Hard Feelings In The Bowels Of The Courthouse

At Sentencing Law & Policy, Doug Berman received an email from someone who works in the federal courts.  While it’s not quite explained, it appears that Doug credits the email as being from someone who is indeed an “insider,” even though it’s posted under the pseudonym “Joe FedCourt.”

The entire email is definitely worthy of a read, maybe two, as it’s quite hard to follow, but it includes this:

As if it is their place to step in and question ANY Article III judge.  This only follows upon what we have seen this past year, with Defenders running to the Hill, talking to DOJ about clemency, and discussing indigent defense with the press.  The mechanics of how justice is administered in this country, in terms of the allocation of resources and the scope of jurisdiction, is exclusively the purview of the Judicial Conference of the United States and should be recognized as such.  The Conference could have gotten more money for judges’ chambers and court staff if it weren’t for people like the Defenders sucking up all the oxygen last summer and fall!  Not to mention magistrates undermining confidence in the Conference as people wonder who the hell is running the Judiciary!!!

Some commenters suggested that Doug got punked. Others suggest that this is some low rent transitory clerk.  Others dismiss it as an incomprehensible rant by someone so myopic and ignorant as to be unworthy of being taken seriously.  These are all possibilities.

The problem, and reason I take it seriously, is that the Office of Defender Services, or the federal defenders as they are most often called, is indeed under the auspices of the Administrative Office of the United States Courts, making this sentence pretty darned ominous.

The Conference could have gotten more money for judges’ chambers and court staff if it weren’t for people like the Defenders sucking up all the oxygen last summer and fall!

Whether this is a joke or not, given its facially absurd comparison between money spent on defending people versus a new sofa for chambers, it raises an important, perhaps even critical, point:  Should the defense function be under the same roof as the system in general?  Should the federal defender budget involve a tradeoff with court staff salaries and benefits?  Should Article III judges be placed in the uncomfortable position of choosing between whether some despised defendant gets investigative services or the judge gets a cool, new high-back chair?

As Doug properly notes, assuming Joe FedCourt isn’t playing with him, he may reflect the thoughts of one outlier nutjob who happens to work in a federal courthouse for a judge “on a prominent committee of the Judicial Conference,” because there is no psychological testing required for such a job, or a more pervasive view.  Since it’s impossible for anyone on the outside to answer, let’s assume that most federal court employees are sane and have a relatively working moral compass.

Regardless, when the defense walks into court, it is reasonable to anticipate that there is no overt hostility by court staff.  Whether it’s one person or 100, a federal defender should never have to concern himself with the notion that he, and his function, are viewed as the enemy, “sucking up the oxygen” for doing his job.

But is Joe FedCourt relaying a deeper, more troubling message?

As if it is their place to step in and question ANY Article III judge.

Federal defenders may share some interests with the rest of the system, but have extremely different interests as well. Do judges think the job of federal defender is to be good little boys and girls, never questioning “ANY Article III judge”?  Are efforts by federal defenders to push their concerns, their interests, in Congress resented by the judges?  Is there an antagonism that hides beneath the surface?

It’s hard to imagine that if there is one person who harbors this sort of anger and hostility toward the federal defenders, and the defense function itself, then there are more.  It’s also hard to imagine that this doesn’t bear on the judge’s attitude, the one on the prominent Judicial Conference committee, as the spillover usually comes from somewhere, and it’s the judge’s attitude, gripes and comments that are transmitted to his or her staff.

There is no way to make judges love the defense.  They may believe they can still be “fair,” but that’s just because most people delude themselves into believing they’re fair.  If this sort of seething hostility exists in even one courtroom, then anyone whose life is at risk there is not getting fairness, but suffering the ramifications of tacit hostility and antagonism.  This is unacceptable.

The obvious answer is that the federal defenders ought to be independent of court administration. Indeed, they shouldn’t be connected financially under any circumstances. Their functions, though connected, are not compatible.  Their interests are decidedly different. And to either compete for funds, or be hated for “sucking oxygen” away from ottomans and staff picnics, creates a competition that will inherently impact discretion.

Or maybe Joe FedCourt just punked me as well as Doug. Either way, the defense function ought to be independent of the courts, and any Article III judge who finds it intolerable to be “questioned” by a federal defender is too fragile to wear a robe. It’s the defense’s job to question, indeed challenge, federal judges.  It’s bad enough we have to laugh at their jokes, but it is never our duty to please the judge or his staff.

