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.”

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    As of October 2020, 3 years since the hurricanes destroyed much of Puerto Rico's electricity grid, neither the Federal Emergency Management Agency (FEMA) nor the Department of Housing and Urban Development (HUD) had approved long-term grid recovery projects in Puerto Rico. In 2019, GAO made four recommendations to FEMA and HUD to address identified challenges in rebuilding the electricity grid in Puerto Rico. As of October 2020, FEMA had fully implemented one recommendation and partially implemented two others, while HUD had not implemented its recommendation. Specifically, FEMA established an interagency agreement with the Department of Energy (DOE) to clarify how the agencies would consult on recovery efforts. FEMA had taken actions to partially implement recommendations on improving coordination among federal and local agencies and providing information on industry standards. However, further steps are needed, including finalizing guidance on FEMA's process for approving funding for projects. Regarding HUD, it has not addressed GAO's recommendation to establish time frames and requirements for available funding. Damaged Power Lines in Puerto Rico in November 2017 after Hurricane Maria Until HUD and FEMA implement GAO's recommendations, uncertainty will linger about how and when federal funding for long-term grid recovery will proceed. In particular, it is uncertain how available funding sources will support measures to enhance grid resilience to hurricanes, such as smart grid technology. FEMA officials told GAO that additional funding sources could be used for resilience measures but that this would not be determined until specific projects are submitted to FEMA for approval. Moreover, although FEMA finalized a $10 billion cost estimate for grid repairs in September 2020, several steps remain before FEMA approves funding for projects—a process officials said they were drafting. HUD funding could supplement FEMA funding but, as discussed above, HUD has yet to establish conditions for using these funds and has not established time frames and a plan for issuing this information. According to HUD officials, they plan to publish requirements in the first quarter of fiscal year 2021, but this depends on other factors, such as input from other federal agencies. Further delays in publishing the conditions could contribute to delays in Puerto Rico's ability to initiate grid recovery projects. In 2017, Hurricanes Irma and Maria damaged Puerto Rico's electricity grid, causing the longest blackout in U.S. history. It took roughly 11 months after the hurricanes for power to be restored to all of the customers with structures deemed safe for power restoration. Since electricity service has been restored, local entities have undertaken the longer-term task of more fully repairing and rebuilding the grid. GAO reported in 2019 on challenges hindering progress in rebuilding the grid and recommended that FEMA and HUD take actions to address these challenges. This report examines the status of efforts to support long-term grid recovery in Puerto Rico, including actions taken by FEMA and HUD to implement GAO's 2019 recommendations. For this report, GAO assessed agency actions; reviewed relevant reports, regulations, policies, and documents; and interviewed federal and local officials. GAO previously made three recommendations to FEMA and one to HUD to provide needed information and improve coordination to support grid recovery. Both agencies disagreed with GAO's characterization of their progress made addressing these prior recommendations. GAO continues to believe additional actions are needed to fully implement these recommendations. For more information, contact Frank Rusco at (202) 512-3841 or ruscof@gao.gov.
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    In Crime News
    The Justice Department today announced the unsealing of a superseding indictment charging six individuals with participating in a conspiracy to launder millions of dollars of drug proceeds on behalf of foreign cartels.  This superseding indictment is the result of a nearly four-year investigation into the relationship between foreign drug trafficking organizations and Asian money laundering networks in the United States, China, and elsewhere.
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  • The Department of Justice Announces Standards for Certifying Safe Policing Practices by Law Enforcement Agencies
    In Crime News
    Today, the Department of Justice announced Standards for Certification that will be used by credentialing bodies so they can begin certifying thousands of law enforcement agencies over the next three months. The Standards of Certification are a result of President Trump’s June Executive Order 13929, Safe Policing for Safe Communities.
