and appeals are limited.

“We save costs and go directly to a short trial,” Alsup said. “Attorneys aren’t working through a pile of depositions. They’re not worrying about run away punitive damage awards. The two sides can narrow their differences and get a decision in a case.”

In the Northern District of California, nearly 75 percent of the caseload is civil. A small percentage of that caseload will be affected by the expedited trial program.

“The bar and our judges were open to an expedited trial program,” said Wieking. “We don’t expect a dramatic change in the court’s workload because this affects only a small subset of cases. But it is one more tool for us to use to manage cases.”

“It’s not a panacea,” Alsup agrees. “It’s more like fine-tuning. We’re providing this option because we believe there’s a demand in some cases for streamlined and expedited trials, with the attendant savings in cost and risk.”

The Committee on Expedited Trials is developing a series of continuing eduation programs to inform and train the bar in the use of the expedited trial program.

The Northern District of California has adopted an expedited trial program that will resolve certain

cases in a one-day trial, reducing costs for litigants and their time in federal court.

“Attorneys practicing in our court identified a need, particularly in some of our employment and civil rights cases, for an expedited trial program,” said Judge William Alsup. “We responded to that need.”

Alsup chaired a committee that was charged nearly a year ago by then-chief Judge Vaughn R. Walker to find ways to improve the administration of justice— including examining lengths of trials, especially for smaller cases. Clerk of Court Rich Wieking adds that the district, which is known for its innovations, including a robust alternative dispute resolution program, is always on the lookout for improved ways to move cases along.

The program is completely voluntary, but binding once agreed to, and the goal is to try a case within six months.

“The State of California had recently adopted an expedited trial program and, on the federal side, we were tasked with examining the idea to see if there was value for our court,” Alsup said. The committee was composed of district court judges, lawyers repre-senting a variety of practice areas, the U.S. Attorneys Office, and the California Department of Justice.

“I was impressed by the thought all of the judges and attorneys put into crafting the program,” he said. “They all felt that, for a part of our caseload, it was entirely feasible to have a one- or

The Third Branch August 2011 5

in 2008 and has worked with judges and trainers to develop modules.

All the modules demonstrate programs or skills using examples judges or staff will encounter in their daily work; for example, using WordPerfect to format an opinion, or manipulating PDF documents when finalizing an opinion.

“We teach from a chambers-oriented perspective,” said Pleiss. “Users learn with the types of documents they actually use.”

When Nuffer trains new magistrate judges during their initial orientation, he asks them to log into COAT and complete one or two lessons. “It ’s great

reinforcement for classroom training,” he said.

And because funding is not available for chambers staff to travel for training, “COAT provides training that would not otherwise be done,” said Nuffer.

COAT also can be a new employee’s introduction to the workings of the federal Judiciary. Because it’s not on the Judiciary’s internal Data Communications Network, it can be accessed from any computer—providing you have the Web address, a password, and an ID—even before employment starts.

“Before a new law clerk shows up for the first day in chambers, judges can assign the first few modules, “ said Nuffer. “It’s a great way to get new hires up to speed.”

“Law clerks are hired every year, and every year we have to train them,” agrees Pleiss. “With COAT and online access, we don’t have to continually recreate training.”

By the end of August, the COAT’s Web address will be changing and Judiciary users will be notified by their court’s training coordinator or IT trainer of the new address.

COAT’s training modules, while originally geared to chambers staff, are a valuable resource for everyone in the Judiciary. The new modules make even more instruction available. “I learn every time I teach,” said Nuffer. “And I learned a lot from the new modules. We want to share that.”

Get Your COAT on!continued from page 3

The State of the First Amendment‘Congress shall make no law respecting

an establishment of religion, or

prohibiting the free exercise thereof;

or abridging the freedom of speech, or

of the press, or the right of the people

peaceably to assemble, and to petition

the government for a redress

of grievances.’ —Amendment I of the U.S. Constitution

This year, as they have every year since 1997, the First Amendment Center surveyed a 1,006 American

adults on their attitudes about the First Amendment. The good news: Americans are trending toward “greater awareness and support for First Amendment rights.”

The survey response to the question in the graph shows that the percent of Americans who can name the five First Amendment rights has generally increased over the years, with most Americans able to identify Freedom of Speech as a protected right.

1997

1998

1999

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2001

2002

2003

2004

2005

2006

2007

2008

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2010

As you know the First Amendment is part of the U.S. Constitution. Can you name any of the specific rights that are quaranteed by the First Amendment?

