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Adam Klasfeld+ Your Authors @KlasfeldReports Reporter, @CourthouseNews: NYC+Int’l. RTs=What's it to ya? adam[at]adamklasfeld[dot]com PGP Fingerprint: F427 EE3B 6F05 E5D5 785B 775B 2C74 683C 219D 91DC Apr. 03, 2020 3 min read + Your Authors

Good morning from New York.

There is a telephone conference in this case pending now. I'm listening in and will report developments.

First up is the mediator: Ex-AG Loretta Lynch, now with the firm Paul Weiss

"I am pleased to report that my conversation and interaction with both parties has remained open, has remained robust."

"They have been very clear and very focused on their concerns."

Lynch acknowledges both of the parties face "challenges" during the coronavirus pandemic.

"We have had discussions about the type of equipment that would be useful..."

"We have talked about the limitations that exist, primarily on the govt's side to be candid."

Lynch says that it's "doubtful" that there will be in-person visits during the pandemic.

(BOP guidelines adopted in wake of pandemic suspended attorney and family visits.)

Lynch: "This has been a challenge that I think all sides recognize."

"With respect to the telephone access... my view is the data is very important here to determine whether the current system is effective."

She urges the parties to provide data to analyze the situation.

Lynch: Incarcerated people cannot currently be brought out of quarantine to where video conferences take place, limiting access.

Judge Brodie: If a request is denied because someone is quarantined, is that information getting back to the defense attorneys?

Lynch does not believe that system has been set in place, but she does not want to speak for the Federal Defenders of New York.

Lynch: "Federal Defenders has done yeoman's work."

Up now, attorney Sean Hecker says BOP has been "systematically incapable" of providing access since the coronavirus pandemic hit.

Hecker says only two video conferences have gone forward.

"Video conferencing literally hasn't been working as a mechanism for having face-to-face discussions with clients."

Criminal cases can't go forward without them, he notes.

Federal Defenders' Dierdre Von Dornum says "even in capital cases," video conferences have been unable to be scheduled.

"At the MCC, one video conference" was scheduled, "only one," she emphasizes. It was canceled, she says.

Hecker: The record for arranging telephone calls over the past weeks has been "atrocious," and there is no reasonable dispute that it has been atrocious.

"The reality is, the BOP is systematically failing to act on dozens and dozens of requests" for attorney-client calls.

Hecker: "We need action, and the reality is there has not been action."

"The reality is, folks are making bail applications and other applications with increasing urgency because the cannot talk to their clients," he adds.

Judge Brodie presses the government about the limitations of the call system.

Govt: "The issue becomes staffing. When an inmate makes a call, the inmate has to go to the unit team office. There has to be a staff member who is with that inmate... That takes time."

Assistant U.S. Attorney Seth Eichenholtz gets indignant at suggestion that BOP has not prioritized this.

"The efforts of the staff of both institutions to make this work over the past couple of weeks has been incredible," he says.

Judge Brodie responds "we have to do something more."

The parties are now in mediation. Defense attorneys want a court order given the urgency of the situation, and government is arguing against an order.

Hecker: "We want mediation to continue."

But an order in place would have accountability and make the BOP go on record if they cannot comply.

Brodie seems to agree with the defense attorneys.

"No one is getting access, and there has to be some accountability."

Hecker adds: "These are not unsupported complaints. These are not anecdotes... [The govt is not] reasonably disputing it."

Hecker says the government "can't keep people incommunicado" during criminal proceedings in this country, even in the middle of a pandemic.

Though she won't sign an order today, Judge Brodie warns the BOP: "You must be able to accommodate more than 15 to 20 calls a day."

"The inmates must be able to make their calls... The BOP has to do better than that."

BOP must file a letter to the court by Monday.

If Judge Brodie is unsatisfied by BOP's letter on Monday, she might sign a letter then.

"You should be accommodating these calls within 48 hours. That should not be a hardship either... Those are not unrealistic requests. They're reasonable under the circumstances."

MCC representative says that incarcerated people under medical quarantine there will not be brought to the area where video conferencing takes place.

The next telephone conference is scheduled for next Friday, April 10 at 10 a.m., which is Good Friday.

Conference adjourned.

"Stay safe, everyone," Judge Brodie says.

You can follow @KlasfeldReports.


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