THIRD BRANCH Crack Cocaine: Resentencing Goes Smoothly
Newsletter of the Federal Courts
Vol. 40 Number 5 May 2008
Judges Bring History to Naturalization Ceremonies
Federal district courts generally are coping well with the sudden increase in their workloads that occurred March 3, when a retroactive reduction in penalties for crack cocaine offenders took effect and more than 21,000 inmates became eligible for shorter prison sentences. Three weeks after the Sentencing Guidelines amendment took effect, See Resentencing on page 2
I N T E RV I E W
Transparency Goal of Committee on Financial Disclosure Receiving a letter from this Judicial Conference committee has been known to “make stomachs churn” acknowledges its chair. To read more about the Committee and it’s work, see the interview on page 10.
Members of the U.S. Army 10th Mountain Division pledge allegiance to the United States of America after receiving the oath of citizenship. Within days, many shipped out to Iraq or Afghanistan to serve their country.
At Fort Drum in upstate New York, thirty miles from the Canadian border, a group of U.S. Army infantry soldiers from the 10th Mountain Division raise their right hands before Magistrate Judge George Lowe (N.D. NY), ready to become the newest citizens of the United States. They are thousands of miles from the countries of their births—India, the Philip-
pines, Poland, Guyana, Mexico, Haiti, and Ethiopia. Today, they’ll become U.S. citizens. Tomorrow or next week, they will be deployed to Iraq or Afghanistan. Their division holds the distinction of being the most deployed division in the Army. “The Oath of Allegiance that the soldiers take, as do all candidates for See Naturalization on page 4
New Chair for Executive Committee............................................................................................................... pg. 3 Public Comments In On Changes to Code.................................................................................................... pg. 7 Judges Learn from Terrorism-Related Cases................................................................................................. pg. 9
Resentencing continued from page 1 the sentences of more than 3,000 inmates nationwide had been reduced. More than 1,000 inmates had been ordered released immediately. Court officials—including judges, chief probation officers, clerks of court, and federal defenders—had prepared, along with federal prosecutors, by drafting operational plans and conducting retroactivity summits in Charlotte, N.C., and St. Louis well before the March 3 date. “The process our court developed—the team effort we had in place—has made things go pretty flawlessly,” Chief Probation Officer Doug Burris (E.D. Mo.) said. As of the end of April, 170 inmates had received reduced sentences in that judicial district, with about 44 released. The U.S. Sentencing Commission reported that 3,647 reduction requests had been fielded by the 94 district courts as of April 14, with 3,075 granted and 572 denied. There were 21 requests denied in the Missouri Eastern. “We’ve had some bank robbers and whitecollar criminals try to benefit by seeking reductions under the retroactive guidelines, even though their cases had nothing to do with crack cocaine,” Burris said. Nationwide, requests were denied for various reasons, such as requesters being career criminals or having bad-conduct records in prison. The Sentencing Commission intends to update its crack cocaine retroactivity statistics periodically, at its website www.ussc.gov. Its update for the period ending April 14 showed that judges in the Fourth Circuit Court of Appeals— encompassing courts in Maryland, North Carolina, South Carolina, Virginia, and West Virginia—had processed the most cases, 837. In the Northern District of West Virginia, described in January by former Chief Judge Irene Keeley as “a small district with an awful
2 The Third Branch
More than 600 district court judges, federal defenders, prosecutors and probation officers met in Charlotte, North Carolina, and St. Louis, Missouri in January 2008 to help each other prepare for the anticipated heavy volume of cases that would flow from the March 3 effective date of new retroactive sentencing guidelines for crack cocaine offense
lot of cases,” Pro Se Law Clerk Laura Austin served as coordinator for the task force created after the Sentencing Commission’s decision on retroactivity. “We identified 622 cases,” Austin said in a late April interview. “Our first priority was those inmates who, if they got a two-level reduction, would be eligible for immediate release. Because the Bureau of Prisons had requested 10 days to process court orders, our first orders were issued two weeks to 10 days before March 3, so the inmates could be released on March 3.” The district’s four judges handled 76 cases involving release from prison on March 3. “Another priority was inmates who would be eligible for release sometime in 2008; then those eligible in 2009, assuming a two-level reduction. Those cases, which total 166, have now been processed,” Austin said. Controversy has arisen in some courts over some inmates who request sentence reductions not being appointed lawyers to help them. “The Defender Services Committee strongly encourages judges to appoint counsel whenever
there is a contested issue of law or fact on these applications,” said Judge John Gleeson (E.D. N.Y.), the Committee chair. He said counsel should be appointed where there is a reasonable dispute about eligibility for the reduction. “It’s not a matter of whether there’s a Sixth Amendment right to counsel in this setting,” Gleeson said. “It’s a matter of fairness. When a defendant is facing a couple of months in jail for an alleged supervised release violation, we don’t think twice about making sure he has a lawyer for that proceeding. For a great many of the inmates looking to benefit from the retroactive crack guideline, years in jail are at stake.” Public defender offices have played a key role in each court that has had to process such requests, adding to staff workloads. And as anticipated, much of the increased workload has fallen to probation and pretrial services officers. Statistics compiled by the Administrative Office through late April reflect over 8,000 crack-resentencing investigations assigned to officers for review of eligibility and/or a report to the court.
