2011-04 apr

Newsletter of the Federal Courts Vol. 43 Number 4 April 2011

Court Opinion Pilot Begins ......................... 3

Wireless Access Guidelines ......................... 6

Drug Testing Often Part of Supervised Release .............................................................. 7

INSIDE

What’s in a Name?

Accountability is in the name, and at the core of

this committee’s work. Judge David Katz talks about the work of the Judicial Conference Committee on Audits and Administrative Office Account-ability, beginning on page 10.

INtErvIEw

Continued on page 2

Judiciary Warns of Impact of Deep Cuts in 2012

Balancing continued workload growth and fiscal austerity, the federal Judiciary this month asked a Congressional

subcommittee for its smallest funding increase on record.

“All of us in the Third Branch are concerned about historic budget deficits and a growing national debt and we understand the need to rein in federal spending,” Judge Julia Gibbons, chair of the Judicial Conference Budget Committee, told the House Appropriations Subcommittee on Financial Services and General Government.

Subcommittee chairwoman, Represen-tative Jo Ann Emerson (R-MO), cautioned that the subcommittee had been asked to reduce spending to 2008 levels.

In turn, Gibbons warned of the impact on the federal court system and the adminis-tration of justice in this country of proposed spending cuts, especially in light of requested increases for the Department of Justice and the Department of Homeland Security,

which will further increase the workload of the federal courts. Overall, the Judiciary ’s workload is already at or near record levels in most filing categories.

“We do not have the discretion to decline or defer cases based on resource constraints,” Gibbons said. “We are required to adjudicate the cases that are brought to us regardless of staffing and resource levels in the federal courts.” A large funding shortfall would affect staffing levels, with significant losses in clerks of court and probation and pretrial services offices nationwide.

Subcommittee chairwoman, Representative Jo Ann Emerson (R-MO), and ranking minority member José Serrano (D-NY), opened their remarks at the hearing by offering their condolences to the federal Judiciary and to the family of Judge John Roll of the U.S. District Court for the District of Arizona. Roll was among six people shot and killed in Tucson while attending a constituent gathering sponsored by Representative Gabrielle Giffords.

Federal Judiciary Funded to End of Fiscal Year

The Judiciary received its fiscal year 2011 funding in mid-April, along with the

rest of government. Final FY 2011 funding for the Judiciary is $6.91 billion, about 1 percent above a FY 2010 hard freeze level.

“We are grateful that in these times of serious budgetary concerns the Congress has recognized the cost-containment efforts of the federal Judiciary in recent years and has provided fair and sufficient funding to meet the Judiciary’s most important needs,” said Adminis-trative Office Director Jim Duff. It is expected that the funding will be sufficient to support operations for most Judiciary accounts, including the largest accounts—Salaries and Expenses, Defender Services, and Court Security.

Continued on page 3

The Third Branch n April 20112

Emerson acknowledged that, “Since 2008, the courts’ workload has increased significantly in many areas, such as criminal and bankruptcy filings, super-vision of offenders and defendants living in our communities. I imagine it would be somewhat difficult for the Judiciary to reduce its funding to 2008 levels.”

Gibbons described the effect 2008 funding levels would have on the Judiciary. “It would be a very difficult situation for us,” she said. “Funding for the courts would be 18.9 percent below the 2012 budget request level. We would see serious and long-lasting problems for the courts in terms of supervision of convicted felons who are released from prison, delays in case processing, potentially resulting in the dismissal of cases and, if we’re talking about civil or bankruptcy cases, causing serious hardships for individuals and businesses. We would be talking about a decline in service, a reduction in hours in clerks’ offices. In the court security area, we would have to eliminate 73 percent of our request for security systems and equipment. It would be a very serious situation for us and for the public we serve.”

For fiscal year 2012, the Judiciary seeks $7.3 billion in appropriations, $299 million above the fiscal year 2011 assumed appropriations level. The Judiciary’s funding requests for its three largest accounts would be for: n Salaries and Expenses. The Judiciary’s

largest account funds the bulk of federal court operations, including the regional courts of appeals, district courts, bankruptcy courts, and probation and pretrial services offices. This account requires $5.2 billion for FY 2012.

n Defender Services. This program, which provides criminal defense

services to indigent defendants under the Criminal Justice Act, requires $1.1 billion in FY 2012 to handle 206,200 defense representations.

n Court Security. A funding increase of $513 million would provide for additional court security officers, cover higher Federal Protective Service costs, and fund improvements to security at federal courthouses. James C. Duff, Director of the Admin-

istrative Office, testified alongside Judge Gibbons on the need to obtain the funding necessary for the Judiciary, as well as the AO, to meet its responsibilities. Duff thanked the subcommittee for its past support, adding, “The one area where we could use additional help is in judgeships, particularly in areas of the country that are very overworked.”

