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Responses to Questions From Andrew D Cohen

Responses to Questions From Andrew D Cohen

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Published by cbsradionews
Chief Judge Preska's responses on sequestration, August 29, 2013.
Chief Judge Preska's responses on sequestration, August 29, 2013.

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Published by: cbsradionews on Aug 30, 2013
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09/26/2014

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Working Draft – 8/28/13
ESPONSES
 
TO
Q
UESTIONS
 
FROM
A
 NDREW
D. C
OHEN
(
THE
 
 A
TLANTIC 
)
1.Can you give me specific examples, from your own courtroom or courthouse, of the ways in which the sequester already has impacted theadministration of justice? I am looking for stories about people who havebeen affected by the cuts-- and how their experiences have reshaped thecourt's ability to timely resolve cases and controversies.
The Office of the Clerk of Court in my district has been hit especially hard by severalyears of flat funding followed the Sequester. Among other things, the Clerk’s Office initiatescases and dockets opinions and orders and, thus, is vital to the Court’s interaction with litigants,the media, and the general public. Over the last three years, the Clerk’s Office staff has beenreduced by forty positions. These reductions have impeded our ability to do our work and to provide the public and litigants with prompt access to public records and case dispositions in thetimeframe the public expects. For example, in recent months, reduced docketing staff has beenunable to keep up with demand and has failed about half the time to process all Court orders andincoming activity on the same business day as intake, thus delaying publication of court opinionsand orders to litigants, the media, and the public. Many orders issued by the Court are in fact of an urgent nature. For example, when a judge grants a temporary restraining order, it isimperative that parties find (and pay heed to) the order as soon as possible. Judges have resortedto diverting law clerks from research and writing to calling the parties when orders cannot bedocketed in time. Similarly, because we have no more relief courtroom deputies, law clerks arediverted to deputy work—again slowing the process of issuing opinions and orders. Further,cases in our district often involve a multitude of litigants or interested parties who must benotified of orders promptly. Bankruptcies, securities class actions, and multi-defendant criminalcases come to mind as cases requiring prompt notice to scores of attorneys. Also, decisions inmany of our cases contain potentially market-moving information that must be released to all promptly and simultaneously. Reduced docketing staff has delayed all of these importantcommunications.The U.S. Bankruptcy Court for the Southern District of New York is among the mostactive in the world, drawing all types of bankruptcy filings involving debtors and creditors frommany jurisdictions across the country and around the world. Our Bankruptcy Court hasdeveloped a reputation as the “go-to” Court for the largest and most complex filings because of its deep legal expertise and its capacity to administer efficiently the most intricate of cases.Well-recognized mega cases like Lehman Brothers, Chrysler, General Motors Corporation,Enron, WorldCom, American Airlines, Delta Air Lines, Hostess Brands, Eastman Kodak, MFGlobal, Dynergy, and Bernard L. Madoff Investment Securities LLC were all filed in theSouthern District’s Bankruptcy Court. In fact, half of the forty largest public-company filingsever made under Chapter 11, the part of the bankruptcy code used for corporate restructurings1
 
