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THIRD BRANCH Web Opens Access in High Profile Case

The U.S. District Court for the Eastern District of Virginia posted copies to its website of approximately 1,200 exhibits admitted into evidence during the trial in U.S. v. Zacarias Moussaoui—providing public access to nearly every exhibit viewed by the jury. As shown in the illustration by artist William Hennessy, exhibits were displayed throughout the courtroom on TV monitors.

U.S. v. Zacarias Moussaoui may have been one of the most publicly accessible high-profile trials of modern times. From the beginning of the case in 2001 until the current day, the U.S. District Court for the Eastern District of Virginia has maintained a section on its website for the Moussaoui case. Anyone can access a list of pleadings, orders, and opinions filed in the case and, except for pleadings

INSIDE

and orders under seal, the full text of documents. Anyone can be notified by e-mail alerts when documents are filed, and any member of the media can be notified when media advisories are issued in the case. Throughout the duration of the trial, information was readily available on how to attend. In this case, the number of attendees was unlike any See Moussaoui on page 2

Chief Justice Names New AA..................................................pg. 4 GAO Report Shows Decline in Judicial Pay........................pg. 5 Magistrate Judge Gives Gift of Life .....................................pg. 6

Newsletter of the Federal Courts

Vol. 38 Number 9 September 2006

Citing Separation of Powers, ABA Opposes IG for Judiciary The American Bar Association’s House of Delegates voted at its annual meeting last month to oppose legislation that would create an inspector general for the Judiciary. Two bills, H.R. 5219 and S. 2678, have been introduced in Congress that would establish an Office of Inspector General “to conduct investigations of matters pertaining to the Judicial Branch.” The ABA has gone on record opposing any congressional proposal creating an Office of Inspector General for the Judiciary with broad investigative powers and close ties to Congress. The report accompanying the ABA recommendation explains that “the current legislation offends our notions of separation of powers because it would permit the Office of Inspector General to subpoena judges and their documents and investigate specific judges for opinions rendered; creates too close a nexus between Congress and the Office of Inspector General; and re-calibrates checks and balances by expanding the potential opportunity for Congress to intrude into the decisional and institutional independence of the Judiciary.” The ABA applauded the recent efforts of the Judicial Conference to See Inspector General on page 7


Moussaoui continued from page 1 other, given the national and international interest.

A Seat at the Trial In August 2002, shortly before the criminal trial had been expected to begin in the Alexandria courthouse of the U.S. District Court for the Eastern District of Virginia, Congress passed Public Law 107206. The law permitted “victims of crimes associated with the terrorist acts of September 11 to watch trial proceedings,” and directed the trial court to order closed circuit televising of the proceedings to convenient locations determined to be “reasonably necessary, for viewing by those victims.” Since victims were defined, in part, as individuals or their family members who suffered direct physical harm as a result of the terrorist acts that occurred in New York, Pennsylvania, and Virginia on 9-11, it was clear neither the Alexandria courtroom, nor one single courthouse location, would accommodate everyone who might want to view the proceedings. In addition to designating a separate overflow courtroom in the Alexandria courthouse, presiding Judge Leonie M. Brinkema (E.D. Va.) designated remote viewing locations at federal courthouses in Boston, Massachusetts; Central Islip, Long Island and New York City, New York; Philadelphia, Pennsylvania; and Newark, New Jersey. Closed circuit television feeds transmitted the proceedings to each location throughout the trial, from the opening statements, all the way through to sentencing. Staff at the Administrative Office coordinated everything from the transmission of the encrypted signal to the issuing of credentials to qualified victims and their family members who wished to attend. The law gave Judge Brinkema the discretion to “control the manner,

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part of the overall security plan during the trial, the media were required to stay a certain distance from the courthouse, so a media pen was created on the plaza in front of the building. A microphone stand was provided at which statements could be made to the press by victims’ family members or other individuals. The court’s Public Information Officer Edward Adams announced the verdict from the stand, reading from the jury verdict forms to the media. “That way, everybody got the information at once and there was far less of a reason for people to rush out of the courtroom,” said Adams. “As far as I know, that’s never been done by any other federal court. We felt it was a bit more dignified.” Thirty-two news organizations and sketch artists covered the Moussaoui trial daily. All the major U.S. newspapers and broadcast and cable news networks were represented, as well as a number of foreign press. The City of Alexandria provided a traffic lane along a street adjacent to the courthouse, where the media, satellite and microwave trucks could park. Media organizations ran cable from their trucks to the stand-up locations in front of the courthouse—in some instances a distance as long as six football fields.

