Case o' The Week: A Snitch in Time? "No," Says Nine - Obagi and Brady / Giglio Remedies

  Gov’t snitch lies? 

The Hon. Judge John Owens

  Case retries.

United States v. Obagi, 2020 WL 4033849 (9th Cir. July 17, 2020), decision available here.

 Players: Decision by Judge Owens, joined by D.J. Molloy. Dissent by Judge Bumatay. Big win for former CD Cal AFPDs Craig Wilke and Davina Chen.  

 Facts: Obagi and his co-D were tried on charges related to mortgage fraud. Id. at *1. The government relied heavily on cooperators. Id. at *2. To bolster its case, the government called witness “Saad,” who testified against the defendants. Saad assured the jury that she had received no consideration from the government. Id. The AUSA “relied heavily” on Saad’s confirming testimony in closing, as a non-compromised and corroborating government witness. Id.

   A different AUSA was watching the closing arguments. He informed the Obagi prosecutor that Saad was actually cooperating, and had received immunity in a separate mortgage investigation. Id. at *3.

   The court discussed options: a mistrial, recalling Saad to be crossed, or an instruction. Id.

   The court decided on a curative jury instruction, and both co-D’s were convicted. Id.  

 Issue(s): Because the details of Saad’s cooperation was Brady evidence, was a curative instruction given after the government’s closing argument a sufficient remedy?

 Held: “Had the information impeaching Saad been disclosed prior to the close of evidence, this presumption and the normal rules concerning curative instructions likely would govern here.” Id. at *4.

  “Given the difficulty the jury faced in reaching a verdict, we cannot say with confidence that the undisclosed impeachment did not affect the jury’s judgment. Nor can we conclude that the district court’s instruction fully cured the prejudice that resulted from the government’s Brady violation.” Id. at *5.

  “Because there is a reasonable likelihood that the undisclosed evidence impeaching Saad could have affected the judgment of the jury, we are compelled to reverse the convictions and remand the case to the district court for further proceedings.” Id.

Of Note: It is unfathomable: how did CD Cal AUSAs not figure out that were calling a (lying) cooperator, and affirmatively assure the jury that she was not a cooperator, when the snitch had in fact been given a no-pros deal in a mortgage fraud case (apparently in the same U.S. Attorney’s office?) This is particularly outrageous in California, where ethical rules require prosecutors to affirmatively hunt down and disclose such information. See Cal. R. Prof. Conduct 3.8, available here. 

   In N.D. Cal, the vast majority of D.J.’s have granted Brady / 3.8 disclosure orders, setting deadlines for disclosure before trial. If such a pretrial order had been in place in Obagi, the government would have been more careful when checking on its own witnesses – and toothier remedies would have been available when this violation came to light. Obagi illustrates yet again why no case should go to trial in California, without a stout Brady / Rule 3.8 disclosure cut-off order in place.

 How to Use: Judge Bumatay’s dissent ably highlights the value of this decision for the defense. See id. at *5 (Bumatay, J. dissenting). He complains that the opinion essentially means de facto reversal anytime there is a Brady disclosure after closing arguments. Id. Judge Bumatay is also irked by the fact that the trial defense counsel declined the district court’s offers to recall the cooperator, Saad, to the witness stand, or to revisit closing arguments – yet the defendants still prevail on appeal. Id. at *6.

  Arguing for the broad scope of Obagi’s Brady holding? Start with the dissent’s helpful outline supporting that proposition.                                               

For Further Reading: In a grim milestone, last week the first COVID-19 death was reported out of Santa Rita Jail, when Deputy Oscar Rocha succumbed to the disease. See article here. 

  Over 100 inmates have now tested positive for COVID-19 at the jail. Though ninety-three of the inmates are deemed “asymptomatic,” in a deeply troubling interview, one allegedly “asymptomatic” inmate in the jail reports what that designation really means (or rather, what it doesn’t mean). See Infected Santa Rita inmate describes jail life amid COVID-19 outbreak, available here. 

