A major earthquake—7.2 on the Richter Scale according to the U.S. Geological Survey—occurred April 4 approximately 40 miles south of the Mexico-U.S. border. Felt as far north as Los Angeles, the tremors damaged the U.S. Courthouse in El Centro, just across the border in the Southern District of California. The El Centro courthouse, a leased facility, houses the chambers and courtroom of Magistrate Judge Peter Lewis, along with the clerks’ office, the U.S. Probation and Pretrial Offices, as well as offices for the U.S. Marshals and Court Security Officers. “There is damage to the stone work on the outside of the courthouse, and inside there wasn’t a book left on a shelf,” said Lewis, speaking three days after the quake. “But the clerk’s office and the General Services Administration moved quickly to reopen the court, and we only missed one day. We had 60 cases on the calendar yesterday.” And, Lewis notes, “We don’t stop court for aftershocks.” The El Centro courthouse handles almost 40 percent of the district’s
Shakemap for Sierra El Mayor Earthquake criminal caseload on the border. While the Imperial Valley where El Centro is located has a population of about 175,000, Mexicali, Mexico, just across the border, has a population of more than 1 million. Most of the cases seen in El Centro are related to alien smuggling, illegal re-entry and drug cases. The most significant damage to the courthouse was caused by a broken See Earthquake on page 2
Congress Acts on Legislation This month, Congress acted on bills to create new bankruptcy judgeships, reduce crack cocaine sentences, and improve the administration of the federal courts. For details on the legislation, see page 3.
By the Numbers—Changes in Business Bankruptcies.............pg. 4 E Pro Se Bolsters Access to Court....................................................pg. 5 Local IT Initiatives Receive Grants................................................pg. 6
Vol. 42 Number 4 April 2010
Map Courtesy of the California Integrated Seismic Network
Earthquake Rocks El Centro Courthouse
Newsletter of the Federal Courts
An Interview with ABA President Carolyn Lamm Carolyn Lamm, an international arbitration, litigation, and trade lawyer from Washington, D.C., is president of the American Bar Association. She will serve until the association’s Annual Meeting in August 2010.
As ABA President, one of your initiatives has been to form the Commission on Ethics 20/20. Why did you make this one of your initiatives and what will the Commission study?
As president of the American Bar Association, I recognized that we must respond to, and be prepared for, a very different world. I created the Commission on Ethics 20/20 to recommend policies that will help ensure that lawyers and law firms are able to meet the challenges of 21st century law practice. The commission is co-chaired by Jamie S. Gorelick of Wilmer Hale and Michael Traynor, president emeritus of the American
See Interview on page 10
Earthquake continued from page 1 water pipe that flooded the probation office. Three days after the quake, U.S. Probation Officer Pascual Linarez was in his office where 30 commercialsize fans were running to dry the interior. He estimates it will be two
The earthquake, 7.2 on the Richter Scale, was strong enough to move furniture in the El Centro Courthouse.
According to Magistrate Judge Peter Lewis, there wasn’t a book left on the shelves after the quake. to three weeks before his five probation officers are able to return to work in the office. In the meantime, some officers are working under COOP conditions from remote locations. Temporary quarters elsewhere in the courthouse are being set up for probation staff. Linarez was visiting family in Yuma, Arizona, on Sunday when he felt the earthquake and immediately
In the Probation Office, commercial fans were running to dry out water-soaked carpets. The Third Branch
headed back to El Centro to check for damage. “You can see ceiling to floor cracks in the walls, but the main damage is the water that flooded the suite,” he said, “and some damage to paperwork when files were tipped over. Right now we’re waiting to see if any of our computers were damaged.”
Fortunately, because it was Sunday when the earthquake happened, the El Centro courthouse was closed and no one was injured. The city of El Centro was not as fortunate. In the downtown area, there were reports of collapsed walls and shattered storefront windows.
Work on repairs to the facility began almost immediately.