The subcommittee also asked about the Judiciary’s cost-containment policies.

Gibbons noted cost-containment initiatives ranging from a thorough review of organizational, policy, and process alternatives to improved court-house facilities planning that includes the Judiciary ’s biggest cost-containment success—limiting the growth in space rent costs.

Judiciary Warns of Impact of Deep Cuts in 2012continued from page 1

“Through a number of process improvements and redesigns,” Gibbons said, “our projected rent payments to GSA are nearly $400 million below the 2012 rent projection made prior to initiating cost-containment efforts” seven years ago. Gibbons also noted successes in slowing the rate of growth in future compensation costs for court staff, reducing the need for new staff, and containing information technology costs without sacrificing the long-term benefits of investing in technology.

“We are committed to containing costs and exploring new and better ways of conducting our judicial business,” Gibbons said. “Our initiatives have significantly reduced the Judiciary’s appropriations requirements without sacrificing the quality of justice. I know you agree a strong independent Judiciary is critical to the nation. I urge you to provide the funding needed to enable us to maintain the high standards of the United States Judiciary.”

The full testimony of Gibbons and Duff is available online at: www.uscourts.gov/uscourts/News/2011/docs/JudgeGibbons2011-04.pdf and www.uscourts.gov/uscourts/News/2011/docs/DirectorDuff2011-04.pdf.

Judge Julia S. Gibbons (6th Cir.) and AO Director James C. Duff appeared before the House Appropriations Subcommittee on Financial Services and General Government this month to testify on the Judiciary’s appropriations requirements for fiscal year 2012. They warned of the impact on the federal court system and the administration of justice in this country of proposed deep spending cuts for 2012.

The Third Branch n April 2011 3

Federal Judiciary Funded to End of Fiscal Yearcontinued from page 1

Pilot Project Will Enhance Public Access to Federal Court Opinions

A dozen courts have been selected to participate in a pilot program in which the federal Judiciary

and the Government Printing Office are partnering to provide free public access to court opinions through the GPO’s FdSys system.

The joint project was approved by the Judicial Conference in March 2010, and the GPO received approval from the Joint Committee on Printing—often referred to as the oldest joint committee of the Congress—in February 2011. When fully implemented later this spring, the pilot will include two courts of appeals, seven district courts, and three bankruptcy courts.

In March, the Judicial Conference approved expansion of the pilot to include up to 30 additional courts.

The Judiciary continually has sought ways to enhance public access to court opinions. Free access to opinions in all federal courts is now available via the Judiciary ’s Public Access to Court

Electronic Records service (PACER). Building on that, Administrative Office staff met with GPO management and staff to explore making opinions available through GPO's FdSys, which can provide the public with a robust search engine that can search common threads across opinions and across courts.

The 12 participating pilot courts are the U.S. Courts of Appeals for the Second and Eighth Circuits; the U.S. District Courts for the Districts of Minnesota, Rhode Island, Maryland, Idaho, and Kansas; the Northern District of New York, and the Northern District of Alabama; and the U.S. Bankruptcy Courts for the District of Maine, the Southern District of Florida, and the Southern District of New York.

Pursuit of the joint pilot is consistent with the E-Government Act. When the joint pilot concludes, a determi-nation will be made on whether to continue to provide access to opinions through FdSys.

In particular, Duff noted there would be enough funding in the Defender Services account to allow payments to Criminal Justice Act panel attorneys for the remainder of the fiscal year, including the backlog of deferred payments. Four times this year, payments to CJA attorneys were deferred when money ran out under the continuing resolutions.

The FY 2011 full-year appropri-ation also provides $82 million to the General Services Administration for new construction projects and $280 million for repairs and alterations. No project level detail was specified for this funding.

International Transfer Program Brings Citizens Home

Magistrate Judge Justo Arenas (D. P.R.) sat across the room from the two coughing and

wheezing prisoners. He had flown into Lima, Peru, and was now staying in a hotel attacked by guerrillas weeks earlier. It was 1995 and Arenas was there to verify that the prisoners—both U.S. citizens and ill with untreated tuber-culosis—wished to be transferred to U.S. prisons to serve the rest of their sentences. It was Arenas’ first prisoner transfer hearing. Over the years, he would go back five more times to Peru, as well as to Venezuela and Bolivia, among other countries, for verification proceedings.

Transfers require the consent of the sentencing

country, the receiving country, and the prisoner.

Over 70 counties are parties to prisoner transfer treaties with the United States. Chapter 306 of 18 U.S.C. sets forth procedures to implement treaties providing for the transfer of offenders to the country of which he or she is a citizen or national in order to serve the remainder of his or her sentence.