0

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Perc

enta

ge

Freedom of the Press

Freedom of Speech

Freedom of Religion

Right to Petition

Right of Assembly

Don't Know

The Third Branch August 20116

Retroactivity Did Not Affect Recidivism

Three years after the first crack cocaine offenders were released pursuant to retroactive application

of the 2007 Crack Cocaine Amendment, a study shows no statistically significant difference in recidivism rates between those whose sentences were reduced and those serving their full prison terms. The amendment, which became effective November 1, 2007, lowered the base offense level for crack cocaine by two levels. The complete study is available on the Sentencing Commission’s webpage (www.ussc.gov, Materials on Federal Cocaine Offenses).

Of the 25,515 motions for retroactive application of the 2007 amendment

received, 16,433 or 64.4 percent were granted

and 9,082 denied. Most applicants, 7,665 of the 9,082,

were legally ineligible.

The U.S. Sentencing Commission analyzed the impact on recidivism rates of sentence reductions after courts were authorized to modify the sentence of offenders incarcerated on or after March 3, 2008. Of the 25,515 motions for retro-active application of the 2007 amendment received, 16,433, or 64.4 percent, were granted and 9,082 denied. Most appli-cants, 7,665 of the 9,082, were legally ineli-gible. The average decrease in sentences among those crack cocaine offenders was 26 months. Some offenders were released almost immediately or in the first few months after the effective date.

Of the group who benefited from the 2007 Crack Cocaine Amendment group, 30.4 percent of the crack cocaine

offenders re-offended within two years. In the comparison group of crack cocaine offenders who were released too early to benefit from the retroactive application of the amendment, 32.6 percent of the offenders re-offended within two years.

Offenders in the two groups re-offended at similar rates and in similar ways. Offenders in both groups were re-arrested for the same crime types, with

roughly 20 percent of re-arrests in both groups for drug possession. Recidivism rates for both groups also climbed steadily throughout the two-year period.

For the study, recidivism was defined as, within a two-year period following release, a reconviction for a new offense, a re-arrest with no case disposition infor-mation available, or a revocation of an offender’s supervised release.

USSC Votes for Retroactivity

The U.S. Sentencing Commission has voted to give retroactive effect to its proposed permanent amendment to the federal sentencing guidelines that implements the Fair Sentencing Act of 2010. (See the June 2011 TTB for the Judiciary’s position

on retroactivity and a description of the amendments.) Retroactivity of the amendment will become effective on November 1, 2011, unless Congress acts to disapprove the amendment. It is estimated, based on fiscal year 2010 sentencing data, that approxi-mately 12,000 offenders may be eligible to seek a sentence reduction. The average sentence reduction for eligible offenders will be approximately 37 months. The average sentence for these offenders, after reduction, will remain about 10 years.

3 Months 6 Months 9 Months 12 Months 18 Months 24 Months

Recidivism Rate Over Time by 2007 Crack Cocaine Amendment and Comparison Groups

0

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2007 Amendment Group Comparison Group

The Third Branch August 2011 7

PACER Training Program Underway

A program aimed at having public libraries enhance the public’s knowledge and use of the

federal Judiciary’s Public Access to Court Electronic Records (PACER) service has begun this summer.

Two libraries—the Library of Congress in the District of Columbia and the Law Library for San Bernadino, California—kicked off the program July 1, and up to an additional 50 libraries may join them in future months.

“Our recent assessment of the Electronic Public Access program, told us a lot about what our PACER users like and need. We’re responding to those needs,” said Michel Ishakian, chief of the Admin-istrative Office’s Public Access and Records Management Division. “We’ll continue to expand public access to our services because that’s what the public wants.”

PACER allows users to obtain case information from federal courts without having to visit the courthouse. The service

allows an Internet user to request infor-mation about a particular case or party, and makes the data immediately available for printing or downloading at a cost of eight cents per page.

PACER allows users to obtain case information from federal courts without having

to visit the courthouse.

Participating libraries will conduct at least one training class for the general public every three months, and offer training or refresher opportunities for library staff at least once a year. Those staff members, in turn, may assist library patrons in the use of PACER. For partici-pating libraries, the first $50 of PACER use fees each quarter will be waived.

The Administrative Office (AO) is developing PACER training that will be made available free of charge as part of the program. The site will contain actual court dockets and documents.

