The judge is mad. The judge is frustrated.
The judge is so angry about the federal budget ax known as sequestration that he is not taking the cuts quietly. And he's contemplating an imperfect solution to deal with the layoffs and furloughs borne by the U.S. Public Defender's Office.
U.S. District Judge Richard Kopf said he is “seriously contemplating” whether to drop a number of criminal immigration cases where the crime is being in the U.S. illegally. This, he said, will free up the 10 federal public defenders in Omaha and Lincoln who have a constitutional obligation to defend an accused person who cannot afford to hire counsel.
Kopf wrote this on his blog — yes, he blogs — called “Hercules and the Umpire.” It's a look behind the curtain of life as a federal judge. Kopf muses about a number of judicial-related topics, none of them pertaining to current cases.
But on the subject of the sequestration, he is quite pointed. He writes that Congress is “on notice.” That its failure to fund the judiciary “may result in the guilty going unpunished.”
“If a banana republic is what members of Congress want,” Judge Kopf writes on herculesandtheumpire.com, “I may help them get it.”
A quick civics lesson: Raise your hand if you know which amendment protects my right to write this and your right to hate it and say so. Good. We all love the First Amendment. Raise your hand if you know which one allows us to bear arms. Right again. We all know the Second Amendment.
But can you say which amendment gives the accused a number of rights, including the right “to have the Assistance of Counsel for his defense”?
This would be the Sixth Amendment, which supports the existence of the U.S. Public Defender's Office.
Said office got a one-two budget punch this year. First came a 5 percent budget cut in February. Then another 5 percent in March when the sequestration, which imposes mandatory budget cuts, went into effect.
Federal Public Defender David Stickman laid off four people and furloughed 21 others, including himself, for 11 days beginning April 19 and continuing through Aug. 30.
No public defenders on those days mean no trials. You can't have one side show up to court and not the other.
It also means that some of the 450 clients the office represents may sit in jail longer, have their cases drag out longer, have their cases dismissed if their attorneys are unable to meet the speedy trial mandate.
It also means that a greater share of the defense cases could shift to private-practice attorneys, who earn twice the rate of public defenders. And the same government that imposed these cuts pays that bill.
What to do?
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There's talk of an emergency relief bill to restore funding, but congressional support for it is uncertain.
Stickman said his staff will still provide the best defense it can for its clients.
Kopf, though, says he'll think about clearing the immigration cases. If he did, it would shift the cost of dealing with illegal immigrants to another federal agency, namely Immigration and Customs Enforcement, which would have to take care of detaining and potentially deporting such immigrants.
But U.S. Attorney Deborah Gilg says if Kopf dropped the cases, she would just have to refile the charges, keeping the immigrants on the caseload.
Says Judge Kopf: “I'll just drop them again.”
And so it goes.
I'm not sure how the budget cutting here gets us any real savings. And Stickman says it may end up costing the government more. Which is cheaper: a public defender who works for $50 to $75 an hour, or a court-appointed private one for $125 an hour?
Both are a bargain compared with someone like private attorney James Martin Davis, whose hourly rate in federal court is $500 to $600.
Stickman's plan is this: Do the best job he can. Delay what he can until after the new fiscal year in October. Cut everyone's pay some more, if that's what it takes to properly defend clients.
So why do we even need the Sixth Amendment? No right to counsel, no need for the Public Defender's Office. It's only a small piece of a small pie anyway. The federal judiciary comprises less than 1 percent of the whole federal budget.
Who'd miss it?
Well, maybe anyone accused of a federal crime who couldn't afford a James Martin Davis. But they won't scream. It's not like they've got clout or a lobbying arm with the heft of, say, a National Rifle Association. If they did, we'd know what the Sixth Amendment was as well as we do the Second.
Bad idea, Kopf says.
The beauty of American justice, he told me, relies on the notion of innocent until proven guilty.
“Only until a defendant is tried and convicted are they, in fact, guilty,” Kopf said. “That process of trial relies on effective representation.
“It's a hallmark of our American system of justice that an indigent defendant — even if he has been tried and convicted of other crimes — still is entitled to representation.”
The other day, Judge Kopf tried to get a lawbreaker placed in a community corrections center. But he could not.
“Damnit. I forgot,” he wrote on the blog. “The FPD's office is closed. A furlough day.”
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