 

 

Image of the Honorable Judge John Owens from https://www.law.com/therecorder/almID/1202638438346/Obamas+Judge+Picks+Advance+in+PostFilibuster+Senate%3Fmcode=1202617072607&curindex=4/?germane=1202638438346&id=1202625862932

 

Graph of comparative infection rates by Chief Assistant Candis Mitchell, available at: https://www.ndcalfpd.org/

 

 

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

 

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Case o' The Week: Needing Neo in the Ninth - Costanzo, bitcoin, and interstate commerce

  Morpheus versus the Agents, again.

  (Spoiler alert: not a happy ending, this time).

United States v. Costanzo, 956 F.3d 1088 (9th Cir. Apr. 17, 2020), decision available here.

Players: Decision by Judge Hawkins, joined by Judges Owens and Bennett. Hard-fought appeal by D. Arizona AFPD Dan Kaplan.  

Facts: Costanzo’s (a.k.a. “Morpheus Titania”) enthusiastic bitcoin sales drew the Feds’ attention. Id. at 1089. Over five meetings, undercover agents used cash to purchase over $100k in bitcoin. Id. at 1090. Agents explained the cash came from drug sales. Id. 

  Costanzo was charged with, among other things, money laundering and went to trial. Id. at 1091. At trial, the government presented evidence about the “verification process,” as bitcoin was transferred from Costanzo to the agents. Id. One such verification took place in Germany. Id. 

  The Court denied Costazno’s motion for acquittal, and he was convicted. Id.

Issue(s): “Appellant contends that the transfer did not have the requisite effect on interstate commerce, an element of each of the charged offenses.” Id. at 1089. (footnote omitted). 

  “Costanzo [argues] that the government failed to prove that the transactions affected interstate commerce in any way.” Id. at 1091.

Held: “Because we conclude that the transfer in question, which involved the use of an Internet or cellular network connected Personal Computer Device (PCD) to transfer bitcoin (together with the digital code necessary to unlock the bitcoin) to the digital wallet of another Internet or cellular network connected PCD, had the necessary effect on interstate commerce, we affirm.” Id. (footnote omitted). “Here, the government presented evidence regarding Costanzo's business; his use of global platforms; and the transfer of bitcoin through a digital wallet, which by its nature invokes a wide and international network. Costanzo advertised his business through localbitcoins.com—a website based outside of the United States. He encouraged the undercover agents to download applications from the Apple Store or other similar platforms to facilitate their communications and transactions. He then utilized those applications to engage in encrypted communications with the agents to arrange the transfers. Then, in each transaction, Costanzo and the agent used those applications on their smartphones to transfer bitcoin from one digital wallet to another. Each transaction was complete only after it was verified on the blockchain. Viewing all of this evidence in the light most favorable to the government, we are satisfied that the evidence is sufficient for some trier of fact to find the ‘minimal’ interstate commerce nexus required under § 1956.” Id. at 1092-93.

Of Note: Constanzo’s co-D, Peter Steinmetz, was less blasé about the illegal origins of the cash. Like Constanzo, Steinmetz was charged with money laundering using bitcoin. Transcripts later revealed, however, that Steinmetz refused to sell bitcoin to an agent posing as a Russian heroin buyer. Steinmetz became “a poster child for heavy-handed bitcoin enforcement.” See article here. 

  New currencies: old law-enforcement problems.

How to Use: What is the standard of review, for the sufficiency of evidence for an interstate commerce element? Judge Hawkins uses de novo review, and asked whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. at 1091-92 (emphasis in original). The government, however, argued that the proper standard of review was, “manifest injustice.” Id. at 1092 & n.3. The panel avoids the issue by explaining the result would be the same under either standard. Id.

  Beware, however, of the government’s more-onerous theory of review for future interstate commerce challenges.