The AO last September announced the results of a year-long assessment of PACER, which found a high level of satisfaction overall among users. The study, conducted by an independent consulting firm, was designed to gauge users’ satisfaction and identify opportunities for new or expanded services. Findings of the PACER Service Assessment are available at http://www.pacer.gov/documents/assessment_slides.pdf.

The new training program is one of the improvements stemming from the PACER assessment. The program is a joint under-taking of the AO, the Government Printing Office, and the American Association of Law Libraries.

In the 2007 Crack Cocaine Amendment group, new arrests occurred in 23.2 percent of the cases, and revocations only were recorded in 7.2 percent. In the comparison group, new arrests occurred in 25 percent of cases, and revocations were recorded in 7.6 percent.

The two crack cocaine offender groups also have a comparable mix of criminal histories. The Sentencing Commission ranks Criminal History from Category I to Category VI, with Category VI the most substantial prior criminal record. In each group, approximately 30 percent of the crack cocaine offenders are in CHC IV through VI, which indicates that many crack cocaine offenders had substantial criminal records. Recidivism rates are strongly influenced by criminal history. Offenders with more past crimes, and

Recidivism Rate by Criminal History Category 2007 Amendment Group Comparison Group

Criminal History Category I 18.2% 20.6%

Criminal History Category II 27.5% 28.2%

Criminal History Category III 35.5% 33.1%

Criminal History Category IV 32.8% 45.8%

Criminal History Category V 43.1% 45.9%

Criminal History Category VI 44.3% 50.0%

more serious crimes, are more likely to re-offend.

The average length of the original sentence imposed on crack cocaine offenders in the 2007 Crack Cocaine Amendment group was 107.4 months, and comparable to the average length of

the sentences imposed on the comparison group, 97 months. After sentence modifi-cation, the 2007 amendment group served 80 percent of the original sentence less earned credits, and the comparison group served 100 percent of the original sentence less earned credits.

The Third Branch August 20118

Published monthly by theAdministrative Office of the U.S. Courts

Office of Public AffairsOne Columbus Circle, N.E.Washington, D.C. 20544

(202) 502-2600

Visit our Internet site at www.uscourts.gov

DIRECTORJames C. Duff

EDITOR-IN-CHIEFDavid A. Sellers

MANAGING EDITORKaren E. Redmond

PRODUCTIONOmniStudio, Inc.

CONTRIBUTORDick Carelli, AO

Please direct all inquiries and address changes to The Third Branch at the above address or to

Karen_Redmond@ao.uscourts.gov.

Up-to-date information on judicial vacancies is available at

http://www.uscourts.gov/JudgesAndJudgeships/JudicialVacancies.aspx

August Judicial Milestones

JUDICIAL BOXSCOrE

Appointed: Susan L. Carney, as U.S. Court of Appeals Judge, U.S. Court of Appeals for the Second Circuit, June 21.

Appointed: Michael H. Simon, as a U.S. District Court Judge, U.S. District Court for the District of Oregon, June 30.

Appointed: Jacqueline S. Corley, as U.S. Magistrate Judge, U.S. District Court for the Northern District of California, May 18.

Appointed: Nathaniel M. Cousins, as U.S. Magistrate Judge, U.S. District Court for the Northern District of California, July 5.

Appointed: Jane M. Virden, as U.S. Magistrate Judge, U.S. District Court for the Northern District of Mississippi, July 2.

Senior Status: U.S. Court of Appeals Judge Arthur J. Gajarsa, U.S. Court of Appeals for the Federal Circuit, July 31.

Senior Status: U.S. District Court Judge Daniel R. Dominguez, U.S. District Court for the District of Puerto Rico, July 31.

Elevated: U.S. District Court Judge Nancy D. Freudenthal, to Chief Judge, U.S. District Court for the District of Wyoming, succeeding U.S. District Court Judge William F. Downes, June 1.

Elevated: U.S. District Court Judge Margeret C. Rodgers, to Chief Judge, U.S. District Court for the Northern District of Florida, succeeding U.S. District Court Judge Stephan P. Mickle, June 22.

Elevated: U.S. Bankruptcy Judge W. Keith Watkins, to Chief Judge, U.S. District Court for the Middle District of Alabama, succeeding U.S. District Court Judge Mark E. Fuller, May 17.

Elevated: U.S. Bankruptcy Judge Bruce W. Black, to Chief Bankruptcy Judge, U.S. Bankruptcy Court for the Northern District of Illinois, succeeding U.S. Bankruptcy Judge Carol A. Doyle, July 1.

