THIRDNewsletter

of the

Federal

Courts

Vol. 39

Number 9

September 2007BRANCH

INSIDE

THE

Knowledge Key to Appreciation of Judiciary ...................... pg. 3 2007 Director’s Awards .............................................................. pg. 4Concerns Raised About Proposed Regulations ................... pg. 9 See Green on page 6

See New Leadership on page 2

See Report on page 2

How Green is My Courthouse?

What makes a courthouse green? Is it the bike rack out front or the building occupant’s recycling program inside? Actually, both are part of a green courthouse, but they only scratch the surface.

The General Services Administra-tion, builder of federal courthouses, requires that all new construction

New Leadership Named on Conference Committees

The terms of two Judicial Confer-ence committee chairs have been extended, and eight new committee chairs have been appointed by Chief Justice John Roberts, Jr.

Judge Gordon J. Quist (W.D. Mich.), chair of the Committee on Codes of Conduct, and Judge Ralph K. Winter, Jr. (2nd Cir.), chair of the Committee on Judicial Conduct and Disability, were reappointed to serve as chairs of their committees for an additional year.

Six new committee chairs begin their terms on October 1, 2007. Judge Barbara M. G. Lynn (N.D. Tex.) will chair the Committee on the Administration of the Bankruptcy

System, succeeding Judge Marjorie O. Rendell (3rd Cir.). Judge Janet C. Hall (D. Conn.) is the new chair of the Committee on Federal-State Juris-diction, succeeding Judge Howard D. McKibben (D. Nev.). Chief Judge George Z. Singal (D. Me.) has been named chair of the Committee on Judicial Resources, succeeding Judge W. Royal Furgeson, Jr. (W.D. Tex.). Judge Laura Taylor Swain (S.D. NY) chairs the Advisory Committee on Bankruptcy Rules, succeeding Judge Thomas S. Zilly (W.D. Wash.). Judge Richard C. Tallman (9th Cir.) has been named chair of the Advi-sory Committee on Criminal Rules, succeeding Judge Susan C. Bucklew

Judge Barbara M. G. Lynn

Judge Janet C. Hall

Chief Judge George Z. Singal

Judge Laura Taylor Swain

Conference Adopts Recommendations On Law Clerks

The Judicial Conference voted at its September meeting to continue implementing its cost-containment program by adopting a series of recommendations relating to law clerks and the Judiciary’s Court Personnel System in general. At its September 2004 session the Judi-cial Conference adopted a sweeping cost-containment strategy to help courts cope with projected funding shortfalls. In the last three years, steps have been taken to reduce the costs of courthouse rent, information

The Third Branch n September 2007

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New Leadership continued from page 1 Conference continued from page 1

(M.D. Fla.). Chief Judge Robert L. Hinkle (N.D. Fla.) succeeds Judge Jerry E. Smith (5th Cir.) as chair of the Advisory Committee on the Rules of Evidence.

Two judges began their terms as new committee chairs on July 1, 2007. Judge Lee H. Rosenthal (S.D. Tex.) succeeded Judge David F. Levi (E.D. Calif.) as chair of the Committee on Rules of Prac-tice and Procedure. Judge Mark R. Kravitz (D. Conn.) succeeded Judge Rosenthal as chair of the Advisory Committee on Civil Rules.

Appointments to Judicial Confer-ence committees are made by the Chief Justice. With the exception of the Executive, Judicial Branch, and Budget Committees, committee chairs usually serve for a term of three years. Six years of cumulative committee service usually is consid-ered the maximum a member may serve.

Judge Richard C. Tallman

Judge Lee H. Rosenthal

Judge Robert L. Hinkle

Judge Mark R. Kravitz

technology, probation and pretrial services, and several other Judiciary programs.

Continuing its cost-contain-ment effort, the Conference agreed to modernize its Court Personnel System benchmarks, which will affect the classification and grading of staff positions nationwide. It also voted to give local courts greater autonomy in managing and paying their personnel, and to develop national performance guidelines for local implementation.

With regard to law clerks, the Conference agreed that each judge will be limited to one career law clerk. Those 291 career law clerks now in chambers where more than one career law clerk is employed will be able to retain their career status in those chambers, with the assent of their judge, or with another judge if their judge dies, retires, resigns or is otherwise unable to retain a law clerk. Most federal law clerks are “term” clerks and typically serve one or two years. “Career” law clerks are expected to serve four or more years. This new policy limits a term law clerk’s term of employment to no more than four years, to be applied prospectively for current term law clerks. Another step replaces law clerk salary matching with a system aimed at achieving salary parity between those law clerks who gain their work experience within the Judi-ciary and those who gain their expe-rience outside the Judiciary.

The Conference also voted to make transcripts of federal district and bankruptcy court proceedings available online through the Judi-ciary’s Public Access to Court Elec-tronic Records (PACER) system.

Under the new policy, transcripts created by court reporters or tran-scribers will be available for inspec-tion and copying in a clerk of court’s office and for download from PACER 90 days after they are deliv-ered to the clerk. Individuals will be

able to view, download, or print a copy of a transcript from PACER for eight cents per page.

During the initial 90-day period, transcripts will be available at the clerk’s office for inspection only, or may be purchased from the court reporter or transcriber.