New Chair for Executive Committee Chief Judge Anthony J. Scirica (3rd Cir.) has been named chair of the Executive Committee of the Judicial Conference by Chief Justice John G. Roberts, Jr. He succeeds Chief Judge Thomas F. Hogan (D.D.C.), who has chaired the Executive Committee since October 2005. In making the appointment, the Chief Justice said, “Tony Scirica is a wise and thoughtful judge. The Executive Committee will benefit from his deep reservoir of experience and proven leadership skills.” Scirica’s appointment took effect May 1, 2008. The seven-member Executive Committee serves as the senior executive arm of the Conference and is authorized to act on behalf of the Conference between its biannual sessions. Also serving on the Executive Committee are Chief Judges Danny J. Boggs (6th Cir.), Michael Boudin (1st Cir.), and Paul R. Michel (Fed. Cir.), and Judges Charles R. Breyer (N.D. Calif.) and Lawrence L. Piersol (D. S.D.). James C. Duff, Director of the Administrative Office, is an ex-officio member of the Committee. Scirica has served as chairman of the Judicial Conference’s Standing Committee on Rules of Practice and Procedure, was a member of the Advisory Committee on Civil Rules, and serves as chair of the working group on mass torts. Before his appointment to the bench, Judge Scirica practiced law in Montgomery County, Pennsylvania, where he also served as an Assistant District Attorney and Judge of the Court of Common Pleas. Scirica was a member of the Pennsylvania legislature and also served as chair of the Pennsylvania Sentencing Commission. In 1984, he was appointed United States District Judge for the Eastern District of Pennsylvania,
Chief Judge Anthony J. Scirica
Judge Charles R. Simpson III
and in 1987, elevated to the Court of Appeals. He is a 1962 graduate of Wesleyan University and a 1965 graduate of the University of Michigan Law School.
Two New Chairs Appointed In addition to Scirica’s appointment to the Executive Committee, the Chief Justice appointed Judge Charles R. Simpson III (W.D. Ky) as the new chair of the Judicial Conference Committee on International Judicial Relations, succeeding Chief Judge Robert H. Henry (10th Cir.), and Judge Michael S. Kanne (7th Cir.) as the new chair of the Conference Committee on Judicial Security,
Judge Michael S. Kanne
succeeding Chief Judge David B. Sentelle (D.C. Cir.). Both committee chair appointments were effective April 16, 2008. All Judicial Conference committee appointments are made by the Chief Justice. With the exception of the Executive, Judicial Branch and Budget Committees, committee chairs usually serve for a term of three years. Six years of cumulative committee service, including past committee assignments, usually is considered the maximum a member may serve. A committee chair elevated to chief judge for his or her circuit generally may not serve the Conference in both capacities.
Majority of Courts of Appeals Now Live with CM/ECF The Eighth Circuit became the first court of appeals to go live with the case management component of the Case Management/Electronic Case Files (CM/ECF) system in December 2006, and as of March 2008, eight of the 12 regional courts of appeals have followed suit for a total of nine. The Third Circuit went live in February, the Ninth Circuit and the DC Circuit in early March, and the First and Seventh Circuits began using CM/ ECF on March 31st. The Fifth, Eleventh and Second Circuit are expected to implement CM in the future.