                                   

For Further Reading: The federal Terminal Island and Lompoc facilities are now the subjects of new civil suits, brought by medically-vulnerable inmates facing the COVID-19 pandemic.

For a must-read brace of terrifying Complaints, by Bird Marella and the SoCal ACLU, see here.

Image of Morpheus and Agent Smith from https://scottmanning.com/content/smith-interrogates-morpheus-transcript/

Image of Lompoc from https://www.sfchronicle.com/news/article/574-inmates-test-positive-for-coronavirus-at-15255843.php

Image of Terminal Island from https://www.latimes.com/california/story/2020-04-29/coronavirus-terminal-island-prison-inmates-outbreak

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

Order o' The Week: Jeremy Daniels and Changed Pretrial Release Analysis, Santa Rita Jail

  “[T]he COVID-19 pandemic and the reported infections at Santa Rita

Jail changes the [pretrial release] calculus.”

   United States v. Jeremy Daniels, CR 19-00709 LHK (NC), (N.D. Cal. Apr. 9, 2020) (Ord., Dkt. 24) at 2, available here.

Players: Important opinion by the Hon. Mag. Judge Nathanael Cousins, N.D. Cal. Admirable release fight by N.D. Cal. AFPD Dejan Gantar, standing on the shoulders of Rosen, Bien, Galvan & Grunfeld’s righteous Babu case (with a particular nod to Rosen / CJA Counsel Jeff Bornstein).

The Hon. Magistrate Judge Cousins

Facts: In 2018, civil plaintiffs filed for relief against Santa Rita Jail. See Babu et al v. Ahern et al, 5:18-cv-07677 NC. The gist of Babu are complaints regarding mental-health treatment of inmates at Santa Rita Jail. All of the Babu parties consented to the Orjurisdiction of MJ Cousins, and the case has been in a civil slog for over two years.

   Two years later, Jeremy Daniels was charged with being a felon in possession of a firearm. See Daniels, CR 19-00709, Dkt. #1. On Christmas Eve, 2019, the USAO brought Daniels into court and invoked the automatic initial detentionfor 922(g) cases. Id. at Dkt. #2. 
  Roughly a week later, Magistrate Judge Cousins presided over a formal detention hearing, found Daniels a danger to the community, and ordered him detained. Id. at Dkt. #6. 
  As is true for over 95% of NorCal’s federal inmates (450 or so), Mr. Daniels was detained in Santa Rita Jail in Dublin,California.
  Then the world turned upside down.

  In February 2020 (or earlier), the COVID-19 pandemic roared into the Bay Area. By March 16, the NorCal District Court adopted G.O. 72, suspending physical court appearances. See GO 72 here.  

  Meanwhile, a Santa Rita Jail nurse tested positive, then two inmates, then eleven, then thirteen: as of April 12, 2020, there are fifteen detainees and two staff / contractor COVID-19 cases.  See Santa Rita Jail COVID-19 Website, available here.

  As COVID-19 was ripping through the jail, in his role as the Babu jurist Magistrate Judge Cousins presided over weekly, public Santa Rita Jail status hearings (attended by many dozen members of the defense bar). The civil Babu litigation has produced, among other things, the invaluable SRJ COVID-19 web page. See Santa Rita Jail COVID-19 page here.  

  Turning back to United States v. Daniels -- on April 6 AFPD Gantar moved to reopen the detention hearing on behalf of his client. Id. at Dkt. 19. After the defense and the government exchanged briefs, MJ Cousins presided over a contested (telephonic) detention hearing.

Issue(s): Does the danger presented by COVID-19 at Santa Rita Jail impact the pretrial release analysis?

