Coronavirus of the Week: COVID-19

  COVID-19 has kicked the Case o' The Week off of the soapbox.

  First, stop reading this memo and read this now: Tomas Pueyo, Coronavirus: Why You Must Act Now - Politicians, Community Leaders and Business Leaders: What Should You Do and When?, available here. 

  When you're done, forward that article link to those you know and love.

   Mr. Pueyo, unfortunately, is spot-on. The Office of the Federal Public Defender, Northern District of California, is therefore in a hard shut-down, as of this morning and until further notice. There are over 80 employees of the NorCal FPD: fewer than six will be in its three offices today. By Thursday, I hope to reduce that number to three for the entire district. 

  Every possible FPD employee has been sent home, full stop. 

  We are telecommuting until May.

   Federal courts across the country are similarly suspending operations. See collection of General Orders here. CJA Liaison Representative Mary McNamara and I have recommended that the Northern District of California suspend all possible court operations until May 1. We anticipate guidance from the District Court on its COVID-19 response this week.

   Yesterday evening the ND Cal FPD filed fifty motions to continue its cases until after May 1. Where necessary, we agreed to exclusion of Speedy Trial Act time (our client’s consent for a STA exclusion is not legally required, FYI). Today we are filing many, many, more continuance motions. All defense counsel should be doing the same, for every case where the client is not immediately and negatively impacted (for example, time-served sentencings).

   Although all of our clients are vulnerable, incarcerated clients are uniquely so. Prisons and jails are reeling from this pandemic. All BOP (federal) prisons and pretrial facilities have been shut down for visiting. See here. California Prisons have now stopped visits. See here. A Public Defender in Santa Clara County has tested positive: her in-custody clients are being quarantined. See here. Experts correctly worry that the jails and prisons are radically exacerbating the dangers of infection and exposure. See here. 

  Here in NorCal, cramming incarcerated federal inmates into small vans to schlep them all the way to federal court from Santa Rita jail, and then concentrating them in small staging cells and Marshal lock-ups in the federal courthouses, is the antithesis of social distancing. It is social concentration, and it creates conditions that will quickly accelerate the virus’ transmission. The Court understands this danger: efforts to address are well underway.

  We defense attorneys are extraordinarily dangerous to our clients. We are COVID-19 transmission vectors: we expose our incarcerated clients to the virus, that we scrape up from our dangerous urban environments. Do you care about your client? For god’s sake, do not shake their hand. I have prohibited all jail contact visits by all employees of the ND Cal FPD. I have also asked the District Court to rig microphones to permit social distancing at the podium, for the (hopefully rare) cases that are still appearing in court.     We cannot help our clients if we are sick. As the flight attendants advise, put on your own oxygen mask first, then turn to help others. Once cases are continued past May 1, once your telecommuting system is set up, then focus on fighting to protect our clients from this pandemic. For inspiration, start with the compelling piece by Oregon Federal Public Defender Lisa Hay, available here.  

   FPD Ms. Hay is right. We need to -

• Move for the immediate release of particularly vulnerable clients from pretrial custody, and for release of all pretrial clients who pose no danger to the community. 
• Delay self-surrender dates into dangerous BOP facilities, until the risk of infection has been reduced and we have flattened the treatment curve. 
• Advocate for the BOP to advance release dates into community correction facilities (and when halfway houses start rejecting new folks soon, to electronic monitoring). And  . . .
• Ask our United States Attorneys to exercise their charging discretion in this time of national crisis. We ask them to avoid charging anything but the most-violent, reactive crimes until we can all flatten the treatment curve for this pandemic. 

CJA Liaison Attorney Mary McNamara and I have promised our Court that the NorCal defense bar will not exploit this crisis for strategic gain -- our clients’ health and safety is just too important for our typical legal shenanigans. We invite our USAO opponents to similarly lower their shields and meet us halfway: bringing new defendants into federal court during this time of crisis endangers our clients, and everyone in the court system.

If this week isn’t stressful, radically disruptive, and damned inconvenient, you ain’t doing it right. Be a hero to your clients: keep them away from you, out of those transport vans, away from holding cells, and far, far away from open courtrooms.

Be safe, hug your kids (and then wash your hands!)

Image of inmate in medical unit with prison guards from https://www.ocregister.com/2011/07/14/top-paid-state-worker-was-prison-doctor-777423-2/

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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