So far just the Fourth and the Eighth Circuit Courts of Appeals have adopted the ECF component of CM/ECF. “That doesn’t mean the remaining courts of appeals on CM/ECF don’t make use of electronic documents,” said Gary Bowden, Chief of the Appellate Courts and Circuit Administration Division at the Administrative Office. “They’re just not being filed through the system. Several courts have documents accessible to the court and public in See CM/ECF Pay on page 8 The Third Branch
Naturalization continued from page 1 citizenship,” said Lowe, “includes commitments to ‘support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic’ and ‘to bear arms on behalf of the United States.’ To civilians, these might merely be words. But for these soldiers, the words are the immediate reality. What a wonderful testament by these courageous young men and women.” In the Central District of Illinois, Judge Jeanne E. Scott is standing in the very spot where Abraham Lincoln delivered his famous “A House Divided” speech in Springfield’s Old State Capitol building. In the Hall of Representatives where she presides over a naturalization ceremony, a portrait of George Washington looks down on the proceedings as it did in Lincoln’s day. The Sangamon County Bar Association Lawyers Chorus will soon sing a medley of patriotic songs. A U.S. Congressman will speak and, later, the Daughters of the American Revolution (DAR) will pass out miniature flags, cookies and punch. But right now, Clerk of Court Pam Robinson is administering the oath of allegiance to nearly 100 candidates for citizenship, including several generations within families. Last year, 450,275 people became naturalized citizens in federal court ceremonies; five years ago the total was 341,829; over the last decade the annual total has averaged over 400,000. Sometimes it’s just one individual standing before a judge, occasionally it is thousands taking the oath. The Central District of California frequently holds ceremonies at the L.A. Sports Arena and the Pomona Fairgrounds in order to accommodate all the people wishing to become citizens. In March, they administered the oath to 11,650 new citizens. The federal courts and the U.S. Citizenship and Immigration Services (USCIS) share authority to natu-
4 The Third Branch
Judge Jeanne E. Scott presides over a naturalization ceremony in the Central District of Illinois held in Springfield’s Old State Capitol Building where Abraham Lincoln delivered his famous “A House Divided” speech.
ralize new citizens. Under the Immigration Act of 1990, aliens file their applications for citizenship with the USCIS, and upon approval of citizenship, may have the oath of citizenship administered by either the USCIS or in a federal court. Under the Judicial Naturalization Ceremonies Amendments of Pub.L. 102-232, effective January 11, 1992, federal courts electing to conduct oath-taking ceremonies have exclusive authority to administer the oath of allegiance for a period of 45 days. The period begins on the date that the Attorney General certifies to the district court that an applicant for naturalization, who is a resident in the district, has been approved for citizenship and is eligible for naturalization oath-taking. “We don’t have to perform these ceremonies,” said Clerk of Court Jim McCormack in the Eastern District of Arkansas, “but our judges are adamant that the ceremonies be performed in the courthouse. And you’d think after 15 years of ceremonies it would be perfunctory, but the people here never let that happen. This is one of the few times we come
to the courthouse and everyone leaves happy.” “A good deal of effort is indeed put into making naturalization ceremonies meaningful for the new citizens and their families,” said Clerk of Court Patrick E. Duffy in the District of Montana. “A deputy clerk of court in each of our five divisions shepherds the process. We invite local musicians to perform the national anthem, and the DAR enjoys handing out voter registration materials and hosting the reception following the court proceeding. Typically, local media cover the event. All who have cameras can capture the event and we always take the ‘class photo.’ With rare exceptions, it is the only time cameras are allowed in our courthouses.” For many years, the district didn’t hold naturalizations ceremonies, but under Chief Judge Donald Molloy (D. Mont.) the practice has been revived. “Perhaps fittingly,” recounts Duffy, “our first naturalization ceremony on September 11, 2003 was the two-year anniversary
of the terrorist attacks on New York City and the Pentagon.” With some slight variation, the naturalization ceremonies held in federal courts have much in common. “The judge is on the bench and calls the session to order,” said Chief Judge Roger Hunt, who shares the duties with the bankruptcy, district and magistrate judges in the District of Nevada. “A representative from the USCIS is on hand to identify the candidates, and each candidate is asked to stand, say his or her name and country of birth. There are always all kinds of interesting places. Then the clerk of court moves for admission. There also may be some motions for name changes. After the court grants the motion, the candidates stand and receive the oath of citizenship. Then we welcome them as our newest U.S. citizens and lead them in the pledge of allegiance.” Hunt personally gives each participant a certificate and shakes his or her hand. The District of Nevada naturalization ceremonies have been graced with performances by high school choruses, a young people’s bell choir,
and a court employee’s a cappella rendition of the national anthem. It also has been Hunt’s practice to ask several candidates to tell the group what citizenship means to them. “A young lady from Bosnia who was a newly naturalized citizen, told us about her childhood,” Hunt remembers, “when she wondered if she would live through the day and about how grateful she is to be in a country where she can wake up in the morning.” In the southwest United States, along our border with Mexico, the District of New Mexico holds ceremonies every few months in its Santa Fe, Albuquerque and Las Cruces divisional offices. Typically, they have anywhere from 100-250 new citizens, but this year the number has jumped to 200-400 per ceremony. Such large groups are accommodated off-site; in Santa Fe, ceremonies are held in the adjacent park. The local communities frequently donate a continental breakfast or lunch for the new citizens and their families, JROTC groups present the colors, and civic groups and government officials are invited to attend and greet new citizens when the
“I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely without any mental reservation or purpose of evasion; so help me God.” In some cases, USCIS allows the oath to be taken without the clauses: “. . .that I will bear arms on behalf of the United States when required by law; that I will perform noncombatant service in the Armed Forces of the United States when required by law. . .”