Held: “Although the Court previously found that Daniels constituted a danger to the community . . ., the COVID-19 pandemic and the reported infections at Santa Rita Jail changes the calculus. Daniels now has serious, potentially life-threatening incentives to obey the conditions of his release. Not only will Daniels be incentivized to comply with the conditions of his release to temporarily remain out of jail, Daniels is further incentivized to remain in place and avoid social contact lest he contracts COVID-19. These changed conditions mitigate Daniels’ risk of danger. For these reasons, the Court ORDERS Daniels temporarily released . . . pursuant to 18 U.S.C. § 3142(i).” Daniels Ord. at 2:11-19 (emphases added); see order here.

Of Note: The Daniels Order provides a comprehensive analysis of the dangers presented by COVID-19 in Santa Rita Jail. Two particular aspects of the Daniels order bear particular emphasis. 

  First, Magistrate Judge Cousins is a former AUSA, and is known in NorCal as a measured and deliberate jurist. (Not for nothing did Santa Rita Jail consent to Judge Cousin's jurisdiction in Babu). 

  Second, MJ Cousins knows more about Santa Rita Jail than any other jurist alive, after presiding over the Babu civil litgation for over two years.

  Ergo, if Magistrate Judge Cousins is scared about Santa Rita Jail, we should all be scared.

  Read Daniels, then move to revisit that initial detention order of your federal client: the “pretrial release calculus” has radically changed, because of COVID-19 in Santa Rita Jail.   

How to Use: Successful COVID-19 release motions note the law, but their focus is really on the unique health risks faced by the specific client. In Daniels’, AFPD Gantar successfully argued that his client’s health history made COVID-19 particularly dangerous. Ord. at 2:11-14. 

  Make your client's COVID-19 co-morbidity health factors front and center in your motion to reconsider the MJ's initial detention order. See CDC List of Factors here. 

                                               

For Further Reading: Santa Rita Jail is on track to become as deeply infected with COVID-19 as Cook County Jail. 

Sign from Cook County Jail Detainees

  Easter in the Windy City has over 500 detainees and staff testing positive, and three detainee deaths. See Cook County web page here; see also article here.

   The urgent question for the Northern District of California is this: despite Alameda County’s best efforts, what precisely is Santa Rita Jail doing differently than Cook County Jail, that will permit NorCal to avoid Chicago’s grim fate?

Image of Santa Rita Jail from https://www.mercurynews.com/2020/03/18/east-bay-jail-looks-to-reduce-jail-population-by-keeping-only-violent-criminals/ .

Inage of the Honorable Magistrate Judge Nathanael Cousins from https://www.law.com/therecorder/almID/1202719524838/Uber-Unlikely-to-Dodge-Discrimination-Suit/   

Image of window signs from Cook County Jail detainees from https://wgntv.com/news/coronavirus/help-us-cook-county-inmates-post-signs-in-windows-as-covid-19-cases-mount/

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

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Letter o' The Week: Defenders to A.G. Barr re COVID-19 and Decarceration

 Santa Rita, hear our prayer.

Players: Hon. Attorney General William Barr. Letter from the Co-Chairs of the Defender legislative committee, Arizona Defender Jon Sands, Federal Defenders of New York Executive Director David Patton, DSAG Chair and WD Pa. Defender Lisa Freeland, the hard-working attorneys of the Sentencing Resource Counsel, and COVID-19 guru AFPD Miles Pope.

 Facts: On March 26, 2020, Attorney General Barr issued a “Memorandum for Director of Bureau Prisons”, authorizing the release of federal inmates in response to COVID-19. See NYT article here. 

  Despite that step, barriers remained to release.

  On April 1, 2020, the Defenders wrote to AG Barr and urged him to exercise his authority under the CARES Act to allow the BOP to transfer more people to the “relative safety of home confinement.” Letter of Federal Defenders at 2, available here. 

  The Defender’s letter is chilling. It recounts the scientific findings that “prisons and jails [are] tinderboxes for the spread of disease . . . our jails are petri dishes.” Id. at 4. The Defenders emphasize the obvious: “CDC recommendations such as social distancing are impossible to achieve in our federal prisons and immigration facilities as things currently stand.” Id. (citation omitted).