18 comments on “Hard Feelings In The Bowels Of The Courthouse

  1. PaulaMarie Susi

    Wow. I’ve been a Federal Employee for nearly 27 years, and I’m in the middle of the pack in terms of years here. You don’t work here for the pay. Yes, it would be nice to finally get a raise after many years without (well, to be fair, we did receive a whopping 1% COLA this year). What I can tell you is not ONE person in this courthouse complained when the Federal Defenders got some desperately needed funding after the massive cuts they’ve endured. We’re a family, when one of us hurts we all hurt; when one of us gets some help, we’re all grateful.
    Joe FedCourt is an asshole.

    1. SHG Post author

      Thank you, Paula. I was hoping you would see this, and let us know whether this reflects anything you’ve ever seen or heard around the courthouse.

      1. PaulaMarie Susi

        I’ve also read RGKs comment. I certainly can’t speak for other districts, but I can for the EDNY. While there is certainly griping (my voice often the loudest of all) it’s directed towards govt mismanagement of funds. I, for one, would agree to a salary freeze if it guaranteed proper funding to FD and CJA. The Federal Judicial system simply cannot work without them, and they are already terribly overworked and underpaid. The EDNY is a family, we support our own.

        And, Joe FedCourt is STILL an asshole.

  2. Richard G. Kopf

    SHG,

    I am the last Article III judge who, at this late stage in my career, will ever get appointed to a Judicial Conference Committee (although it once happened in the past). But, I did stay at a Holiday Inn once, and I heard the rumors through the thin walls.

    While I have no personal knowledge, the e-mail was not a prank. It represents a long simmering controversy, that includes some significant grumbling by a segment of judges and employees. The grown-ups on the Judicial Conference try really hard to avoid internecine conflicts like this one. As a result, I wouldn’t ignore the e-mail, but it is not the time for a Jihad by those of us who support strong funding for FPDs and panel members even at the expense of the judges and other employees.

    It is important to remember that the FPDs and the CJA panel lawyers were included under the umbrella of the judiciary for their protection. In large measure, that has worked. I, for one, would be very hesitant to change things. The arrangement is awkward, but it is the best mechanism that I can think of to provide the truly extraordinary service the public receives from Federal Defenders and CJA panel members.

    All the best.

    RGK

    1. SHG Post author

      This is disturbing. Is there some identifying feature of the grumbling judges and their staff that explains the antagonism?

  3. Richard G. Kopf

    SHG,

    I don’t think there are identifying features. Remember that the judiciary let go thousands of employees (or so) as a result of the sequester.

    Let me give you one example that is local. I manage the pro se staff docket and the pro se staff lawyers. We lost a pro se staff attorney in the process and we are now down to only one–that is a big, big problem. However, since I sat on the AO advisory committee that caused us to lose the position, and since I generally agreed with the rationale, I was foreclosed from bitching. But, as judges and other court employees have their own pet projects and needs, I think the grumbling comes as a result of the loss of funding for those pet project and needs, rather than some deep seated and generalized animosity to the FPDs or CJA panel members. That said, the FPDs and CJA panel members do, in fact, eat up a huge amount of the judiciary’s resources, but that is is to be expected, and, in my opinion, encouraged.

    All the best.

    RGK

    1. SHG Post author

      Judge,

      Doesn’t that suggest that paying FPDs and CJA out of the district’s budget creates this inherent conflict? Not that an additional pro se attorney (which I can well understand is needed), even pet projects, are unworthy, but they’re not on the same level as providing counsel to the indigent. I say this noting that I still find it inherently problematic that the judiciary relies on Congress for its budget, which seems to have huge separation of powers ramifications when it comes to a branch of government incapable of performing its constitutionally mandated duties for lack of funding by another branch.

      But then, there are also those who don’t share your good will toward the FPDs and CJA panel. If the “fairness” of budget allocation depends on the good will of judges, that seems a pretty unreliable process.

      1. Richard G. Kopf

        SHG,

        As a technical matter, the “district budget” is distinct from the “FPD” and “CJA” budget. I could go on into the details of this even to the extent of talking about a variation of GAP accounting called, “Generally Accepted Governmental Accounting” standards. If there was ever an oxi . . . .

        Anyway, the actual competition takes place when the Judiciary decides to go to Congress for appropriations for specific program areas. It does not occur directly at the local level, although it “trickles” down.

        Ok, now set all the above aside. Sure anytime there is a competition for funds by the same entity there is a “conflict of interest.” But, are you going to create a separate branch of the government to fund FPDS and the CJA? Where in the Constitution would you find that authority?