The International Prisoner Transfer Program began in 1977, the same year the Federal Magistrate Act was amended to allow U.S. magistrate judges to perform the verification function required under U.S. law for these transfers. A magis-trate judge must personally inform the offender of the conditions of the transfer and determine that the offender under-stands and agrees to them. The magistrate judge must then verify that the offender voluntarily consents to the transfer with full knowledge of the consequences. The offense for which the prisoner is convicted must also be an offense in the

Continued on page 5

“We are grateful that in these times of serious budgetary concerns, the Congress . . .

has provided fair and sufficient funding to meet the Judiciary’s

most important needs.”


Pro Se Law Clerks: A Valuable Court Resource

Marnie Jensen has a perception problem to overcome when she describes her job in the

federal Judiciary. “People outside of the court think a pro se law clerk represents people who don’t have attorneys,” she said. “That’s not what we do. We work for the court on cases with people who don’t have lawyers, and who often don’t understand the rules or the process. That’s a big distinction.” For Jensen, a pro se law clerk in the District of Nebraska, that means she is the first to see prisoner civil rights cases, prisoner habeas corpus cases, section 2255 motions, and certain non-prisoner pro se cases such as employment or age discrimination cases filed in Nebraska’s federal court.

“We treat every complaint exactly the same, assisting our judges to ensure that every single claim is addressed fairly and fully,” Jensen said. “One of our pro se cases might end up being the next Mirandacase. You just never know.”

Starting in the 1960s, district courts began to see

an enormous increase in prisoner petitions, which

went from 2,000 in 1960 to over 19,000 in 15 years.

Last year, 72,900 pro se cases were filed in district courts; 48,581 of which were pro se prisoner petitions. Starting in the 1960s, district courts began to see an enormous increase in prisoner petitions, which went from 2,000 in 1960 to over 19,000 in 15 years. To help, a 1975 pilot program established pro se law clerk positions in a few of the courts inundated with prisoner complaints.

In 1981, the Judicial Conference approved an expanded pro se law clerk program, after a study showed, “cases were expedited, the time of judicial officers was conserved, a consistency in decision was obtained, and the program was cost-effective.” A 1987 Conference resolution recognized that, “The pro se law clerk program has been a valuable and cost-effective legal resource which works in a centralized manner for a district court as a whole. . . . Pro se law clerks provide services which do not duplicate, but rather complement, the assistance provided by personal law clerks or legal assistants.”

Although pro se law clerks began by handling pro se prisoner petitions, over the years in some courts they also have included other types of pro se cases in the workload mix in their service to the courts.

“So many of the skills pro se law clerks develop handling prisoner petitions come in handy in other types of pro se cases,” said Judge Catherine Blake in the District of Maryland. “Our pro se law clerks have developed forms and the instructions to go with them for pro se filers. They help pro se litigants navigate the system. They save chambers time with initial screening and help judges identify the cases that have merit. They also do a great job of keeping up with changes in case law. For instance, they’re familiar with the legal

issues involved in habeas cases. They absolutely save us time and promote efficiency. ” In fact, in the District of Maryland, pro se law clerks are called staff attorneys to better reflect their status and level of experience.

“Pro se law clerks are of enormous value in our district,” said Magistrate Judge Boyd N. Boland in the District of Colorado. Last year, one-third of the 3,168 civil actions filed in the district were pro se cases, and the overwhelming majority of those were pro se prisoner petitions.

“Pro se litigation is very specialized and the level of review required is enormous,” Boland said. “The pro se law clerks review for in forma pauperis status, to see if some or all of the fees could be paid; they review the filing for suffi-ciency of pleading; for timeliness; if it’s a habeas corpus case, for exhaustion of administrative remedies; and they help us determine if it is frivolous.”

“Pro se cases make up 40 percent of our civil caseload and our pro se law clerks review and prepare draft orders on each one,” said Chief Judge Lynn Winmill of the District of Idaho. “We’re a very busy district and I don’t know how we’d function without them.”

The District of Idaho’s prisoner litigation unit handles prisoner pro se

Civil Pro Se and Non-Pro Se Filings in District Courts Fiscal Year 2010

■ Pro Se Prisoner Petitions

■ Pro Se Non Prisoner Petitions

■ Non-Pro Se Prisoner Petitions

■ Non-Pro Se Non Prisoner Petitions

73%

9%

17%

1%

Continued on next page


“we can help offenders move beyond whatever landed them in trouble in the first place. They can transition into the community through a halfway house or drug rehabilitation program, earn their GED or obtain assistance in finding a job. Our system presents significant potential for assimilation versus the questionable future of a prisoner who just gets off a plane in the U.S. after release from a foreign prison.”

The program also is intended to remove American citizens from harsh, sometimes life-threatening conditions.