Implementation of the Case Management/Electronic Case Files (CM/ECF) system over the past decade has allowed remote elec-tronic access to most federal case files. The only type of court docu-ment not yet publicly available online nationwide has been the tran-script of court proceedings.

In other matters, the Conference:

•Approvedestablishmentofajoint pilot project in which the Government Printing Office and the Administrative Office of the U.S. Courts will provide free PACER access to the public at approximately 15 federal depository libraries.

•Encourageddistrictcourtstoexamine how jurors are sum-moned and to consider adopting changes, if local circumstances permit, regarding how long jurors are on call or how frequently they are required to serve, so as to make their service on juries less burdensome.

•Votedtoseekanamendmentin federal law to increase from $1,000 to $5,000 the maximum civil penalty for employers who retaliate against employees serving on jury duty.

•DirectedthevariousCircuitJudicial Councils to continue implementation of the recom-mendations of the Judicial Con-duct and Disability Act Study Committee, which was chaired by Justice Stephen Breyer by, 1) encouraging the courts in their respective circuits to create com-mittees of local lawyers to serve as intermediaries between indi-vidual lawyers and the formal

The Third Branch n September 2007

Report: Supreme Court Knowledge Linked to Knowing Judiciary’s RoleThe report faults the “flawed

measures and procedures” of surveys that have attempted to gauge the public’s knowledge of law and the courts. “The use of open-ended questions leads to a serious and substantial under-estimation of the extent to which ordinary people know about law and courts,” it says.

In two surveys of their own, conducted in 2001 and 2005, the professors asked Americans three questions about the Supreme Court: How justices are selected, the length of their terms, and which institution has the “last say” when it comes to interpreting the Constitution.

“Remarkably, large percent-ages of Americans correctly answer these questions about the Court,” the report says. In 2001, nearly three out of four Americans knew that the justices of the Court were appointed; and, despite having to choose from among the Court, the Congress, and the President, more than 60 percent asserted that the Supreme Court has

the ultimate “say” on the Constitu-tion. Only 13.6 percent of the respon-dents got none of these questions correct; 44 percent answered all three accurately.

“These data,” the report says, “suggest that Americans are far more knowledgeable about the Supreme Court than many scholars and commentators suggest or imply.”

The report draws a line from such knowledge to views about courts in general. “Those most knowledgeable are less likely to assert that judges’ values and political views are unim-portant . . . Only 32.2 percent assert that the judges’ political views are irrelevant to decision making. But they are also much more likely to reject the idea that judges are nothing more than politicians in robes,” the report says.

To read an abstract of the report and learn how to access the report, go to http://papers.ssrn.com/sol13/papers.cfm?abstract_id=956562.

Americans are more likely to know and appreciate the Judicia-ry’s role as their knowledge of the U.S. Supreme Court increases, two political science professors have concluded in a report issued earlier this year.

Commenting on data from various national surveys, James L. Gibson of Washington University in St. Louis and Gregory A. Caldeira of Ohio State University said, “Most significant, those with the highest level of knowl-edge are those who distinguish the most between the Judiciary and other political institutions.”

Their report adds: “To know more about the courts may not be to love them, but to know them is to think that they are different from other political institutions (and often there-fore more worthy of trust, respect, and legitimacy). We contend that this process is one of social learning whereby citizens come to understand and appreciate the role of the Judiciary in the American political system.”

3

Chief Judge Robert L. Hinkle (N.D. Fla.), Judge Lee H. Rosenthal (S.D. Tex.) and Chief Judge Thomas F. Hogan (D.D.C.)

Judge Roger L. Gregory (4th Cir.) and Judge Carl E. Stewart (5th Cir.)

Judge Robert H. Henry (10th Cir.), Judge W. Royal Furgeson (W.D. Tex.), AO Director James C. Duff

complaint process; 2) requiring all courts covered by the Judicial Conduct and Disability Act to provide information about filing a complaint on the homepage of the court website and take other steps to publicize the Act; and 3) ensuring the submission of

timely and accurate statistical information about complaint filing and terminations. This summer the Judicial Confer-ence’s Committee on Judicial Conduct and Disability released its draft Rules Governing Judi-cial Conduct and Disability Pro-

ceedings for 90 days of public comment to conclude October 15, 2007. The Committee held a public hearing regarding the draft rules on September 27, 2007, at the U.S. Courthouse in Brooklyn.

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2007 Director’s Awards Recognize Work of Judiciary EmployeesAn outstanding group of federal court employees has been recognized with the 2007 Director’s Awards. The annual awards are

given in the categories of leadership, excellence in court operations, and extraordinary actions.“I admire the dedication shown by each of the 2007 winners,” Administrative Office Director James C. Duff said. “Their enter-

prise and creativity are what make the federal court system work.”

2007 Director’s Award for Outstanding Leadership

The 2007 Director’s Award for Outstanding Leadership recognizes managerial employees who have contributed their leadership skills on a national level.

