Newsletter of the Federal Courts
Vol. 44 Number 4 April 2012
Losses to Courts Underscore Funding Needs
Probation Offices Look to Technology to Offset Budget, Staffing Reductions
B Last month Judge Julia S. Gibbons (6th Cir.) made her eighth appearance as chair of the Judicial Conference Budget Committee before the House Appropriations Subcommittee on Financial Services and General Government. Judge Thomas F. Hogan, Director of the AO, also testified in support of the Judiciary’s 3.1 percent funding increase, the lowest request on record.
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n March, the federal Judiciary asked House appropriators to provide a 3.1 percent funding increase for fiscal year 2013—the lowest requested increase on record—at a time when courts already have cut staffing and implemented other sweeping costcontainment measures. “As a result of fiscal year 2012 funding levels, and out of concern for fiscal year 2013, the courts have already downsized by nearly 1,100 people since July, 2011,” Judge Julia S.
Gibbons, chair of the Judicial Conference Budget Committee, told the House Appropriations Subcommittee on Financial Services and General Government. Both Judge Gibbons and Administrative Office Director, Judge Thomas F. Hogan, testified before the subcommittee. Subcommittee chair, Representative Jo Ann Emerson (R-MO) assured Hogan and Gibbons that she appreciated the Continued on page 2
INSIDE AO, DOJ Recommend ESI Discovery Practices........................................................................pg. 5 User Views on Next Gen CM/ECF................................................................................................pg. 6 Feed the Need....................................................................................................................................pg. 7
udget problems are affecting everyone in the federal Judiciary, but Chief Probation Officer Eileen Kelly in the Eastern District of New York knew she had a real problem when she got her budget projections. “My projections were in the red,” said Kelly. “I had to figure out how to keep my office running without laying people off and devastating the department.” At the same time, Kelly knew the District of Continued on page 4
interview
Criminal Law Focus of Committee
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s chair of the Judicial Conference Committee on Criminal Law, Judge Robert Holmes Bell (W.D. Mich.) looks at all aspects of criminal law, even as resources are curtailed. For more on the committee’s recommendations and strategies for the coming year, read Judge Bell’s interview beginning on page 10.
Losses to Courts Underscore Funding Needs continued from page 1
important work of the courts and that the subcommittee would try to ensure that the Judiciary has the resources needed to accomplish its important mission. But, she cautioned, “While I am appreciative of the fact that this is the smallest requested increase proposed by the Judiciary in decades, it’s likely to be more than the subcommittee and the Nation can afford. I want to work with you . . . to identify savings in the federal Judiciary’s costs while still providing the courts with the resources needed to fulfill your constitutional duties.”
“While I am appreciative of the fact that this is the smallest requested increase proposed by the Judiciary in decades, it’s likely to be more than the subcommittee and the Nation can afford.” —Representative Jo Ann Emerson (R-MO)
In his opening remarks, ranking minority member, Representative José Serrano (D-NY), noted that the Judiciary’s budget contains funding “not just for judges, but for public defenders, court security, and probation and pretrial services at the federal level. These diverse activities show that you need to be sensitive not to just what happens inside of the courtroom, but what happens outside of it as well.” Congress’ job, he said, was “to make sure that you have the resources to do your jobs in a timely, efficient, and fair manner,” and he expressed concern that, “if we’re forced to underfund any part of your work, we will end up slowing down justice.” Gibbons warned that across-the-board cuts scheduled to take effect in January, 2
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Subcommittee chair, Representative Jo Ann Emerson (R-MO) on right, with Ranking Minority Member José Serrano (D-NY), cautioned that the Judiciary’s funding request may be more than the subcommittee can afford.
2013, under the Budget Control Act would have a devastating impact on the federal courts and the administration of justice in this country, resulting in the loss of either 4,400 employees or a four-week furlough for court personnel, as well as deep cuts to other Judiciary operations. “Unlike many Executive Branch entities, we do not have programs or grants that we can cut in response to a budget shortfall,” Gibbons said. “A large funding shortfall would result in crippling staffing losses in our clerks of court and probation and pretrial services offices nationwide.” Gibbons said that with reduced staffing levels, the courts will prioritize work to focus on essential activities first. “Our probation officers will have to reduce supervision of lower-risk offenders in order to focus limited resources on high-risk offenders. Staffing at public counters to assist individuals with case filings and court services will be reduced,” she said. “With fewer employees to docket cases and perform quality assurance on electronic case filings, some case processing will be delayed.” The courts continue to focus on essential activities, cut costs, and streamline
court operations. Gibbons pointed to the Judiciary’s success in limiting the growth in space rent costs. As a result of costcontainment initiatives, the FY 2013 budget request for rent reflects a cost avoidance of approximately $400 million below estimates made prior to beginning costcontainment initiatives. Initiatives also have limited the growth in the number of court support staff and in the costs of law clerks, led to investment in technology that enhances court productivity and service, and updated staffing formulas to include incentives for efficiency and reduced duplication of services. “No doubt these are difficult times,” Hogan said in his testimony, “and the AO must continue its leadership and support in helping the Judicial Branch maintain our tradition of excellence. I am committed to continuing this practice while focusing on ways the AO and the courts can work more effectively and efficiently in this era of cost containment.”