Magistrate Judge Arthur J. Boylan (D. Minn.) recently held a hearing for an American prisoner incarcerated in the Budapest Fegyhaz es Borton, the Budapest High and Medium Security Prison. In the United States, dangerous felons are usually segregated from the larger prison population. This prisoner feared for his safety in the open dormitory of the Budapest prison.

“I see this as a humanitarian mission,” said Arenas, whose fluency in Spanish has eased tensions on many of his visits. “In some prisons, prisoners must pay to be fed or to guarantee their safety.”

In one South American prison built to house 350 prisoners but now housing more than 1,300, a prisoner was beheaded the day before Magistrate Judge Tony Castellanos (now retired) arrived for verification hearings, six had died the previous weekend. In another prison, within 20 minutes of the end of a transfer hearing Arenas conducted, prisoners took hostages. In yet another prison, it was the

work from initial review, all the discovery work, and all dispositive motions. The court also frequently turns to alternative dispute resolution (ADR). “We’ve had lots of success with ADR in prisoner pro se petitions,” said Winmill. “The pro se law clerks identify cases amenable to settlement early in the case-screening process. When a neutral facilitator sits down with a deputy attorney general and a pro se litigant to find a solution, many cases resolve quickly.”

Janis Dotson-Thieme has been a pro se law clerk in the District of Idaho for 11 years. “I think the biggest eye-opener for me in this job was that there is a huge segment of society needing access to the courts,” Dotson-Thieme said. “These are people who can’t afford a lawyer and they may not be able to articulate their claim very well, but we will take the time to carefully review each of their petitions to see if there is a claim. We ensure everyone receives the same protection under the Constitution.”

Continued from previous page

United States. In the hearing, prisoners receive legal counsel from federal public defenders.

Transfers require the consent of the sentencing country, the receiving country, and the prisoner. By law, the Attorney General must evaluate and approve all applications for transfers, whether by Americans imprisoned abroad or by foreign nationals in American prisons.

At the request of the Department of Justice, U.S. magistrate judges have traveled to Russia, Japan, Thailand, Spain, South America and many more countries to hold verification hearings.

They can transition into the community through a halfway house or drug

rehabilitation program, earn their GED or obtain

assistance in finding a job.

“It is one of the protections we afford our citizens,” says Magistrate Judge Tonianne J. Bongiovanni (D. NJ), who has

Continued on page 9

presided at verification hearings for U.S. citizens abroad and for foreign nationals in U.S. prisons. Bongiovanni traveled to Thailand last year for a hearing; a “sobering” experience that she says gave her a renewed appreciation for the U.S. system and facilities where opportunities exist to reduce recidivism.

“In an American prison and under federal supervision,” Bongiovanni explains,

International Transfer Program Brings Citizens Homecontinued from page 3


Wireless Device Access Guidelines Strike Balance

The American public loves the convenience of their wireless communication devices—PDAs

and laptops, smart phones and earpiece devices, among others. It’s estimated there are 285 million cell phone users in the United States.

However, the same devices that provide convenience in communications may raise security concerns in federal courts and possibly disrupt proceedings. Courts have responded with a variety of access policies.

To help strike the right balance between security concerns and convenience, the Judicial Conference Committee on Court Administration and Case Management, in consultation with the Information Technology Committee and the Judicial Security Committee, has issued revised guidance for courts to consider that updates how new technologies could be used and what this may mean for courts.

Rule 53 of the Federal Rules of Criminal Procedure bars the taking of photographs in the courtroom or the broadcasting of criminal proceedings. Judicial Conference policy states that courtroom proceedings in civil and criminal cases in the district courts may not be broadcast, televised, recorded, or photographed for the purpose of public dissemination. Specific exceptions are made for ceremonial proceedings. Judicial Conference policy also allows a judge to use audio-visual equipment, “for other purposes of judicial administration, one example of which would be the closed-circuit television linking the courtroom with another location.” In addition, a Conference-approved video pilot will begin soon in a limited number of district courts. (See story in March Third Branch.)

These policies were intended to address issues relating to coverage of court proceedings by the press. However, the rules and policies apply equally to private individuals.

Wireless devices can help or hinder, depending upon the time, the place, and the user. An individual with a smart-phone might broadcast proceedings or photos from a courtroom, contra-vening Judicial Conference policy; while

an attorney might need a cellphone to communicate with clients or witnesses in a case. It would be improper for a juror to access the Internet to research issues or court files during the trial. Yet, with the same technology, a court reporter can move around the courtroom and attend a sidebar without trailing wires, or an attorney can present evidence electroni-cally in a case. Instant messaging helps judges communicate with courtroom deputies and pretrial services and probation officers, but a juror may not use it to post his or her reactions to evidence or testimony. Obviously, some accom-modations for wireless devices need to be made, while restrictions are favored in other circumstances.