Michael W. Dobbins, clerk of court for the U.S. District Court for the Northern District of Illi-nois, received the 2007 award for his “vision, leadership, and accom-plishments” in leading national endeavors to improve the federal Judiciary. Dobbins directed the implementation of a software

program that electronically reads judges’ financial disclosure reports into the Case Management/Elec-tronic Case Files (CM/ECF) financial conflict checking program, saving time and effort. His resourceful updating of the court’s facilities led to his participation at Harvard’s “New American Courthouse” seminar. He improved services to the public, with enhanced customer service training for employees, expanded hours of operation, and a drop box. He facilitated the court’s transition from manual to manda-tory e-filing, developed a pro-se self-help assistance program, led an initiative to develop and execute an online personnel program for court employees, and directed the devel-opment of an online job applica-

tion program, among many other achievements. “His leadership in assisting our court and other courts across the country to engage in efforts to save money and to improve services,” wrote Chief Judge James F. Holderman, “has brought our court in 2006 to new levels of effi-ciency, conservation and cutting-edge services.”

Kenneth S. Gardner, clerk of court for the U.S. Bankruptcy Court for the Northern District of Illinois, received the 2007 award for leader-ship in a number of areas. Gardner chaired the Administrative Office’s Bankruptcy Clerk’s Advisory Group,

which assisted the AO as the courts dealt with the changes required by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. He currently serves as the presi-dent of the National Conference of Bankruptcy Clerks, and has served on the AO’s Court Compensation Study, Human Resources Advisory Council, and Ad Hoc Committee on Bankruptcy Staffing. He has been an able administrator of resources and manager of people and has improved court service to the public, creating customer surveys, a pro-se help desk, and a user-friendly website. He has provided employees with

opportunities for personal devel-opment, a program of tuition reim-bursements, and feedback on their work strengths. His “Bright Idea” program has, for example, resulted in a new procedure for maintaining computer hard drives. “I have seen Ken implement, in countless ways, his vision of the court as an orga-nization that provides service of high quality through committed employees,” Chief Bankruptcy Judge Eugene Wedoff wrote. “Ken’s leadership, both locally and nation-ally, has indeed been outstanding.”

Gary H. Wente, Circuit Execu-tive for the First Circuit Court of Appeals, won the 2007 leadership award for demonstrating “an unpar-alleled commitment to the Judiciary on both local and national levels,” wrote Chief Judge Michael Boudin. “On a national level, in 2006, Gary took a leading role in many AO committees, working groups and advisory groups, incorporating the full spectrum of administrative work, budget, personnel, space and

facilities and automation,” Boudin said. Wente served on the Budget and Finance Advisory Council, the FAS4T working group, the Informa-tion Technology Systems Delivery Alternatives Group, the Appel-late Council Advisory Group, and the Rent Cap Advisory Group.

Michael W. Dobbins

Kenneth S. Gardner

Gary H. Wente

The Third Branch n September 2007

5See Director’s Award on page 6

U.S. Pretrial Services Office for the District of New Jersey.

The team has worked collabora-tively on many projects over the past three years. The most recent was the development of the Kiosk-based reporting system for defendants and offenders. The system utilizes fingerprint biometrics to authenticate the reporting defendant/offender’s identity and access his/her case file information from the Probation and Pretrial Services Automated Case Tracking System (PACTS) database. Automated reporting forms can be completed on a touch-screen system, and the responses are automatically uploaded to the PACTS chronolog-ical notes database. This streamlines the reporting process, permitting the officer to spend more time inter-acting with the defendant/offender and less time keying in informa-tion. The Kiosk system is currently used by over 1,000 defendants and offenders in three offices in the two test districts of New Jersey and the Central District of California. It is available for use by all federal court districts. The cost of the project was only $65,000 and has resulted in an application for national use.

Karen Hillebrand, judicial secre-tary in the U.S. District Court for the Eastern District of Michigan, received the Director’s Award for Excellence in Court Operations: Court Support. As her court began its transition to the CM/ECF system, Hillebrand

designed a training program and developed a manual with step-by-step instructions on the system for case managers, law clerks, and judi-

cial officers. She arranged for classes on forms development, which were critical to the implementation of CM/ECF, and has subsequently created more than 25 forms, greatly increasing the efficiency of the dock-eting staff and case managers in chambers. When it became neces-sary to reassign cases to create case-loads for judges, Hillebrand created a customized CM/ECF notice form that reduced to two days a process that normally took several weeks. Staff were able to docket 700 notices of reassignment, without the need to scan, copy, or mail the notice. She transformed prisoner civil rights and habeas forms into PDF-format forms that can be reviewed and processed on-line. Annually, more than 3,500 documents are generated associated with prisoner case processing. The revamped process eliminates redun-dancy, and reduces processing steps, as well as printing and copying costs.

Marc Pearce, law clerk to Judge Warren K. Urbom, U.S. District Court for the District of Nebraska, was recognized with a Director’s Award for Excellence in Court Operations: Mission Requirements. He success-fully developed a disaster manage-ment program for the District of

Nebraska’s district and bankruptcy courts. Pearce’s work as chair of a Continuity of Operations subcom-mittee led to an in-depth analysis of avian flu-related issues and a plan for chambers’ response in the event of a pandemic. His report’s recommenda-tions and plans were subsequently adopted by the Nebraska Judicial Council, and they also are being used

He has led efforts to enhance effi-ciency, reduce costs, and consolidate resources. Recognizing the issue of elevated General Services Adminis-tration (GSA) rent charges, he was one of the first to initiate a survey of market rents, and he spearheaded efforts for GSA reappraisals, which resulted in rebates in First Circuit courthouses. He led efforts with district courts in the circuit to pool resources. “It is a given that he runs our circuit with unflawed efficiency,” Boudin noted.