FY 2013 Request For fiscal year 2013, the Judiciary seeks $7.19 billion in appropriations. Although an overall 3.1 percent increase over
Photo: Maria Bryk/Newseum
Justices Celebrate Justice O’Connor’s Service
The women justices of the Supreme Court gathered to celebrate one of their own in April. Left to right in the photo, they are Justices Ruth Bader Ginsburg, Sandra Day O’Connor, Sonia Sotomayor, and Elena Kagan. Justice O’Connor was the first woman on the nation’s highest court when she joined it in 1981. The court’s current three female justices joined O’Connor for a panel discussion in celebration of O’Connor’s groundbreaking service. The event, sponsored by the Supreme Court Historical Society and the Newseum, was the first time all four women have appeared together in public.
FY 2012 is requested, the Judiciary has elected to limit the growth of its largest account, Salaries and Expenses, which funds the bulk of federal court operations, to a 2.7 percent increase, or $5.15 billion. The Defender Services program, which provides criminal defense services
under the Criminal Justice Act to defendants unable to afford counsel, requires a 3.2 percent increase to $1.06 billion in FY 2013 to handle an estimated 205,000 defense representations. The Court Security account that funds protective guard services and security systems and
In March, the House Appropriations Subcommittee on Financial Services and General Government heard the Judiciary present its budget request for fiscal year 2013.
equipment at federal courts, requires a 2.9 percent increase to $515 million. “We believe the requested funding level represents the minimum amount required to meet our Constitutional and statutory responsibilities,” Gibbons said, while noting the Judiciary also understands the fiscal constraints under which Congress operates. “We are committed to containing costs and exploring new and better ways of conducting court business. Our initiatives have significantly reduced the Judiciary’s appropriations requirements, but we are very concerned we are approaching a point where we may be sacrificing the quality of justice as a result of budget constraints. . . I urge you to continue making the Judiciary a funding priority to enable us to maintain the high standards of the United States Judiciary.” The Third Branch
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Probation Offices Look to Technology to Offset Budget, Staffing Reductions continued from page 1
Arizona, with a rising caseload, couldn’t find enough well-qualified officers to do presentence reports. Kelly contacted Arizona Chief Probation Officer Mario Moreno with a possible solution for both districts: videoconferencing. “If our officers can videoconference presentence interviews with prisons here in New York State to avoid officers traveling, why can’t we do the same work for another district?” she said. In the District of Arizona, where the workload has outpaced its ability to hire probation officers, there is a long history of using videoconferencing. During Fiscal Year 2011, just over 5,000 videoconference sessions were recorded by probation officers and defense attorneys. Videoconference presentence interviews are only conducted for prisoners already in custody. The presentence reports recommend sentencing options and release conditions tailored to the individual, based on the officer’s investigation of the offender’s living conditions, family relationships, community ties and drug use. They also help the supervision officer to have a history of the offender when he or she leaves incarceration. Webcam or videoconference interviews save time and money in some cases, but officers still spend a majority of their time in the field verifying information, using traditional investigative techniques, and interacting with offenders, frequently in high-crime areas of the community. Forty-nine percent of the work time of Probation Officer Michelle Espinoza in the Eastern District of New York is dedicated to the District of Arizona, without Espinoza leaving Brooklyn. By videoconference from New York, she conducts presentence interviews in mainly illegal reentry cases in Arizona. Espinoza’s salary 4
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is paid by Arizona, which gets temporary use of an experienced probation officer, without the cost of hiring and training, or providing space for an officer.