certificates are distributed. “At all of our ceremonies we work with the USCIS, the Social Security Administration, the County clerk’s office and the U.S. Postal Service to have representatives on site to provide information and help process social security applications, voter registration and passport applications,” said Space and Facilities Coordinator Lydia Piper in the District of New Mexico. “Many bring little mementos, such as mini American flags or pins, or copies of the Constitution and Bill of Rights, to hand out to new citizens. I know See Naturalization on page 6
5 The Third Branch
Naturalization continued from page 5 all of our judges enjoy participating in the ceremonies and I think we do a lot to make them special.” The District Court for the District of Puerto Rico has held naturalization ceremonies in public theaters and at the historic San Cristobal Castle. And Chief Judge Jose Fuste has been known to make house calls. “I’ve visited people in their homes, when they were too sick or too old to come to the courthouse,” he said. “A 90-year old Cuban man who was bed-ridden with cancer told me, ‘I don’t want to die without being an American citizen.’ I took my clerk of court and went to the man’s home
and administered the oath. I’ll never forget that.” Federal judges consider naturalization ceremonies an important part of their mission. “We want to highlight the importance of American citizenship,” said Fuste, “especially here where we can’t vote for the President and have only one representative in Congress. We want to expound on the value of democracy, which is especially important for people who come from dictatorships and have no experience of democracy. It’s a good opportunity to give a civic lesson.” The district’s senior and active district and magistrate judges participate in the ceremonies, which seem to have a positive impact on all participants. “Through the years I have heard inspiring and enlightening messages from the judges to the new citizens, who are captivated and enthralled by their words,” said Clerk of Court Frances Moran in the District of Puerto Rico. “The happiness and joy of the new citizens is always reflected in their smiles and expressions of appreciation.” Chief Judge George Z. Singal in the District of Maine has performed naturalization ceremonies for a
number of years, but recently he’s begun sharing his own story with the newest citizens. Born in 1945 in a displaced persons camp in Florence, Italy, Singal arrived in the United States literally a man without a country. He became a naturalized U.S. citizen with his parents in 1956. “I became concerned,” Singal says, “that the people taking the oath of citizenship were hearing us tell them this was the land of opportunity, but I wasn’t sure they felt part of that. Now I show them my citizenship certificate and tell them that I also arrived here a refugee, poor, with language difficulties, and a feeling of entering an alien culture. Look what this country let me do. And someday your children could sit here too.”
Victims Advisory Group Formed
Director, National Crime Victim Law Institute, Lewis & Clark Law School; Russell P. Butler, Executive Director, Maryland Crime Victims’ Resource Center; Montie R. Deer, former Assistant United States Attorney; Pat Sekaquaptewa, Executive Director, The Nakwatsvewat Institute; and Howard Zehr, Professor of Restorative Justice; Center for Justice and Peacebuilding. “The Commission’s formation of a standing victims advisory group represents its interest in receiving input on victims’ issues associated with federal crimes as they relate to the Commission’s work,” said USSC chair Judge Ricardo H. Hinojosa. Members were selected to provide the Commission with a victim-
centered perspective on federal sentencing issues and provide a key educational role in disseminating sentencing-related information to victims groups and other interested advocacy groups. In September 2006, the Judicial Conference recommended to the Commission that it establish a Crime Victims Rights Advisory Group, to “facilitate the exchange of ideas and information between crime victim advocates and the Sentencing Commission.” VAG joins the standing Probation Officers Advisory Group (“POAG”) and the Practitioners Advisory Group (“PAG”) that are dedicated to providing information and practitioner insight to the Commission.