Director’s Award for Excellence in Court Operations

The Director’s Award for Excel-lence in Court Operations recognizes achievements in operating with economy and efficiency, innovations that improve service, or programs that enhance the public’s awareness of the Judiciary. The 2007 winners were recognized within this category for excellence in court technology, court support, and mission requirements.

A five-person team from the Central District of California and the District of New Jersey won a 2007 Director’s Award for excellence in court operations: Court Technology. From the Central District of Cali-fornia, they are Luis Dimagiba, director of Information Technology in the U.S. Pretrial Services Office, and Jonivonn B. DeGuzman, director of Information Technology, systems manager Nam Q. Huynh, and automation programmer Dzung B. Pham from the U.S. Probation Office. Award-winning systems manager Wallace Johnson is in the

Front: Jonivonn B. DeGuzman, Nam Q. Huynh, Dzung P. Pham Back: Wallace Johnson, Luis Dimagiba

Karen Hillebrand

Marc Pearce

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Green continued from page 1Director’s Award continued from page 5

projects and substantial renovations be certified through the Leadership in Energy and Environmental Design (LEED®) Green Building Rating System of the U.S. Green Building Council. To be LEED certified, proj-ects must meet certain prerequisites and are awarded points for meeting additional requirements. The more points, the higher the projects are rated, from the minimum Certified

rating up to Silver, Gold, or Platinum. Currently, the Byron G. Rogers U.S. Courthouse in Denver, Colorado, and the Wayne L. Morse U.S. Court-house in Eugene, Oregon, are rated LEED Gold. The Howard M. Metzen-baum U.S. Courthouse in Cleveland, Ohio, and the Frank J. Battisti and Nathaniel R. Jones Federal Building and U.S. Courthouse in Youngstown, Ohio, are LEED Certified.

“For a courthouse to be LEED certi-fied,” explains GSA’s Don Horn, “it means taking a very comprehensive—a holistic view—of the building and reducing the building’s environmental impact.” Horn, an architect, is part of GSA’s Build Green team, and trains GSA and other agency employees nationwide in sustainable design.

For Horn, going green in the court-house begins with a building’s site

by the Administrative Office’s Judi-ciary Emergency Preparedness Office to frame the scope of a pandemic response template. Pearce is now a member of the Nebraska COOP Disaster Management Team and serves as a successor disaster manager.

Director’s Award for Extraordinary ActionsThe Director’s Award for Extraor-

dinary Actions recognizes Judiciary employees who have responded in an outstanding manner to emergen-cies and other critical situations, exhibiting bravery and concern for others, displaying creativity and resourcefulness, and ensuring that the Judiciary’s mission is met during an adverse or critical situation.

U.S. Probation Officers Michael Pentangelo and Eric D. Odegard, from the District of Alaska, received the 2007 Director’s Award for Extraordinary Actions for their persistence and professionalism in tracking down and assisting an

offender with a history of depres-sions and suicidal tendencies. The offender had threatened to commit suicide after failing to show up for drug testing. Armed only with the Internet routing address from an email, Officers Pentangelo and Odegard worked tirelessly with two telecommunications carriers and local law enforcement authorities to locate the offender in San Francisco, California, where he was taken into custody.

orientation. “Proper orientation of the building makes good use of natural light and shade, and can save 30 percent on a build-ing’s energy costs,” he says. “Also, a location near mass transit and within an area of building density makes use of existing utilities—water, sewer, and the power grid—reducing sprawl and strengthening urban cores.” A green courthouse also may take

advantage of locally manufac-tured materials, incorporate low-maintenance landscaping, and go green in its housekeeping.

The new Wayne L. Morse U.S. Courthouse in Eugene, Oregon, is within a half-mile of a public rail station and a quarter-mile of two established bus routes. Thirty-one percent of the courthouse’s total building materials (by cost) were manufactured within 500 miles of the project site. Using regionally-produced materials helps the local economy and cuts transportation costs.

Sixty percent of the area around the courthouse has been planted with native or adaptive species

Byron G. Rogers U.S. Courthouse

Michael Pentangelo and Eric D. Odegard

The Third Branch n September 2007

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that require little to no water or maintenance. Half of the on-site parking is underground. “Imper-vious surfaces, such as open parking lots, allow rainwater to run off, taking oil and chemical residues into the watershed,” explains Horn. The Eugene courthouse project reduced the storm water runoff rate by 31 percent from predevelopment condi-tions.

“You know that new furni-ture smell?” Horn asks. “It really shouldn’t smell like that inside a building. We work for low emis-sions or to eliminate emissions completely.” Inside the Wayne L. Morse Courthouse, as in most LEED-rated courthouses, low-emit-ting adhesives, sealants, paints, and carpets are used. Under LEED energy standards, the courthouse is 38 percent more energy efficient than baseline buildings following basic energy efficiency standards. Energy efficiency measures incorporated into the building design include high efficiency lighting with day-lighting controls, under-floor air distribu-tion with radiant heating, and high efficiency chillers and condensing boilers.