circumstances, or availability of the broadcast where necessary to control the courtroom or protect the integrity of the trial proceedings.” She issued a trial conduct order that all remote sites would be considered extensions of the Alexandria courtroom and that the same rules

of conduct would apply. “In particular, no talking, eating, drinking, chewing gum, or other distracting behavior will be permitted,” read the order, which also banned electronic devices of any kind. “We wanted people to understand that they were attending a


trial, even though it’s on television,” said Edward Adams, who was the district’s public information officer. Within the Alexandria courthouse itself, two courtrooms were open to members of the public who wished to follow the proceedings. One was the so-called “live” courtroom, and the other a courtroom across the hall with a closed circuit videofeed of the proceedings screened on three 50-inch plasma television sets. Between the two rooms there were a total of 160 seats. Most of the seats in the “live” courtroom were reserved, with 32 for the press alone, according to Adams, who coordinated the arrangements. “Initially, when we thought we were going to trial in the fall of 2002,” said Adams, “we laid down a set of rules for media organizations. If they were willing to attend the trial every day, we would give them a reserved seat. At that time, 75 news organizations and sketch artists were willing to work under those rules.” Fast forward to late 2005, with the trial set to begin in early 2006—and Mr. Moussaoui no longer representing himself—and that number fell to 32. All the major U.S. media were represented, including broadcast networks, cable news, and the major U.S. newspapers. There were a number of foreign press represented, including Al-Jazeera, and many from the French media (Mr. Moussaoui is a French citizen) including Agence France-Presse, Le Monde, and Radio France. Eight seats in the spectator gallery were reserved for members of the prosecution team and eight for the defense team. Two representatives from the French Embassy had reserved seats, and there was a reserved seat for a representative from the Department of Justice, whose responsibility it was to ensure that classified information did not become public during the course of the trial. Eight seats were allocated on a daily basis by the Victim

Witness Unit of the U.S. Attorney’s Office for victims of 9-11 and family members. Finally, approximately 14 seats in the live courtroom and all 80 seats in the overflow courtroom were available on a first-come, first-served basis to any and all. According to Adams, attendance varied greatly during the course of the trial but seldom dipped below 100. And despite the number of reserved seats, members of what he called the “true public,” people with no connection to the case or the justice system, found seats.

Evidence Seen Around the World Approximately 1,200 pieces of evidence admitted during the trial are now available to anyone anywhere in the world with access to the Internet. Their circuitous trip to the Web, however, began with an appeal. A consortium of media organizations appealed to the Fourth Circuit the trial court’s decision not to make trial evidence public until after the trial’s conclusion. The Circuit gave the media a partial win by agreeing that the trial exhibits were public records. But, during the trial, the court had to provide public access only to exhibits that had been “published in full” to the jury. According to Adams, this meant that if a photograph was displayed to the jury on the courtroom’s electronic evidence system, that photograph had to be made available to the media. However, if six minutes of a 12-minute videotape were played, that piece of evidence did not need to be provided until the end of the trial. While the trial was in progress, the party introducing evidence published to the jury provided Adams with a copy—be it a piece of paper, a photograph, or a videotape. For example, if a knapsack came into evidence, a photograph was provided of the knapsack. These exhibits were posted, during the

course of the trial, by the Reporters Committee for Freedom of the Press to its website. “If it was a video or audiotape,” relates Adams, “I handed it over to the pool television producer for the networks, whose responsibility it was to transmit it to the rest of the media.” Once the trial concluded, however, the court faced the responsibility of providing public access to all the evidence­—video and audio tapes, photographs, documents, and objects. “The court felt,” Adams recalls, “that the most efficient way to do that was to place them on the Internet. That way, everybody all over the world could access them.” The Internet would provide maximum public access but also the most efficient access. There was no need to visit the clerk’s office to look through exhibits; anyone could visit the website. On July 31, 2006, the district court posted copies of all 1,202 exhibits admitted into evidence during the trial, with the exception of seven that are classified or otherwise remain under seal. The website can be accessed at www.vaed. uscourts.gov/notablecases/moussaoui/index.html. “To my knowledge,” said Adams, “this is the first time this has ever been done in a federal criminal case.” United States v. Zacarias Moussaoui began in 2001 and culminated in 2006, after nine days of jury selection, 24 days of evidence and arguments, and 10 days of jury deliberation. On May 4, 2006, the defendant was sentenced to life in prison without possibility of release. Days later, a notice of appeal was filed. The Eastern District of Virginia continues to update its web pages with any post-trial motions or orders. The district’s website notes that documents filed in connection with the appeal will be posted on the website of the U.S. Court of Appeals for the Fourth Circuit.

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New Committee Chairs, New Executive Committee Members Named

4

Judge Lawrence Piersol (D. S.D.)

Chief Judge Anthony J. Scirica (3rd Cir.)

Chief Judge Deanell R. Tacha (10th Cir.)

Judge Roger L. Gregory (4th Cir.)

Judge Dennis M. Cavanaugh (D. N.J.)

Chief Judge Joseph F. Bataillion (D. Neb.)