“I see the inmate at the facility, and the attorney and the court interpreter. Each party sees the other two screens. ” —Probation Officer Michelle Espinoza
“Before I started, I visited Arizona’s Tucson office and a prison there to see how their videoconferencing worked,” Espinoza said. “When I returned to New York, our IT people set up a three-way videoconference for me. I see the inmate at the facility, and the attorney and the court interpreter. Each party sees the other two screens. You only have an hour for the interview, but it goes a bit faster for me because I understand Spanish.” Currently Espinoza is only doing the simplest cases for Arizona. Their videoconferencing project is currently set up as a pilot that, if successful, could expand to more districts that either need help or are able to offer help. Arizona is preparing a similar arrangement with the Eastern District of Missouri. According to Chief Probation Officer Mario Moreno, in a recent Arizona survey of defense attorneys who have represented defendants with presentence reports prepared by officers in other districts, 90 percent said they did not experience any
impediment or obstacles with reports prepared by officers in other districts. “The benefits of using videoconferencing for presentence reports includes enhancement of public safety (due to the fact that prisoners do not need to be transported), better use of probation officers’ time when they don’t make the long drive to enter a prison facility, plus agency scheduling efficiencies and timeliness,” said Moreno. The Middle District of Florida covers a large portion of the state. End to end, Chief Probation Officer Elaine Terenzi estimates it would take 7–8 hours to drive from Big Cypress National Preserve in the south to Jacksonville in the north. “The biggest cost for me is the time officers spend driving. We can’t afford it when we’re understaffed due to budget cuts. That’s why videoconferencing is so helpful for us,” Terenzi says. “My staff would not be able to get the work done if it weren’t for videoconferencing.” The Probation Office in the Middle District of Florida has five videoconference units in almost continuous use for presentence interviews. A presentence interview starts with the private attorney or federal public defender having time to talk with his or her client in one of the rooms designed for videoconferencing with a small conference table and a 50-inch video screen. At the prison, where the video equipment is set up, the offender looks into the video camera and picks up a telephone to speak with the attorney. After about 20 minutes, the probation officer, and often an interpreter, join the videoconference and the interview begins. All participants can see each other. The prisons housing offenders like the arrangement. “It saves them money because they don’t have to provide access in and out of the prison and do security checks on visitors—all of which eats up staff time and money,” said Terenzi. Money also is Continued on page 9
AO, Justice Department Jointly Recommend ESI Discovery Practices
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he digital revolution is producing increasingly complex litigation and discovery issues in federal criminal cases. Most challenging for federal court practitioners are cases involving electronic discovery, also known as “electronically stored information” (ESI). After 18 months of negotiation, the Administrative Office (AO) and the Department of Justice jointly have developed a set of recommendations aimed at making the production or exchange of ESI discovery between prosecutors and defense counsel more efficient and cost-effective. “An expansion in the amount of digital data, the number of devices on which it can be created and stored, and the declining cost of storing such information have resulted in the increased presence of ESI in federal criminal litigation,” said Theodore Lidz, the AO’s Assistant Director for the Office of Defender Services. “Often the amount of information ranges from tens of thousands to millions of pages. While difficult to quantify, the expectation is that use of the recommendations will limit overall criminal justice discovery costs, reduce the number of discovery disputes, and shorten the time for processing complex cases.” Recently, the Recommendations for Electronically Stored Information Discovery Production were sent by the deputy attorney general to all U.S. attorney offices, and by the AO to all federal defenders and Criminal Justice Act (CJA) panel attorneys. Training also has begun for defender and prosecutorial personnel. “It was anticipated that the recommendations would be used as soon after their February release as possible in appropriate cases, and we are aware that parties in some cases have already discussed the
protocols and implemented some of the recommendations,” Lidz said. Andrew Goldsmith, the National Criminal Discovery Coordinator for the Department of Justice, served as the working group’s co-chair. He called the recommendations “a pragmatic approach to the increasing challenges presented by ESI in criminal cases.” “They are the product of a unique level of collaboration among representatives from the Department of Justice, federal public defenders, and private attorneys who accept appointments under the Criminal Justice Act,” Goldsmith said. “The recommendations provide meaningful, how-to guidance in dealing with ESI in a way that minimizes unnecessary costs and motion practice.” He added that all federal prosecutors will receive training on the recommendations this year “to ensure that they are on the same page as their counterparts in the federal defenders’ offices and CJA counsel.” The recommendations are built on 10 principles: L awyers have a responsibility to have an adequate understanding of electronic discovery. I n the process of planning, producing, and resolving disputes about ESI discovery, the parties should include individuals with sufficient technical knowledge and experience regarding ESI. A t the outset of a case, the parties should meet and confer about the nature, volume, and mechanics of producing ESI discovery. Where the ESI discovery is particularly complex or produced on a rolling basis, an ongoing dialogue may be helpful. T he parties should discuss what formats of production are possible and appropriate, and what formats can be generated. Any format selected
