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Where Michael Cohen struck out, Michael Avenatti hopes to succeed.

The two lawyers-turned-convicted felons, like a growing number of defendants in federal custody, have both raised the ongoing COVID-19 public health crisis in attempts to alter their current conditions of confinement.

In the case of Cohen, U.S. District Judge William Pauley of the Southern District of New York rejected and ridiculed a request from the former attorney and “fixer” for President Donald Trump who is currently serving a three-year prison sentence for lying to Congress and other crimes.

On Tuesday Pauley denied Cohen’s request to be released from a federal prison camp amid the growing coronavirus outbreak, calling his request “just another effort to inject himself into the news cycle.”

Across the country, U.S. District Judge James Selna of the Central District of California, who is overseeing a case charging Avenatti with illegally using client funds for himself, invited the lawyer to file a motion for Selna to reconsider a prior denial of a request to release him to prepare for trial. Selna wrote Wednesday that reconsideration was appropriate “in light of the evolving nature of the COVID-19 pandemic, particularly in the greater New York City area,” where Avenatti is being held following an earlier conviction on separate charges brought by New York federal prosecutors.

While these examples involving Cohen and Avenatti illustrate how cases are dependent on the underlying facts, the ever-evolving nature of the current public health crisis is a fact that underpins all decisions that judges are making about when and for how long people accused  and convicted of crimes should be imprisoned, and whether those already in custody have a compelling legal case for release. That’s especially the case now as inmates and employees have started testing positive for the novel coronavirus, visits from outsiders, including lawyers, have been restricted, and quarantines for newcomers are being instituted. The crisis has pushed some judges, such as Selna, to reconsider confinement decisions made just weeks or even days prior.

An Early Mover on Reconsideration

On March 19, U.S. District Judge Alison Nathan granted a motion to reconsider a decision regarding Dante Stephens, a low-level drug offender whom she’d ordered into federal custody less than two weeks earlier on charges that he violated the terms of his supervised release. For one, Nathan found that the evidence that the government relied on to show that Stephens was a danger to the community had been called into question since the prior decision. But Nathan also noted that, since the earlier decision, the “unprecedented and extraordinarily dangerous nature of the COVID-19 pandemic has become apparent.”

“The spread of COVID-19 throughout New York State—and the country—has compelled the [Bureau of Prisons] to suspend all visits—including legal visits, except as allowed on a case-by-case basis—until further notice,” Nathan wrote. Nathan found that in cases where a detention order has been issued, 18 U.S.C. §3142(i) gave her the authority to order the subsequent release of a prisoner in cases where it’s “necessary for preparation of the person’s defense or for another compelling reason” and that the suspension of visitors had made Stephens’ release necessary to his defense preparations.

No More Coming and Going

In the District of Nevada, Robert Barkman, who pleaded guilty to the sale and shipment of an endangered species after admitting to offering “abandoned” African lion skulls for sale on the internet, was set to begin serving 60 days of intermittent confinement, where he would report to prison on Tuesdays and Wednesdays until his time was served. On March 17, U.S. District Judge Robert Jones found that there was good reason to suspend that portion of Barkman’s sentence for 30 days.

“The circumstances that existed when Mr. Barkman was sentenced to probation with intermittent confinement as a condition have now changed. There is a pandemic that poses a direct risk that is far greater if Mr. Barkman … is admitted to the inmate population of the Washoe County Detention Facility,” wrote Jones, who has since set a telephonic status conference in the case for next month. “The risk runs in two directions—to Mr. Barkman, and to the institution,” wrote Jones, noting that “temporarily suspending Mr. Barkman’s intermittent confinement would appear to satisfy the interests of everyone during this rapidly encroaching pandemic.”  

Please Don’t Report

In one case, U.S. District Judge Vince Chhabria of the Northern District of California took action without anyone even asking. In the case of William Garlock, a prostate cancer survivor in his 70s who pleaded guilty to bankruptcy fraud and was set to self-report to prison on June 12, Chhabria on Wednesday issued a sua sponte order pushing back Garlock’s self-surrender date to Sept. 1. The judge indicated that the date could potentially be pushed back further if necessary.

“To avoid adding to the chaos and creating unnecessary health risks, offenders who are on release and scheduled to surrender to the Bureau of Prisons in the coming months should, absent truly extraordinary circumstances, have their surrender dates extended until this public health crisis has passed,” Chhabria wrote.

Garlock’s lawyer, Daniel Olmos of Nolan Barton & Olmos, said that he was pleased with the judge’s move. 

“It’s clear that the country is looking to cases in our district to kind of set the model for how to handle the questions raised by this crisis,” Olmos said.