On October 1, 2006, three new members joined the Executive Committee of the Judicial Conference, three Judicial Conference committees have new chairs, and the extended terms of four committee chairs began. Judge Lawrence L. Piersol (D. S.D.), Chief Judge Anthony J. Scirica (3rd Cir.) and Chief Judge Deanell R. Tacha (10th Cir.) replaced Chief Judge Joel M. Flaum (7th Cir.), Judge David L. Russell (W.D. Okla.), and Chief Judge John Walker, Jr. (2nd Cir.) on the Executive Committee. The Executive Committee is the senior executive arm of the Judicial Conference, acting on behalf of the Conference between regular sessions. The new committee chairs are Judge Roger L. Gregory (4th Cir.), who succeeds Judge Robert B. Kugler (D. N.J.) as chair of the Committee on the Administrative Office; Judge Dennis M. Cavanaugh (D. N.J.), succeeding Judge Nina Gershon (E.D. N.Y.) as chair of the Committee on the Administration of the Magistrate Judges System; and Chief Judge Joseph F. Bataillon (D. The Third Branch

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Neb.) succeeding Judge Jane R. Roth (3rd Cir.) as chair of the Committee on Space and Facilities. All new chairs will serve terms of three years. Four committee chairs will serve extended terms. Judge Marjorie O. Rendell (3rd Cir.), chair of the Committee on the Administration of the Bankruptcy System; Chief Judge David F. Levi (E.D. Cal.), chair of the Committee on Rules of Practice and Procedure; and Judge Lee H. Rosenthal (S.D. Tex.), chair of the Advisory Committee on Civil Rules, have had their terms as chairs extended for one year. Judge Royce C. Lamberth (D. D.C.), chair of the Committee on Intercircuit Assignments, will serve another three-year term. Chief Justice John G. Roberts, Jr. makes all appointments to Judicial Conference committees and determines tenure. He is assisted by the Judicial Conference Secretary, Administrative Office Director James C. Duff. Committee chairs, with the exception of the Executive, Judicial Branch, and Budget Committees, generally serve a term of three years.

Chief Justice Names New AA Jeffrey P. Minear, senior litigation counsel and assistant to the Solicitor General, Department of Justice (DOJ), has been selected by Chief Justice John G. Roberts, Jr., as his new administrative assistant. Minear, 51, began work at the Supreme Court on September 11, 2006. He succeeds Sally M. Rider, who leaves the Court to become the director of The William H. Rehnquist Center on the Constitutional Structures of Government at the University of Arizona. “I have worked with (and against) Jeff over nearly two decades, and during that time I have seen firsthand his strong commitment to the Supreme Court as an institution and his respect for its role in our system of government,” the Chief Justice said in announcing Minear’s appointment. “I am delighted that he has agreed to undertake this important public service.” The administrative assistant serves as the Court’s chief of staff and aids the Chief Justice in his overall management of the Court, provides research in support of the Chief Justice’s public addresses and statements, and monitors developments in the field of judicial administration and court reform. The administrative assistant also assists the Chief Justice with his other statutory responsibilities as head of the Third Branch of government. These include the Chief Justice’s role as presiding officer of the Judicial Conference, chairman of the board of the Federal Judicial Center, and chancellor of the Smithsonian Institution. Minear was a chemical engineer for Union Carbide Corporation in Texas City, Texas, from 1977 to 1979. After receiving his master’s of


GAO Report on Trends in Judicial Pay Shows Decline in Earning Power

Jeffrey P. Minear

science degree in resource policy and management from the University of Michigan School of Natural Resources and a J.D. from the University of Michigan Law School in 1982, he held a one-year appointment as a judicial clerk for Judge Monroe G. McKay (10th Cir.). Minear then joined the Environment and Natural Resources Division of DOJ, where he worked on policy, legislative, and appellate matters from 1983 to 1985. From 1985 to 1998, he was assistant to the Solicitor General, DOJ, responsible for Supreme Court and appellate litigation focusing on civil, environmental, and intellectual property issues. In his position as senior litigation counsel, Minear was responsible for Supreme Court and appellate litigation and for overseeing the government’s participation in all Supreme Court original actions. Minear has argued 56 cases before the Supreme Court. Minear has held appointments as a visiting professor at Washington and Lee University Law School and the University of Utah College of Law. He is currently an adjunct professor at Georgetown University Law Center, where he teaches a seminar on the history and role of the Office of the Solicitor General.

First the good news: the basic pay rates for selected federal pay plans increased in nominal or current dollars from 1970 to 2006. Now the bad news: when adjusted for inflation to 2006 dollars, the pay rates for justices and judges in real dollars decreased. Those were two of the findings of a June 2006 Government Accounting Office report on Human Capital: Trends in Executive and Judicial Pay. The report was requested by the House Government Reform Committee Subcommittee on the Federal Workforce and Agency Organization. “Critical to the success of the federal government’s transformation are its people—human capital,” the report notes in an explanation of why it undertook the study. “Yet the government has not transformed, in many cases, how it classifies, compensates, develops, and motivates its employees to achieve maximum results . . . . GAO has reported that the federal government as a whole may face challenges in offering competitive compensation to its senior leaders who have reached a statutory pay cap.” GAO was asked in this study to provide trend data for basic pay rates of selected federal executive and judicial pay plans from 1970 to 2006; identify elements of total compensation for the selected pay plans in 2006; and identify principles for any possible restructuring of these pay plans. The data shows that since 1970, courts of appeals and district judges have seen their pay decline by 1 percent, when adjusted for inflation using the Gross Domestic Product price deflator. Their pay fell 20 percent when compared to the Consumer Price Index. Justices have