  With exhaustive documentation, the Defenders explain that a “chorus of public health experts has confirmed that immediate decarceration is necessary to avoid a humanitarian crisis in our prisons and jails.” Id. at 5.

  This argument is buttressed by grim reality. For example, the Cook County Jail in Chicago went from two positive COVID-19 cases, to 101 confirmed cases, in a week. Id. at 6 (emphasis added). Similarly, the infection rate in New York’s Rikers Island is seven times higher than New York City, and seventy-five times higher than the United States. Id.

  Why is a jail in Chicago, or in far-off New York, relevant to the Ninth? Well, as Governor Cuomo warned, “Look at us today . . . where we are today, you will be in four weeks or five weeks or six weeks. We are your future.” See article here.  

  New York’s future has started, in the Ninth. 

  On April 4, an inmate at Santa Rita Jail (where almost all NorCal federal inmates are held) tested positive for COVID-19. See article here. Staff have also tested positive at the jail. See Mercury News article here. 

  As noted above, in just one week a Chicago jail skyrocketed from two positive cases, to 101. (And 270 staff and detainees are positive as of April 4). Does a similar fate await Santa Rita, after its first two positive cases? The dozens of “orange” and “red” inmates housed there bodes ill. See Santa Rita Jail Corovirus Updates web page here. 

  Is this all just alarmist defense rhetoric? No: the deaths have already begun. Last week, the Northern District lost its first defendant to COVID-19 -- one of the post-conviction inmates who died in the FCI Oakdale facility in Louisiana. See Marshall Project article here. 

  That defendant had been sentenced by Judge Davila, and been represented by a NorCal CJA Attorney– who is also now hospitalized from COVID-19. The virus is here, our defendants have already died in federal custody: Santa Rita succumbing to wide-spread infection is not a question of if, but when.

  Notably, over three hundred county inmates have been released from Santa Rita since the shelter-in-place was implemented on March 17. See article here. Those releases were the result of commendable and courageous joint action by District Attorneys, jail staff, and the defense bar.

  By marked contrast, out of several hundred federal pretrial inmates incarcerated at Santa Rita, roughly half-a-dozen have been released since the beginning of shelter-in-place (and those only after fierce litigation).

   (More county inmates have been released from Santa Rita, than federal inmates detained there!)

  Who bears the blame for these frozen federal prisoners, now condemned to play viral Russian roulette? Who cares? It is a crisis too big for finger-pointing. What matters is fixing it. The solution is clear: a summit of the USAO, the federal defense bar, and Pretrial Services, to methodically identify the most vulnerable pretrial inmates and propose stipulated release orders.

  If the county D.A's and P.D.'s can find common ground, we Feds can too. Let’s meet, and let’s act, before Santa Rita becomes the next Cook County Jail.

Image of inmate calling from Alameda County Jail from https://www.sfgate.com/news/bayarea/article/Former-Inmate-Sues-County-Over-Barbaric-13170082.php#photo-15550277

Image of Cook County Jail from https://www.nbcchicago.com/news/coronavirus/cook-county-jail-now-reports-210-inmates-have-tested-positive-for-covid-19/2250366/

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

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Case o' The Week: Ninth Unmoved by The Miller's Tale - Wire Fraud Jury Instructions

Prosecutorial misconduct puts fraud conviction on “Thin Ice.”

The "Thin Ice" Band, with Victim-Company Owner Russ Lesser, AUSA Greg Lesser, and James Miller

 United States v. Miller, 2020 WL 1317275 (9th Cir. Mar. 20, 2020), decision available here.

Players: Decision by DJ Rakoff, joined by Judges Watford and Bennett.  

Facts: James Miller took money without authorization by writing himself checks from the business for which he worked. Id. at *2. The business was owned by Russ Lesser.