The U.S. Sentencing Commission has formed a standing advisory group to provide it with “insight and advice on the operation of the federal sentencing guidelines from the perspective of victims of federal crime.” The six-member Victims Advisory Group (VAG) represents a number of groups and organizations interested in victims’ issues at the federal level. Mary Lou Leary, executive director of the National Center for Victims of Crime, will serve as chair. The other VAG members are Douglas E. Beloof, The Third Branch
Public Comments Aid Study of Proposed Changes to Code of Conduct for Judges Proposed revisions to the Code of Conduct for United States Judges drew relatively few public comments that, nevertheless, included a wide range of suggestions now being reviewed and analyzed by a Judicial Conference committee. The comments posted at www. uscourts.gov/library/codeOfConduct/comments.cfm, were received by the Judicial Conference Committee on Codes of Conduct during a six-week period that ended April 18. The Committee plans to forward its final recommendations to the Judicial Conference for consideration at its September 2008 session. The Committee had invited comments after posting the proposed revised Code of Conduct online in two versions: the entire proposed new Code and the revisions proposed to the current Code. (See www. uscourts.gov/Press_Releases/2008/ code_comments.cfm.) “Though many of the changes to the Code are subtle, taken together they convey a decidedly more restrictive tone that we believe will enhance the integrity of the Judiciary,” the Alliance for Justice said. “Those who have the privilege to serve on the federal bench wield enormous power over the lives of Americans. In exchange, they should be held to the highest standard of independence, honesty, and integrity, and take all steps necessary to avoid the appearance of impropriety. The proposed revisions would facilitate that goal, and we wholeheartedly support their adoption.” The American Judicature Society said the proposed revisions “repre-
sent a noteworthy step forward in the evolution of the standards of conduct for federal judges.” The AJS also suggested adoption of “guidance for nominees to the federal bench,” stating, “Such rules help prevent political or other inappropriate conduct in the periods between nomination, confirmation, and swearing-in that might have repercussions once a new judge begins to serve.” The National Conference of Bankruptcy Judges took issue with proposed Canon 4G, which states, “A judge should not use to any substantial degree judicial chambers, resources, or staff to engage in law-related activities permitted by this Canon.” The group’s comment said, “Bankruptcy judges ordinarily perceive that it is part of their ‘job’ to encourage and assist bar and other professional groups in continuing education in bankruptcy law and practice and the encouragement of higher ethical standards among attorneys who practice in their court. To do so often involves preparation of articles, seminar outlines and other similar materials. “If such activities are appropriate and laudable, a judge ought to feel free to utilize his/her staff to assist in the preparation of such materials, so long as they do not involve personal compensation, directly or indirectly, to the judge,” the bankruptcy judges group said. “The language of this Canon seems to disfavor such use at all or leave its propriety in some doubt. It ought to expressly approve it, again assuming no compensation to the judge being involved.” Chief Judge Frank Easterbrook of the U.S. Court of Appeals for the Seventh Circuit suggested more restrictive language in one instance. A sentence in the proposed commentary to Canon 2B states: “Nor should a judge use judicial letterhead to gain an advantage in conducting personal business.”
“The phrase “to gain an advantage in conducting” should be deleted,” Judge Easterbrook wrote. “Use of judicial letterhead is never appropriate when conducting personal business. Gaining an advantage may be the goal of this misuse of office, but the rule should be absolute. Trying to determine, case by case, why a judge used the letterhead is a mistake.” Carl Bernofsky of Louisiana wrote to point out what he considers a weakness in the existing rules. “Specifically, it is important to prohibit judges who are adjunct professors at colleges and other educational institutions from adjudicating cases in which those institutions are a party . . . Judges who teach provide an important service to students and the institutions that employ them, and although they are usually not paid for such service, rewards can come in the form of paid travel to other states and countries. In any event, the association of judges with the administration that employ them for educational purposes should be grounds to disqualify these judges from sitting in cases that involve those administrations,” he said. The American Bar Association also commented on the proposed revisions, suggesting various language changes. The proposed revisions are based in large part on revisions adopted in February 2007 when the ABA Model Code of Judicial Conduct was amended. The Code of Conduct initially was adopted by the Judicial Conference in 1973, and was substantially revised in 1992.
7 The Third Branch
Appointed: Catharina Haynes, as U.S. Court of Appeals Judge, U.S. Court of Appeals for the Fifth Circuit, April 22. Appointed: James Randal Hall, as U.S. District Judge, U.S. District Court for the Southern District of Georgia, May 1. Appointed: John A. Mendez, as U.S. District Judge, U.S. District Court for the Eastern District of California, April 17. Appointed: Brian Stacy Miller, as U.S. District Judge, U.S. District Court for the Eastern District of Arkansas, April 17. Appointed: Robert E. Grossman, as U.S. Bankruptcy Judge, U.S. Bankruptcy Court for the Eastern District of New York, April 18. Appointed: Jeffrey J. Keyes, as U.S. Magistrate Judge, U.S. District Court for the District of Minnesota, April 28.
CM/ECF continued from page 3 electronic form and we expect this will continue to increase in coming months.” The nine courts of appeals join the district courts, the bankruptcy courts, the Court of International Trade and the Court of Federal Claims, in using the CM/ECF system. With all the bankruptcy and district courts involved, the courts of appeals stand to benefit from the experience of attorneys who already use and are familiar with CM/ECF at the local level. With CM/ECF implementation in the courts of appeals comes the bonus of centralized registration service for attorneys. Attorneys are able to register with the PACER Service Center, http://pacer.psc.uscourts. gov/, choose the courts where they want to file cases, and have one ID and password for them all. The Third Branch
Appointed: John H. Rich, III, as U.S. Magistrate Judge, U.S. District Court for the District of Maine, April 2. Senior Status: U.S. Judge Lewis T. Babcock, U.S. District Court for the District of Colorado, April 4. Elevated: U.S. District Judge Richard F. Cebull, to Chief Judge, U.S. District Court for the District of Montana, succeeding U.S. District Judge Donald W. Molloy, January 31.