seen an even greater decline, with their earnings dropping 19 percent against the GDP and 34 percent against the CPI. The report recommended that, if executive-level pay plans are to be restructured, certain principles should be considered. Unfortunately, most of those principles might be difficult to apply to Article III judges. For example, the report proposes that executive-level pay plans be market-sensitive, responsive to changes in the nation’s economy, and reflective of responsibilities, knowledge and skills, and contributions. However, the report also recommends that pay plans be transparent —where Congress, leadership, and the public can easily understand the value of compensation and contributions—and competitive, with reasonable total compensation and other elements necessary to attract and retain leadership. The report wraps up with several observations, one of which is that a commission explore ways to maintain a reasonable relationship across executive level positions and to the relevant markets. “For example, in 1967 and 1989,” the report states, “Congress established the authority to appoint commissions to provide salary recommendations to the President every four years for top-level executive, judicial, and legislative officials.” The 1989 commission, the report duly notes, has yet to be appointed. The GAO report, Human Capital: Trends in Executive and Judicial Pay, is available at www.gao.gov/new. items/d06708.pdf.

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Magistrate Judge Gives Gift of Life U.S. Magistrate Judge J. Gregory Wehrman (E.D. Ky.) is a humble man being praised for what many see as a heroic deed. Last June 20, he donated his left kidney to a federal prosecutor. “He represents all that is good in the federal Judiciary,” Chief Judge Joseph Hood (E.D. Ky.) said about his colleague. “Those who know him were not surprised by this selfless act.” District Judge David Bunning, who works in the same Covington, Kentucky, courthouse as Wehrman, added, “All who know him admire him. He is a stellar person, a humanitarian, and just the consummate judge.” Wehrman, who became a parttime magistrate judge in 1975 and moved to full-time status in 1991, had known Assistant U.S. Attorney E.J. Walbourn, 54, as a courthouse regular but the two men were not personal friends. Walbourn had been to the judge’s house just once, to have a search warrant signed over a decade ago. Nevertheless, Wehrman, 62, volunteered to be a transplant donor shortly after finding out about Walbourn’s condition in the summer of 2005. The prosecutor thanked the judge, but told him he hoped to receive a kidney from someone in his family. When that hope faded, Walbourn— who lost one-third his body weight while on dialysis—asked the judge if his offer was still good. “The doctors never told me I was running out of time, but the end of the rope might not have been far off,” Walbourn said in a recent interview. The judge’s offer was still good, removing Walbourn from a list of 60,000 Americans waiting for a kidney from a cadaver. (Kidneys from live donors are preferred

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ON THE MEND: U.S. Magistrate Judge J. Gregory Wehrman (left) is back at work. He will have medical check-ups six months and one year after donating his kidney. Assistant U.S. Attorney E.J. Walbourn is undergoing weekly regulation of anti-rejection medicines.

because the organs last longer. There is risk: about 6 in 10,000 live donors die from infection or some other complication.) “Years ago, I signed an organdonor card. But I never thought I’d have the opportunity to be a live donor,” Wehrman said while working in his chambers in early August. “All seemed to go well. I returned to work on a part-time basis two weeks ago, and am working full-time now. I’m feeling very good.” Walbourn, too, reported feeling well. “The judge says he’s no hero but my family and I disagree,” he said. “The judge is my hero, and so are his wife and family.” “My family was very supportive of my decision,” Wehrman said. “It’s been a very emotional experience.” The deeply appreciative Walbourn has one regret. “I will miss practicing before the judge,” he said. “As soon as he agreed to be a donor, I decided never to appear in front of him again. Even though I’m told that, with full disclosure, I could handle cases before him, I think it raises

too many issues. I would never do anything to put Judge Wehrman’s integrity in doubt.” Asked whether he had worried about any possible conflict, Wehrman chuckled as he recalled one lawyer’s quip. “He told me, ‘Judge, I have to advise my clients that you may be impartial, but you and E.J. are now a genetic match.’” The judge said he hopes his decision will inspire others. “I’m a bit uncomfortable with all this notice. I simply reacted to seeing someone I knew in need,” he said. “My family and I hope and pray that others hearing about this will be moved to do the same thing. There is a great need.”