Working Draft – 8/28/13and the chapter of choice for large corporate filings, were brought in the Southern District.Chapter 11 cases regularly involve restructuring billions of dollars of liabilities held by manystakeholders including vendors, banks, pensioners, employees, the government, and bondholders. Moreover, these cases require immediate and sustained attention because once acompany is in Chapter 11, most company decisions must be approved by the Court. Chapter 11cases also often involve lengthy proceedings held on an emergency basis. As one commentator  put it, these cases require around-the-clock court attention as stakeholders try to salvage assetsthat can best be described as melting ice cubes. Of course, the Bankruptcy Court also handlesthousands of individual bankruptcies of everyday people.In the past two fiscal years, funding constraints have caused a crisis of staffing in our Bankruptcy Court. Administrative staff has been reduced by thirty percent. Additionally, theBankruptcy Court has lost one judgeship. Against the complex and mounting caseload describedabove, these reductions in staff and services have been cut to unprecedented and unsustainablelevels. Most importantly, the Court’s ability to handle its workload in an efficient and justmanner has been compromised. For example, the Court must now close its doors at 5:00 p.m. toavoid overtime even though proceedings that go well into the night are the norm in many cases because time is of the essence when billions of dollars in corporate assets and countless jobs areon the line. Additionally, the Bankruptcy Court has closed its records department, and the speedwith which it can docket orders has been slowed, thus interfering with timely distribution of information to the public and the stakeholders and damaging transparency. The cases describedabove involve thousands of stakeholders making many, many filings, each of which requiresCourt attention. When the Court cannot provide relief as soon as possible, jobs and value for creditors and taxpayers are compromised. Similarly, individuals seeking to put their financialhouses in order and get a clean start are delayed in this important process by the Court’s lack of resources.Our Office of Pro Se Litigation, the office that provides support to judges and litigantsalike in matters involving individuals (almost always non-lawyers) appearing on their own behalf, cannot staff properly due to budget constraints. Nearly a quarter of the cases pending inthe Southern District of New York involve at least one pro se party. Our Pro Se office’s staff serve two crucial functions: facilitators of access to justice for litigants who cannot afford anattorney and gatekeepers to the Court’s resources. The staff both aids pro se parties in presentingtheir claims and screens out claims that are clearly unmeritorious. When the Pro Se office is not properly staffed, both litigants and the Court suffer. This means such individuals often lose outon important instruction regarding how to preserve and bring their claims in our Court.Furthermore, it places an increased burden on judges and law clerks, who must deal withexcessive and often legally insufficient filings. In both instances, progress of the pro se litigant’scase is slowed.On the criminal side, many judges have reluctantly adjourned criminal proceedings wherefurloughs to attorneys working for Federal Defenders have affected representation. In the spring,2
 
Working Draft – 8/28/13Federal Defenders attorneys were forced to request that the trial of alleged terrorist SulaimanAbu Ghaith, Osama bin Laden’s son-in-law, be postponed. Upon hearing the request, the trial judge called such circumstances “extremely troublesome.” Even where the Federal Defendersare relieved of their representation entirely, new counsel require time (and resources) to get up tospeed on the cases. Ironically, cutbacks to the Federal Defenders do not save any taxpayer funds. Indeed, these reductions actually result in greater spending. Because the SixthAmendment requires us to provide counsel to any indigent person charged with a felony,reducing the Federal Defenders’ staff (who work on salary) results in appointments being shiftedto CJA panel attorneys (who charge hourly), thus increasing costs rather than reducing them. Ona per-case basis, CJA attorneys generally cost taxpayers twenty percent more than their FederalDefenders counterparts. Delays in criminal proceedings are a disservice to the public, thegovernment, and defendants. Public confidence in the justice system erodes when defendants arenot brought swiftly to justice. Delay dims the memories of witnesses and makes some moredifficult to find, thus complicating the government’s ability to prove its case. Delays are alsounfair to defendants, who deserve to have their cases adjudicated as quickly as possible to avoid,among other things, reputational damage from long-pending charges and prolonged pretrialdetention at the expense of their freedom (and taxpayer money).Public safety has also been compromised due to recent funding reductions. TheProbation Department and Pretrial Services Office are tasked with ensuring public safety bymonitoring criminal offenders and defendants through, among other things, in-person meetings,drug testing, drug, mental health and sex offender treatment, and GPS-tracking. Because theSouthern District is home to a large and diverse population spread across an urban, suburban,and rural landscape, monitoring defendants can require substantial officer time and considerableresources. Reductions in clerical staff mean that officers must spend more time onadministrative matters and less time monitoring defendants, and reductions in the number of officers mean each officer is supervising more defendants—both of which adversely affect thequality of supervision thus threatening public safety. For example, recent searches have yieldedthe following seizures: eighty-five grams of heroin, 258 grams of cocaine, large quantities of drug packaging paraphernalia, 180 illegal prescriptions, and chemical agents being used in acounterfeiting/ money laundering scheme. Without these searches, all the above items wouldremain in our community, and, of course, there is no way to know what contraband is presentlyin the community due to fewer searches.Along a similar vein, cuts in law enforcement funds mean less treatment for offendersdeemed at risk.
As a result of sequestration, Probation has been forced toreduce most of the treatment expenses in their office, including a forty-threepercent cut in substance abuse treatment services, a twenty-four percent cutin location monitoring services, and a seven percent cut in mental healthtreatment services. Location monitoring is a tool used to monitor our highestrisk defendants in the community (e.g., sex offenders, violent defendants,
3

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