See Earthquake on page 12
Legislation Moves in Congress March saw Congressional action on three bills of long-standing interest to the federal Judiciary. Bankruptcy Judgeship Act of 2010 In mid-March, the House passed the Bankruptcy Judgeship Act of 2010 (H.R. 4506). This bill, which has bipartisan support, would create 13 additional permanent bankruptcy judgeships, convert 22 existing temporary bankruptcy judgeships to permanent status, and extend two current temporary judgeships. H.R. 4506 reflects the current bankruptcy judgeship recommendations of the Judicial Conference. The legislation was sponsored by Representative Steve Cohen (D-TN), chairman of the House Judiciary Subcommittee on Commercial and Administrative Law, and cosponsored by Judiciary Committee Chairman John Conyers (D-MI) and Ranking Member Lamar Smith (R-TX). Cohen described the bill as providing new resources for bankruptcy courts to handle the growing number and complexity of bankruptcy cases. “A well-functioning bankruptcy system is absolutely essential to helping individuals and businesses weather our Nation’s current economic difficulties,” he said. “Having a sufficient number of bankruptcy judges is a key to making the system work, and has never been more important than today.” Cohen noted that Congress last authorized new permanent bankruptcy judgeships in 1992, and that it’s well past the time to address these critical needs. The Judicial Conference recommendations for new judgeships can be found on-line
at www.uscourts.gov/Press_ Releases/2009/09Bankruptcy_ Judgeship_Recommendation.pdf. Fairness in Cocaine Sentencing Act S. 1789, the Fairness in Cocaine Sentencing Act, was passed by the Senate this month. The bill would reduce crack cocaine sentences to achieve a 20:1 ratio between crack and powder sentences and would eliminate the mandatory minimum sentence for simple possession of crack cocaine. According to Senator Richard Durbin (D-IL), who introduced the bill, this is the first time the Senate Judiciary Committee has ever reported a bill to reduce the crack-powder disparity and, he said, “It will be the first time since 1970—40 years ago—that Congress has repealed a mandatory minimum sentence.”
The bill also would increase fines for certain major trafficking offenses and direct the U.S. Sentencing Commission to make adjustments to the guidelines to increase or decrease sentences depending on certain aggravating and mitigating factors. Senator Patrick Leahy (D-VT), chair of the Judiciary Committee, said, “For more than 20 years, our Nation has used a federal cocaine sentencing policy that treats ‘crack’ offenders 100 times more harshly than other cocaine offenders, without a legitimate basis for the difference. We know that there is little or no pharmacological distinction between crack and powder cocaine, yet the resulting punishments for these offenses is radically different and unjust. This policy is wrong and unfair, and it has needlessly swelled our prisons, wasting precious federal
See Legislation on page 7
Committee Suggests Guidelines for Juror Use of Electronic CommunicationTechnologies Last March, a federal judge declared a mistrial in a drug case— not for any missteps by the prosecution or defense attorneys—but because most of the jurors had gone on-line to research the case. The same month, a juror in a federal corruption trial was discovered sending updates on the case to his Twitter and Facebook accounts. We live in a society where cell phones and PDAs are ubiquitous, where social media sites depend on user contributions, and where “to google” has become a verb meaning to obtain information on the web. It’s not surprising that jurors are tempted to conduct research on and communi-
cate—sometimes from the jury box— about the cases they decide. To help deter jurors from using various electronic technologies when hearing testimony and deliberating on a case, the Judicial Conference Committee on Court Administration and Case Management (CACM) developed and endorsed a set of suggested jury instructions that judges should consider reading to jurors before trial and at the close of the case. These instructions make it clear to jurors that they are prohibited from using electronic communication technologies in the courtroom, in deliberations, or outside the courthouse to communicate
See Guidelines on page 9
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6,000 5,000 Monthly Filings
Total Chapter 7
Chapter 11 Chapter 13
2,000 1,000 0 2004
Figure 2. 2009 Chapter 11 Filings 2,000
The Bankruptcy Code (title 11 of the U.S. Code) is broken into chapters—each of which describes a facet of the federal bankruptcy law. Chapter 7 provides for “liquidation” (i.e., the sale of a debtor’s nonexempt property and distribution of the proceeds to creditors). Chapter 11 provides for reorganization (or planned liquidation) under a plan, normally proposed by the debtor and submitted to the court. It usually involves a corporation or partnership, but individuals can also seek relief in Chapter 11. Chapter 12 refers to debts of a family farmer or family fisherman. Chapter 13 provides for adjustment of debts for an individual with regular income, usually over three to five years. Figure 1 shows monthly business filings by Chapter (excluding Chapter
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Much attention has been paid by the media and others to the recent rapid rise in consumer bankruptcies. But less attention has been paid to the even faster rise in business bankruptcies. Recently, John Golmant, a statistician in the Statistics Division of the Administrative Office, examined the numbers behind the increase. In 2009, a total of 1,402,816 bankruptcy petitions were filed in the federal courts, an increase of 35 percent from the 1,042,806 filed in 2008. The 2009 total marks the greatest number of bankruptcy filings since 2005, the year the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) was passed and implemented. Filings by debtors with predominantly non-business (consumer) debts—those incurred for personal rather than business needs—totaled 1,344,095, a 34 percent increase over 2008. Filings involving predominantly business debts totaled 58,721, a 52 percent increase over 2008. In fiscal year 2005, the last full year before BAPCPA took effect, a record 1,782,643 bankruptcy petitions were filed (1,748,421 consumer filings and 34,222 business filings). While overall monthly filings exceeded 100,000 in each month throughout fiscal year 2005, they plummeted to less than 15,000 in November 2005. However, overall monthly filings have been steadily increasing ever since. In fiscal year 2009, the number of consumer filings was still 23 percent below 2005 levels, but the number of business filings was 72 percent above 2005 levels.