Inspector General continued from page 1

Bill Would Add Judgeships, Ultimately Aid Border Courts Senator Peter Domenici (R-NM), with co-sponsors Senators Jon Kyl (R-AZ) and John Cornyn (R-TX), last month introduced S. 3773, a bill that would increase the number of federal judgeships in districts that have “an extraordinarily high immigration caseload.” The bill defines high immigration caseload as a district court in which the criminal immigration filings totaled more than 50 percent of all criminal filings for the 12-month period ending September 30, 2004. “I believe it is imperative to equip all of our federal agencies with the assets they need to secure our borders and enforce our immigration laws,” Domenici said. “That includes equipping our U.S. district courts with enough judges to handle the criminal immigration cases that appear on their dockets.” He warned that the immigration reform bill passed by the Senate in May fails to recognize that repeat immigration law violators can be charged with a felony

and tried in U.S. courts. “We need to increase the number of judges in our district courts that handle such cases, particularly in those districts that are already overwhelmed with immigration cases,” he said. Four Southwest border districts meet S. 3773’s fiscal year 2004 caseload criteria: the District of Arizona, the Southern District of California, the District of New Mexico, and the Southern District of Texas. The Judicial Conference has recommended creating 11 new district judgeships, nine permanent and two temporary, in these districts. “Based on these caseloads,” Domenici said, “I think we should already be giving these districts new judgeships. But to increase our border security and immigration enforcement efforts without equipping these courts to handle the even larger immigration caseloads that they are expected to face would be tantamount to willful negligence.”

District

Immigration Caseload FY04

Total Criminal Caseload FY04

Judicial Conference Judgeship Recommendation

Arizona

2,407

4,532

4 Permanent, 1 Temporary

S.D. California

2,209

3,420

1 Permanent

New Mexico

1,508

2,569

1 Permanent, 1 Temporary

S. D. Texas

3,691

5,649

3 Permanent

examine and respond to concerns raised by Congress and the public. Last month, the Executive Committee of the Judicial Conference sent to Chief Justice John G. Roberts, Jr. a status report on the actions of the relevant Conference committees and the Administrative Office with regard to judicial ethics and accountability. Among the actions detailed in the report were a comprehensive review of all Judicial Conference policies on ethical obligations, and an assessment of efforts already underway to aid compliance with those obligations. Additional administrative rules and reporting requirements for recusals and seminar attendance are being considered, and training and updated information on ethical obligations are being provided to judges. The AO recently deployed conflictchecking software in almost every district and bankruptcy court, and is in the process of doing so in the courts of appeals. Judges are being educated in its use. An expanded disclosure policy for private seminar attendance by judges is expected to be considered by the Judicial Conference in September. The ABA urged the Supreme Court, the Judicial Conference and the circuit council of each judicial circuit “to strengthen public confidence in the courts by regularly engaging in rigorous oversight of judicial administration activities and judicial ethics and promptly adopting and implementing improvements when necessary.”

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THE

JUDICIAL MILESTONES

Appointed: Neil M. Gorsuch, as U.S. Court of Appeals Judge, U.S. Court of Appeals for the Tenth Circuit, August 10. Appointed: Jerome A. Holmes, as U.S. Court of Appeals Judge, U.S. Court of Appeals for the Tenth Circuit, August 14. Appointed: Daniel P. Jordan, III, as U.S. District Judge, U.S. District Court for the Southern District of Mississippi, August 8. Appointed: Edward B. Atkins, as U.S. Magistrate Judge, U.S. District Court for the Eastern District of Kentucky, August 24. Appointed: Edmund F. Brennan, as U.S. Magistrate Judge, U.S. District Court for the Eastern District of California, August 21. Appointed: John S. Bryant, as U.S. Magistrate Judge, U.S. District Court for the Middle District of Tennessee, August 3. Appointed: Carmen E. Garza, as U.S. Magistrate Judge, U.S. District Court for the District of New Mexico, August 23. Appointed: Charles L. Nail, Jr., as U.S. Bankruptcy Judge, U.S. Bankruptcy Court for the District of South Dakota, August 2. Appointed: Randy David Doub, as U.S. Bankruptcy Judge, U.S. Bankruptcy Court for the Eastern District of North Carolina, July 28. Elevated: U.S. District Judge Curtis V. Gomez, to Chief Judge, U.S. District Court for the Virgin Island, succeeding U.S. District Judge Raymond L. Finch, August 15. Elevated: U.S. District Judge Jack T. Camp, to Chief Judge, U.S. District Court for the Northern District of Georgia, succeeding U.S. District Judge Orinda Evans, September 1.

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Elevated: U.S. District Judge Yvette Kane, to Chief Judge, U.S. District Court for the Middle District of Pennsylvania, succeeding U.S. District Judge Thomas I. Vanaskie, September 1. Elevated: U.S. District Judge Kimba M. Wood, to Chief Judge, U.S. District Court for the Southern District of New York, succeeding U.S. District Judge Michael B. Mukasey, August 1. Elevated: U.S. District Judge James A. Beaty, Jr., to Chief Judge, U.S. District Court for the Middle District of North Carolina, succeeding U.S. District Judge N. Carlton Tilley, Jr., September 21. Senior Status: U.S. Court of Appeals Judge John Walker, Jr., U.S. Court of Appeals for the Second Circuit, September 30. Senior Status: U.S. District Judge Ronald S.W. Lew, U.S. District Court for the Central District of California, September 19. Retired: U.S. Court of Appeals Judge Gerald W. Heaney, U.S. Court of Appeals for the Eighth Circuit, August 31. Retired: Senior U.S. Court of Appeals Judge Frank M. Coffin, U.S. Court of Appeals for the First Circuit, September 30. Retired: Senior U.S. District Judge Frank W. Bullock, Jr., U.S. District Court for the Middle District of North Carolina, August 1. Retired: Senior U.S. District Judge Robert E. Keeton, U.S. District Court for the District of Massachusetts, August 31. Retired: Senior U.S. District Judge Michael B. Mukasey, U.S. District Court for the Southern District of New York, September 9.