In the revised guidelines, courts may consider the following when establishing a policy on the use of wireless communi-cation devices:n The devices to which the policy

applies: Are laptops exempt, but not smart PDAs? Does it apply to all cell phones, or just those with photo or recording capabilities?

n To whom the policy will apply:

Should some groups, such as court employees, law enforcement, members of the bar, and contract employees who have undergone

background checks be allowed greater use of electronic devices?

If members of the press are allowed devices, it may be necessary for the court to clearly define how the policy applies to credentialed press and bloggers who may or may not be credentialed.

n When and where wireless devices

may be used: Should wireless devices be allowed in a media room where there is an audio-feed, or in a separate courtroom with a live feed, during court sessions or only during recess?

Federal courts have adopted a variety of rules on the entry and

use of wireless devices in courthouses. According to an informal survey of district courts:

ALLOW: About half of district courts

allow the public to bring electronic

devices into the court, usually with some

restrictions on their use.

Of these districts, one-third prohibit

the public from bringing the devices

into the courtroom

Two-thirds allow the devices in the

courtroom but they must be turned

off or in silent mode—unless the judge

gives permission to use them.

BAN: About half of district courts ban

all devices in the courthouse, except

by judges, clerk’s office and chambers

personnel, and probation and pretrial

officers. Anyone entering the building

is required to either store the device

with court security officers, or leave the

building to store it elsewhere. Some

exceptions are permitted with a judge’s

permission, e.g., attorneys are usually

allowed to bring in laptops and other

audio-visual equipment for the presen-

tation of evidence at a court proceeding.

Continued on next page


Should a court also require that cellular devices be off at all times or silent on floors with courtrooms? Do the same policies apply in every division and courthouse in a district or circuit?

n The effect any policy will have on the

public’s access to the courts: How would curtailed access to wireless communications devices affect jurors who may need to communicate with family and workplace; affect litigants or defendants; and affect other tenants in the building?

n The security risks: Is there a security risk

when most devices can be operated remotely, may be made of materials that evade scanning, and, in some cases, can be converted for use as weapons? The size of some devices coupled with their ability to record and photograph may also be a security consideration.

n The impact of banning wireless

devices on the workload of court

security officers: Will additional screening for devices delay entry into buildings? Where will wireless devices be stored if they are banned from the courthouse? What are the options for the public, if no storage is provided?

Finally, courts are urged to adopt a policy that can be applied on a court-house-by-courthouse basis because of the unique needs and circumstances of each location. Thus no uniform national policy is recommended. When the court adopts a policy on wireless devices, the guidelines encourage ample notice, including signs outside the courthouse and at security posts, on the court’s website and in notices to attorneys and jurors. Regardless of the policy, courts should work closely with the district U.S. Marshal and others responsible for court-house security.

Drug Testing Often A Part of Supervised Release

As increasingly higher numbers of criminal defendants in federal courts are charged with drug-

related offenses, regular drug testing often is one of the conditions for pretrial release or for probation after time in prison.

In the early months of 2011, more than 56 percent of the some 30,000 federal defendants on pretrial release were desig-nated for drug testing. And more than 57 percent of the some 130,000 federal offenders on supervised release were under a court-imposed duty to submit to post-conviction drug tests.

U.S. District Judge Robert Holmes Bell (W.D.Mich.), chair of the Criminal Law Committee of the Judicial Conference, said drug testing was an integral part of helping offenders and protecting the public. “Testing helps identify if a defendant or offender is using drugs or has relapsed, so that treatment may be undertaken or court action taken,” he said. “In addition, random testing is an effective way to verify sobriety and deter relapse.”

The overwhelming majority of drug tests involve the analysis of urine samples. In the past year, at least 1.2 million such samples were collected and analyzed

in the federal Judiciary’s probation and pretrial services system.

The $15 million annual cost of that collection and analysis is money well spent, helping enable the supervised release of some defendants and offenders rather than the far costlier alternative of incarceration. In fiscal year 2009, the annual cost of keeping an offender in a federal prison was $27,251.50; the annual cost of having an offender supervised by a probation officer was $3,807.78. The daily cost of detaining someone before trial was $67.79; the daily cost of supervision by a pretrial services officer was $6.38.

“Probation and pretrial services offices take advantage of a variety of testing methods that are designed to keep costs down, while assuring reliable results,” Bell said.

Each of the federal court system’s 94 judicial districts has some form of on-site testing, where drug tests are administered. (Tests also can occur at an offender’s home or at a treatment facility.) Independent laboratories under contract with the Administrative Office also are used.

“Defendants who receive drug testing as a condition of their pretrial release have a history of substance abuse, which poses

a risk of nonappearance or danger to the community,” said Troy Greve, a supervisory pretrial services officer in the District of Nebraska. “The offense charged plays a role in the decision-making process, but a decision to drug test is based primarily on the defendant’s history of substance abuse regardless of the charged offense.”