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
Elevated: U.S. District Judge John Preston Bailey, to Chief Judge, U.S. District Court for the Northern District of West Virginia, succeeding U.S. District Judge Irene M. Keeley, March 15. Retired: U.S. Bankruptcy Judge Mitchel R. Goldberg, U.S. Bankruptcy Court for the Central District of California, March 31. Retired: U.S. Magistrate Judge David Michael Cohen, U.S. District Court for the District of Maine, April 1.
Moving to the CM/ECF system involves preparing the office for a new operational system, including changing the way documents are moved through the court for review and decision. But the new system reduces workload, particularly when it comes to the burden and expense of paper copies. One feature recently added to district court CM/ECF allows the compilation of all documents in a district case into a single PDF file that is indexed and searchable. “That was formerly a sizeable stack of paper,” said Bowden, “that’s now electronic. And unlike paper copies that have to be painfully copied or moved along with a case, an electronic copy is available to a panel of judges, attorneys and court staff simultaneously.” Appellate judges and staff also are making greater use of individual electronic See CM/ECF on page 12
EDITOR-IN-CHIEF David A. Sellers MANAGING EDITOR Karen E. Redmond PRODUCTION Linda Stanton CONTRIBUTORS Dick Carelli, AO 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 May 1, 2008 Courts of Appeals
Courts with “Judicial Emergencies”
34 20 17
For more information on vacancies in the federal Judiciary, visit our website at www.uscourts.gov under Newsroom.
Judges Learn from Terrorism-Related Cases As a judge, you know you need help handling a terrorism-related case if: a.) a security specialist from the Department of Justice is sitting in the front row of your courtroom b.) court briefs are so secret even law clerks with security clearances can’t see them c.) you have to store your notes in a SCIF* d.) your jurors report to secret locations e.) all of the above.
The correct answer may be any and all of the above. Federal judges now have help in solving the special case-management challenges associated with terrorism-related cases. The Federal Judicial Center has developed materials, not only for terrorism cases, but any type of case that may involve classified evidence or arguments, special security measures for witnesses or jurors, curtailed attorney contact with their clients, and other challenges. “A number of proceedings may involve the review of classified materials. They wouldn’t necessarily be terrorism cases,” said Chief Judge Vaughn Walker (N.D. Calif.). “They may be employment cases involving an intelligence agency, for example, or a damages case. Before this, we hadn’t had a way to deal with the materials in these cases.” Using a case study approach, the FJC’s Tim Reagan has assembled some of the various approaches federal judges have taken as they handle everything from terrorismrelated to espionage and conspiracy cases. Challenges and their solutions are summarized in a “Problems
and Solutions” document. A separate “Case Studies” document includes background factual information about the cases. The information is based on a review of case files and news media accounts and on interviews with the judges. “Judges can handle the legal issues that arise,” said Reagan. “It’s the unusual procedural issues that come up frequently in these cases. The value of these materials is in helping prevent judges from doing things they wouldn’t do if they had known more.” For example, a judge inexperienced in terrorism-cases may benefit from what other judges have learned about deposing witnesses in a foreign country, access to classified information in case records, the review of sensitive evidence, extra security at the courthouse, or religious accommodations for participants in court proceedings. “These materials will help judges,” said Walker. “There are very few procedures regularized to handle terrorism-related materials, most of which are obviously of high sensitivity. The information assembled in the booklets will give judges an idea of how other judges have handled matters, and what they can and should do. They’ll see what others have done and it may trigger ideas in their own minds.” The case studies are in chronological order in the “Case Studies” booklet and listed by the problem that needed to be overcome in the “Problems and Solutions” booklet. More cases will be added as they occur. The FJC also has compiled “Keeping Government Secrets: A Pocket Guide for Judges on the StateSecrets Privilege, the Classified Information Procedures Act, and Court Security Officers.” It’s a slim primer on CIPA and classified information.
“I keep this on my desk,” said Judge Gerald Bruce Lee (E.D. Va.). “It’s a good starting point and a practical tool as a judge goes forward in any case with classified materials. All the information is in one place and it’s easy to digest.” Lee has used the Pocket Guide in district judge workshops on handling classified information and state secrets. “The Pocket Guide and the other materials developed by the FJC let judges see who has had similar cases and what they did. I think all of us, particularly after 9-11 are a lot more sensitive to the issues involved with classified information and we want to be prepared to properly administer the case,” said Lee. The Pocket Guide, Case Studies, and Problems and Solutions documents are available on the Federal Judicial Center’s Internet website at www. fjc.gov and, for judges and court staff, on the Judiciary’s Intranet, FJC Online. * SCIF – Sensitive Compartmented Information Facility, pronounced “skiff,” a secure room or building that meets certain construction and access requirements.