For additional September milestones, visit The Third Branch on-line at www.uscourts.gov The Third Branch

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THIRD BRANCH

Published monthly by the Administrative Office of the U.S. Courts Office of Public Affairs One Columbus Circle, N.E. Washington, D.C. 20544 (202) 502-2600 Visit our Internet site at http://www.uscourts.gov DIRECTOR James C. Duff EDITOR-IN-CHIEF David A. Sellers MANAGING EDITOR Karen E. Redmond CONTRIBUTOR Dick Carelli PRODUCTION Linda Stanton Please direct all inquiries and address changes to The Third Branch at the above address or to Karen_Redmond@ao.uscourts.gov.

JUDICIAL BOXSCORE As of September 1, 2006 Courts of Appeals Vacancies Nominees

14 5

District Courts Vacancies Nominees

31 17

Courts with “Judicial Emergencies” 19

For more information on vacancies in the federal Judiciary, visit our website at www.uscourts.gov under Newsroom.


2006 Director’s Awards Honor Heroic Response, Leadership, and Innovation The 2006 Director’s Awards honored leadership and innovation in the federal courts, and also the extraordinary response of Judiciary employees post-Katrina. Employees are nominated by their courts for awards in the areas of outstanding leadership, excellence in court operations, and extraordinary actions. Recipients are selected by the Director of the Administrative Office of the U.S. Courts. Director’s Award for Extraordinary Actions The criteria for the award asks that nominees exhibit bravery and concern for others in the face of adverse conditions, display creativity and resourcefulness in a critical situation, and help ensure that the Judiciary’s mission is met during a critical situation. Thirteen nominations—a total of 90 individuals­—received 2006 Director’s Awards for Extraordinary Actions. They were recognized for their heroic efforts, and for their creativity and resourcefulness, in the aftermath of Hurricane Katrina. Recipients are from the U.S. Court of Appeals for the Fifth Circuit, the Middle, Eastern and Western Districts of Louisiana, and the Southern District of Mississippi. They are network and system administrators, probation and pretrial services officers, property and procurement specialists, staff attorneys, clerks, clerical assistants, courtroom deputies and secretaries, among others. For a complete listing of these outstanding individuals, please visit our website at http://uscourts.gov/ttb/0906/2006awards.html. Director’s Award for Outstanding Leadership Chief Probation Officer Paul W. DeFelice and Chief Deputy Clerk John Matthew Domurad, both from the U.S. District Court for the Northern District of New York, received 2006 Director’s Awards for Outstanding Leadership. This award recognizes managerial employees who may have, for example, led national endeavors to improve the Judiciary, exhibited exem-

plary stewardship of resources, increased workforce productivity, facilitated service, or ensured access to the courts. In addition to work on advisory committees, and his efforts to provide better access to and productivity within the Judiciary, DeFelice was an early and active supporter of the Access to Law Enforcement System (ATLAS) network for the federal Judiciary. ATLAS has greatly increased the ability of probation and pretrial services officers nationwide to perform their investigative and supervisory duties. He initiated a unique treatment program, the High Impact Incarceration Program, that has reduced detention rates for defendants and probation/supervised release violators. His introduction of a completely random urinalysis program has curtailed the cost of substance abuse testing and led to interest from other districts in the program’s collection and testing procedures. Domurad’s local efforts to review and investigate the rent bills for the district’s court facilities led to a savings of more than $23 million in rent for buildings in the Northern District and two facilities in the Southern District of New York. He has helped to create a process to ensure that Judiciary rent payments are in compliance with the Code of Federal Regulations and is now visiting every circuit in the country to work with local circuit and unit executives to review classification of space and rental rates at each courthouse. Director’s Award for Excellence in Court Operations: Court Technology The Director’s Award for Excellence in Court Operations recognizes achievements in operating with economy and efficiency, innovations that improve service, or programs that enhance the public’s awareness of the Judiciary. All of the 2006 winners won within this category for excellence in court technology. Domenic J. D’Allessio, systems programmer for the U.S. Bankruptcy Court for the Southern District of California, developed and imple-