It’s not just new buildings that are going green. In Denver, Colorado, the Byron G. Rogers U.S. Courthouse earned a LEED Gold rating for the renovation of its 1960s-era building.

The court encourages use of nearby public transportation, placed half of its parking underground, has

planted over half of its open spaces, and uses 100 percent green power, earning a top Energy Star rating.

Even housekeeping hasn’t been overlooked. “Green housekeeping,” Horn explains, “is not using toxic cleaners so

you’re not introducing hazardous chemicals into the air people breathe. Because most pollutants are tracked in on people’s feet, keeping pollut-ants out can be as easy as using walk-off mats at the door.” Green housekeeping at the Byron Rogers courthouse means isolating large volume copiers and printers, and using disposable paper products (with 100% recycled content and manufactured without the addi-tional use of chlorine or chlorine compounds) and low environmental impact cleaning fluid.

The Howard M. Metzenbaum U.S. Courthouse in Cleveland, Ohio, is one of the first historic projects in Ohio to receive LEED certification. More than 55 percent of the mate-rials stripped from the Metzenbaum Courthouse during renovation—more than 5,400 tons of materials—were diverted from landfill and recycled. Existing glazed brick in the atrium was salvaged for re-use. An ornamental plaster ceiling was discovered and refurbished, along with two existing elevators, hard-ware, wood trim, ornamental grilles, and historic chandeliers in the main lobby and courtrooms. New mate-rials that incorporated recycled mate-rials were specified for use in the project.

In Denver, the Alfred A. Arraj U.S. Courthouse, built in 2002, is a candi-date for a LEED Gold rating. Judge Lewis T. Babcock (D. Colo.) has been part of the planning and construction of the courthouse from the begin-

ning. LEED certification always has been a goal. The courthouse is near good public transportation, low emission interior finishes were selected, wood finishes came from sustainable sources, and even the steel used in the construction was recycled.

Architecture also was part of the green equation. “Because we designed-in extra height between floors, we were able to intro-duce natural light into 75 percent of the building,” says Babcock. Natural light brightens public corri-dors oriented along a southeast axis, and light shelves or louvers bounce daylight into chambers, administrative space, and court-rooms. “Bringing in natural light not only reduces energy drain,” says Babcock, “it increases human comfort. With that in mind, all our jury deliberation suites are on the exterior of the building where they can have natural light.” The added height between floors also allowed an under-floor ventilation system from which air rises naturally to be cleaned and recycled. Court-room floors are capped with cork, a renewable resource, and all lava-tories are low water consumption. Roof-mounted photovoltaic panels were designed to contribute up to 6 percent of the building’s energy needs. The plaza and walkways around the building are native sand-stone set into sand, so runoff water is absorbed. Native plants have been used wherever possible.

“It is a healthy building,” says Babcock. “Making it green was a real challenge because courthouses are unique buildings. And while it’s hard to quantify the human impact of going green, I’d like to think that it’s also cost effective over the life of the courthouse.”

Alfred A. Arraj U.S. Courthouse

The Third Branch n September 2007

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THE

THIRD BRANCH

Published monthly by theAdministrative Office of the U.S. Courts

Office of Public AffairsOne Columbus Circle, N.E.

Washington, D.C. 20544(202) 502-2600

VisitourInternetsiteat http://www.uscourts.gov

DIRECTORJames C. Duff

EDITOR-IN-CHIEFDavid A. Sellers

MANAGING EDITORKaren E. Redmond

CONTRIBUTORDick Carelli

PRODUCTIONLinda Stanton

Please direct all inquiries and address changes to The Third Branch at the above address or to Karen_Redmond@ao.uscourts.gov.

JUDICIAL BOXSCORE

J U D I C I A L M I L E S T O N E S

As of September 1, 2007

Courts of Appeals

Vacancies 16Nominees 8

District Courts

Vacancies 33 Nominees 17

Courts with“Judicial Emergencies” 18

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

Appointed: Vanessa Lynne Bryant, as U.S. District Judge, U.S. District Court for the District of Connecticut, April 3, previously reported entrance-on-duty date as April 16.

Appointed: Timothy D. DeGiusti, as U.S. District Judge, U.S. District Court for the Western District of Oklahoma, August 9.

Appointed: Janet T. Neff, as U.S. District Judge, U.S. District Court for the Western District of Michigan, August 6.

Appointed: Richard J. Sullivan, as U.S. District Judge, U.S. District Court for the Southern District of New York, August 6.

Appointed: Susan E. Cox, as U.S. Magistrate Judge, U.S. District Court for the Northern District of Illinois, August 27.

Appointed: Craig M. McKee, as part-time U.S. Magistrate Judge, U.S. District Court for the Southern District of Indiana, August 23

Appointed: Kristen L. Mix, as U.S. Magistrate Judge, U.S. District Court for the District of Colorado, August 6.

Appointed: Robin S. Rosenbaum, as U.S. Magistrate Judge, U.S. District Court for the Southern District of Florida, September 4.

