Though the federal judiciary set aside enough money to keep courts funded for the first two weeks of a government shutdown, it has not quite been business as usual at courthouses in New Haven, Bridgeport and Hartford.
Funding was cut-off for government-appointed defense lawyers, and so some have filed motions to delay hearings and trials out of concerns they might not get paid if those court sessions take place before Congress resolves the impasse.
And, while the federal courts in Connecticut have enough funding to operate until October 15, administrators are already looking at ways to keep some non-essential workers, such as clerks and probation officers, home in the event that the shutdown continues.
“As far as what’s going to happen on October 16, we don’t know,” U.S. District Court Judge Janet Hall, the new chief administrative judge in Connecticut, said on Thursday, October 3. “We’re hoping for the best, but we really don’t know.”
As far as which court staff members might be told to stay home, Hall said “it will be a difficult decision to make, because we feel like we’re at the bone right now.”
Statewide, the federal court clerical staff has been reduced from 64 to 56 in the past three years, meaning workloads are already heavy, Hall explained. Judges, she noted, must work without paychecks, because they have a constitutional obligation to provide judicial services. But without sufficient support staff members available, the administration of justice is likely to slow down.
Terence S. Ward, the federal defender for Connecticut, whose office provides legal representation for indigent defendants in federal criminal cases, said his office would remain open at least until October 15. If the shutdown isn’t resolved at that time, Ward said, the federal judiciary “will reassess its situation and provide further guidance.”
“We are funded for the first ten days through the funds collected from court fees,” he said. Like Judge Hall, Ward said if the shutdown continues, he will have to make decisions about whether employees are essential to the administration of justice, or non-essential.
Even if he has to send some workers home, Ward said the operations of the federal public defender will continue “for a time. But employees who work will not receive paychecks during the shutdown.”
Those workers will have to trust they will be paid later for the work they perform.
Justice Department Impact
At the Connecticut U.S. Attorney’s Office, several lawyers and dozens of supporting staff members who work on civil matters for the federal government in Connecticut were among more than 1,000 nationwide who were told to stay home beginning on Tuesday, October 1. Specific information was hard to come by, as Tom Carson, the spokesman for the U.S. Attorney’s Office in the state, was among those furloughed. Anyone who tried to reach Carson was informed of the following: “Due to a lapse in government funding, I am not in the office and unable to take your call at this time.”
Federal prosecutors, however, were told to report for work as normal, at least for now.
In an email to all Department of Justice employees, Attorney General Eric Holder called the shutdown, the first in nearly 18 years, “unnecessary and harmful to DOJ employees. Nationwide, as in Connecticut, lawyers in the Civil Division—DOJ’s largest litigating component—bore the brunt of furloughs.
As for other agencies that do frequent business with the legal community, a few with funding quirks, such as the U.S. Securities and Exchange Commission and the U.S. Patent and Trademark Office, remained open for business as usual for the time being, but others were staffed only by essential workers dealing with “emergencies involving the safety of human life and the protection or property,” as provided under a law regulating government expenditures, known as the Antideficiency Act.
For example, activities at the Commodity Futures Trading Commission, the U.S. Equal Employment Opportunity Commission and the International Trade Commission were at a near stand-still.
Jonathan J. Einhorn, who is one of about 90 Connecticut lawyers on a list kept by the federal defender to work on court-appointed criminal cases, said they were told all payments were being cut off effective October 1. The pay freeze will be in effect for the duration of the shutdown.
As a result, Einhorn said, many lawyers he knows are asking for more time for their cases out of fear they won’t get paid for work — including out-of-court case preparation — they do during the shutdown period. “Doing work and not getting paid, well that is no good,” Einhorn said.
But more importantly, he said there’s a concern that justice could be compromised if enough components of the justice system — ranging from clerks and secretaries to probation officers — aren’t available to help ready cases for trial. Further, he said, any court delays created by the shutdown could raise constitutional concerns, especially if a defendant’s right to a speedy trial is denied as a result.
Asked about the potential for such problems, Hall said it’s too soon to tell. She acknowledged that she had heard there had been an increase in requests for continuances, especially in civil court cases.
The reason the impact wasn’t larger in the first week of the shutdown, she explained, is that the courts operate a few weeks behind. What that means, she said, is judges are now considering motions and briefs that were filed three weeks to a month ago.
Asked for an example of how the impact might be felt if the shutdown continues beyond October 15, Hall said jury trials could be slowed down considerably. She described the process by which jurors in federal cases are paid $40 per day.
“On October 16th, we’re going to call in jurors and we’ll have to explain that they are entitled to $40 a day but we don’t have any money to pay them,” she said. “I suppose some people will say, $40 isn’t that much, and I can get by without it. But others will say they can’t get by without it. Will I get a jury seated for that trial? Probably. But it will take extra time and expense.”
Einhorn said the funding impact is “huge for criminal defense counsel.”
The rates that lawyers are paid in federal court-appointed cases have recently been reduced from $125 an hour to $110 an hour. “There is a lot of email chatter back and forth among defense lawyers about what’s going to happen,” he said. “Obviously, if the courts don’t stay open, it’s going to impact some lawyers’ ability to earn a living. A lot of us are on pins and needles waiting to see what happens.”
So far, none of Einhorn’s clients’ cases have been delayed or postponed. But he noticed an eerie silence from the government on Wednesday, when he wired a $300,000 restitution payment from one of his clients to the Department of Justice in Washington D.C. “There was nobody there when I called to confirm that they received the wire transfer,” Einhorn said. “I’m assuming it got there.”•