   Russ Lesser’s son, AUSA Greg Lesser, owned a stake of the company. AUSA Greg Lesser called his friend in the FBI, who connected him to FBI Special Agent Joseph Swanson. Id. at *3 & n.2. “Shortly after,” Agent Swanson informed AUSA Lesser that the feds were investigating the case. Id.

  Miller was charged with wire fraud and filing false tax returns. Id. at *2. At trial, his defense was that he had always intended to (and eventually did) repay back the full amount he took from the company. Id. at *3. He requested a jury instruction that required proof that he had the intent to both deceive and cheat the company. That instruction was denied, and it was instead given in the disjunctive. Id.

  Miller was convicted.

Issue(s): “[W]hether the jury charge misstated the law by instructing that wire fraud under 18 U.S.C. § 1343 requires the intent to ‘deceive or cheat’ rather than the intent to ‘deceive and cheat.’” Id. at *1 (emphasis in original).

Held: “We conclude that the charge was erroneous. Several other circuit courts have long held that the crime of wire fraud requires the specific intent to utilize deception to deprive the victim of money or property, i.e., to cheat the victim, and we now align the law of the Ninth Circuit with that of the other circuits and with recent Supreme Court precedent. Nevertheless, we find that the erroneous instruction was harmless in this case.” Id.

Of Note: Miller also involves a jaw-dropping example of prosecutorial misconduct. As noted above, the son of the owner of the victim company was CD Cal AUSA Greg Lesser. Id. at *3. (AUSA Lesser owned a stake in his dad’s company). Id. AUSA Lesser called friends at the FBI to report Miller at the outset of the case, and Lesser remained involved in the investigation. Id. When AUSA Lesser’s supervisors learned of this involvement (three weeks into the investigation!), the CD Cal USAO conflicted out. The San Diego USAO prosecuted the case. Id.

  AUSA Lesser still, however, continued contact with FBI Special Agent Joseph Swanson, who was investigating the case. Id.

  The District Court denied Miller’s motion to dismiss for prosecutorial misconduct, and the Ninth – while finding that the improper conduct was “clear” – nonetheless upheld the district court. Id. at *7-*8.

  A disappointing holding, in a case involving shocking conduct by a self-interested federal prosecutor.

How to Use: The Ninth’s holding on the conjunctive fraud instruction is a welcome change, that brings the Circuit in line with other circuits and SCOTUS. Id. at *4-*6. 

  Before embracing a defense based on that instruction, however, read Miller carefully. Even with a conjunctive instruction, “Intent to repay . . . is not a defense to wire fraud.” Id. at *6. The “loan” defense to fraud, rejected by the Ninth in Treadwell, still doesn’t work – despite the new fraud instruction required by Miller. *6 & n.10

                                               

For Further Reading: The hottest NorCal hearing next week is an innocuous-looking civil proceeding before the Honorable Magistrate Judge Nathanael Cousins: Babu et al v. Ahern. See court calendar here. 

The Honorable Magistrate Judge Nathanael Cousins

  In Babu, civil rights plaintiffs representing inmates at Santa Rita Jail are hunting for the jail’s mysterious 80-page COVID-19 manual. This is a rumored document that the USAO and ND Cal Court have apparently been given, and that AUSAs expressly rely upon while fighting pretrial release, but that has still not been provided to any defense counsel. 

  Notably, last week a Santa Rita Jail nurse tested positive for COVID-19, see Mercury News Article here. As a result, two SRJ units with federal prisoners are now on quarantine.

  Three hundred and fourteen state and county defendants have now been released from Santa Rita Jail to respond to the COVID-19 risk. See article here. 

  In marked contrast, with the exception of former Presidents, federal pretrial inmates are not being released in NorCal in response to COVID-19.

  What fate awaits our desperate federal clients in Santa Rita Jail, if widespread release doesn’t happen soon? For a thoroughly terrifying description of the scenarios ahead for state prisons and jails, see David Montgomery, ‘Prisons are Bacteria Factories’; Elderly Most at Risk, available here. 