Figure 1. Business Bankruptcies
By the Numbers— Changes in Business Bankruptcies
12). It demonstrates that business filings surged in 2009, especially Chapter 11 filings. Chapter 7 (debt liquidation) filings comprised the largest percentage of business filings and increased 51 percent. Chapter 11 (debt restructuring) filings grew a remarkable 69 percent. Figure 1 also indicates that monthly business filings are now roughly twice what they were before the implementation of BAPCPA. Figure 2 highlights the period during 2009 when Chapter 11 petitions surged. Chapter 11 filings grew rapidly during March and April, and much of the rise (44 percent) occurred in the three districts that typically handle the most Chapter 11 bankruptcies—the District of Delaware, the Southern District of New York, and the Central
Figure 3. Percentage of Filings that are Business Filings 6.00%
5.00% Chapter 11 Surge
4.00% 3.00% 2.00% 1.00% 0.00% 2003
District of California. The increase can be attributed to economic problems in a variety of industries, as communications firms, real estate companies, retail malls, automotive companies, and construction companies all filed large numbers of Chapter 11 petitions.
Figure 3 shows that business petitions, as a percentage of total bankruptcy filings, have doubled since the passage of BAPCPA, perhaps suggesting a shift in filing patterns. Business filings have not played as significant a role in the bankruptcy courts since the early
E Pro Se Bolsters Access to Court Persons who represent themselves when filing civil lawsuits in the U.S. District Court for the Eastern District of Missouri can get help from a userfriendly, interactive web application called E Pro Se. “This document-assembly program actually walks the pro se litigant through the creation of certain civil complaints by asking a series of questions in the form of an interview or dialogue,” said Clerk of Court James Woodward. The information obtained from a user creates a document printed in a format that provides the court with essential information about the type of claim the filer intends to present for resolution. Documents required for Social Security, employment, and civil rights complaints can be created with E Pro Se. Similar programs have been popular in state courts for some time,
and other federal trial courts have taken notice of what the St. Louisbased district court is offering. “We’ve conducted E Pro Se training sessions for about 20 other districts so far,” Woodward said. E Pro Se was one of seven technology initiatives in six federal courts that received grants from the Edwin L. Nelson Local Initiatives Program in 2005. The grants promote the development of local court IT systems that are then posted on Ed’s Place, the Judiciary’s national clearinghouse for locally developed applications. Woodward said his court’s IT staff had planned on designing its own software but discovered that a product, A2J (Access to Justice), had already been developed and was available from the Chicago-Kent College of Law. The A2J program
1990s, when overall filings were below 1 million. The increases may be related to continuing economic weakness—as evidenced by high unemployment and by continued instability in the housing market in many regions of the country—but the impact of BAPCPA cannot be ignored either. The 2005 Act was aimed primarily at debtors who file consumer bankruptcy petitions, and it disproportionately affected the number of consumer bankruptcies filed post-BAPCPA. Both consumer and business filings dipped following the implementation of BAPCPA, but consumer filings dropped more severely, and the growth in consumer filings has been much slower than that of business filings. If the economy improves, it remains to be seen whether the current higher ratio of business filings will persist.
provided the technical framework for creating a customized interface and dialog with the self-represented user. “The process of customizing the interview for our specific needs nevertheless was a long and laborious one, which included using our pro se law clerks as subject-matter experts and having our judges review various content proposals. We also solicited feedback from law professors at the St. Louis University law school’s civil legal clinic,” he said. E Pro Se was first implemented on a limited basis in the fall of 2008. Users had to travel to the courthouse in St. Louis and use a stand-alone PC in the court’s Self-Help Center, adjacent to the public area within the clerk’s office. Training on E Pro Se’s use is provided by clerk’s office staff. That option still exists, but since December 2009 the program has been
See E Pro Se on page 9
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Local IT Initiatives Receive Grants Five local court projects have been awarded grants for fiscal year 2010 through the Edwin L. Nelson Local Initiatives Program. The program supports the development of local technology innovations that can be shared with other courts. For 2010, the Judiciary’s Judicial Conference Committee on Information Technology, which approved the award grants, was particularly interested in proposals addressing IT solutions that help chambers and support training for the entire court community. The five court IT initiatives are: The Jury Evidence Recording System (JERS) The grant funds a collaborative IT initiative of the U.S. District Court for the Western District of North Carolina, which developed JERS, with the U.S. District Courts for the Middle District of Pennsylvania, the District of South Carolina, and the Northern District of Indiana in the continued development and improvement of the JERS application. The district courts will serve as pilot courts for JERS’ final testing phase. JERS captures electronic presentations of evidence and exhibits from the courtroom and makes the information available in the jury deliberation room through a touchscreen kiosk. Jurors can quickly and easily retrieve information presented during the trial, eliminating return trips to the courtroom. They can view exhibits repeatedly, zoom in on photos, and scroll through documents. At the end of a trial, the electronic collection of exhibits can be archived by the court, with copies to the parties for use in posttrial litigation.