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  • Federal Advisory Committees: Actions Needed to Enhance Decision-Making Transparency and Cost Data Accuracy
    In U.S GAO News
    GAO reviewed 11 selected committees covered under the Federal Advisory Committee Act (FACA) that serve the Departments of Commerce, Health and Human Services, and the Treasury. GAO found that these committees met many, but not all, selected transparency requirements established by FACA, General Services Administration (GSA) FACA regulations, and the Office of Management and Budget (OMB). FACA committees GAO reviewed published timely notices for 70 of 76 meetings and solicited public comments for all open meetings held by the committees. However, four of the 11 committees did not follow one or more selected requirements to renew charters, decide on proposed recommendations during open meetings, or compile minutes. Five FACA committees GAO reviewed did not always follow requirements in OMB Circular A-130 for federal agencies to make public documents accessible online. GSA encourages agencies to post committee documents online consistent with OMB requirements. However, according to GSA's Office of the General Counsel, GSA's authority under FACA is not broad enough to require agencies to fulfill the OMB requirements. Eight of the nine selected FACA committees in our original sample that make recommendations to agencies attempt to track the agencies' responses to and implementation status of recommendations. However, many committees do not make this information fully available to the public online. Improved public reporting could enhance congressional and public visibility into the status of agencies' responses to committee recommendations. Selected Requirements for Advisory Committees Covered under the Federal Advisory Committee Act (FACA) The selected agencies and FACA committees reported that they implemented a range of practices to help ensure agency officials do not exert inappropriate influence on committees' decisions. These practices include limiting committee members' interactions with agency officials outside committee meetings. GAO also found that about 29 percent of the 11 selected committees' cost data elements in GSA's FACA database for fiscal years 2017 and 2018 were inconsistent with corresponding cost data from selected agency and committee records and systems. In the absence of reliable cost data, Congress is unable to fully rely on these data to inform decisions about funding FACA committees. FACA requires federal agencies to ensure that federal advisory committees make decisions that are independent and transparent. In fiscal year 2019, nearly 960 committees under FACA played a key role in informing public policy and government regulations. GAO was asked to review the transparency and independence of FACA committees and data collected in GSA's FACA database. This report examines (1) selected agencies' and committees' adherence to transparency requirements; (2) their practices to help ensure that agency officials do not exert inappropriate influence on committee decision-making; and (3) the extent to which GSA's FACA database contained accurate, complete, and useful cost information for these committees. GAO selected a non-generalizable sample of 11 FACA committees serving three agencies, based in part on costs incurred and numbers of recommendations made. GAO analyzed documents and interviewed agency officials and committee members. GAO also reviewed FACA database cost data for the 11 committees. Congress should consider requiring online posting of FACA committees' documents. GAO is also making nine recommendations to agencies to improve FACA committee transparency and data accuracy. Agencies agreed with six recommendations, and GSA described steps to address recommendations to it. For more information, contact Michelle Sager at (202) 512-6806 or SagerM@gao.gov.
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  • Maryland Tax Preparer Indicted for Preparing False Returns
    In Crime News
    A federal grand jury in Greenbelt, Maryland, returned an indictment today charging an Upper Marlboro tax return preparer with conspiracy to defraud the United States and aiding and assisting in the preparation of false tax returns, announced Principal Deputy Assistant Attorney General Richard E. Zuckerman of the Justice Department’s Tax Division and U.S. Attorney for the District of Maryland Robert K. Hur.
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    In Crime News
    A Huger, South Carolina couple pleaded guilty today in South Carolina before the U.S. District Judge Brucie H. Hendricks in the District of South Carolina to charges stemming from their conspiracy to obtain a U.S. passport by falsely claiming they were the biological parents of a baby born in the Philippines and by using false birth records to apply for a U.S. passport for the baby.
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    In Crime News
    A former DeKalb County, Georgia, police officer and member of the Gangster Disciples was sentenced to 15 years in prison followed by five years of supervised release for racketeering conspiracy involving murder, announced Acting Assistant Attorney General Brian C. Rabbitt of the Justice Department’s Criminal Division and U.S. Attorney Byung J. “BJay” Pak of the Northern District of Georgia.
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    In Crime News
    A doctor of osteopathic medicine who formerly worked at the Veterans Affairs (VA) Medical Center in Beckley, West Virginia, pleaded guilty today to three counts of depriving veterans of their civil rights under color of law by sexually abusing them.
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  • Owner of New York Tax Preparation Business Pleads Guilty to Conspiring to File False Returns
    In Crime News
    A Queens, New York return preparer pleaded guilty today to conspiracy to defraud the United States by filing false returns, announced Principal Deputy Assistant Attorney General Richard E. Zuckerman of the Justice Department’s Tax Division.