9 The Third Branch
I N T E R V I E W continued from page 1 Judge Ortrie Smith was appointed chair of the Judicial Conference Committee on Financial Disclosure in October 2005. He was appointed to the U.S. District Court for the Western District of Missouri in 1995.
What are the responsibilities of the Committee on Financial Disclosure and how do these differ from the responsibilities of the Committee on Codes of Conduct?
First let me say that both groups have the salutary effect of promoting respect for and inspiring confidence in the Judiciary, but their responsibilities are quite different. As I understand the responsibilities of the Codes of Conduct Committee, it is essentially to monitor the Codes of Conduct and make suggestions for changes designed to establish guidelines governing the conduct of judges. An equally important responsibility of that Committee is its willingness to accept and respond quickly to the sometimes puzzling questions which arise daily with sitting judges. In addition, the Committee on Codes of Conduct provides confidential advisory opinions to judges upon request. I think it’s important to note that the Codes of Conduct Committee doesn’t actually enforce the Code. The enforcement responsibility is left with the various circuit councils. We, on the other hand, have been delegated the responsibility for implementing the financial disclosure provisions of the Ethics in Government Act of 1978. And in order to do that, we review every financial disclosure report filed by judges and other judicial branch officers and employees. In a given year we will review in excess of 4,000 of these financial disclosure reports, and upon completion of that review, certify compliance with the Ethics in Government The Third Branch
Act. We then maintain copies of those reports for six years and make those reports available to members of the public who want to see them. We also approve and modify the forms and instructions used by the filers. We respond to requests for redaction of certain information from those reports, as provided in the regulations adopted by the Judicial Conference and the statute. We propose changes in legislation. We have a proposal that has been approved by the Conference that would modify the filing requirements so as to eliminate the value in income codes from the assets held by judges. Those codes really make no sense because if you own one share of stock you are required to recuse; it doesn’t matter what the value of it is, or what income derives from it. That legislation has yet to find a sponsor, but we’re hopeful that at some point it will get a fair hearing by Congress. We do have some enforcement authority. A late filer, for example, would be subject to a $200 late filing penalty. And for someone who deliberately disregards the filing requirements, ultimately we are authorized to refer the matter to the Attorney General for prosecution. Finally, members of the Committee and staff provide education by speaking to groups of judges and other filers about their filing responsibilities and of course the staff is always available to respond to inquiries from filers.
Why is it important that judges file accurate and timely annual financial disclosure reports?
The purpose of the Ethics in Government Act was to create a level of transparency in government. The Act was passed in 1978. Public confidence in government was at a low ebb and the idea was to provide
Judge Ortrie Smith (W.D. Mo), chair of the Judicial Conference Committee on Financial Disclosure
information that would enable the public to evaluate their performance, determine conflicts of interest, watch for abuses of power, and the like. So in order to implement that goal, it is important that filers file their reports on time and also that the reports be as accurate as they can make them. The reports are scrutinized by the public and if the report is incomplete or inaccurate, then it sort of defeats the whole purpose—the purpose being to allow the public to evaluate official performance. That can result in criticism, sometimes unfair, but almost always avoidable criticism, of the Judiciary.
The deadline for filing a report for any calendar year is by May 15 of the following year. Are deadline extensions available, and for how long?
Yes, we are authorized to allow extensions for up to 90 days, that would be August 13th, for an annual report. That’s the maximum extension that we are authorized to grant. The request for
an extension should be forwarded to the Committee staff and it should state the reason for the request. Again, if the report isn’t filed in a timely manner there is a $200 fine but the Committee has, on occasion, forgiven or excused, payment of that fine upon showing of good cause.
Will most people be able to file a financial disclosure report without assistance? Is it fairly straight-forward?
I believe everyone required to file the report, is capable. It’s not that complicated. Further, we provide software to assist the filers. The software follows the report form for ease in use. It has key tips and videos, to help filers understand the disclosure requirements. This year, for the first time, the software contains a self-audit function, which we’re really excited about because it will help filers avoid most of the common errors that we find on reports. About 40 percent of the filings generate correspondence from the Committee, either a letter of inquiry or an advisory letter. Most of the mistakes are repetitive and common to many reports, and the self-audit function, we think, will help the filer identify those errors before the report is filed and reduce the amount of correspondence from the Committee to the filers. For those filers who simply don’t want to take the time—and it is admittedly a distraction from our primary responsibility—the Conference has authorized reimbursement to a filer of expenses up to $1,000 if he or she chooses to retain a professional to prepare the report. Because there are often omissions through inadvertence and oversight, the Committee does correspond with filers. But we’re required to do that before we can certify compliance
with the Ethics in Government Act. I know it’s a nuisance to the filers, I wish it weren’t so, and I’m excited about this self-audit feature because I think that’s going to eliminate a lot of those things. A couple of years ago, we started issuing closure letters, which simply tell the filer that the report is in proper form, it complies with the Ethics in Government Act, and we’re closing the file. Before that, every piece of correspondence that came from the Financial Disclosure Committee made people’s stomach’s churn. Now they know there’s a possibility that there’s a closure letter in that envelope and maybe that will make their minds a little easier.