for producing discovery should maintain the ESI’s integrity, allow for reasonable usability, reasonably limit costs, and, if possible, conform to industry format standards. W hen producing ESI discovery, a party should not be required to take on substantial additional processing or format conversion costs and burdens beyond what the party has already done or would do for its own case preparation or discovery production. F ollowing the “meet and confer,” the parties should notify the court of ESI discovery production issues or problems that they reasonably anticipate will significantly affect the handling of the case. T he parties should discuss ESI discovery transmission methods and media that promote efficiency, security, and reduced costs. The producing party should provide a general description and maintain a record of what was transmitted. I n multi-defendant cases, the defendants should authorize one or more counsel to act as the discovery coordinator(s) or seek appointment of a coordinating discovery attorney. T he parties should make good-faith efforts to discuss and resolve disputes over ESI discovery, involving those with the requisite technical knowledge when necessary, and they should consult with a supervisor, or obtain supervisory authorization, before seeking judicial resolution of an ESI discovery dispute or alleging misconduct, abuse, or neglect concerning the production of ESI. A ll parties should limit dissemination of ESI discovery to members of their litigation team who need and are approved for access, and they should also take reasonable and appropriate measures to secure ESI discovery against unauthorized access or disclosure. Continued on page 9 The Third Branch
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Task Force Elicits User Views on “Next Gen” CM/ECF
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two-year effort to gather user input on the design of the Judiciary’s Next Generation Case Management/Electronic Case Files system has produced a number of suggested improvements—many of which have been integrated into the design requirements. Since 2009, Bankruptcy Judge J. Rich Leonard has chaired a task force, the Additional Functional Requirements Group (ASFRG), to gather the views of non-Judiciary users on the design of the Next Gen CM/ECF. Leonard had been involved in developing an earlier version of the CM/ECF system. His group’s final report is available online at www. uscourts.gov/ASFRG_Report. Nearly 500 of the ASFRG’s recommendations already have been adopted and incorporated into the functional requirements documents, which will be used to design the “Next Gen” CM/ECF. ASFRG was composed of judges and clerks of court, as well as liaisons from advisory and working groups, and non-Judiciary representatives from the Department of Justice, the Internal Revenue Service, the Association of American Law Schools, the American Bar Association, and the National Association of Bankruptcy Trustees. ASFRG members talked with thousands of CM/ECF users, formally and informally, from conferences to small face-to-face group meetings. Leonard termed the exchanges “vigorous.” “Our current electronic filing and access systems are so successful that they have been integrated into the business practices of both the bar and other federal court users to an astonishingly sophisticated degree,” said Leonard. “Our partners have a great deal of practical experience. . . and a huge stake in where we go next. They were eager to tell us their views.”
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A broad array of stakeholders insured a fair and representative cross-section of users’ opinions. Among the canvassed stakeholder groups were attorneys involved in Social Security, appellate, civil and criminal, immigration, and bankruptcy litigation, probation and pretrial officers, prisoners, court reporters, pro se debtors, legal document preparers and mediators, as well as representatives from JAG, Legal Aid, the SEC, FTC, and the IRS. A member of the task force was assigned to each of 63 identified constituent groups, a communications plan unique to each group was developed, and their recommendations sought. “What we heard was both reassuring and helpful,” said Leonard. “All groups reported a high level of satisfaction with our current systems, and a desire that our
next version not lose any current functionality,” he said. “’Whatever you do, don’t break it,’ was a common refrain.” The groups were remarkably consistent in their views on the components of any new system. Many of the core findings relate to the difficulty of finding and extracting data in the current systems. The core findings also reflect the advancement of technology in the years since the original CM/ECF was introduced and the evolution of national and industry standards for data exchanges. “From the perspective of our outside users,” said Leonard, “the greatest challenge for our next system is to achieve a higher level of consistency among courts. The challenge there is to balance this legitimate requirement with the creativity of individual courts and judges to receive and manipulate information in a way that allows them, in their discretion, to manage caseloads effectively.”
Among the core findings of the stakeholders for the “Next Gen” CM/ECF: standardized user interface and filing practices across all courts. a single sign-on process for seamless access to PACER and to any court CM/ECF system where a user has been admitted to file. access by external users to view or file case-related information based on their role in a case. expanded search capabilities for CM/ECF and PACER. customizable features such as dashboards, alerts of deadlines, calendar reports that feed into local calendar software, and ad hoc query and reporting capabilities a “preview” function to view the document being filed prior to submission to ensure the correct document is filed elimination or increase of file size limits in a consistent manner across courts and court types. allowing additional ways to batch file information to reduce the amount of data entry required. allowing users to customize their electronic notices so that they can better manage of the volume of notices received and readily identify those requiring action. enhanced report options to include customized reports, expanded selection criteria, and expanded formats. the adoption of industry data exchange standards.
Feed the Need
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o you need to know the minute something happens in a court case? Are you tracking a case, waiting for an order or a hearing date? From a simple extension on filing documents to a verdict in a case, from a payment plan to a final report in a bankruptcy case—whenever there is any activity in a case, the Judiciary’s PACER system can update you on your computer, or any other electronic device, with automatic case notification. Look for the RSS icon on the PACER court links page (www.pacer.gov/psco/ cgi-bin/links.pl) to identify the courts providing the notification. Click on the link and you will see a list of the court’s cases, by case number and name, with a brief text description of the most recent activity and the time it occurred. The cases can be sorted by date and by title.