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The ESP-Web System A 2007 grant funded the migration of the Electronic Scheduling Program (ESP) system from a desktop to a web-based application. Now a 2010 grant funds the development of its final modules, and provides training and support during deployment of the ESP-Web System. The U.S. Bankruptcy Court for the Northern District of Texas will work with the U.S. Bankruptcy Courts of Oregon and the Southern District of Florida to complete the system, which will provide a single web interface through the Case Management/Electronic Case Files System for setting, resetting, continuing, and editing hearings, as well as for viewing calendars, adding case and hearing notes, and appointments. ESP also has the ability to display hearing calendars, personal calendars, and hearing notes on handheld devices such as Blackberries and iPhones. Both internal and external calendar reports in ESPWeb are real time and searchable. The Space and Facilities Management Software System The U.S. District Court for the Northern District of Ohio, with pilot courts in the Northern District of New York and the Sixth and Tenth Circuits, has received a grant to facilitate the development, testing, and roll-out of a system to support real property inventory management and related, on-going cyclical maintenance of space. This initiative will leverage the existing technology capabilities of the Facilities Program Management (FPM) module, which is part of the overall space management portion of the national JFACTS 2.0 system. In the second phase of the project, an integrated facilities
and project management database will be developed, based on the FPM module. This new module will integrate with computer-aided design software and the inventory database developed by the Northern District of New York, to tie asset inventory directly to space drawings, and link project information with drawings. Grouping all space and facilities management information, files and projects together, and linking them in a computerized data set using facilities management software will allow a variety of reports to be produced, eliminate repetitive input of data, and streamline planning and budgeting. Tech Tips for Judges Since 2008, the Fifth Circuit, working with the Systems Deployment and Support Division, has produced Tech Tips for Judges as a way to provide clear and relevant technical information and automation training through email. The information and training is presented judge-to-judge. This focus has proved to be very successful. The circuit calls upon technology experts to assist with the technical aspects, but the topics, the edits and the final Tech Tips emails are produced by the circuit. With the 2010 grant, the circuit can continue and expand the project by hiring a part-time program manager, who will ensure timely publication of email tips, and who will explore other communication tools to deliver training and information to judges. By the end of the grant period, the Fifth Circuit hopes to be able to recommend the best approach for making Tech Tips for Judges available nationwide. The Crime Victim Restitution System—VRU.net The U.S. District Court for the Northern District of Texas recognizes
a court’s need to manage information regarding payment details and current addresses for victim restitution payments. The 2010 grant would fund the development of a secure web application where crime victims can update their bank account information if they choose to receive e-payments or their current address if they wish restitution payments to be mailed to them. Financial balances such as the court-ordered amount of restitution, the amount paid, the balance pending, and the payment history could also be viewed. Once verified and approved by the court, the crime victims’ information would be updated overnight to FAS4T, the Judiciary’s automated financial management database. District courts spend considerable time managing information to support monthly distribution of checks to crime victims. VRU.net is intended to be a national program, available to all courts using FAS4T/CCAM. The Northern District of Texas will work with the U.S. District Courts for the Southern District of Texas, South Carolina and Northern Florida, as well as with the AO, to develop this system. Legislation continued from page 3 resources.” He urged the House to “act quickly so that the President can sign this historic legislation into law.” Last year, the House Judiciary Committee reported out a bill that would eliminate the sentencing disparity altogether. Federal Judiciary Administrative Improvements Act of 2010 S. 1782, the Federal Judiciary Administrative Improvements Act of 2010, was passed by the Senate on March 16, 2010. The bill contains six Judicial Conference proposals. The House already passed a similar and
Committee Plans Civil Litigation Conference Access, fairness, cost, and delay in civil litigation in federal court will be the focus of a conference on May 10-11, sponsored by the Judicial Conference Advisory Committee on Civil Rules. The 2010 Civil Litigation Conference at the Duke University School of Law will present new data from several empirical studies on current litigation practice and proposals for improving civil litigation in the federal trial courts. In particular, data on actual litigation costs incurred by law firms and major corporations will be available for analysis. “This conference hopes to build on the legacy of the 1976 Roscoe Pound Conference and all it contributed to the reform of the administration
and delivery of justice in the federal system, and on the 1997 Boston College of Law Conference on Discovery,” said Judge Mark Kravitz, chair of the Advisory Committee on Civil Rules. Kravitz said the cost of civil litigation will be among the topics to be discussed, and how recent Supreme Court decisions in Twombly and Iqbal have focused attention on pleading standards and discovery. Nearly 200 nationally recognized federal judges, lawyers, professors, and others with expertise in civil litigation are expected to attend. The conference will be streamed live over the Judiciary’s Newsroom website at www.uscourts.gov.