Elevated: U.S. Bankruptcy Judge James B. Haines, Jr., to Chief Bankruptcy Judge, U.S. Bankruptcy Court for the District of Maine, succeeding U.S. Bankruptcy Judge Louis H. Kornreich, July 1.

Elevated: U.S. Bankruptcy Judge Kevin Gross, to Chief Bankruptcy Judge, U.S. Bankruptcy Court for the District of Delaware, succeeding U.S. Bankruptcy Judge Kevin J. Carey, July 1.

Retired: U.S. District Judge William F. Downes, U.S. District Court for the District of Wyoming, July 24.

Retired: U.S. Magistrate Judge Jerry A. Davis, U.S. District Court for the Northern District of Mississippi, June 30.

Deceased: Chief U.S. District Court Judge Ralph E. Tyson, U.S. District Court for the Middle District of Louisiana, July 18.

Deceased: Senior Court of Appeals Judge Daniel M. Friedman, U.S. Court of Appeals for the Federal Circuit, July 6.

Deceased: Senior Court of Appeals Judge William L. Garwood, U.S. Court of Appeals for the Fifth Circuit, July 14.

Deceased: Senior U.S. District Court Judge Helen J. Frye, U.S. District Court for the District of Oregon, April 21.

Deceased: Senior U.S. District Court Judge Ira DeMent, U.S. District Court for the Middle District of Alabama, July 16.

As of August 1, 2011

Courts of Appeals Vacancies ..................................18 Nominees .................................10

District Courts Vacancies ..................................73 Nominees .................................43

Court of International Trade Vacancies .................................... 1 Nominees ................................... 0

Courts with “Judicial Emergencies” .........38

The Third Branch August 2011 9

Grandier Retires, New OIT AD Named

Howard Grandier, Assistant Director for the Office of Infor-mation Technology (OIT), retired

on July 31, 2011, after 39 years with the federal government—20 of them at the Administrative Office. He leaves OIT in the very capable hands of Joe Peters, Deputy Assistant Director of OIT for the last three years, and now the new OIT Assistant Director.

“Joe has worked in close partnership with the courts to establish numerous innovative programs that have advanced the use of new technologies in the Judiciary,” said AO Director Jim Duff, “while generating cost savings, increasing efficiency, and enhancing security. Joe will continue to build on the strong working relationships he has established with IT professionals throughout the courts to keep the Judiciary in the forefront of technology

and to further improve OIT’s programs and customer-service efforts.”

Peters joined the AO from the Trans-portation Security Administration, where he was Deputy Chief Information Officer. He has held IT management positions in the private sector and also served for more than nine years at the U.S. Secret Service.

Podcast Series Features Landmark Supreme Court Cases

A series of audio podcasts, newly available on the federal Judiciary’s website, features landmark U.S.

Supreme Court cases that have shaped American life.

Each episode of the series, at www.uscourts.gov/Multimedia/Podcasts/Landmarks.aspx, will focus on a different landmark case. The case’s background, key arguments, and court decision will be discussed by a law professor, along with why the case has continuing importance.

The first two featured cases are Mapp v. Ohio, a 1961 decision on the Fourth Amendment’s protection against unreasonable police searches, and Texas v. Johnson, a 1989 decision about flag burning and free speech. Episodes featuring other cases will be added each month.

Committee Key to Delivery of Effective Defense Services

Chief Judge Claire Eagan has been a member of the Judicial Conference Committee on Defender Services since 2002 and the committee chair since 2008. She was appointed to the U.S. District Court for the Northern District of Oklahoma in 2001

and was previously a U.S. magistrate judge. She became chief judge of the district in 2005.

INtErvIEw

Q: what role does the Committee play in the administration and management of the federal defender and appointed counsel program?

A: The Committee serves as an active board of directors for the appointed counsel program. It engages in strategic planning for the Defender Services

program, reviews and approves all budgets and grants for federal defender organizations (or FDOs), works with the Budget Committee to devise the Defender Services budget request to Congress, and recommends to the Judicial Conference changes to the CJA Guidelines. We are stewards of the program, and are always mindful of its mission—to ensure that the

right to counsel guaranteed by the Sixth Amendment, the CJA, and other congres-sional mandates is enforced on behalf of those who cannot afford to retain counsel and other necessary defense services. To measure our progress, during my tenure on the Committee, surveys were conducted to assess the courts’ ability to obtain qualified counsel for appoint-ments. Studies of CJA plans and practices, both at the district court level and the court of appeals level, were conducted, resulting in recommended “good practices” for CJA panel management. They can be found at http://www.uscourts.gov/FederalCourts/Appoint-mentOfCounsel/Publications.aspx.