Appointed: Leonard P. Stark, as U.S. Magistrate Judge, U.S. District Court for the District Delaware, August 6.

Elevated: U.S. District Judge Joseph R. Goodwin, to Chief Judge, U.S. District Court for the Southern DistrictofWestVirginia,succeedingU.S. District Judge David A. Faber, August 1.

Elevated: U.S. District Judge Michael P. Mills, to Chief Judge, U.S. District Court for the Northern District of Mississippi, succeeding U.S. District Judge Glen H. Davidson, June 2.

Elevated: U.S. District Judge David C. Norton, to Chief Judge, U.S. District Court for the District of South Carolina, succeeding U.S. District Judge Joseph F. Anderson, Jr., October 1.

Elevated: U.S. Bankruptcy Judge Carol A. Doyle, to Chief Judge, U.S. Bankruptcy Court for the Northern District of Illinois, succeeding U.S. Bankruptcy Judge Eugene R. Wedoff, July 1.

Senior Status: U.S. District Judge Napoleon A. Jones, Jr., U.S. District Court for the Southern District of California, September 19.

Senior Status: U.S. Court of Appeals Judge H. Emory Widener, Jr., U.S. Court of Appeals for the Fourth Circuit, July 17.

Retired: U.S. Senior District Judge Ralph G. Thompson, U.S. District Court for the Western District of Oklahoma, August 6.

Retired: U.S. Bankruptcy Judge Stan Bernstein, U.S. Bankruptcy Court for the Eastern District of New York, July 31.

Resigned: Part-time U.S. Magis-trate Judge Marion C. Ruffing, U.S. District Court for the District of Hawaii, August 10.

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

The Third Branch n September 2007

9

federal courts. The USA PATRIOT Improvement and Reauthorization Act of 2005 (Pub. L. No. 109-174) shifted the certification determina-tion from the federal Judiciary to the Attorney General of the United States, subject to de novo review in the U.S. Court of Appeals for the District of Columbia Circuit. The proposed regulations issued by DOJ in June 2007 seek to implement the provisions of the PATRIOT Reautho-rization Act.

In its letter, the Conference urged DOJ to revise the proposed regula-tions to provide definitions of “stan-dards of competency,” “compe-tent counsel,” “compensation of appointed counsel,” and “reasonable litigation expenses.” The Conference noted that “[s]uch definitions are needed to provide guidance, criteria, or other notice of what a state must do to satisfy the statutory or regula-tory requirements.”

The letter stated that “[t]he absence of specific competency standards makes it unclear what is required of the states to qualify and provides no guidance about the criteria to be considered by the decision-maker, thereby opening the door to certification in cases where a state has not in fact provided counsel services sufficient to enable federal court litigation to proceed fairly within the expedited time period.” The letter also noted that “[d]ecisions to certify states for procedural bene-fits will have a substantial impact on the Federal Judiciary.”

The prescribed time restrictions for processing capital habeas cases will place a significant burden on the federal courts, not only for the habeas cases in question, but also for the entire criminal and civil dockets of the courts, which must give prece-dence to the capital habeas cases.

Judiciary Expresses Concerns About Proposed Regulations Regarding Capital Cases

Under the Criminal Justice Act, the federal Judiciary bears enor-mous costs associated with the repre-sentation of state death-sentenced defendants in federal court. When states fail to provide reasonably compensated, competent counsel, or reasonable litigation expenses, the attorney appointed in the federal habeas proceeding is required to perform work that should have been performed in state court, dramati-cally driving up the cost of federal representation.

As noted in the letter, the Judi-cial Conference has consistently supported providing competent counsel to habeas petitioners at all stages of post-conviction review in capital cases, and it has opposed restrictions that would deprive the federal courts of their traditional role in reviewing federal constitutional claims arising originally in state criminal or post-conviction proceed-ings.

The Judicial Conference has expressed concerns about proposed regulations issued by the Depart-ment of Justice for states seeking to qualify for expedited federal habeas corpus review procedures in capital cases.

Concerns about the certification-implementation regulations proposed June 6, 2007, were aired in an August 1 letter from the Conference to DOJ.

In 1996, Congress enacted Chapter 154 of the U.S. Code’s Title 28 as part of the Antiterrorism and Effective Death Penalty Act (AEDPA).

Chapter 154 provides for expe-dited procedures in federal capital habeas corpus cases when a state is able to establish that it has provided qualified, competent, adequately resourced, and adequately compen-sated counsel in state post-convic-tion proceedings to inmates facing a capital sentence.

The provisions of Chapter 154 are modeled on recommendations included in the 1989 Report of the Ad Hoc Committee on Federal Habeas Corpus in Capital Cases, which was chaired by then-retired Justice Lewis F. Powell, Jr. The Powell Committee report, which was endorsed by the Conference in 1990 with two modifi-cations, identified the failure of states to provide capital habeas petitioners with adequately funded and compe-tent counsel as a significant factor affecting the length of time it takes such cases to move through the state and federal courts.

It recommended expedited review of state death sentences conditioned on a state establishing a system for “providing competent counsel for inmates on state collateral review.”

