Just recently, a client of Assistant Federal Public Defender Gary Weinberger fled a halfway house.
It was treated as an escape, police found him and he was arrested.
No stranger to the criminal process, the man wanted his lawyer, Weinberger. But the judge appointed a private practice attorney who takes court appointed cases in federal court.
"My client says 'Thank you but that's not my lawyer,'" recalled Weinberger, a 30-year veteran of the federal defender's office in Connecticut. "The court says 'Sorry you can't have your lawyer, he's furloughed today…'
It's just wrong," Weinberger added.
Weinberger's plight is felt not only by his colleagues in the Connecticut office but by the roughly 3,400 federal defenders nationwide.
The term for it is budget sequestration, where federally automatic budget cuts kick in. As a result, federal defender offices throughout the nation have had to take furloughs and reduce staffing levels.
Terence S. Ward, Connecticut's federal defender, was expecting to have to cut as much as 23 percent of his budget in the 2014 fiscal year, which begins in the fall.
However, last week the Judicial Conference of the United States, made up of judges who set administrative guidelines for the federal court system, said they would trim rates from $125 to $110 an hour for private attorneys (called CJA panel attorneys) who do federal criminal defense work on a court appointed basis for indigent clients.
As a result, the federal defenders offices will have to cut their budget by 10 percent instead of 23 percent.
"The difference is we won't literally be put out of business," said Michael S. Nachmanoff, federal defender for the Eastern District of Virginia, who testified before the U.S. Senate Judiciary Subcommittee last month on behalf of the nation's federal defenders. "At least we will survive to fight another day and that fight is really a fight for adequate funding from Congress."
Nachmanoff, a Wesleyan University graduate, said 23-percent cuts to the federal defenders budgets would have resulted in massive layoffs. As it is, his office staff will be 47 people in the next fiscal year. It should be 57, he said.
In Connecticut, Ward is holding off on job cuts as long as possible. But the office has already had furloughs.
"The 23-percent would just be devastating but the 10-percent is still really significant for us," said Ward. "Ninety-three percent of my budget is rent, salaries and benefits. I don't have much in the way of discretionary funds, if anything."
Ward has a current staff of 16 employees, six of whom are attorneys. In April, he had seven attorneys. One of them left, and the budget did not allow the person to be replaced. His remaining six lawyers are handling a caseload of seven. In January, Ward said Weinberger was planning to retire.
"Right now I would say I don't have a chance of replacing him so then I have 5 lawyers doing the work of 7," said Ward. "We try to take every case except where there's a conflict of interest. It's always been our policy not to turn down cases but that policy is going to have to change if we don't have enough lawyers and not enough funding."
Ultimately, Ward is expecting a combination of support staff cuts and additional furloughs.
What's left in the budget, Ward said, goes towards necessities in operating their office, such as hiring interpreters for non-English speaking clients, expert witness fees, court transcript fees, telephone costs and travel reimbursement.
Ward has worked in the office since October 1990 and was appointed head federal defender in Connecticut last year after serving in the role on an interim basis the year previous.
In all these years I've never seen anything like this," Ward said.
The federal defenders in Connecticut have offices in Hartford and New Haven. They represent poor defendants in U.S. District Court in Hartford, New Haven and Bridgeport. They also take on cases for civilians arrested at the Naval Submarine Base in Groton or at the Coast Guard Academy in New London.
Ward estimated that the federal defenders represent between 60 and 75 percent of the criminal defendants indicted federally. The remainder are handled either by private attorneys or the court appointed panel attorneys.
A large percentage of their docket consists of representing defendants in drug and gun related offenses, said Ward. They also see a good number of fraud, robbery, child pornography and immigration related crimes. Though not as prevalent as in the state courts, they do handle murder cases too.
The cost of the cases in federal court is what makes the budget constraints even tougher, Ward explained.
"Unfortunately now we're looking at cases in terms of likely out of pocket expenses," admitted Ward.
For instance, Ward said mortgage fraud cases are time intensive and costly as it requires loads of documents to be perused. Much time is spent with the clients going over the discovery, which often requires "huge expert fees in terms of forensic analysis" and also in some instances interpreter fees. "One case we had 190,000 emails to go through," recalled Ward.
"I have a terrorism case now with about 5-terabytes of discovery," said Ward. "That's equivalent to 140,000 banker boxes of material. If another [case] like that came in right now, I'd have to turn that down."
To make matters worse, the majority of the federal defenders' clients are residing in the Wyatt Detention Facility in Central Falls, RI. Ward said it takes about two hours to get there.
"The cost of that travel really adds up," said Ward.
Balancing your time when you have an added caseload due to attrition and knowing you need to get out to the prison to see a client is difficult, acknowledged Weinberger.
"We're short-staffed and so to find a day free to drive all the way to Central Falls to see the clients is tough plus the budgetary restrictions on being able to do these things… makes it much more difficult to do our jobs," Weinberger said.
Ward noted that the irony of the budget cuts is that if they have to take fewer cases as a result, more cases are given to the panel attorneys for $110 an hour — a cost ultimately higher to taxpayers than if the federal defender offices were fully staffed.
"It's about $2,900 a case less for one of my lawyers to handle than theirs," said Ward. "Cutting us doesn't save anybody any money. Not in the long run. And these are constitutionally mandated services."
The federal defenders are not the only ones spreading the word about their sequestration woes. Eighty-seven chief judges of the U.S. District Court, including Chief Judge Alvin Thompson in Connecticut, recently sent a letter to Congress about how the cuts are predominantly impacting the federal defenders but also court clerks, court security personnel and probation officers.
"The pace at which criminal cases require court appointed counsel has continued unabated while resources in the defender services program are diminishing," reads the letter, noting that the U.S Attorney's Offices are not facing the same cuts. "As chief district judges, we are deeply concerned that the cuts in federal defender offices will severely undermine and weaken a program that has taken years to build."
The judges also note that options like lowering the fees for panel attorneys and deferring their payments to future budget cycles could result in the loss of "well qualified counsel" handling the cases.
"As the folks on the front lines, interacting with and serving the public on a daily basis, we conclude by emphasizing that any further cuts to the Judiciary would directly affect our ability to carry out our constitutional and statutory duties," wrote the judges.
The American Bar Association has also written a letter to a Congressional subcommittee about the federal defenders' budget troubles and described the situation as a "marked imbalance in our justice system" when factoring in that federal prosecutors are not facing the same cuts as federal defenders.
Weinberger, who has seen a lot in his career as a federal defender spanning three decades in Connecticut, said only in the past year have things gotten to the point that the budget constraints were effecting their ability to do their jobs.
"We were always very fiscally conservative," said Weinberger. "I don't believe that those who would cut our budget now understood that. They think they're trimming fat when they're actually trimming muscle. Now they're beginning to impair our ability to do our jobs and serve our clients. It's very disappointing and very disheartening."•