Continued on page 10

Retiring OIT Assistant Director Howard Grandier, with new OIT AD Joe Peters.

The Third Branch August 201110

INtErvIEw continued from page 9

Q: Cost-containment has been a key Judiciary priority, especially in the current fiscal climate. How does your committee con-serve limited resources when the number, nature, complexity, and changing representational requirements of cases are beyond the Judiciary’s control?

A: It is true that our program activities, like those of the rest of the Judiciary, are reactive. While the Sixth Amendment, the Criminal Justice Act, and other statutes govern the categories of persons eligible for representation, it is Congres-sional legislation and charging decisions of the United States attorney’s offices that determine our workload. However, the Committee is well aware of the need to contain costs, and in light of the current fiscal crisis, has intensified its efforts to do so. With regard to federal defender offices, the Defender Services Committee works closely with offices on capital and non-capital “mega-cases” to assure the most efficient use of resources in these high-cost representations. On the panel attorney side of the program, one of our successful cost-containment efforts was realized through the Case-Budgeting Attorney Pilot Project. This four-year activity, which placed a case-budgeting attorney in the 2nd, 6th, and 9th Circuits, was evaluated by the Federal Judicial Center. Its report found that the project accomplished cost savings without diminishing quality by working with panel attorneys to develop case budgets in high-cost cases, including identifying means of cost containment, and making recommendations to judges regarding expenditures. Following a study by the Federal Judicial Center affirming the value of such positions, the Conference approved the continuation of the three positions, and expansion to other circuits. Also, because of the

current fiscal crisis, the Committee did not request, and the Judiciary did not seek, an increase in panel attorney hourly rates for FY 2012, notwithstanding the Judicial Conference policy to seek the full statutorily authorized rate.

The Committee supports cross-agency endeavors, such as the recent initiative with the Office of the Federal Detention Trustee to identify the costs to the courts and the CJA associated with the remote detention of clients, and ongoing dialogue with the Department of Justice regarding the time involved in reaching decisions not to seek the death penalty.

Our Defender Services Committee works closely with offices on capital and

non-capital “mega-” cases to assure the most efficient use

of resources in these high-cost representations

We also recognize that many cost-drivers, such as attorney waiting time (at detention facilities and in court)

and unnecessary duplication costs for discovery, are best addressed at the local level. Our federal defenders have been responsive to the calls for belt-tightening, working with the Committee and the Office of Defender Services (ODS) to develop and implement cost containment and reduction measures. Our CJA panel attorney representatives are also engaged in the process and participate in local efforts to address cost-drivers. We have frozen defender staffing and cancelled training and administrative conferences for panel attorneys and federal defender organizations in an effort to adjust to current fiscal challenges.

Q: Earlier this fiscal year, payments to CJA panel attorneys were sus-pended for a brief period. why did the suspensions occur and are attorneys now being paid?

A: The suspensions resulted from the effects of a series of continuing resolu-tions in lieu of fiscal year funding for the Judiciary (and the rest of the federal government). Every effort was made by the Judiciary to minimize the length of time the suspensions lasted, to make the payments as soon as possible after the funding became available, and to keep the panel attorneys and the courts informed. The federal criminal justice system relies heavily on appointments to panel attorneys, and I’d like to take this opportunity to express our gratitude for their service. At our Committee meeting in June, one member described his district’s “Panel Appreciation Day,” a reception hosted by the chief judges of the circuit court of appeals and the district court. We commend that idea to other districts. The hourly rate panel attorneys receive is not yet funded at the full statutorily authorized amount and has always been well below usual and customary fees for legal services. An

Chief Judge Claire Eagan (N.D. Okla.)

The Third Branch August 2011 11

appreciation event can provide a small, but significant, non-monetary recognition of their commitment to equal access to justice. As financial pressures continue, I hope that there will be continued recog-nition of our reliance on panel attorneys to ensure that fair compensation is paid for their critically necessary services.

Q: Do all federal districts have federal defender offices? what is in place in districts where there are no FDOs to provide representation?

