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Defenders Work to Ensure Due Process Amid Pandemic

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Of the many challenges that the coronavirus (COVID-19) pandemic has imposed on the ongoing operations of federal courts, some of the toughest are being faced by federal defenders, who are on the front lines working to overcome unprecedented threats to their clients’ safety and constitutional rights.

“Every day is a challenge for us,” said Kathy Nester, executive director of Federal Defenders of San Diego, Inc., a nonprofit organization that provides criminal defense services. “There is a danger in times of crisis for people’s core constitutional rights to be set aside, and it’s our duty to make sure their rights are being observed and protected.”

Federal defenders represent indigent clients who can’t afford to pay for an attorney – a right guaranteed by the Sixth Amendment to the Constitution. They are accustomed to being able to physically visit their clients in detention facilities, go door-to-door to speak with witnesses who can help in a case, and privately share information with clients at the defense table during trial. But defenders, like many others, have had to move to remote operations and rely increasingly on technology to maintain access to clients, while protecting them from possible infection.

A federal defender in San Diego teaches trial skills during a mock trial and training workshop at the California Western School of Law.

As courts prepare their reopening plans in anticipation of COVID-19 cases declining eventually, federal defenders hope to be involved in conversations with chief judges about what proceedings should look like in socially distanced courtrooms. Together they hope to tackle issues of how to have safe and effective interactions among all the parties in the courtroom and to empanel juries that are representative of the community.

“There are a lot of factors at play here and it’s not going to be easy,” said Lisa Hay, the federal defender in the District of Oregon. “But by coming together as a collective, we can draw attention to and solve problems that may have gone unnoticed.”

As eager as federal defenders are to offer their input on reopening plans, some of them are concerned about moving too fast.

“Infection rates are going up in California and there’s real worry of unnecessarily exposing our clients to possible infection during transport or at the courthouse,” Nester said.

Federal defenders are also acutely aware that juries must be representative of a cross section of the community, as studies continue to show that people of color and older Americans are facing higher COVID-19 infection rates.

“The courtroom is going to look different and proceedings are going to take longer for some time,” said Michael Filipovic, the federal defender in the Western District of Washington. “We’re going to have to move slowly to ensure that those most vulnerable are getting equal access to justice under the law without putting their safety in jeopardy.”

When detention centers began shutting their doors to visitors in March to reduce the spread of infections, defenders worked with court offices to procure audio and video equipment to bridge the physical distance with detained clients.

Holding virtual meetings in detention centers requires a great deal of coordination. Lawyers and detention officials must work out call schedules, find suitable space for a confidential conversation, make sure the technology is working, and assign interpreters. Defenders report that they have received varying levels of support from local detention officials and prosecutors in their efforts to achieve greater access and client safety, sometimes compelling them to take legal action.

“Building relationships with new clients is nearly impossible over a 15- to 30-minute phone or video call,” Hay said. “Clients are scared for their lives as they sit in lockdown in overcrowded facilities. We’re zealously advocating for better safety in these facilities.”

Through regular discussions with judges, detention officials, U.S. attorney’s offices, and probation and pretrial services officers, defenders in the Western District of Washington and the District of Oregon were able to arrange an agreement that email communications with clients are considered privileged information. This means that a third party will withhold any communications between clients and defenders from prosecutors.

“Having open lines of communication with all the players in our criminal justice system has been very helpful in getting us the access we need,” Filipovic said. “We may not always see eye-to-eye, but having everyone together listening to the challenges others are facing tends to make others more receptive and willing to help.”

While defenders agree that technology has been a lifesaver at times during the crisis, they don’t view it as a replacement for in-person access to a courtroom.

“Video hearings are clunky, you can’t whisper in your client’s ear to offer reassurance or clarify a statement from the judge,” said David Patton, executive director of Federal Defenders of New York, Inc., a nonprofit organization that defends clients in the Southern and Eastern Districts of New York. “And in some cases, if an interpreter is needed, you never hear the client’s voice during the proceeding.”

At the onset of the pandemic, many defenders weren’t equipped to operate from their homes. Federal defender offices had to quickly procure laptops and cell phones for their employees, as well as set up new workflow policies.

“Tasks can take us up to three times as long as they used to,” Patton said. “Conducting court proceedings from our homes, scheduling virtual visits with clients in prison, and brainstorming and communicating with colleagues are all more cumbersome than they were before. Working from home is especially hard for our colleagues, who must also play teacher for their kids whose schools are now closed.”

Despite limits on face-to-face interactions, there’s been no shortage of information sharing among defender offices. They utilize calls with colleagues in other judicial districts and national electronic mailing lists to share recent court orders, recovery plans, and trial strategies in an effort to better protect clients’ rights and safety.

The Defender Services Office at the Administrative Office of the U.S. Courts is aiding defenders on the ground, releasing a series of web-based workshops and resources on fd.org. These resources include information regarding COVID-19 and its effects on communities, the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), and video and audio conferencing assistance.

“I’m proud of the work being done by our federal defender offices. They are a passionate and resilient group committed to the people they serve,” said Cait Clarke, chief of the Defender Services Office. “The pandemic has created a perfect storm of horribles as defenders manage historically high caseloads in the worst of conditions. Our office will continue to do all that we can to support our people on the front lines as they advocate for the health and safety of their clients.”