more expansive bill and the differences between the two bills will need to be resolved before the bill goes to the President. Senator Sheldon Whitehouse (D-RI) sponsored S. 1782 with cosponsors Senators Leahy and Jeff Sessions (R-AL). Whitehouse noted that the federal courts decide “crucial issues of criminal and civil law every day, providing justice and protecting our constitutional rights,” and the Act would make “the technical fixes necessary for the better administration of the federal courts.” Provisions in S. 1782 would: 1. Resolve a senior judge workload requirement conflict created by the Court Security Improvement Act of 2007 by allowing senior judges who are substantially involved in the work of the court to participate in court governance matters, including the selection of magistrate judges; 2. Eliminate references to divisions in the statutory description of the Judicial District of North Dakota;
3. Allow the “statement of reasons” that judges are required to issue upon sentencing to be filed separately with the court so as to protect individual privacy and the confidential information that the reports often contain; 4. Clarify the scope of authority of federal pretrial services officers to supervise and assist juvenile offenders awaiting delinquency disposition in federal court as an alternative to incarceration; 5. Adjust the deadline for state and federal judges to file their wiretap totals with the Administrative Office and the associated deadline for the Department of Justice to provide its wiretap data to the AO; and 6. Add an inflation adjustment for the threshold requiring review by the chief judge of the circuit for case expenses related to the hiring of expert witnesses and conducting investigations for indigent defendants. The Third Branch
J U D I C I A L M I L E S T O NE S Appointed: Barbara Milano Keenan, as U.S. Court of Appeals Judge, U.S. Court of Appeals for the Fourth Circuit, March 12.
Appointed: Laura K. Grandy, as Chief U.S. Bankruptcy Judge, U.S. Bankruptcy Court for the Southern District of Illinois, March 22.
Appointed: Joseph A. Greenaway, Jr., as U.S. Court of Appeals Judge, U.S. Court of Appeals for the Third Circuit, February 24.
Appointed: Deborah J. Saltzman, as U.S. Bankruptcy Judge, U.S. Bankruptcy Court for the Central District of California, March 18.
Appointed: Beverly B. Martin, as U.S. Court of Appeals Judge, U.S. Court of Appeals for the Eleventh Circuit, February 1.
Appointed: James P. Smith, as U.S. Bankruptcy Judge, U.S. Bankruptcy Court for the Middle District of Georgia, February 22.
Appointed: William M. Conley, to U.S. Chief District Judge, U.S. District Court for the Western District of Wisconsin, March 30.
Appointed: Tracey Wise, as U.S. Bankruptcy Judge, U.S. Bankruptcy Court for the Eastern District of Kentucky, March 31.
Appointed: James L. Cott, as U.S. Magistrate Judge, U.S. District Court for the Southern District of New York, March 2.
Elevated: U.S. District Judge William H. Steele to Chief Judge, U.S. District Court for the Southern District of Alabama, succeeding U.S. District Judge Callie Granade, February 22.
Appointed: Donna M. Ryu, as U.S. Magistrate Judge, U.S. District Court for the Northern District of California, March 1. Appointed: Candace J. Smith, as U.S. Magistrate Judge, U.S. District Court for the Eastern District of Kentucky, March 1. Appointed: Elizabeth A. Preston Deavers, as U.S. Magistrate Judge, U.S. District Court for the Southern District of Ohio, March 15. Appointed: Catherine E. Bauer, as U.S. Bankruptcy Judge, U.S. Bankruptcy Court for the Central District of California, February 26. Appointed: Thad J. Collins, as U.S. Chief Bankruptcy Judge, U.S. Bankruptcy Court for the Northern District of Iowa, March 29. Appointed: Shelley C. Chapman, as U.S. Bankruptcy Judge, U.S. Bankruptcy Court for the Souther District of New York, March 5.