Subscribe to the RSS, or webfeed, and updated information from the court’s feed is automatically downloaded to your electronic device. If users are logged-in to PACER, the feed can take them directly to the case record. Only when a logged-in user views a PACER document or a docket report is a fee incurred. “Most users will want to winnow the case information that is sent,” said Michel Ishakian, chief of the Administrative Office’s Public Access and Records Management Division. “A feed reader or news aggregator—which are available free for downloading online—let users select individual cases from an RSS feed, so only that case information is delivered. Users also can change the frequency with which they receive updates, from every few minutes to daily. And it’s all free.” And its not just for attorneys. “Reporters would definitely like to get up-dates on new filings without
having to check PACER constantly,” said Michael Rothfeld, a reporter and member of the Law Bureau at the Wall Street Journal. “It would be incredibly useful to have that case information delivered automatically.” Ishakian compares the automated case notification to the old “press box” in a court clerk’s office or press room—but faster and more accessible. “You don’t have to be added to a case as an interested party to know what cases were opened at the court that day, or, for example, to find out when a hearing is scheduled,” said Ishakian. Currently, 49 district courts and 85 bankruptcy courts have RSS feeds with automated case notification. Nearly all the courts of appeals have RSS feeds for opinions with a few including events and court announcements. Many of the courts of appeals indicate the availability of webfeeds on their home webpages.
Kiosk Reporting Use in Top 10 Districts
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robation and pretrial services offices in 27 districts use 79 kiosks to gather routine status reports from defendants and offenders. The accompanying graph shows the top 10 districts for kiosk use for the period, January 1 through December 31, 2011. The Western District of Texas ranked first of the districts collecting pretrial reports by kiosk, and second in post-conviction reports by kiosk. To see data on Pretrial Reports, read our story online. The kiosks use an electronic reporting system and are located in probation and pretrial services offices. A client goes to the office, verifies his or her identity with a fingerprint scan at the kiosk, and answers a series of questions displayed on the touch screen. Defendants respond to about nine questions while convicted offenders may respond to 30 or more questions, although
some responses simply require confirmation that the data is correct. The reports are sent by email to the officer within seconds, with the client’s “yes” responses to questions about drug use, or contact with law enforcement, for example, moved to the top of the report
for the officer’s immediate attention. The reports also are downloaded to the Probation/Pretrial Services Automated Case Tracking System. The program began in 2008 with kiosks in nine probation and pretrial services offices.
Top Ten Districts in Kiosk Use for Post-Conviction Reports 7,000 6,000
Post Conviction Reports Post Conviction Clients
5,000 4,000 3,000 2,000 1,000 0
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TXW
CT
TNW
GAS
NYE
ALN
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April Judicial Milestones Appointed: U.S. District Judge Adalberto Jose Jordan, as a U.S.
Court of Appeals Judge, U.S. Court of Appeals for the Eleventh Circuit, February 24. Appointed: U.S. Magistrate Judge David O. Nuffer, as a U.S. District
Judge, U.S. District Court for the District of Utah, March 23. Appointed: Mary Elizabeth Phillips,
as a U.S. District Judge, U.S. District Court for the Western District of Missouri, March 23. Appointed: Michael Walter Fitzgerald, as a U.S. District Judge, U.S.
District Court for the Central District of California, March 22. Appointed: Margo K. Brodie, as a U.S. District Judge, U.S. District Court for the Eastern District of New York, March 12. Appointed: Jesse Matthew Furman, as a U.S. District Judge, U.S. District Court for the Southern District of New York, March 9. Appointed: Thomas Owen Rice, as a U.S. District Judge, U.S. District Court for the Eastern District of Washington, March 8. Appointed: Frederick E. Clement, as a U.S. Bankruptcy Judge, U.S. Bankruptcy Court for the Eastern District of California, March 16. Appointed: Nancy Hershey Lord, as a U.S. Bankruptcy Judge, U.S. Bankruptcy Court for the Eastern District of New York, February 29. Appointed: Janet S. Baer, as a U.S. Bankruptcy Judge, U.S. Bankruptcy Court for the Northern District of Illinois, March 5. Appointed: Paul R. Warren, as a U.S. Bankruptcy Judge, U.S. Bankruptcy Court for the Western District of New York, March 15. 8
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Appointed: Kandis A. Westmore, as
a U.S. Magistrate Judge, U.S. District Court for the Northern District of California, February 21. Appointed: Dave Lee Brannon, as a U.S. Magistrate Judge, U.S. District Court for the Southern District of Florida, February 24. Appointed: C. Bruce Anderson, as a Part-Time U.S. Magistrate Judge, U.S. District Court for the District of Maryland, March 23. Appointed: Karen S. Crawford, as a U.S. Magistrate Judge, U.S. District Court for the Southern District of California, March 5. Senior Status: U.S. District Judge Saundra Brown Armstrong, U.S.
District Court for the Northern District of California, March 23. Elevated: U.S. District Judge Gregory K. Frizzell, to Chief Judge, U.S. District
Court for the Northern District of Oklahoma, succeeding U.S. District Judge Claire V. Eagan, March 14. Elevated: U.S. District Judge James E. Shadid, to Chief Judge, U.S. District
Court for the Central District of Illinois, succeeding U.S. District Judge Michael Patrick McCuskey, March 12. Elevated: U.S. Bankruptcy Judge Cecelia G. Morris, to Chief Bankruptcy
Judge, U.S. Bankruptcy Court for the Southern District of New York, succeeding U.S. Bankruptcy Judge Arthur Gonzalez, March 1. Retired: U.S. District Judge David Folsom, U.S. District Court for the
Eastern District of Texas, March 17. This month, Milestones exceeded the available space. Please visit the Third Branch on-line at www.uscourts.gov/news/ TheThirdBranch.aspx to read the complete Milestones for April.