Under the AEDPA, determina-tion of whether states were “certi-fied” for the expedited federal procedures was to be made by the

Public Comment SoughtThe federal Judiciary is seeking

comment on the privacy and secu-rity implications related to elec-tronic public access to certain documents in criminal case files.

A Judicial Conference committee is interested in comments on a proposal to restrict public Internet access to plea agreements in crim-inal cases, which may contain infor-mation identifying defendants who are cooperating with law enforce-ment investigations.

All comments are due by October 26, 2007. Background information and details on how comments can be submitted by email or through the U.S. mail can be found at http://www.privacy.uscourts.gov.

The Third Branch n September 2007

10

Judge John Gleeson (E.D. NY)

Committee Works to Assure Effective RepresentationAn Interview with Judge John Gleeson, Chair of the Judicial Conference Committee on Defender Services

Judge John Gleeson has served on the U.S. District Court for the Eastern District of New York since 1994. Prior to joining the court, he was in private practice and he also served as an assis-tant U.S. attorney from 1985 to 1994. He was named chair of the Committee on Defender Services in October 2005.

Q: What are the mission and goals of the Defender Services

program, and what role does the Committee on Defender Services play?

A: The mission, simply put, is to ensure the right to counsel and

other necessary defense services for all criminal defendants, and many habeas petitioners, who cannot afford to retain counsel. The mission is rooted directly in the Sixth Amend-ment and the Criminal Justice Act (CJA).

Our program’s four formally stated goals are to: (1) timely provide assigned counsel services to all eligible persons; (2) provide appointed counsel services (such as investigators and expert witnesses) that are consistent with the best practices of the legal profession; (3) provide cost-effective service; and (4) protect the independence of the defense function so that the rights of individual defendants are safe-guarded and enforced.

The Committee and its subcom-mittees have many roles. We work hard to assure sufficient funding and

support for federal defender organ-izations, which now operate in all but four of the 94 districts, and for CJA panel attorneys. That effort begins by making sure that the funding we already receive is spent wisely. Our purpose is to perform the critical oversight function delegated to the Committee by the Judicial Confer-ence, but we also know that rigorous oversight lends persuasiveness to any program increases we ask for. We can request additional funding from the Judiciary, and ultimately from the appropriators in Congress, only if we can demonstrate the need and provide solid assurance that there is no waste in the program as it is currently funded.

We provide input to other components of the Judiciary on proposed legislation and other policy matters affecting the interests of our program, and frequently interact with other committees and their staffs in the Administrative Office.

We review the funding for and effectiveness of AO-sponsored training programs for federal defenders and for CJA panel attorneys, always with our eye on improving the quality of representation.

We promote (and provide justifica-tion for) increases in panel attorney rates, again with a focus on quality.

Q: Nationally, are courts able to keep enough qualified attor-

neys on CJA panels?

A: No. In a series of profes-sionally-conducted surveys,

more than half the judges reported that their courts were having some difficulty finding enough qualified counsel at the then-hourly rate of $90. (It is now $94.) The same survey showed that judges saw a signifi-cant disparity between the quality of representation provided by federal defenders and that provided by

panel attorneys (93.3 percent viewed the overall quality of federal defenders as “very good” or “excellent,” compared to 71.3 percent for panel attorneys).

Our decision to commission the surveys was sparked by a specific request from Congress for data to support requests for rate increases. Some 70 percent of the panel attorneys surveyed reported that an increase in the hourly rate is needed for them to accept more noncapital CJA appointments.

The quality of representa-tion provided by panel attor-neys is inextricably linked to the adequacy of the hourly rate, and also depends upon the availability of sufficient funding for other defense services, such as inves-tigators and experts. Laypersons are often surprised to hear that, with a national law office over-head average of $64 per hour and at the current rate of $94, panel attorneys net an average of only $30 an hour before taxes.

Q: What kind of guidance or training do CJA attorneys

receive?

A: Panel attorneys are in need of both policy guid-

ance (such as what CJA funds can and can’t be used for, and rules regarding vouchers) and substan-tive legal training.

I N T E R V I E W

The Third Branch n September 2007

11See Interview on page 12

The CJA Guidelines (which include a model CJA plan) form the foundation for the national poli-cies. The Office of Defender Services (ODS) works through the 94 CJA panel attorney district representa-tives and the federal defenders (in the 90 districts served by a defender) to communicate changes in national policy guidance and to inform us as to the possible need for modifica-tions.

On the legal training side, with the approval of the Defender Services Committee, the ODS Training Branch last year spon-sored over 20 national and regional training programs, attended by close to 2,000 panel attorneys. The programs are designed to reach attorneys with varying levels of experience, and are tailored to current issues, such as law and tech-nology and forensic evidence. In addition, federal defenders spon-sored more than 300 local training programs for their panels.

A perennial problem is presented by the sheer numbers of panel attor-neys, estimated at between 12,000 and 13,000 annually nationwide. How can you reach them? Some distance learning options are being utilized, including a website main-tained by the Training Branch, and others are being explored. Resource counsel with specialized areas of expertise, such as federal death penalty and federal habeas corpus, are also available to panel attorneys.

Q: Is the Judiciary seeking an increase in the hourly rate for

panel attorneys in 2008?