Greve said one of the biggest challenges facing probation and pretrial officers are, “defendants and offenders who refuse to give up their drug of choice.”

“They can be very creative, and will attempt to evade detection by any means necessary to continue their drug use,” he said. “The most common tactic employed is ‘flushing their system’ by drinking large quantities of water.

One way to counter that tactic involves simple persistence. “This flushing or dilution is so common we had to find a way to address it. In Nebraska, we purchased devices called refractometers that help us determine if a specimen was ‘flushed’ before we tested it,” Greve said. “If the device indicates that a sample is too diluted to be considered a valid specimen, we require the defendant to wait and provide additional samples until a valid specimen is obtained.”

Continued from previous page


Published monthly by theAdministrative Office of the U.S. Courts

Office of Public AffairsOne Columbus Circle, N.E.Washington, D.C. 20544

(202) 502-2600

Visit our Internet site at www.uscourts.gov

DIRECTORJames C. Duff

EDITOR-IN-CHIEFDavid A. Sellers

MANAGING EDITORKaren E. Redmond

PRODUCTIONOmniStudio, Inc.

CONTRIBUTORDick Carelli, AO

Please direct all inquiries and address changes to The Third Branch at the above address or to

[email protected].

Up-to-date information on judicial vacancies is available at

http://www.uscourts.gov/JudgesAndJudgeships/JudicialVacancies.aspx

April Judicial Milestones

JUDICIAL BOXSCOrE

Appointed: Anthony J. Battaglia, as U.S. District Judge, U.S. District Court for the Southern District of California, March 10.

Appointed: Max O. Cogburn, Jr., as U.S. District Judge, U.S. District Court for the Western District of North Carolina, March 14.

Appointed: Edward J. Davila, as U.S. District Judge, U.S. District Court for the Northern District of California, March 4.

Appointed: Steve C. Jones, as U.S. District Judge, U.S. District Court for the Northern District of Georgia, March 4.

Appointed: Sue E. Myerscough, as U.S. District Judge, U.S. District Court for the Central District of Illinois, March 14.

Appointed: James E. Shadid, as U.S. District Judge, U.S. District Court for the Central District of Illinois, March 11.

Appointed: Amy Totenberg, as U.S. District Judge, U.S. District Court for the Northern District of Georgia, March 4.

Appointed: Robert L. Wilkins, as U.S. District Judge, U.S. District Court for the District of Columbia, March 1.

Appointed: Mitchell D. Dembin, as U.S. Magistrate Judge, U.S. District Court for the Southern District of California, March 18.

Appointed: Wayne E. Johnson, as U.S. Bankruptcy Judge, U.S. Bankruptcy Court for the Central District of California, February 28.

Appointed: Charles J. Kahn, Jr., as U.S. Magistrate Judge, U.S. District Court for the Northern District of Florida, March 4.

Appointed: Laurie J. Michelson, as U.S. Magistrate Judge, U.S. District Court for the Eastern District of Michigan, February 22.

Senior Status: U.S. Court of Appeals Judge Susan H. Black, U.S. District Court for the Middle District of Florida, February 25.

Senior Status: U.S. District Judge John W. Sedwick, U.S. District Court for the District of Alaska, March 13.

Retired: U.S. Magistrate Judge Michael R. Merz, U.S. District Court for the Southern District of Ohio, March 29.

Retired: Part-Time U.S. Magistrate Judge Robert L. Buchanan, Jr., U.S. District Court for the District of South Carolina, March 31.

Deceased: U.S. Senior District Judge J. Thomas Greene, U.S. District Court for the District of Utah, February 11.

Deceased: U.S. Senior District Judge Donald J. Lee, U.S. District Court for the Western District of Pennsylvania, March 17.

Correction to March Milestones: U.S. Bankruptcy Judge Phillip Shefferly is Chief Bankruptcy Judge, U.S. Bankruptcy Court for the Eastern District of Michigan.

As of April 1, 2011

Courts of Appeals

Vacancies .................................18 Nominees ................................9

District Courts

Vacancies .................................75 Nominees ................................33

Courts with“Judicial Emergencies” ........39


unsanitary conditions in an overcrowded prison that prompted a prisoner infected with Hepatitis C to seek transfer. “He was afraid of dying there,” Arenas said.

During the proceedings, which must be recorded, the magistrate judge determines the competency of the offender to consent to the transfer, advises the offender of the right to counsel, and also deter-mines if there is any pending litigation concerning the offender ’s conviction or sentence, or a pending appeal. If an appeal of collateral attack is filed, it could result in the offender ’s return to the sentencing country. These and other conditions of transfer are read separately by the magistrate judge and explained to the offender. Each time, the offender is asked if he or she

understands the condition and the consequences of the transfer.