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 www.uscourts.gov DIRECTOR Judge Thomas F. Hogan EDITOR-IN-CHIEF David A. Sellers MANAGING EDITOR Karen E. Redmond PRODUCTION OmniStudio, Inc. 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 April 1, 2012 Courts of Appeals Vacancies...................................16 Nominees.................................... 9 District Courts Vacancies...................................61 Nominees..................................23 Court of International Trade Vacancies..................................... 2 Nominees.................................... 0 Courts with “Judicial Emergencies”..........33 Up-to-date information on judicial vacancies is available at http://www.uscourts.gov/ JudgesAndJudgeships/JudicialVacancies.aspx
Probation Offices Look to Technology to Offset Budget, Staffing Reductions continued from page 4
saved on interpreters’ costs. Otherwise, their travel costs might include a half to full day of travel when they must visit jails outside of the general area. And jails are increasingly remote, according to Terenzi, with some Florida offenders housed as far away as Georgia. “It doesn’t just save us money, it saves attorneys money, too,” said Terenzi. “An attorney can be in downtown Tampa and talk with their client who is in custody at the other end of the district.” Distance was the motivation behind the Probation Office in the Western District of Kentucky’s move to presentence interviews by webcam. As in the Middle District of Florida, officers were losing half a day or more driving to remote jails while the district was short on staff. Chief Probation Officer Kathyrn Jarvis initially looked into videoconferencing with the jails, but the county jails didn’t have funding for the equipment. That’s when the Administrative Office pointed her to WebEx, a web conferencing application. “It requires some training, but it’s easy and it’s relatively cheap with the court’s national contract,” said Jarvis. “All you need is a telephone and a laptop with a built-in camera or webcam and an email account.” Jarvis contacted several jails who were willing to put a telephone in a room and set up a laptop. “The person who brings the offender or defendant into the room at the jail opens the laptop, accepts the invitation to the meeting that we’ve sent by email, and the video connection is made. We just call them on the phone,” said Jarvis. If releases need to be signed, they are faxed to the jail, the defendant signs, the jail staff witnesses, and the forms are faxed back. “One time we had a CJA panel attorney sitting in his house in Louisville, the case
was assigned to a presentence writer sitting at her desk in Bowling Green, and the defendant was housed in Marion county jail. The jailer didn’t have to transport him anywhere. He walked into a room and all the participants did the presentence interview,” said Jarvis. “It’s an easy way to facilitate good communication between the stakeholders without having to travel.” “Everybody is short-handed these days,” said Jarvis. “We’re trying to figure out how we can fulfill our statutory mission, and cut those things that take time and money, without diminishing quality. My issue is rapport. Is the person receiving the communication in a way that doesn’t unintentionally make them feel like a widget moving through the system? But we’ve had nothing but positive feedback. Even the attorneys love it. It saves the system money.” Now Jarvis’ supervision officers would like to try the webcam to
interview offenders in pre-release status in halfway houses. “We’re still working on that,” said Jarvis. Jarvis, Terenzi, and Kelly are clear that a videoconference or webcam interview is no substitute for supervision or fieldwork. “Once the offender is released and they’re in the community, you’re seeing them,” says Jarvis. And there is no substitute for a good presentence interview. “We have no control over the number of cases we get. We have to do them, and we should,” said Terenzi. “Frankly, the judge’s sentencing decision is only as good as the information in the presentence report. Without investigating, you don’t know if we’re missing something. You need the information so that you can narrowly prescribe the kinds of evidence-based interventions that actually have an impact. At the foundation of a good decision is that presentence report.”
AO, Justice Department Jointly Recommend ESI Discovery Practices
The recommendations were created by Department of Justice/ Administrative Office Joint Electronic Technology Working Group, which met about a half dozen times between May, 2010, and the fall of 2011. Its members included Federal Public Defender Donna Elm (Middle District of Florida) and Doug Mitchell, the CJA panel attorney district representative in Nevada. Other members included Sean Broderick, the national litigation support administrator in the AO’s Office of Defender Services. The working group obtained input from attorneys, paralegals, and technology staff, and coordinated its efforts with various Judiciary liaisons, including Magistrate Judge Jonathan Feldman (Western District of New York), who serves on the Judicial Conference’s Committee on Defender Services. The recommendations can be read online at http://www.fd.org/odstb_esi.htm.
continued from page 5
“For years, ESI has often been produced or exchanged in electronic formats or on a media that the receiving party is unable to open, search, or otherwise use effectively, or those processes have been unnecessarily inefficient. Often, either prosecutors or defense counsel have had to reprocess the electronic information, wasting both time and money,” Lidz said. “The recommendations, by calling for the parties to ‘meet and confer’ to discuss and resolve discovery issues and to use industry or reasonably useable electronic formats, provide a framework for eliminating or minimizing duplicative processes. The protocols also include provisions that will allow federal judges to manage discovery issues more effectively,” he said.