Image of the band, “Thin Ice” from https://easyreadernews.com/miller-indictment-divided-manhattan-beach/

Image of the Honorable Magistrate Judge Nathanael Cousins from https://www.law.com/therecorder/almID/1202719524838/Uber-Unlikely-to-Dodge-Discrimination-Suit/

Image of inmate shackled to hospital bed from https://www.pewtrusts.org/en/research-and-analysis/reports/2018/07/19/state-prisons-and-the-delivery-of-hospital-care

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

Coping o' The Week: "The New Normal"

The essay below is from guest blogger Federal Defender Eric Vos, District of Puerto Rico.

 Like all residents of Puerto Rico, in 2017 Eric and the staff of his office were all devastated when the island was slammed by Hurricane Maria. Like all Puertorriqueños, they have spent the last three years bravely picking up the pieces of their lives.

  Eric shared his unique insights on life after disaster with the nation’s Defenders last week. His musings about the “new normal” give hope, in a week when hope is in short supply. 

  With Eric’s permission I am sharing a lightly-edited version of his email to the Defenders, below.

--oOo--

  I suspect many of us and our co-workers are in shock and likely depressed. “This is depressing” is a passive statement and suggests possibly avoiding something. I would simply say, “I am depressed.” 

  If post-Maria taught us anything it was that the “new normal” is close at hand. In the immediate hours/days after the crisis landed none of us were sure if we should scream, shit or wind our watch. “Everyone has a plan until they get punched in the mouth.” As has been true during the COVID-19 crisis, the emails were torrential. Delete, delete, delete, delete. Too many voices, too much difference, no firm ground, confusion and no government to help. “People are going to die.” Nothing seemed the same and all I/we wanted was sense of normality. 

  Depression is most debilitating when you feel there will be no letting up of the pain, confusion and disarray anytime soon.

  Thank goodness our staff learned, soon after the passing of Maria, that the “new normal” will soon emerge.  Our collective, soon-to-emerge “new normal” will not be as nice, convenient or as easy as it was a month ago. But it will heal you.

  I humbly share this lesson with you: the “new normal” will indeed emerge. Despite its hardships, it will be predictable and easier to navigate. I know that my immediate depression was lifted and displaced by a sense of purpose and a better understanding of the “new normal” after Maria passed. We didn’t have water, cell, electricity, healthcare, police: you name it. And there was no end in sight. Seven days later, we were in the groove and understood what had to be done, what could be done, and had a sense of what the morning and end of the day would likely look like. It wasn’t a holiday, but it was predictable and manageable – kinda. For many of us, these conditions lasted 4 months and yet, the new normal was manageable.

  I share this with you because knowing a “new normal” will emerge, soon, brings me solace and a deepened sense of hope. I hope it will help those of you in need.

  Last, my biggest mistake, huge, was that I allowed my sense of dedication towards our clients and co-workers to let me ignore taking care of myself. I quickly became exhausted, depressed (even more) poorly fed, etc. PTSD was suffered by the entire island, no one was spared, and I only increased my issues by not taking care of myself. In retrospect, I now understand there was no good reason to ignore myself. What saved me in many respects were you, my Defender brothers and sisters, and my loving staff. To the extent you are allowed to move around, do it. Take a break for an hour, unplug, walk around (the dog if you can), and stop reading about the issues. Make a sandwich, read a book, return to life. 

  We folks in the criminal defense bar are fighters, through and through -- we will quickly charge the ramparts and will keep slugging away for our clients as long as we are able. Please take care of yourselves, in all respects, as you save your co-workers and our clients from unnecessary pain and suffering. I have never been prouder to say that I am one of you. 

Image of Puerto Rican flag from https://www.backstoryradio.org/shows/after-hurricane-maria/

Eric Vos, Federal Defender, District of Puerto Rico. 

Posted by Steven Kalar, Federal Public Defender, Northern District of California. 

Website at www.ndcalfpd.org

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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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