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  • Department of Justice Marks 20th Anniversary of Religious Land Use and Institutionalized Persons Act with Comprehensive 20-Year Report
    In Crime News
    The Justice Department today marked the 20th Anniversary of the Religious Land Use and Institutionalized Persons Act (RLUIPA) by releasing a comprehensive report detailing how RLUIPA has helped preserve the religious liberty rights of thousands of individuals and institutions. 
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  • Department of Justice Publishes Proposed Regulations Articulating the Registration Requirements for Sex Offenders under the Sex Offender Registration and Notification Act
    In Crime News
    The Department of Justice has published proposed regulations that provide a clear and comprehensive statement of sex offenders’ registration requirements under the federal Sex Offender Registration and Notification Act (SORNA).  SORNA requires convicted sex offenders to register in the states in which they live, work, or attend school, and it directs the Attorney General to issue regulations and guidelines to implement SORNA. 
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  • Close Air Support: Actions Needed to Enhance Friendly Force Tracking Capabilities and Fully Evaluate Training
    In U.S GAO News
    The Department of Defense (DOD) has made progress implementing initiatives to enhance capabilities that are used to identify friendly force locations during close air support (CAS) missions, but GAO identified additional actions that are needed to strengthen these efforts. Specifically, DOD has made limited progress in implementing 10 changes the department approved to address gaps in the interoperability of digital communications systems used to conduct CAS, hindering efforts to improve the speed and accuracy of information exchanges. DOD's efforts to assess the interoperability of digital systems used to perform CAS have been limited in scope. GAO found that DOD had formally assessed two out of 10 approved changes during joint service and multinational events, and these assessments were not conducted in a training environment that replicated capabilities of near-peer adversaries. DOD implemented a new capability in the U.S. Central Command area of responsibility to help identify the positions of friendly forces during CAS missions. However, GAO found that DOD did not provide adequate training for personnel who operate it or conduct an evaluation to resolve implementation challenges that have hampered its performance. DOD conducts evaluations of training programs for forces that participate in CAS missions, but GAO identified two areas where DOD can improve its efforts. First, the Army and Marine Corps have not systematically evaluated the effectiveness of periodic training for ground observers providing targeting information due to a lack of centralized systems for tracking training data and the absence of designated entities to monitor service-wide training. Second, the use of contract aircraft for training increased substantially between 2017 and 2019, but DOD has not fully evaluated the use of non-military contract aircraft to train air controllers for CAS (see fig.). GAO found that differences between U.S. military aircraft and contract aircraft (e.g., airspeed) can result in a misalignment of aircraft capabilities for certain types of training events. Without evaluating CAS training fully, DOD cannot have assurance that its forces are prepared to conduct CAS missions safely and effectively. Number of Hours Non-Military Aircraft Were Used to Train for Close Air Support for Fiscal Years 2017 through 2019 The use of ordnance delivered by aircraft to support U.S. military forces that are in close proximity to enemy forces on the ground requires detailed planning, seamless communications, and effective training. Mistakes in communications or procedures used to identify and maintain an awareness of the positions of friendly forces on the battlefield during CAS can result in the loss of U.S. military personnel. Senate Report 116-48 and House Report 116-120, accompanying bills for the National Defense Authorization Act for Fiscal Year 2020, included provisions for GAO to evaluate issues related to friendly-force identification capabilities in CAS missions. Among other things, this report evaluates the extent to which DOD has (1) implemented initiatives to enhance friendly-force identification capabilities during CAS, and (2) evaluated training for forces that participate in CAS. GAO analyzed documentation and interviewed officials regarding DOD efforts to develop and implement friendly force tracking capabilities for CAS; reviewed CAS training programs; and analyzed training data, including the number of hours that DOD used non-military contract aircraft for CAS training from 2017 through 2019. GAO is making 11 recommendations to DOD, including that DOD implement and assess initiatives to improve the interoperability of digital systems used in CAS and take additional steps to evaluate the training for certain forces that participate in CAS missions. DOD concurred with the recommendations. For more information, contact Cary Russell at (202) 512-5431 or RussellC@gao.gov.
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