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interview
Committee Oversight Supports Work of Probation and Pretrial Services Officers
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udge Robert Holmes Bell was appointed to the federal bench in the U.S. District Court for the Western District of Michigan in 1987. In 2010, he was named chair of the Judicial Conference Committee on Criminal Law.
Q: What is the jurisdiction of the Judicial Conference Committee on Criminal Law? A: The Criminal Law Committee oversees the federal probation and pretrial services system, and reviews legislation and other issues relating to the administration of the criminal law. We work closely with the U.S. Sentencing Commission and the Federal Bureau of Prisons (BOP) to monitor trends in sentencing and corrections, and collaborate to develop policies for consideration by the Judicial Conference that improve the administration of the federal criminal justice system. Among our most important duties is to develop and recommend to the Conference the annual budget for the operation of the probation and pretrial services system. Here, we have a dual role of scrutinizing the budget to find opportunities to save and preserving funding for the mission-critical functions performed by our probation and pretrial service staff.
Q: At your committee’s last meeting in December, what were some of the major topics discussed? A: Our December meeting resulted in several recommendations that were endorsed by the Judicial Conference, including several cost-containmentrelated legislative proposals and policy changes related to pretrial diversion, officer safety, and the supervision of low-risk offenders.
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The Committee also had an extensive conversation with Judge Patti Saris and other members of the U.S. Sentencing Commission on the disclosure of judge-specific sentencing information. This discussion was prompted by the Commission’s receipt of a request from the House Judiciary Committee for the release of judge-specific sentencing data possessed by the Commission. The Committee expressed concerns that statistical reporting is often incomplete and may allow for conclusions to be taken out of context as applied to individual judges, and sample sizes applicable to individual judges will often not be large enough to validate statistical comparisons. Also, disclosure of information about individual judges can pose a variety of security risks. Furthermore, singling out information about individual judges, particularly in case-related matters for the purpose of evaluating a judge’s sentencing pattern, can run counter to notions of impartiality and judicial independence.
Q: The Judicial Conference endorsed the Criminal Law Committee’s recommendation that a study be conducted to assess the efficacy and costeffectiveness of federal reentry court programs. Can you update us on the status of that study? A: At its September 2009 session, the Judicial Conference endorsed the Criminal Law Committee’s
Judge Robert Holmes Bell (W.D. Mich.)
recommendation that a study be conducted to assess the efficacy and cost-effectiveness of federal reentry court programs. The Committee asked the Federal Judicial Center to lead this study. The FJC designed a two-pronged study. The first prong involves a multiyear randomized experimental study in five districts with new or relatively new reentry court programs that will follow a reentry program model developed by the AO to assure that each study district implement supervision practices demonstrated to work by social science research and to assure consistency among study districts. Each study district is now operational, and the FJC is monitoring the progress of the experimental programs and collecting on-site data. This phase will take several years to complete. The second prong of the study involves an assessment of existing reentry court programs in 36 districts. This prong will rely on PACTS, the Probation and Pretrial Services Automated Case Tracking System, data to identify reentry court program participants and a matched comparison group. The study will consider the
impact that program participation and completion had on revocation and rearrest rates. The retrospective study will not capture data on the costs associated with operating a reentry court program, and thus will not answer the Conference’s questions about the cost-effectiveness of these programs.
Q: Your Committee has endorsed continuing efforts to incorporate evidence-based practices (EBP) in the federal probation and pretrial services system. How is that effort progressing? Has EBP reduced recidivism? A: The Committee does not view EBP as a single program or project, but rather as an empirically based, multi-faceted approach to reducing recidivism. Probation and pretrial services staff across the country have made tremendous strides in implementing EBP. More than 1,700 officers have been trained in the Pretrial Risk Assessment Instrument (PTRA) and more than 3,500 have been trained in the Post Conviction Risk Assessment Instrument (PCRA). These tools allow officers to identify and direct resources to the defendants and offenders who pose the greatest risk. The AO has also begun a new program titled Staff Training Aimed at Reducing Re-Arrest (STARR), which teaches officers how to use core correctional skills in their interactions with offenders. These skills include effective use of authority, anticriminal modeling and reinforcement, problem-solving, use of community resources, and cognitive behavioral techniques. When used properly, these skills have been proven to contribute to better supervision outcomes. The Committee is aware that the use of evidence-based practices in state and
local systems has reduced recidivism, and we have been working with the AO to collect the data needed to measure our own outcomes. The first outcome report was issued in December 2010 and showed that less than one quarter of the offenders in the study cohort incurred their first re-arrest for a serious offense within three years of beginning their supervision term. At our June 2012 meeting, the Committee expects to receive an updated report with two more years of recidivism data.