mented the Cash Register/Electronic Case Files Program, a software application that automates the bankruptcy court’s cashier/ intake deputies’ receipt-writing duties, performing all receipting for any monetary collections and integrating the Bankruptcy Court Financial Accounting System. The program saves time and effort and ensures accuracy of data. In the U.S. District Court for the District of Columbia, management analyst Laura W. Simon and assistant director for automation and technology Chris Warner, with Mark Soltys, the assistant circuit executive for automation in the U.S. Court of Appeals for the Third Circuit, were recognized for the roles they played in the development and implementation of the new Online System for Clerkship Application and Review (OSCAR). This innovative system, which automates a very paper-intensive processing of applications for clerkships in the federal courts, has proved popular with participating judges. Kirk T. McDonough, assistant manager for the Information Technology system in the U.S. Bankruptcy Court for the Eastern District of Missouri, received an Excellence in Court Operations Award for his leadership in developing the automated inventory reporting system (AIRS). The program helps manage a court’s inventory and is now in use in 46 court units. Based on court-user suggestions, McDonough has revised AIRS to incorporate an inventory management system for consumable supplies, bar code reader functionality, reports required by the Procurement Management Division, and software licensing management.

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I N T E R V I E W

The Challenge of Leadership in the Courts Judge Julia Gibbons (6th Cir.), was named chair of the Judicial Conference Committee on the Budget in 2004. She was a member of the Budget Committee before taking on chair responsibilities. Previously legal advisor to Governor Lamar Alexander from 1979-81 and a state judge from 1981-83, Gibbons was nominated to the U.S. District Court for the Western District of Tennessee in 1983, and elevated to the Court of Appeals for the Sixth Circuit in 2002. Gibbons was appointed to the Judicial Resources Committee in 1990, and was chair of the committee from 1994 until 1999. She also was a member of the Judicial Panel on Multidistrict Litigation.

Q:

As chair of the Budget Committee, you testified in April before Congress on the Judiciary’s need for a fiscal year 2007 appropriation sufficient to build on the gains achieved in FY 2006, or risk re-creating the funding problems of past years. Where does the Judiciary’s FY07 funding stand nearly five months later?

A:

The House has passed its version of H.R. 5576, the Transportation, Treasury, Housing and Urban Development, the Judiciary, the District of Columbia and Independent Agencies Appropriations Act, giving the Judiciary $6.063 billion in fiscal year 2007. Prior to the August recess, the Senate Appropriations Committee approved its version of H.R. 5576, with $6.098 billion for the Judiciary. The Senate probably will not have time to take up our appropriations bill before it adjourns for the elections this fall. Thus, we likely will begin fiscal year 2007 oper-

10 The Third Branch

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September 2006

ating under a continuing resolution and ultimately end up within an omnibus appropriations bill during a lame-duck session after the elections. At the 2006 budget hearings you said the Judiciary is approaching a crossroads in FY 2007. What did you mean?

Q: A:

I said that the Judiciary is on the brink of setting a new course that will restore its financial health, but that it will take resources and leadership to accomplish that goal. Congress must supply the resources, but the Judiciary provides the leadership. The leadership structure of the Judiciary is quite complex, if you think about it. In one sense, we are led centrally by judges, primarily Article III judges, with the Chief Justice at the top of the organizational chart and the Judicial Conference as our policymaking body. Other judges work on Conference committees and take part in policy development. But we are also so decentralized that the primary source of leadership is found within the individual court unit. While judges, particularly chief judges, have a key leadership role there, they tend to focus on their dockets. Often the task of initiating action on matters large and small falls to management professionals, from clerks of court, to chief probation and pretrial services officers, to circuit executives, and to other management personnel in all those offices. While individual courts have much discretion in the conduct of their business, they operate within limits, too. The limits include Conference policy, supervision by circuit judicial councils with respect to certain matters, and, most fundamentally in these times of budgetary restraint, resources that are less plentiful than we might like.

Judge Julia Gibbons (6th Cir.) Finally, the Administrative Office fits into this leadership structure at many junctures. The Director has a statutory role in the Judicial Conference, and AO employees staff Conference committees, serve as information resources for courts and individual judges, make sure we all are paid on time, handle court allotments, and conduct audits, among other things. When you look at the whole picture, you wonder how it all works. Yet from my perspective, it does work—at least most of the time. And it does so by providing a framework for dealing with many of the inherent tensions in the system and for providing the right mixture of direction and support.

Q:

How does the Judiciary’s leadership provide that support?

A:

Let’s face it. When times are relatively stable, we don’t feel the pressure on our leadership structures. But in difficult budgetary times where we must do more with less, our leadership approach is critical. The Judiciary is blessed with employees who are committed to the courts and the public they serve and who make do, largely without complaint, even in the face of adversity. But sometimes it is hard for us to remember the institutional needs of the whole court or the entire Judiciary. A great example of this is court requests for space. The court focuses only on its needs,


not whether the system as a whole can afford the expenditure. But the Conference and its committee structure and to some extent the judicial councils provide a mechanism to look at the whole and balance the needs of all. For example, the Judicial Resources Committee regularly rejects requests for exceptions to staffing or pay policy; the Space and Facilities Committee and the circuit councils both look at space requests; and the Budget Committee routinely makes tough choices governed by considerations of what is good for all.