        I don’t think you want to dump them into the Executive branch or the Legislative branch. So, we are left with the present situation. And, I think most FPDs and CJA members would say if pressed to honestly respond that the present situation is about as good as can be expected under the circumstances. (Might be a fun empirical inquiry for SJ to conduct?)

        All the best.

        RGK

        1. SHG Post author

          Sorry to ask, but another question then: Is the FPD/CJA budget a separate line or is allocation in the hands of the judicial conference? If a separate line (albeit within the judicial branch), would there be any griping about FPDs going to Congress to push for their line, or is it a zero sum game for the judiciary budget? And if it isn’t a separate line, then who decides on allocations within the judicial branch?

          As for FPDs/CJAs, they know better to complain here as they will get slaughtered by state PDs and indigent defenders. They may have it bad, but it could always be far worse.

  4. Richard G. Kopf

    SHG,

    I did not answer your second question. Who decides?

    Remember my knowledge comes from staying at Holiday Inn, but here is my impression:

    The Judicial Conference (1 district judge and 1 appellate judge from each Circuit) headed by the Chief Justice decides for the judiciary. But, that the Executive Committee of the Conference (selected by the Chief Justice) together with Budget Committee (appointed by the Chief Justice) have the lead. Since the judiciary is lumped into Executive branch agencies for funding requests submitted to the House (I think we fall into the funding area that includes the State Department for example), and since the House appropriator has been given only so much he or she can authorize from the majority leadership, I think our budget requests are informed by a straight up application of budgetary needs leavened by the reality of the particular budget year we are laboring under.

    All the best.

    RGK

    1. SHG Post author

      …a straight up application of budgetary needs leavened by the reality of the particular budget year we are laboring under.

      No doubt those are words that bring joy to FPDs, who enjoy the reality of the particular caseload under which they labor. And you can never have too many bunker buster bombs. Thanks for the tutorial, Judge.

  5. Matthew Stiegler

    Tremendously enlightening discussion, thank you both. I’ll add my two cents as a former AFD who does a lot of CJA appeals. I have no informed opinion on whether the current set-up maximizes indigent-defense funding. But I know it doesn’t maximize client trust. Prisoners don’t like hearing that their lawyers are paid by the courts, and it can be an obstacle to effective representation. From that perspective, an indigent-defense system like North Carolina’s (and like ABA capital guideline 3.1 recommends), where defenders call the shots, is much better.

    1. SHG Post author

      You introduce another serious problem to the mix. I don’t know that there is any “real” solution to the problem, as defendant have always thought that lawyers paid by the govt work for the govt. In many minds, people work for whoever pays them, and if it’s not the client, it means the lawyers don’t work for them.

      1. william doriss

        Amen: “… people work for whoever pays them, and if it’s not the client, it means the lawyers don’t work for them.”
        This is torrable. And then there are lawyers who just take the next docketed case, as in the Emperor-has-no-Clothes State. You know what I’m talkin’ about? (New York for the clueless.) They don’t have a fackin clue, for real.
        You wanna take it to trial? You can’t win, they say. No, you’re wrong! I don’t care, I wanna go to trial. “YOu can’t win,” the say. I know my Constitutional rights, we say. No, you cannot win, they say,… Major POSs, all of em. So you fold: Been there, done that. Plea-bargained my Konstiutional rights away
        for ever and a day. Put that in your smoke and pipe it,… No you BarleyCorn: Get back in your cage. Animal!?!
        I’m mad as hell and won’t take it anymore. Hi Mom@!

    2. Richard G. Kopf

      Mathew,

      Just an observation.

      In little old Lincoln, we have two AFPDs stationed here. They have great reputations among the jail population.

      They are responsive, tough, experienced, and zealous. Examples: The “gigante,” Mike (6’10′), taught himself Spanish, and that makes a world of difference to the many Hispanics he represents. His much shorter partner, John, is renowned in the jail mods for getting under my skin at sentencing and winning while doing so.

      They say “word of mouth” is the best advertisement. Here, in the sticks, that is certainly true. It is not a solution to the significant problem you (and SHG) point out, but it really does help when AFPDs can burnish their reputations among those who languish in jail like the fellows here in Lincoln.

      All the best.

      RGK

      1. SHG Post author

        Ah, to be in a courthouse with two AFPDs. So quaint. I tried a case up in Anchorage years ago. Two courtrooms. One visiting judge. No waiting. Also, no sunlight, but that wasn’t by federal mandate. It was great.

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