Q: With funding projected at a hard freeze for 2013, is your Committee looking at cost containment for probation and pretrial services offices? A: The Criminal Law Committee has taken its responsibility to control costs seriously. Since 2004, the Committee has pursued strategies intended to focus resources on higher risk defendants and offenders and on the more complex investigations and reports. Earlier this year, I sent a memo to all judges asking that they consider ordering reduced scope investigations and supervision services in appropriate cases. At its March 2012 session, the Judicial Conference endorsed our Committee’s recommendations to seek legislation that would drop some duplicative or obsolete statutory requirements. For example, one proposal would allow a court to waive electronic monitoring of certain defendants if more restrictive measures, such as residence in a halfway house or treatment facility, are part of the court’s pretrial release order. The Committee will continue to consider areas where additional savings might be found. One such area may be in the space requirements of the court units. The Committee will continue to
rely on the input of the Chiefs Advisory Group to help identify and implement any additional cost-savings measures.
Q: Shared administrative services is one proposed cost-containment initiative. Is it practical for pretrial services and probation offices? A: The Criminal Law Committee strongly supports the use of shared services. While probation and pretrial services offices already do a considerable amount of sharing, we recognize that more can be done and we believe that chief probation and pretrial services officers should, under the supervision of their chief judges, have broad authority to share both operational and administrative services within their districts, regionally, and nationally. The Committee recognizes that most of the shared services will be in the administrative areas, such as information technology, procurement, and human resources; however, the sharing of operational services (at least among probation and pretrial services offices) should also be judicially encouraged. In its 2004 report Strategic Assessment of the Federal Probation and Pretrial Services System, IBM recommended that we “staff to promote mission-critical outcomes” and “review alternative means of accessing specialist knowledge.” With the ability to reprogram funds to units in other districts, it is now feasible to share officer positions, such as sex-offender specialists, cyber-crime specialists, and search team members. To make such sharing arrangements easier to pursue, the Committee recommended at its December meeting that the Judicial Conference seek legislation that would amend 18 U.S.C. § 3602 to allow an officer appointed in one district to perform services for Continued on page 12
The Third Branch
April 2012
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interview another (of course, with the consent of the appointing court).
Q: What goals or objectives have you set for yourself as Committee chair? A: I am very fortunate to be joined on the Committee by talented judges who are truly engaged in the topics within the Committee’s jurisdiction. My goal is to facilitate the sharing of ideas between our members and other stakeholders, including the chief probation and pretrial services officers,
continued from page 11
the Sentencing Commission, and the Bureau of Prisons. Like the rest of the Committee, I believe that the protection of the public and the safety of our staff are of paramount concern. Accordingly, the Committee and I will endeavor to give the probation and pretrial services staff the support they need to continue their work, whether it is providing information in furtherance of pretrial release or sentencing decisions, or in executing and enforcing the terms and conditions of supervision.
A Reminder
T
he May issue of The Third Branch newsletter will be the last print edition published. To I continue to receive news about the federal Judiciary, please sign up on our website at Email Updates: www.uscourts.gov/Common/ EmailUpdates.aspx Newsletter of the Federal Courts
Changes in New srooms, Changes n October in
, a group of federal judges and professors of journalis m came together to discuss reportin g on the courts. The day-long summit, co-sponsored by the First Amendment Center and the Judicial Branch Committee of the Judicial Conferen ce, looked at the current state of news media coverage of the courts, how journalis m students are trained in court coverage , and what steps the media and the courts might take to enhance and improve public understanding of the courts. Nine appellate ,
Training in Risk
Courtrooms
district, magistra te, and bankrup tcy court judges participa ted, with an equal number of academics.
The Judicial Branch Committee and its New Media Subcom mittee have been active in this area, examinin g current and emerging new media and making recomm endations on how new media might be used to enhance external commun ications. The summit is the latest in a series of Journalists and Judges meetings hosted over the years by the First Amendment Center.
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Assessment Tools ................................ ................................ ............................pg Opinions ................ .3 ................................ ................................ ...........................pg Juror Satisfaction .5 ................................ ................................ ................... pg. 6
Pilot Adds 13,000
Exit Surveys Improve
Vol. 43 Numbe r 11 Novemb er 2011
Bankruptcy Clerk Becomes Army Reserve’s Highest Ranking AfricanAmerican Wom an
A
clerk of court’s life is busy and demanding. Combine a clerk’s responsib ility with those of an Army Reservist and you describe the sometim es frenetic life of Marcia Anderson , bankruptcy clerk of court for the Western District of Wisconsi n—and the first African-American woman to earn a second star and a promotion to Major General in the Army Reserve. Continued on page
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From The Benc h to the Center
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n October, Judge Jeremy Fogel began his duties as the new Director of the Federal Judicial Center. An experienced judge and educator, he has been deeply involved in the Center’s program s over the past decade. The Third Branch sat down with Fogel for the interview beginnin g on page 10.
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