A: With the approved opening this year of a new organization in the Northern District of Alabama, 91 of the 94 districts will be served by a federal defender organization. The Committee and the Judicial Conference of the United States have long been in favor of establishing a defender organization in every district having the requisite number of cases (one of the three remaining districts does not meet that number). Federal defenders are rightfully viewed as a key component of the system for delivering effective defense services. Defender organizations play an important institutional role, working with their courts and panel attorneys to raise the overall quality of representation in their districts. In those districts without a defender, Defender Services provides funding for a “CJA Resource Counsel,” a private attorney who can provide consul-tative services and attempt to fill the training needs in a district. Obviously, they cannot totally substitute for a fully funded and functioning defender organization.

Q: You mentioned restrictions on FDO hiring? what has been the effect?

A: Hiring has been, and continues to be, severely restricted. Nationally, FDOs are being held to the levels of on-board staff as of December 2010, and thus individual

offices can no longer be assured that they can fill positions vacated by departing staff, much less hire new staff required by increasing local workloads. To maintain the 2010 level nationally, decisions are made by ODS as to which vacancies can be filled, working with and receiving the advice and assistance of a newly formed advisory panel of federal defenders. We are starting to see the adverse effects of these restrictions. One large, high-volume office recently experienced a 50 percent increase in caseload which is being absorbed by overworked staff with no immediate likelihood of additional help to bring caseloads back to a manageable level. In another district, an authorized branch office cannot be opened due to lack of staff as a result of fiscal constraints.

There is a fear that the quality of representation will be adversely affected by these staffing shortages. Recently, an assistant federal defender’s investigation resulted in a court finding that the client had derivative citizenship, which was a complete defense to the charge. That kind of investigation takes time, and it is exactly the kind of work professional ethics and evolving case law demands. As part of our cost-containment efforts, we continue to concentrate on maximizing the effective use of our resources, including personnel.

Q: You’ve been on the Committee since 2002 and chair since 2008. what do you view as the most significant accomplish-ments during your time on the Committee and as chair?

A: Having been on the Committee for almost a decade, I have been able to see many goals reach fruition. Since 2002, the Defender Services program has promoted the establishment of defender offices in eight more districts, which, as I mentioned, will bring the total districts served by an FDO to 91. When I joined the Committee

in 2002, the panel attorney rate was $90 an hour for non-capital cases. The Judicial Conference supported our Committee’s position that the rate should be increased to the full statutorily authorized amount, and while we have not reached that, the rate has incrementally increased and is now $125 an hour.

As part of our cost-containment efforts,

we continue to concentrate on maximizing the effective

use of our resources, including personnel.

The Committee has long been committed to fiscal responsibility, and during my time on the Committee, we have worked to create processes to contain and reduce expenditures. Examples of this include the creation of a case-budgeting process to contain the cost in the most expensive cases—death penalty, capital habeas, and non-capital “mega-cases.” In 2003, the Committee recommended, and the Judicial Conference approved, CJA Guidelines for case budgeting in those “mega-cases,” mirroring those already in place for capital cases. And in 2007, we launched the case budgeting pilot project previously mentioned.

One of the challenges that we have faced as a program is to try to keep abreast of the rapid technological advances in the practice of law. During my tenure on the Committee, I have seen great progress on this front. The development of litigation support strat-egies for both federal defenders and CJA panel attorneys, which were approved by the Committee in June 2010, were

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directed both at leveling the playing field between the United States Attor-ney ’s offices and the defenders and panel attorneys, and at affording panel attorneys access to technology similar to that available to assistant federal defenders. I am sure this will continue to be a challenge for the Committee in the future.

The Committee also has focused on IT projects that benefit panel attorneys and court personnel. The National Voucher Training Program launched, as

part of its implementation, an online reference tool that is available to the courts and to panel attorneys on www.uscourts.gov. This tool includes infor-mation on the policies related to voucher processing, and other important infor-mation about available resources. An ongoing project that has been a priority for the Committee is the electronic CJA vouchering project. While this will not be completed during my tenure, it is well on its way, and I consider its progress an accomplishment of this Committee.

Finally, the Committee has continued to be mindful of the importance of training in the provision of quality repre-sentation. ODS Training Branch, with the support and participation of the Committee, has responded to constant training needs by tailoring programs to identified need areas, such as appellate writing, sentencing advocacy, and, most recently, a trial skills academy. The Defender Services programs are highly successful and exceedingly well regarded for the quality of their content.