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Elevated: U.S. Bankruptcy Judge Margaret A. Mahoney to Chief Judge, U.S. Bankruptcy Court for the Southern District of Alabama, succeeding U.S. Bankruptcy Judge William Shulman, February 10. Elevated: U.S. Bankruptcy Judge Lorraine Murphy Weil to Chief Judge, U.S. Bankruptcy Court for the District of Connecticut succeeding U.S. Bankruptcy Judge Albert S. Dabrowski, March 1. Senior Status: U.S. District Judge Patrick Michael Duffy, U.S. District Court for the District of South Carolina, December 27. Senior Status: U.S. District Judge Terrence C. Kern, U.S. District Court for the Northern District of Oklahoma, January 4. Senior Status: U.S. District Judge Joe Billy McDade, U.S. District Court for the Central District of Illinois, February 28.
THIRD BRANCH Published monthly by the Administrative Office of the U.S. Courts Office of Public Affairs One Columbus Circle, N.E. Washington, D.C. 20544 (202) 502-2600 Visit our Internet site at www.uscourts.gov DIRECTOR James C. Duff EDITOR-IN-CHIEF David A. Sellers MANAGING EDITOR Karen E. Redmond PRODUCTION OmniStudio, Inc. CONTRIBUTOR 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.
Deceased: U.S. Senior District Judge James C. Paine, U.S. District Court for the Southern District of Florida, March 7. Deceased: U.S. Senior Judge M. D. Crocker, U.S. District Court for the Eastern District of California, February 2. Deceased: U.S. Senior Judge Horace W. Gilmore, U.S. District Court for the Eastern District of Michigan, January 25. Deceased: U.S. Magistrate Judge Allan Kornblum, U.S. District Court for the Northern District of Florida, February 12.
Up-to-date information on judicial vacancies is available at http://www. uscourts.gov/judicialvac.html
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about or research cases on which they currently serve. The instructions leave no doubt in a juror’s mind about what is forbidden: “You may not communicate with anyone about the case on your cell phone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, through any internet chat room, or by way of any other social networking websites, including Facebook, My Space, LinkedIn, and YouTube.” There is a good reason for precisely cataloguing what is forbidden. “The Committee believes that more explicit mention in jury instructions of the various methods and modes of electronic communication and research would help jurors better understand and adhere to the scope of the prohibition against the use of these devices,” said Judge Julie A. Robinson in a letter transmitting the suggested instructions to judges of the U.S. district courts. For years jurors have been told that they must not discuss the case with anyone until they retire to deliberate; now they’re reminded that the prohibition extends to electronic communications as well, and continues until the judge accepts their verdict. Why can’t jurors augment what they hear in court? Because, as the suggested instructions state: “You, as jurors, must decide this case based solely on the evidence presented here within the four walls of this courtroom… Please do not try to find out information from any source outside the confines of this courtroom.“ To read the suggested instructions, visit www.uscourts.gov/ newsroom/2010/DIR10-018.pdf.
offered on-line, via the court’s Internet web site, www.moed.uscourts.gov/ prose/EProSe.html. Pro se filers now can use the software at home if they have a computer with Internet access, but still must go to the clerk’s office to file the document they create. (The Eastern District of Missouri prohibits pro se litigants to file remotely, but E Pro Se could be implemented by a court to facilitate remote electronic filing.) “Because we did not spend all the grant money on development, there was money available to help other federal courts get introduced to, and trained on, E Pro Se,” Woodward said. “Other courts have gotten started at no expense.” The U.S. District Court for the District of Minnesota has already launched its pilot E Pro Se, and the U.S. District Court in Massachusetts plans to implement an E Pro Se application soon. Woodward added that having E Pro Se on-line is expected to increase its use. “I anticipate we may see 30 to 40 to 50 cases per year,” he said. “We are publicizing its availability with brochures that have been distributed, among other places, to all St. Louis public libraries.”
E Pro Se is just one of several initiatives aimed at making federal courts more accessible to those members of the public who pursue civil claims without the benefit of an attorney. Navigating the federal court system can be a daunting task for the non-lawyer, and courts have long used various methods to make the process more user-friendly. Some examples: • The U.S. District Court for the Central District of California last year opened a Pro Se Clinic funded and staffed by an international private law firm and a public interest law firm. It is staffed by two lawyers and is managed by the public interest law firm. • The U.S. District Court for the Northern District of Illinois for several years has operated a “help desk” where non-lawyers can get advice from a volunteer attorney. • The U.S. Bankruptcy Court for the District of Arizona sponsors a “self-help center” where members of its clerk’s staff take turns offering assistance to non-lawyers.