How can members of the public get copies of financial disclosure reports?
We are required to make them available to the public. The requester simply completes a very simple one-page form providing some basic information, specifying the reports requested. We’ll then process that in accordance with the Judicial Conference regulations, notifying the filer of the request, redacting any excess information such as account numbers, addresses, and the like from the form. And then we’ll consider whether the release of the form in an unredacted format represents a threat to the security of the filer. In a proper case, we’ll redact certain portions of the report where those concerns are found to exist.
Litigants often believe that a financial disclosure report will tell them what stocks a judge holds. What information is available—and what information is not available— in a financial disclosure report?
Let me begin by saying what a filer is required to include in their report: a complete listing of positions held by the filer, any agreements to respect to future employment, or continuing participation in a employee welfare benefit plan maintained by a former employee, non-investment income from whatever source, including fees, commissions, royalties and the like, reimbursements of any payment or other thing of value in excess of $305 in a reporting period for travel related expenses from private organizations or individuals; gifts other than transportation aggregating $305 or more received from any source during the preceding calendar year; liabilities exceeding $10,000 at any time during the reporting period, and then assets held for investment, having a fair market in excess of a $1,000, or annual income in excess of $200 during the preceding calendar year. Those are the things that are required to be disclosed and beyond that there is an entire constellation, I suppose, of issues that are not addressed by the Ethics in Government Act.
What fees are charged for copies of reports?
The fee is $.20 a page. For a short report that might be $2 or $3 or $5. Some of these reports run scores and scores of pages, maybe 100 pages. In those cases it would be slightly more. Someone who can demonstrate it is in the public interest that the fee be waived would not have to pay. Our definition of “public interest” simply means that the requester is unable or demonstrates an inability to pay the $.20 per page.
See Interview on page 12 The Third Branch
Interview continued from page 11 Judges also are required to disclose certain information about their attendance at privately funded educational programs. Must this information also be reported on their financial disclosure reports?
The short answer is yes, IF the reimbursement exceeds $305. There is, on the financial disclosure page of the J-Net, a side-by-side comparison of the financial disclosure requirements and attendance at private seminars. And I would commend that to any judges’ reading who might be confused about the difference in the various filing requirements.
The availability of the reports to the public has raised security concerns. How has the Judiciary dealt with these concerns? I think there is an increasing awareness, particularly in light of the tragedy which struck Judge Joan Lefkow in Chicago in 2005. I think there is increasing awareness that the things that judges do on a
daily basis expose us to the anger and ire of people and organizations. It’s certainly not beyond the realm of possibility that someone’s safety would be endangered as a result of the decisions that we make on a daily basis. We are aware of those things and we try to take the necessary precautions to give us the highest level of security consistent with this whole concept of transparency. We do allow redaction of excess information, that is information which is not required by the Ethics in Government Act. In some instances where there is a threat to the security of a judge or his or her family, we’ll redact additional information. Generally, it is information that would reveal the whereabouts of the judge or his family in an unsecured location. If for example you’re on the board of your condominium association, someone might reasonably conclude that you live in that condominium, or if your wife is president of the PTA at Glenwood Elementary School, they might assume you have children in that school. That’s the kind of information that we think it’s reasonable to redact and so we do.
THE THIRD BRANCH Administrative Office of the U.S. Courts Office of Public Affairs One Columbus Circle, N.E. Washington, D.C. 20544
OFFICIAL BUSINESS PENALTY FOR PRIVATE USE $300
CM/ECF continued from page 8 documents filed in the district and bankruptcy courts when a complete record is not required or available. There is a limit to how much CM/ECF can reduce workload—at least at the appellate level. Approximately, 45 percent of all court of appeals cases are pro se, a group of cases that typically can’t or won’t be filed electronically. “This means a lot of scanning will be done by court staff in order to have complete electronic cases, which will limit the workload reduction that could be expected with just attorneys filing cases,” said Bowden. The next highly anticipated improvement to the current system will be available in Release 2.1 of CM/ECF, provided to the courts in October 2008. One new feature will be the availability of full text searches. “Within a court, you’ll be able to search all documents and docket text,” said Bowden. “This final bit of functionality makes CM/ ECF complete. Well, at least until the next innovation is identified. ”
FIRST CLASS MAIL POSTAGE & FEES
PERMIT NO. G-18