“There are very rigid requirements for a reason.

Once the transfer is ordered, it is irrevocable.”

—Magistrate Judge Justo Arenas (D. P.R.)

“There are very rigid requirements for a reason,” said Arenas. “Once the transfer is ordered, it is irrevocable.”

Magistrate judges also hold hearings in the United States to transfer foreign nationals to their counties. These transfers differ from a removal or deportation because the United States provides the receiving country with detailed information about the prisoner who is placed directly in the custody of law enforcement officials in the receiving country.

In the ceremonial courtroom of the Earle Cabell Federal Building and U. S. Courthouse in Dallas, Texas this month,

nearly 120 new citizens took the oath of allegiance to the United States, the final step on their path to citizenship. The Northern District of Texas holds over a dozen natural-ization ceremonies a year at the court, or occasionally at the

Convention Center, when groups swell to over 500. As a former chief judge of the district, Judge Harold Barefoot Sanders Jr.’s portrait hangs in the ceremonial courthouse where the ceremonies are held. His favorite greeting to friends would have been particularly appropriate for these new American citizens to hear: “What did you do for your country today?”

Oath of Allegiance for New U.S. Citizens

On average, 8–10 consent verification hearings are held a year in countries around the world. There is one exception. Magis-trate Judge Paul Stickney is one of the magistrate judges from the Northern District of Texas who travels four times a year to the federal prison in Monterrey, Mexico to hold verification hearings. Prisoners from all over Mexico are brought to Monterrey for the hearings; approximately 100 American citizens annually return to the United States to finish their sentences.

During his visits, Stickney is restricted to his hotel and travels to and from the prison with an armed escort. On one visit, the night before he arrived, three police officers were killed by alleged drug cartel members.

“It has become very frightening down there,” Stickney said. “We may reach a point where the State Department tells me it’s too dangerous. But until then, these are American citizens and I feel it is important we carry out our treaties.”

International Transfer Program Brings Citizens Homecontinued from page 5


INtErvIEw

Judge David Katz (N.D. Ohio)

Oversight and Review at Core of Stewardship

Judge David Katz is chair of the Judicial Conference Committee on Audits and Administrative Office

Accountability. He was appointed to the U.S. District Court for the Northern District of Ohio in 1994.

Q: the scope of your Committee’s jurisdiction—and the commit-tee’s name—changed in recent years. Can you tell us about your committee’s focus and new responsibilities?

A: A Committee on the Administrative Office (AO) was first established in 1987. In September of 2009, the Executive Committee changed the name of the AO Committee to the Committee on Audits and Administrative Office Accountability or the AAOA Committee, and modified its jurisdiction. The change was made to highlight the Committee's continuing focus on the AO's audit review, and inves-tigative assistance services for courts and federal defender organizations.

The AAOA Committee oversees audit, review, and investigative assistance activ-ities and addresses certain other matters involving the Administrative Office, recog-nizing that the AO’s Director is responsible for day-to-day managerial and adminis-trative matters.

Although the Committee had always been involved in these subject areas, we have plunged into them in much more depth and I must say we have gained a much greater appreciation of their importance and their complexity. Through its oversight of these activ-ities, the Committee helps ensure the ongoing effectiveness of the Judiciary’s audit program and the soundness of the Judiciary’s accountability systems.

Q: How does the Judiciary’s audit program work?

A: By statute (28 U.S. C. § 604(a)(11)), the Director of the AO is charged with conducting audits, and the AO has done so since 1975.

The AO’s Office of Audit carries out a comprehensive audit program for all Judiciary funds in accordance with generally accepted government audit standards. This program includes AO staff auditors augmented by contracts with independent CPA firms. There are many different types of audits performed. Courts are most familiar with the cyclical independent audits of local court opera-tions. In addition to those cyclical court and federal defender organization audits, the Office of Audit performs change-of-clerk audits and various special audits. Independent auditor firms also examine funds, programs, contracts, and systems, such as financial systems, Judiciary retirement trust funds, the electronic public access system, and the court registry investment system.

Over 100 financial and adminis-trative audits of Judiciary funds, financial activities, operations, and systems are conducted annually.

The Committee has regular direct access to, and communication with the AO’s Audit Officer and with the independent audit firms retained by the AO. The Committee receives detailed briefings at its biannual meetings from the AO Audit Officer and representatives from the audit CPA firms.

We ask all of the auditors to discuss the scope of their audits and their findings and to give us their assessment of any risks. We want to ensure that audit findings are promptly addressed, and we

also consider appropriate ways to mitigate any perceived risks. For instance, if a particular finding is repeated in numerous court units, there may be a need for clearer guidance and training.