A: Yes. As I mentioned earlier, the noncapital panel attorney

rate continues to be problematic, and the need for a rate increase ties in with your question regarding the availability of qualified counsel. It also implicates fairness; we should pay a rate that covers overhead and provides reasonable remuneration.

And I mean fairness not just to the panel attorneys, but to their clients. People who face the exposure the average federal defendant now faces deserve a capable and experienced criminal defense attorney, proficient in federal criminal practice.

For FY 2008, the Judiciary is requesting that Congress fund an increase in the noncapital hourly rate from $94 to $113 (and in the capital rate from $166 to $169). The $113 figure is less than the statutorily authorized level of approximately $133, and reflects the Judiciary’s recognition of likely limitations on resources.

Q: Cost containment has become the watchword throughout

the Judiciary. But how do you contain costs and also provide fair representation?

A: Our committee has a healthy respect for the need to contain

costs and for accountability. It is a bit of a balancing act, as we look for economies without compromising quality. We are ever mindful that the resources of the government in bringing prosecutions are substan-tial, to put it mildly. As a former federal prosecutor, I know that those resources are not defined by the budget of the Department of Justice, but also include support from federal, state, and local law enforce-ment agencies.

That said, our committee was engaged in cost containment even before the formal institution of cost-containment initiatives by the Execu-tive Committee. A prime example is our annual review of individual FDO budgets and grants and staffing levels and the monitoring of their spending throughout the year. In my experience, federal defenders are extremely responsible stewards of their budgets.

Another of our cost-containment efforts focuses on case budgeting. We looked at the fact that approximately

3 percent of panel attorney repre-sentations under the CJA account for approximately 33 percent of the dollars expended in panel cases. The CJA Guidelines call for judges to require attorneys to prepare budgets in federal death penalty cases, capital habeas corpus cases, and noncapital “mega-cases.”

Under a three-year pilot program that began early this year, the Second, Sixth, and Ninth Circuits have each hired a circuit case-bud-geting attorney to coordinate case-budgeting efforts throughout the circuit. The expectation is that costs will be contained because they will be considered at the outset of the case and again as necessary as the case progresses. Defense costs will be anticipated, substantiated, moni-tored, and, where appropriate, limited, before they are incurred. As another part of our case budgeting initiative, ODS has contracted with two experienced litigators to provide objective case-budgeting advice to any judge who needs it. I recom-mend the wonderful new video-tape on case-budgeting, which was expertly produced by the Federal Judicial Center in consultation with ODS. It is available on the J-Net.

In another cost-containment effort, our committee, with the support of Chief Judge Tom Hogan, chair of the Executive Committee, and Judge Paul Cassell, chair of the Criminal Law Committee, has tried hard to limit unnecessary defense costs in federal capital cases. Almost 80 percent of the cases eligible for the death penalty result in decisions by the Department of Justice not to seek capital punishment. But those deci-sions take many months, sometimes more than a year, and in the mean-time there are expensive mitiga-tion investigations, which Supreme Court case law requires defense counsel to conduct. A substantial percentage of those “no-seek” cases can be identified early in the process.

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Interview continued from page 11

We have worked with the Depart-ment in an effort to speed up its “no seek” determinations where it seems likely that the death penalty will not be sought—without prejudice to a longer, more deliberative authoriza-tion process in closer cases. We’ve made some progress in the recent revision to the Department’s death penalty protocol, but much greater progress is possible. We’ll keep pushing.

Q: In the long term, what do you see as the most challenging

issues for the Defender Services program?

A: Our biggest challenge is getting the hourly rate we pay

CJA panel attorneys in noncapital cases raised substantially. Until we do, the disparity between the quality of federal defender representation and panel attorney representation will continue to grow.

We of course have many other challenges. Our federal defenders are excellent—they are the flagship of our

program—but we cannot take that for granted. We have tightened their budgets and imposed hiring freezes on them. They can’t reasonably be expected to continue to do more with fewer resources. They need the continued support of the Judiciary and the Congress, not just for the sake of the clients the defenders represent, but for the sake of our criminal justice system.

We need to work with other components of the Judiciary to imple-ment a system for filing vouchers electronically. We need to continue our training efforts, generally and with an eye toward evening out the quality of representation provided by panel attorneys. We need the continued support of the Budget Committee and the Office of Finance and Budget in the AO in our effort to educate the members and staff of the relevant Senate and House Appropriations subcommittees about our program; our committee firmly believes that the more they know about what our program does and how it does it, the more likely we are to get the funding the Judi-

ciary requests for us. We need to partner effectively with other committees of the Judicial Confer-ence to address matters of joint concern.

There are many other chal-lenging issues, but I also think it’s important not to lose sight of where we are. Sadly, the promise of Gideon v. Wainwright has not been fulfilled by some of our state indigent defense systems. Indeed, in several respects, particularly in the capital habeas arena, our program pays a heavy price for that. But most observers of our federal program agree that it is well managed and, despite its problems, delivers the effective representation the Sixth Amend-ment guarantees. We can always do better, and we should never stop trying to do better, but the fact is, our program has become a model not just for the states, but for countries around the world. Maybe our biggest challenge is to recognize that and to do every-thing we can to keep it that way.