Supreme Court Website Gets New Look, New URL Visitors looking for the Supreme Court’s public website will find an updated, more user-friendly website at a new url: supremecourt.gov. Last month the Court took over hosting its website from the Government Printing Office and made a few changes to the site. The transition will help the Court integrate the website with the Court’s other operations, improve the quality of the site, and expand services to the public.
Unchanged: on-line access to the court’s slip opinions, orders, oral argument transcripts, schedules, Court rules, bar admission forms, and other familiar information. New: enhanced search capabilities, an interactive argument calendar, improved graphics, and additional historic information. Additional updates and expansion to Court website features are planned. The Third Branch
I NTERV I EW continued from page 1 Law Institute. In the globalization of our business and the opportunities presented by advancing technologies, the commission will address the ethical and regulatory issues affecting all practice areas and demographics.
At its mid-year meeting the ABA made several recommendations, one of which was to restore federal judicial review of immigration decisions that was limited by legislation enacted in 1996. Why is such review important?
The immigration courts are overburdened, with nearly 300,000 proceedings per year, and the majority of litigants do not have legal representation. Access to the courts is an essential feature of our system of government, and judicial review has been important in protecting immigrants’ rights and civil liberties and correcting improper execution of the immigration laws. As noted, legislation was enacted in 1996 and 2005 to significantly narrow the scope of federal judicial review of immigration decisions. These restrictions on federal judicial review are exceptional in scope and establish a dangerous precedent for unreviewable government actions. As such, they are incompatible with the basic principles on which this nation’s legal system was founded. The U.S. Supreme Court has limited the reach of some of these jurisdictional preclusions and, consequently, there is now a labyrinth of case law construing the exceptions—and constitutionally required carve-outs to these exceptions—to judicial review of removal orders. As a result, the courts of appeals must now spend an inordinate amount of time determining the scope of their own jurisdiction, and there is a split
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among the circuits on some of these issues. Restoring the law as it existed prior to 1996 will provide clarity for, and consistency among, the federal courts, and will help ensure fair and just decisions for noncitizens. The ABA is cognizant of the impact that the increased number of immigration appeals has had on our federal courts in recent years. While we share the concerns about the caseload burden, we do not believe precluding review is the appropriate response—and, in any case, has proved to be ineffective. Therefore, we have also adopted a series of recommendations to reform and improve the immigration removal adjudication process to ensure that only those cases that necessitate further review will reach the federal courts.
The improvement of indigent defense was the subject of an ABA summit where it was noted that lack of funding for indigent defense at the state level is a problem. Is there a similar problem at the federal level? And what is your reaction to a proposal to create an office of public counsel within the U.S. Department of Justice?
Nearly 50 years after the U.S. Supreme Court, in Gideon v. Wainright, recognized the right to counsel as “fundamental and essential to fair trials,”1 indigent defense services in the United States remain in a perpetual state of crisis. Many states are unwilling or unable to adequately fund and administer indigent defense delivery systems. The inevitable consequence is the conviction of innocent people. Wrongful convictions not only unjustly deprive people of their
Carolyn Lamm, ABA President
liberty, but also risk public safety by allowing the real perpetrators to remain free. In the federal system, there has been more progress and the quality of representation for indigent defendants is generally of high quality. Money is always an issue, however, particularly with respect to the hourly rate paid to panel attorneys, who handle a significant number of the cases. There has been, however, support by each of the several successive presidents for increasing the rates to help recruit and retain qualified panel attorneys. Still there is much to be done. In this context it is welcome news that Laurence H. Tribe, a Harvard Law School professor, has been hired by the Attorney General to lead a new “access to justice” initiative to improve legal services for poor defendants across the country. The ABA stands ready to contribute to the success of this promising initiative.
The ABA also weighed in on cost-of-living adjustments for federal judges. Can you tell us about the association’s recommendation? This is, of course, of great concern to federal judges; but why does the ABA think judicial pay is important?
The new policy, adopted this February, supplements our existing judicial pay policies. It urges Congress to adopt a new mechanism for calculating and providing judges with regular cost-of-living adjustments (COLAs). Under it, judges would be entitled to annual, automatic COLAs equal to the overall average percentage increase in pay given to federal employees compensated under the General Schedule. Their annual COLAs are determined by an acrossthe-board base pay adjustment and an additional adjustment based on the cost of employment in the particular locality where they work. To adapt this for use by the Judiciary, the proposed COLA would be comprised of the GS across-the-board base pay adjustment and the national average of their locality pay adjustment. Delinking judicial COLAs from congressional COLAs and linking them instead to General Schedule COLAs, coupled with the repeal of Section 140, would ensure the Judiciary more robust annual and automatic salary adjustments—a small but vital and achievable step that will improve judicial pay and prevent future salary erosion, which will help to attract the stellar attorneys from all segments of the legal profession to the bench.