Collectively, internal control measures are policies

and activities that provide reasonable assurance that

assets and resources are protected.

Q: It’s a term used regularly, but what exactly does internal control mean for the Judiciary?

A: Internal control measures are built-in checks and balances to protect assets and to prevent or catch mistakes before they happen. For example, requiring valuable items to be stored in a locked vault or restricting access to sensitive data are internal control measures, as is prohibiting a single person from both serving as a cashier who receipts funds and making the bank deposit. Having another person involved helps to ensure the funds are accurately


See Interview on page 12

counted and deposited. Collectively, internal control measures are policies and activities that provide reasonable assurance that assets and resources are protected; that operations are efficient and effective, that financial reports are accurate and reliable; and that business practices are in compliance with appli-cable laws, regulations, and Judiciary policies. No matter how careful, human beings occasionally make mistakes and so these internal procedures and review measures provide critical insurance. One thing I have observed clearly in my time on the Committee is that where there are good systems of internal control, there will be fewer audit findings. To supplement the cyclical audits, the Judiciary requires each court unit to assess the effectiveness of its internal control procedures at least annually. Not only is this a good practice generally, but there is also considerable management value from these self-assessments.

Accountability is a core value for the Judiciary

because it is essential for the Judiciary to accomplish

its mission.

Accountability is a core value for the Judiciary because it is essential for the Judiciary to accomplish its mission. Accountability entails stringent standards, self-enforcement, fiscal and operational integrity, and effective and efficient use of resources. Through operational and management systems of internal control, we protect against error, loss, waste, unauthorized access, or abuse. Our internal control measures help us to achieve accountability, which is vital to sustaining public trust. We are fortunate

to have conscientious managers throughout the Judiciary who take these responsibilities very seriously. The compi-lation of internal control requirements is lengthy, and I realize these rigorous standards take time and resources to meet, but we believe the end results are worth the investment so that the Judiciary operates well.

Q: what roles do the AO and the Committee play in strengthening internal control?

A: The Committee has played a key role in supporting internal control enhance-ments in the Judiciary. Among the key enhancements recommended by the Committee have been the following: n the expansion of the Administrative

Office’s audit program to include high-risk areas;

n training and awareness presenta-tions that focus on the need for strong accountability systems are held on a continuous basis for Judiciary employees at all levels;

n numerous administrative policies and guidance documents have been updated to address internal control risks and clarify requirements;

n training programs for the formal certification of court contracting staff were instituted;

n financial management guidance and training were enhanced; and

n minimum internal control requirements for numerous administrative functions were defined and consolidated.

Finally, the Committee supports the AO in actually implementing these and other improvements to the audit and internal control programs. For example, we asked the AO’s Audit Office to establish a regular process to follow up with courts to ensure that they address audit findings in a timely manner.

Q: One of the goals of the Strategic Plan for the Federal Judiciary is to “Ensure the integrity of funds, information, opera-tions and programs through strengthened internal controls and audit programs.” Considering all that has been done already, what other things can be accomplished?

A: Some of the major initiatives that our Committee currently has underway include:n Overseeing efforts by the AO to provide

courts with additional information and tools for reviewing their internal control practices, and to enhance follow-up to ensure internal control self-assessments are completed.

n Requesting a comprehensive assessment of the AO’s non-audit related review activities with respect to court units and federal defender organizations to document the scope, objectives, and benefits of these reviews, and identify any opportunities for improvement.

n Along with other Judicial Conference committees including the Committees on Codes of Conduct, Judicial Conduct and Disability, and Financial Disclosure, playing a role in accom-plishing the strategic plan’s goal to enhance education and training for judges and Judiciary employees on ethical conduct, integrity, and accountability. For example, we have asked the AO to post information to ensure that all Judiciary employees are aware of existing channels for reporting concerns about fraud, and waste and abuse. Also, we have asked our Committee staff to document changes to the Judiciary ’s oversight mechanisms.

FIRST CLASS MAILPOSTAGE & FEES

PAIDU.S. COURTS

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FIRST CLASS

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OFFICIAL BUSINESSPENALTY FOR PRIVATE USE $300

INtErvIEw continued from page 11

Q: How would you rate the Judiciary’s accountability systems?

A: I believe the Judiciary has effective oversight and review systems to control and audit expenditures, and to promote stewardship of resources and integrity of operations. The Judiciary’s three-tiered

system of oversight and review involves local, circuit, and national judicial entities. It is an approach that works well because this system is suited to the Judiciary’s unique governance structure.

Obviously there is always room for improvement, and improvements are continually being made. But, the federal

Judiciary and the American system of justice enjoy a high level of trust and confidence by the public, and our Committee believes that this trust is well deserved, but we know it must be contin-ually earned. We are committed to doing our part to ensure the Judiciary retains the public’s trust.

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