Q:

Cost containment has been part of the Judiciary’s short and long-term strategy to save money. Is cost containment working?

A:

The Judiciary’s cost containment effort was initiated over two years ago by the late Chief Justice Rehnquist. This is a multifaceted endeavor examining all areas of Judiciary policy that affect our financial requirements. Originally, the Executive Committee of the Judicial Conference spearheaded the cost-containment initiative, and now follow-up responsibility is coordinated through the Budget Committee and its Economy Subcommittee. Cost containment has already been of substantial benefit to the Judiciary in reducing projected shortfalls in our budget in years to come. This climate of restraint will be with us for the foreseeable future and will require all the creative and careful leadership we can muster.

Q:

A Judiciary-wide compensation study is also underway. What does this study hope to accomplish?

A:

As you know, most of our Salaries and Expenses account is made up of personnel costs and rent. So, making sure that we contain

costs in both areas is vital. The compensation study is under the jurisdiction of the Judicial Resources Committee and includes an examination of positions throughout the judiciary—in clerks’ offices, chambers, probation and pretrial services offices, and staff attorney offices. When complete, the study will provide recommendations to help us decide critical personnel policy issues.

Q:

As you mention, rent is a large and ever-growing part of our S&E account. What is being done to control rent and other areas of our budget?

A:

One of the most difficult issues we face is the Judiciary’s effort to control the growth of rent. We have been requesting rent relief from GSA for over a year and a half, with little success. And while we have succeeded in drawing attention to the issue in Congress and have achieved some support for our position, we have also received criticism from Members. Those Members have characterized our rent problem as our own fault, brought about by our own appetite for space. Hopefully, continued persistence on the issue can bring us an advantageous resolution. In the meantime, the cost-containment initiative and the Judiciary’s emphasis on controlling the growth of rent costs gave birth to the concept that a rent cap should be implemented. The Conference charged the Budget Committee to work with the Space and Facilities Committee to develop a rent cap. As we considered the idea of a rent cap, we realized that the concept was equally applicable to other areas of the budget. Although we are moving ahead with a rent cap first, we have also made an initial proposal about a cap for non-space areas of the Salaries and Expenses account. This proposal will be submitted to other

affected Conference committees for input at their next meetings. And we are beginning work on caps for the Defender Services and Court Security accounts. We hope to apply caps for the first time when we develop the FY 2009 budget request. The implementation of caps presents a leadership challenge for our Committee. Budget caps are a new concept, which must be carefully evaluated as they are adopted and implemented. We will have to remain committed to our overall goals but also retain the flexibility to assess objectively their usefulness. And as leaders, we must be advocates, as we convince the Judiciary that the caps are necessary components of our efforts to reduce future deficits in the Judiciary. What can the courts do to help?

Q: A:

First, the Budget Committee would like to hear from the courts about the specific ways in which budgetary constraints create a hardship in courts or diminish service to the public. Second, we are urging the courts to fill the positions that need filling. We made a convincing case with Congress about the dire straits the courts were in as a result of the 2004 budget cycle, when the courts ultimately lost 1,350 employees. For the last two years, we received enough funds to back fill those positions and do some new hiring. Yet courts have been slow and cautious to hire during these times of uncertainty. This creates a perception with Congress that our lack of hiring means that the courts do not need the help. I do not believe this to be the case. Are there any final thoughts you’d like to share?

Q: A:

I want to go back to my comments about our diffuse See Interview on page 12 The Third Branch

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Interview continued from page 11 leadership structure and offer a closing thought about why it works. I referred to the commitment of our employees, which is extraordinary. The judges share that commitment. The reason is simple. We serve a common cause larger than ourselves, a cause that is of vital importance in our democracy—the preservation of an independent Judiciary devoted to the rule of law and administering justice faithfully and impartially. Thus, while our leadership is scattered geographically and organizationally, we are united in shared values and our mission.

F E D E R A L

C O U R T S

S N A P S H O T

Bankruptcy Filings Creep Up After Fall Bankruptcy Filings by Month July 2005 – June 2006 800,000 700,000 600,000 500,000 400,000 300,000 200,000 100,000 0 Jul Aug Sept 2005

Oct

Nov

Dec

Jan

Feb

Mar

Apr

May June 2006

Total monthly bankruptcy filings in the federal courts were 133,707 in July of 2005. They rose to 630,402 by October of 2005, and fell to 14,521 by November 2005. The drop in bankruptcy filings occurred with the implementation of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. Most of the Act’s provisions went into effect on October 17, 2005. Bankruptcy filings are creeping up slowly, with June’s monthly filings totaling 54,734. For all of June’s bankruptcy statistics visit www.uscourts.gov/Press_Releases/bankruptcyfilings082806.html. Historical data is available at http://www.uscourts.gov/ bnkrpctystats/bankruptcystats.htm.

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