You have focused on several issues during your tenure, among them, diversity. How do you encourage diversity in the legal profession—and by extension, on the federal bench?
Diversity in the legal profession, including the Judiciary, is a core goal of the American Bar Association and is key to securing meaningful justice for all Americans. We’ve made great strides, but unfortunately we
lag behind in diversifying the profession and the bench. Approximately 26 percent of state court judges are women and about one-quarter of federal district and circuit court judges are women. And we have only two female justices on the U.S. Supreme Court. Racial and ethnic minorities make up approximately one-third of the U.S. population, but they represent only about 10 percent of the lawyer population and less than l6 percent of all judges in the United States. Our lack of diversity runs counter to the promise of fairness and equality that is our profession’s bedrock, depriving the community of a bench that reflects the community and of legal advice that is a product of diverse views. The ABA’s Presidential Diversity Commission recently released “The Next Steps,” a report that opens with a powerful statement for encouraging diversity on the bench: “Without a diverse bench and bar, the rule of law is weakened as the people see and come to distrust their exclusion from the mechanisms of justice.” Building a more diverse profession is not a quick-fix, short-term goal. It takes work on everything from expanding the pipeline to the legal profession, to expanding opportunities for women and minority lawyers, to ensuring that all Americans have access to justice. We are committed to seeing a U.S. Supreme Court that reflects our population and a profession in which each lawyer, no matter what his or her gender, racial or ethnic background, sexual orientation, or disability, has the opportunity to achieve all that he or she is capable of.
How would you describe the ABA’s current involvement in the review of judicial nominees?
How do judicial vacancies affect your constituents?
In 2009, the American Bar Association Standing Committee on the Federal Judiciary resumed its long-standing practice of providing the White House with the committee’s evaluation of the professional qualifications of each prospective nominee to a lower federal court in advance of the President making a nomination. The committee’s objective is to provide a thorough, impartial and confidential peer review of the professional qualifications of each prospective judicial nominee. If the president decides to make the nomination, the committee submits its final rating to the White House, the Senate Judiciary Committee and the U.S. Department of Justice to assist in the confirmation process. The committee’s performance of its unique role in the evaluation process helps ensure that the most qualified persons serve on the federal Judiciary. The ABA is concerned about the high judicial vacancy rate, which has hovered above 10 percent for several months. Such a large number of vacancies deprives the federal Judiciary of the judges needed to resolve disputes in a timely fashion. Vacancies, of course, affect courts differently. In jurisdictions such as the Eastern District of California, where caseloads are so high that additional new judgeships are needed, long-standing vacancies produce judicial emergencies and result in significant delays in the civil docket. Reducing the vacancy rate will require a concerted and sustained effort. We have renewed our call for the Obama
See Interview on page 12
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I NTERV I EW continued from page 11 administration and the Senate to make the judicial nomination and confirmation process a priority.
In March 2009, the Judicial Conference advised all federal courts to review attorney admission policies to address an incident of a phony lawyer practicing in federal courts. Is the ABA concerned about such “phony” lawyers and, if so, how does the ABA address the problem? The protection of the public from harm arising from incompetent and unethical conduct by persons providing legal or law-related services is a concern of the legal profession. In August 2003, the ABA adopted as association policy the recommendation of the Task Force on the Model Definition of the Practice of Law that each state and territory should deter-
mine who may provide services that are included within the state’s or territory’s definition of the practice of law and under what circumstances, based upon the potential harm and benefit to the public. The determination should include consideration of minimum qualifications, competence and accountability. In addition, the ABA has established a system of assigning a universal identification number to each licensed lawyer. On-line access to the data bank is now available so that federal courts may check to see if lawyers practicing or seeking to practice in their courts have been disbarred or suspended elsewhere. For access to the data bank, the federal courts should contact Ruth Woodruff at 312/988-5299 or WoodrufR@staff.abanet.org. 1
372 U.S. 335 (1963).
Earthquake, continued from page 2
Initially, power was out to a three block section. Several apartment complexes were evacuated because of structural damage. In the days following the earthquake, Linarez said there have been hundreds of aftershocks; the previous night, four had been strong enough to wake him. Asked how this earthquake compares to past experiences, he said, “Last year we had a lot of little shakes, but there has been nothing like this.”
The earthquake’s tremors damaged furniture and cracked walls in the El Centro Courthouse.